Wednesday, 31 March 2010

Nailed at last .... men convicted at the first non-jury trial in the Crown Court

The four men - (Twomey, Blake, Hibberd and Cameron) - charged with a large-scale robbery committed at Heathrow in 2004 have been convicted by Mr Justice Treacy who heard the case without a jury.  See Telegraph 31st March 2010 and the earlier post on this blog.

This non-jury trial was the first under controversial provisions in the Criminal Justice Act 2003 Part 7 which permits non-jury trial in cases of jury tampering.  There is no doubt that defenders of non-jury trial will point to the fact that (a) it enabled these men to be eventually brought to justice and (b) the trial was shorter than would have been the case with a jury and maybe point (b) will be turned into an argument that money could be saved by having more such trials.  Those who defend jury trial will point to the trial being the thin end of a wedge which will lead to loss of juries and the ancient idea of condemnation or exoneration by one's peers.

It is interesting to note that intimidation of jurors is an offence under the Criminal Justice and Public Order Act 1994 s.51.   Will charges follow given that the basis of the non-jury trial was jury tampering?  This seems rather doubtful.  Proving intimidation to the criminal standard would require the presentation of the evidence in court and the decision to order this non-jury trial was based on "secret" information - see R v TR and others [2009] EWCA Crim 1035. - which was seen by the judges under Public Interest Immunity rules.

Addendum 1st April 2010:  In The Times, Frances Gibb, discusses the implications for the future of jury trial.  As widely anticipated, the thin end of the wedge has been inserted and the wedge is likely to be pushed further.  Also, it is worth noting that the Criminal Justice Act 2003 is not the only Act under which a non-jury trial can be ordered.  The Domestic Violence, Crime and Victims Act 2004 s.17 also permits non-jury trial in certain circumstances.  It is difficult to avoid the conclusion that Parliament is gradually eroding the right to jury trial and this is being done by the creation of exceptions which, over time, will be used anything but exceptionally.

Tuesday, 30 March 2010

Illegal Drugs: Mephedrone: Misuse of Drugs Act 1971


Mephedrone (and certain other drugs) will become illegal.  I think, rightly so.  See NHS; Home Office.  The Misuse of Drugs Act 1971 s.2 permits changes to the drugs/substances proscribed to be made by Orders in Council.  For example, from 26th January 2009, Cannabis was reclassified as a Class B drug.

Addendum 1st April:  Now "naphyrone" is making an appearance.

Addendum 2nd April:  It appears that Naphydrone might be the next to be "banned".  The Guardian reports that the Advisory Council on the Misuse of  Drugs (ACMD) is to launch an urgent investigation into the whole range of legal highs now available in Britain. It will look at setting up an early warning system to identify new drugs that emerge on the market and quickly limit their spread.

Further addendum - 2nd April:  It seems that all is far from well in the ACMD.  The Times 2nd April reports of resignations of members and one is related to the mephedrone advice to the Home Secretary.

Addendum - 16th April:  Here a link to the Order amending the law so that 4-methylymethcathinone (commonly known as mephedrone) becomes Class B.  [Certain other drugs are also addressed].

The Parliamentary Four: The Expenses Case gets expensive

The Daily Mail (30th March 2010) has a report of the first Crown Court hearing in the "expenses" case against 3 M.P.s and one Member of the House of Lords.  An array of massive legal talent is being assembled both for the Crown (Lord Pannick QC, Peter Wright QC and two other barristers) and also for the defence.  It is reported that Edward Fitzgerald QC is representing two of the M.P.s and a further QC will be briefed to represent the third whilst Lord Hanningfield is being represented by Alun Jones QC.  The Daily Mail reports that the costs will run into "many millions".  Just who is paying is not clear and why so many "leaders" and "juniors" are required is also unclear.  The meaning of the Bill of Rights 1689 Article 9 is an important constitutional matter but does it really require three days of legal argument?

Please also see the earlier post on this blog.  Interestingly, the trial judge's ruling would apply during the trial but a legally binding precedent will require a decision of the appellate courts.

Point of historical interest: Until the Criminal Justice Act 1948, a member of the House of Lords was entitled to be tried by the House of Lords.  The origin of that right appears to have been Magna Carta Clause 39 which stated - "No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed--nor will we go upon or send upon him--save by the lawful judgment of his peers or by the law of the land".  The last time this right was exercised was at the trial of the 26th Baron de Clifford in 1935.

For the serious student:  See Research brief and First Report on Parliamentary Privilege.

Friday, 26 March 2010

Dissolution: A constitutional wash up?

In English history Parliaments were sometimes given names such as the Long  Parliament and the Rump Parliament.   I wonder what people might call the present Parliament?  Maybe, the Expenses Parliament?  It was first summoned to meet on 11th May 2005 and, perhaps to the relief of many, must end by midnight on 10th May 2010.  We do not have "fixed term" Parliaments and the maximum period permitted by law is now 5 years.  Very soon, the Prime Minister will make a request to H.M. The Queen that Parliament be dissolved.  Dissolution is a Royal Prerogative act.   [See here].

It is usual to announce the dissolution a few days in advance so that Parliamentary business can be finished.  This so-called "wash up" period is often used to seek agreement with the Opposition as to which legislation can be quickly passed through and it looks like the Constitutional Reform and Governance Bill might get through on this basis.  I would hope not since it would enable important constitutional changes to become law without the detailed consideration which they ought to be given.

The White Paper which preceded the Bill contained ideas to reform "war powers" and the role of the Attorney-General.  Those major issues are not in the Bill and they seem to have been "kicked into the political long grass" but very important matters remain.  The idea that constitutional reform can be nodded through as part of the wash up is perhaps another argument favouring a written constitution which could only be amended following a procedure which is more restrictive than that for ordinary legislation.

Thursday, 25 March 2010

It looks like a dismal picture for legal services and for justice

24th March saw the final budget of the Labour Government elected in 2005.  On top of recently announced closures of 20 magistrates' courts, the Ministry of Justice published plans to make further substantial savings - see Ministry of Justice.   There seems to be little doubt that further court closures will occur.

The Legal Services Commission - heavily criticised in a National Audit Office report in 2009 - will become an executive agency of the Ministry of Justice - see here.  This move, clearly intended to give Ministers more direct control over expenditure on legal services, has raised concerns that the independence of those services will be threatened.  See also Magee Review of Legal Aid.

Recent years have seen a massive reduction in legal aid for magistrates' court cases and reforms to legal aid are coming into force in the Crown Court - see here.   Further reforms to criminal legal aid are planned including removing some 75% of solicitor's firms from the market.  The result of this will be a much smaller number of firms - (probably the larger firms) - handling larger volumes of work - see Law Society Gazette 25th March.  Of course, as The Times reported 23rd March, some barristers continue to earn considerable amounts on legal aid work.

Her Majesty's Court Service and the Tribunals Service will be merged.  All of this is over and above reforms which are coming due to the Legal Services Act 2007.

Another fact is that the number of "paralegals" has multiplied from 24,509 in 2001 to 51,250 today - a rise of 109%.  The number of solicitors has increased by around 40% over the same period.


The Jackson proposals about costs in civil cases are also looking problematic - see Times 25th March - where it is argued that they are likely to reduce access to justice.

Hardly a week seems to pass without some new "justice initiative" being announced.  Are we in serious danger of seeing justice go down the plug hole?  At the very least there are grounds for serious concern and it is far from easy to forecast just what the legal profession and the provision of services will look like in a few years time.

See also Legal Action Group Blog.

Wednesday, 24 March 2010

Supreme Court makes a reference to the EU Court of Justice

In British Airways plc v Sally Williams and others [2010] UKSC 16, the Supreme Court of the U.K. has made its first "preliminary reference" to the Court of Justice of the E.U. The case concerns the remuneration of pilots working for British Airways.  It is necessary for the Supreme Court to determine the meaning of certain "Directives" before the court can finalise the case and, since there is no further national appeal, the Supreme Court is obliged to make the reference unless the meaning of the EU legislation is "clear" (the so-called "acte clair" doctrine).  There have been many references to the Court of the Justice of the EU which, until the Lisbon Treaty came into force, was known as the European Court of Justice (ECJ).  Among the most famous references were those in the Factortame litigation when the ECJ asserted the supremacy of EU law over even an Act of Parliament.  [The "Supremacy of EU Law" was established by the ECJ very early in the history of the original "common market" and the British government's stance in Factortame was doomed to fail from the outset].

The preliminary reference procedure is set out in the Treaty on the Functioning of the European Union and is explained here.  Without such a procedure, national courts would be entirely free to interpret things in their own way and there would not be a uniform interpretation within the EU of the Treaties or other legislation.

On a rather lighter note, I was interested to see a case mentioned on the European Law blog which concerned taxation of places where people sit in their own individual booths watching porn movies!  Have a look at the blog - "Dirty Movies, Solitary Pleasure and Concept of Cinema".

Tuesday, 23 March 2010

12th Justice of the Supreme Court


Lord Justice Dyson has been appointed to the Supreme Court of the United Kingdom with effect from 13th April - see Downing Street.

As a result of the Constitutional Reform Act 2005, the Supreme Court came into being in October 2009 to replace the House of Lords (Appellate Committee).

Regrettably, the appointments process has not been without controversy - Times 25th March.

"This is what change looks like" - legal challenges to legislation - could they happen here?

The United States Congress has approved President Obama's health care reforms.  In the U.K. we have had a National Health Service since 1948 and it is taken for granted that everyone will be entitled to some health care in the event of illness.  It is now difficult for U.K. eyes to see why there is any opposition at all the President Obama's reforms but, of course, in the final analysis the opposition is based on money.  Opponents of President Obama's legislation are now saying that they will fight the reforms on constitutional grounds in the courts - perhaps even as far as the Supreme Court of the U.S.    A challenge to legislation on constitutional grounds is possible in the United States - Marbury v Madison 1803 - and the Supreme Court may rule that legislation is unconstitutional and therefore not valid as occurred in, for example, Brown v Board of Education for Topeka 1954.

Under the U.K.'s unwritten constitution, such a challenge would not be possible.  Our traditional legal position is that The Parliament of the United Kingdom is supreme and may therefore make any law it wishes and, whilst the courts are the interpreters of the law, it is Parliament which has the final say about what the law actually is.  The Human Rights Act 1998 handed to the British senior judiciary the power to make a "Declaration of Incompatibility".  This requires the judges to measure any Act of Parliament against the requirements of the European Convention on Human Rights and if the Act is sufficiently contrary to the Convention then the judges may say so.  However, it then remains a matter for Parliament to decide whether to amend the law and, pending any amendment, the legislation remains in force even if is contrary to the Convention.   Some have argued that the Human Rights Act has either "politicised" the judiciary or increased its "politicisation" but the reality is that the judges have not been given power to declare an Act of Parliament unconstitutional and they remain within their traditional role as interpreters of legislation.  They have not become legislators in their own right.

If the U.K. were ever to move to a written constitution then the constitution itself would presumably become the basis of our law and all other laws would have to be measured against it.  If that is right then the judges - especially the Supreme Court of the U.K. - would indeed become a major power in the land.  Is that what we want?  Nevertheless, there are those who argue that we ought to have a written constitution - see Richard Gordon QC The Times 25th March.

Wednesday 24th March - The Times published an interesting article on the American healthcare legislatoin.

Saturday, 20 March 2010

Law of Contract and Mistake

Obviously, contracts are agreements which are legally binding and, as such, enforceable in the courts.  Much of the law is concerned with how such contracts are formed (offer, acceptance, intent to form legal relations etc); what the terms of the contract are; factors which might "vitiate" what would otherwise be a valid contract (e.g. fraud, misrepresentation, illegality, mistake) and how a contract comes to an end (e.g. agreement, frustration, breach).

People entering agreements may make all sorts of mistakes.  "Mistake" may be a vitiating factor but not every mistake operates in this way.  John and James might enter into a contract for a "Constable" painting of Salisbury Catherdral when, in reality, it is not.  Such a mistake did not make the contract void in Leaf v International Galleries [1950] 2 KB 86.  After all, the parties contracted to buy and sell a picture!  The case law on mistake is considerable and the Lore to Law blog carries an interesting picture quiz relating to the cases.  Have a look !

Here is rather more detail on Leaf v International Galleries.  Held: No operative mistake but the painter's identity was held to be a "condition" of the contract.  Breach of a condition entitles the claimant to damages (not claimed in Leaf's case) or, in some instances, to rescind (put aside) the contract.  To rescind the contract Mr Leaf would have had to have acted in a timely manner but he had displayed the picture on his wall for 5 years before he found it was a fake.

The Law Changes: Sentencing "tramlines"?

Further sections of the Coroners and Justice Act 2010 will come into force on 6th April 2010.  These include the requirement that sentencers MUST FOLLOW relevant sentencing guidelines unless the court is satisfied that it would be contrary to the interests of justice to do so (Coroners and Justice Act 2009 s.125).  The present requirement is that sentencers must "have regard to" sentencing guidelines (Criminal Justice Act 2003 s172). There is a requirement that a sentencer gives reasons for any departure from the guidelines (2003 Act s.174). It remains to be seen whether the guidelines will have been transformed into tramlines tying the hands of judges and magistrates.  The Telegraph 11th March reported that the judges were concerned that the change will result in greater use of custodial sentences.

On 4th October 2010, important changes to the law relating to murder will come into force.  The existing partial defences of diminished responsibility and provocation will be abolished and replaced by newly defined defences.  Successful use of the new defences would result in a conviction for manslaughter thereby permitting the trial judge to impose a sentence which he considers appropriate.  Is this not an area where over rigid guidance might not be desirable given that the detailed facts of these cases are very variable.  Guidelines to be of value have to operate in support of the "in the interests of justice"?  The Explanatory Note to the Coroners and Justice Act 2009 explains the changes to the law.

Thursday, 18 March 2010

Local Justice is getting less local

In recent times, the Magistrates' Courts have been equated with the term "local justice", a phrase which implies courts being reasonably near to people (who may have to attend as witnesses etc) and justice administered by people (magistrates) who have knowledge of their locality.  The Ministry of Justice has announced the closure of a further 20 Magistrates' Courts which are said to be under-utilised, lacking adequate facilities or not meeting disability requirements.  Whilst some of the closures might be entirely justifiable it is worth noting that since 1997 some 171 courts have been closed and in the period 1979 to 1997 a further 450 closed.  So-called local justice is getting less local by the day.    Ministry of Justice 18th March 2010.

The Institute of Legal Executives is consulting about the possibility of extending the rights of audience of "associate prosecutors" in magistrates' courts (including youth courts) so that they can prosecute in ALL cases heard summarily.  The Law Society Gazette (18th March) is highly critical of this move - see here.  "Associate Prosecutors" are not qualified as barristers or solicitors but they are regulated by ILEX.  They already undertake certain work in magistrates' courts on behalf of the Crown Prosecution Service - see here.

Addendum: 23rd March - The Ministry of Justice announced huge financial savings - see here. The remaining 19 Courts Boards will be abolished.  Her Majesty's Court Service and the Tribunals Service will be merged.  I suspect that the process of closing smaller magistrates' courts will be likely to continue.

Wednesday, 17 March 2010

Expert witnesses: May we sue them?

Expert witnesses appear in many cases.  Their evidence may be decisive and, occasionally, it may devastate someone's life.  The evidence may turn out to be mistaken. 

An "expert" witness has to be accepted as such by the court and, once accepted, may give an OPINION on a matter provided that it is within his area of expertise.  An expert enjoys immunity from being sued in negligence.  This rule - established by the Court of Appeal (Civil Division) in Stanton v Callaghan [2000] QB 75 -  is based on "public policy".  In the civil case of Jones v Kaney [2010] EWHC 61 (QB) this rule has been questioned by Mr Justice Blake even though, as a matter of precedent, it bound him.  It remains to be seen whether the matter will go to the Supreme Court and, if it does, whether they will uphold the rule or sweep it to one side.  The Supreme Court might decline to hear an appeal.

In 2002, the House of Lords removed the former immunity from action enjoyed by barristers in the conduct of litigation - Arthur J S Hall v Simons [2002] 1 AC 615 but the considerations for advocates are not necessarily the same as those for witnesses.  If the Supreme Court does sweep the protection away, will the door be opened to a considerable number of claims?  That is a distinct possibility.  Is there is a case for prospective overruling to prevent such claims?  The notion of prospective overruling was raised by the House of Lords in National Westminster Bank v Spectrum Plus [2005] UKHL 41.  Of course, removing the immunity might reduce the number of persons willing to provide expert evidence.  Also, perhaps it is really in the interests of justice that a witness can give truthful evidence without fear of subsequent legal action.  It is also unclear how a change might affect criminal cases.  In a number of instances, there have been miscarriages of justice based on what was, at the time, convincing evidence given by a confident expert witness - e.g. Angela Cannings case and the Sally Clark case.

Youth Justice: Information delayed?

According to a report in The Independent (17th March), publication of data for the year 2008-9 relating to "disposals" of criminal offences committed by children (ages 10 to under 14) and young persons (14 to under 18) is being delayed due to the impending general election.  The data normally appears in March.  It seems that there is now a "purdah period" during which information of a sensitive political nature may not be released.  The term "disposal" includes all methods of finalising an offence.  Methods range from police reprimands to various forms of custodial sentence.  It also appears that publication of a report relating to "governance" of the Youth Justice Board (YJB) is being delayed.

Data for "disposals" of youth justice cases up to year 2007-8 can be readily obtained from the YJB website.  In the year 2005-6 there were 212242 disposals; in 2006-7 the figure was 216011 and for 2007-8 it was 210670.  Obviously, over this 3 year period, the data shows a fairly stable position with neither a sharp decline nor increase in youth offending.  Has the government something to hide about 2008-9?  Applying a "purdah" to this data cannot make for a healthy democracy in which informed debate about matters of concern can take place.

Saturday, 13 March 2010

Should we raise the age of criminal responsibility?

Most countries have recognised a need to have an age of criminal responsibility.  Those under the age may not be convicted of an offence.  English common law set the age at 8 but it was raised to 10 by the Children and Young Persons Act 1933 s.50.  Until the Crime and Disorder Act 1998 there was a further important rule.  A child in the age range 10 to under 14 could not be convicted of an offence unless the prosecution could prove that the child knew that the act he was doing was seriously wrong.    However, that rule was abolished by the 1998 Act s.34 and, after some doubt raised by CPS v P [2007] EWHC 946 (Admin), the total abolition of the age 10-14 rule was confirmed by T [2008] EWCA Crim 815.

With somewhat questionable timing (in the light of the return to custody of Venables), the Children's Commissioner for England has put forward the view that the age of criminal responsibility should be raised to 12 - see BBC 13th March.  Currently, there is a move in Scotland to do just that - BBC 1st March.  Many European countries have higher ages than 12.

Whatever the arguments relating to the actual age chosen, is it wise to merely raise the age without also undertaking a detailed review and thorough overhaul of the methods of dealing with those below the age who have committed what would otherwise have been offences?

Links: Children's Commissioner for England / for Wales / for Northern Ireland /for Scotland

Addendum: Here are the views of Baroness Butler-Sloss and also comments from members of the public - The Times 14th March.  The learned Baroness is undoubtedly right in saying that no government would put raising this age to the general public at the moment - especially, one might add, with a general election looming.

Friday, 12 March 2010

Outcomes of cases

Angela Gordon, the mother of Khyra Ishaq has been jailed for 15 years and Junaid Abuhamza (the mother's partner) has been sentenced to indefinite imprisonment but with a minimum term of seven and a half years.  Both were convicted of manslaughter.  Refusing to classify their appalling conduct as "neglect" (which, clearly, it went way beyond), Mr Justice Roderick Evans referred to their treatment of Khyra as "chilling in its harshness and cruelty".  The Independent 12th March.

 ***********************

Law and Laywers also referred to the case of Mr Nick Hogan jailed for non payment of fines imposed for breaches relating to the smoking ban in public houses.   It seems that money was raised from the public and that he has now been released.  Manchester Evening News 10th March 2010.

Does the Bill of Rights 1689 offer a defence to MPs?

Three members of the House of Commons and one peer attended City of Westminster Magistrates' Court on Thursday 11th March 2010 - see The Times 12th March.  They face various charges under the Theft Act 1968 s.17 (False Accounting).  In court they told District Judge (Magistrates' Courts) Timothy Workman that they should not be tried in the criminal courts because Article 9 of the Bill of Rights 1689 protected them:

"That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament"

The charges obviously relate to something done in Parliament since the expenses claims in question were submitted to the parliamentary authorities.  However, it remains to be seen just how it will be argued that submitting an expenses claim related to either (a) freedom of speech or (b) freedom of debate or (c) just how it was a "proceeding in parliament".  The purpose of the Bill of Rights is clear enough.  It is to enable members to say and do what they consider to be right without fear of action being taken against them, provided that it is said or done as part of the processes of parliament such as the making of legislation; raising matters of public concern or scrutiny of executive conduct.

At the time when the men were charged, the D.P.P. stated - "Lawyers representing those who have been charged have raised with us the question of Parliamentary privilege. We have considered that question and concluded that the applicability and extent of any Parliamentary privilege claimed should be tested in court."

The men will appear in the Crown Court at Southwark on 30th March.


Whatever the merits of the case, the men are entitled to a fair trial.  That is the right of any person appearing before the English courts charged with an offence.  This headline is surely unacceptable.  It appears that there is to be no prosecution in the case of Lady Uddin and various other peers - see The Guardian and CPS.

All of these cases predate the Parliamentary Standards Act 2009 which was passed in the wake of the expenses row in 2009.  However, readers may be interested to know that much of that Act is not yet in force though implementation is expected during 2010.

Tuesday, 9 March 2010

Prisoners and voting

In Hirst v United Kingdom (2004) 38 EHRR 40 a Chamber of the European Court of Human Rights ruled that the U.K.'s blanket ban on convicted prisoners voting in elections was in breach of the Convention.  That decision was confirmed by the Grand Chamber in 2006 - Hirst No.2 (2006) 42 EHRR 41.

The Council of Europe has now reminded the U.K. of its obligations to comply with rulings of the court - see The Guardian 9th March.  Progress on this issue has been slow.  The government held a two-stage consultation with the second stage ending on 29th September 2009 - see Ministry of Justice.  Given that a general election is only about 2 months away, it seems unlikely that any change to the Representation of the People Act 1983 will be made by the present Parliament.

Is such disenfranchisement necessary at all given that the right to vote is fundamental to democracy?

Addendum: 10th March - see the views of The Prison Reform Trust.

Addendum 2: 12th March - see The Times "Should Prisoners have the right to vote" - a comprehensive summary of the arguments for and against.  Unfortunately, the article does not look at the arguments relating to any "compromise" solutions.

Monday, 8 March 2010

ACPO: Police Reform: Many questions but few answers

The Association of Chief Police Officers (or ACPO) is, without any doubt, a body well-placed to exercise enormous influence on government policy relating to law and order.

ACPO is a "Private Company Limited by Guarantee" but it receives funding from the Home Office and from Police Authorities.  It seems that there is growing concern within the Conservative Party that ACPO is now "too close" to and uncritical of the Labour government and that it is receiving public money even though it pursues private business interests - see The Times 8th March 2010 ("Tories accuse senior Police of giving cover to Labour" - Sean O'Neill - Crime Editor).

The Conservatives, should they win the next election, might well be seeking to make some, perhaps considerable, reforms of Policing including the possibility of elected police commissioners.  They set out some of their thinking as long ago as 2007 in "Policing for the People" in which they argued that crime was too high; that the Police had become alienated from the public and that there was excessive bureaucracy.  The existing structure of 43 Forces was "no longer a viable option" but two models based on the current 43 Forces could be viable: (1) locally accountable forces matched with effective leadership from the centre to ensure colloboration, or (2) locally accountable forces operating alongside a National Serious Crime Force.  There can be little doubt that such thinking might well be viewed as threatening to the status quo within the higher ranks of the Police.  Would it also actually reduce the already quite minimal local influence over Policing if the existing Police Authorities (including the Metropolitan Police Authority) were to be replaced with elected Commissioners?  There has been very minimal public debate about such proposals and it remains to be seen whether they emerge as formal Conservative Party policy.


Is time running out for ACPO?  Questions are being raised about whether it is truly independent of government given the monies it receives from government.  What would be its role if a future government drove through reforms?  It is also important to note that Parliament has never seriously considered ACPO's role even though it is one of the most powerful of the publicly funded bodies in the UK.  For instance, ACPO has been the driving force behind the National DNA Database and the rules relating to the retention of DNA profiles.  Also, should it receive public money if it is to be a competitor in the provision of various services such as provision of criminal record checks, road safety training etc.

One Chief Constable called, very recently, for mini courts to be established in shopping malls to deal with "shoplifters".  He seemed to ignore the fact that the Police frequently issue such offenders with Penalty Notices for Disorder or, possibly, cautions.  Such views, given their source, are treated seriously in many places and are "on message" with the government's ideas about "community justice".

Saturday, 6 March 2010

A burgeoning underclass of violent, sociopathic thugs.

"Something is rotten in the State of Denmark" - Hamlet Act 1 Scene 4.

The Daily Mail (6th March) highlights the Overslade Crew - a gang operating in Rugby.  They refer to a "burgeoning underclass of violent, sociopathic thugs".  The Times also carried an article relating to London gangs though this article offers a rather different slant since it refers to not merely the "poverty, violence and constant trouble" but also tells of the "vulnerability and humanity" that few apart from the close families of gang members ever see.

In 1997 the Labour Party manifesto spoke of being "Tough on crime and tough on the causes of crime."  Since 1997 there has been a massive expansion in criminal justice legislation and yet serious crime still blights the country and many of the underlying causes of crime remain to be properly addressed.  The answer - assuming there is one - cannot lie in the enactment of masses of further legislation but a good start would be the rigorous application of the law which exists.

The estimable Bystander Blog has recently drawn to our attention reports of HM Crown Prosecution Service Inspectorate (HMcpsi).  Just taking one report - (which can be read on the HMcpsi website) - for Hackney we see in the report this statement -  "The unit operates in a challenging environment in which there is a high level of gun and gang-related crime.  This present associated problems of intimidation of victims and witnesses to prevent their attendance at court when trials eventually take place.  Domestic violence is also prevalent."

The HMcpsi reports are distinctly uncomfortable reading.  As the general election is practically upon us, it might be time for politicians to tell us just what will actually be done about serious crime rather than pretending that everything is under control.  At the moment the Lord Ashcroft issue has been dominating politics.  A God-send for a government which needs a huge distraction away from the really important and serious issues facing Britain in 2010.

Friday, 5 March 2010

Disclosure of information about offenders

We do not have a Megan's Law.  Nevertheless, there is an expanding Child Sex Offender Disclosure Scheme described on a government website here.  The scheme commenced in September 2008 in 4 Police Areas and will, from August 2010, be extended to a further 18 with a complete national "roll out" planned by March 2011.  There is also a Child Exploitation and On-Line Protection Centre.  In essence the scheme enables certain persons with concerns about an individual to have checks made on that individual.  It seems that, in the 4 pilot areas, fathers of children have been one of main users of the scheme as they seek information about their ex-partner's new boyfriend - see The Guardian 3rd March.   The government and Police have claimed that the scheme is proving to be successful - see Home Office 3rd March 2010.  Only time will tell whether a disclosure leads to some form of action by way of revenge.

Note: Sexual Offences Prevention Orders are made by the courts under the Sexual Offences Act 2003 s.104.

Thursday, 4 March 2010

Murder: Life Sentences and Tariffs: Identities of those convicted

30 years ago, Peter Sutcliffe (media alias "The Yorkshire Ripper") was convicted of 13 murders of women in West Yorkshire.  Interestingly, his defence (led by James Chadwin QC) sought to persuade the judge (Mr Justice Boreham) to accept pleas of guilty to manslaughter based on diminished responsibility.  The judge refused and required Sutcliffe to stand his trial for murder.  Once convicted, Sutcliffe received the mandatory life sentence and Boreham J recommended that Sutcliffe serve 30 years.  As the law then stood, such a recommendation was not binding upon the Home Secretary who, in those days, was responsible for deciding the tariff to be served before release could be considered.  The Home Secretary was "advised" on such matters by the Parole Board.  It is now reported in the media that, according to medical reports, Sutcliffe is now "cured" of the schizophrenia which, it is said, he suffered from.  Moves are being made to have a tariff fixed for him.

Since the Criminal Justice Act 2003, it is now the judges who fix a tariff and they do this by applying Schedule 21.  The Parole Board is no longer merely an "advisory" body but operates much more like a court - see the decision in R (Brooks and others) v Secretary of State for Justice [2008] EWCA Civ 29 (I am not sure whether the problems identified in that case have all been addressed adequately).  The Parole Board is concerned with whether the prisoner can be released after the tariff has been served.   Thus, it will fall to a judge to fix the tariff - see Guardian 1st March.  Will it be a "whole life tariff"?  Maybe, but one factor in the case could be that old recommendation for 30 years.  We do not know how Boreham J arrived at that figure.  I hope that it is ignored since justice demands that this killer remains in custody even if "whole life tariffs" will be rare.

Here is a website for more information about the Sutcliffe trial.

I note that the Ministry of Justice has announced that those who kill others by using knives will potentially attract a tariff of 25 years.  The present government has a good record of leading the increase in sentencing for unlawful  possession of knives and, perhaps encouraged by the Court of Appeal decision in Povey 2008 the level of sentencing has increased - see MoJ News release.

The media are full of the fact that one of those convicted of the murder of James Bulger has been recalled to prison.  An injunction is in force to protect his identity: Venables v News Group Newspapers [2001] All ER 908 (Family Division).  The government cannot make any statement which might reveal their new identity and even publishing the reason for a return to custody might provide information which would lead to the new identity being discovered.  Mr Straw is right to maintain the line though I don't really understand why he said to a TV interview that the information could not be released "at the moment".  The protection of these identities is in line with what is now referred to as "the Osman duty" and that is based on Article 2 (Right to Life) of the European Convention on Human Rights.  One difficulty with this situation appears to be just how much information is given to the family of a victim and on what terms is that information given?

Drinking Banning Orders on Conviction

Did you know that (from 1st April 2010) the courts can impose a Drinking Banning Order on a person who has been convicted of a criminal offence committed whilst under the influence of drink?  The law is in the Violent Crime Reduction Act 2006.  I have no problem with that and could think of many who ought never to darken the doors of a public house again (even if they will still get "tanked up" at home)!  I do have a problem with this law applying to offences committed in (say) Salford but not across the River Irwell in Manchester.  It applies in Doncaster but not in (say) Leeds.  This local application of criminal law runs counter to the idea that criminal law provisions should apply equally to everyone no matter where they are in the country.  It comes about because Commencement Order No.8 only applies this law to certain "local justice areas."  This, to paraphrase Churchill, is the sort of law-making up with which we should not put!  The citizen (or should it still be "subject") surely has a right to know the possible consequences of his actions or am I missing something?

Note: From 1st November, a DBO can be imposed in the City of Manchester.

Tuesday, 2 March 2010

Mobile phones and driving: just what is "using"

Regrettably, a lot of legislation is not always entirely straightforward to interpret (or "construe").  The Road Vehicles (Construction and Use) Regulations 1986 Rule 110 seems to give rise to such problems.  Reg. 110(1) states - "No person shall drive a motor vehicle on a road if he is using (a) a hand-held mobile telephone; or (b)..

For present purposes (b) is not relevant.

The Regulations do not contain a definition of "using".  It is clear enough that if the driver is making or receiving a call with the phone in his hand then that is "using."  That must be so on any view of the meaning of the word "using" though such "using" to make an emergency call (112 or 999) would not be an offence where Reg. 110(5) applies.

Reg. 110(6) states - "(a) a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call or performing any other interactive communication function ..."  That seems to be a fairly common-sense description of what is meant by "hand-held".

If a driver merely picks up a mobile telephone but is not making a call or texting is that to be construed as "using"?  It could be argued that this was "using" given that the "mischief" at which Reg. 110 is aimed is that of drivers having only one hand on the vehicle steering wheel and thereby not having proper control.  A potentially dangerous state of affairs.  However, in one Scottish case it was held by a Justice of the Peace that this was not "using".  See Daily Express 26th April 2008.  [Such a case, whilst interesting, would not constitute a legal precedent].  If that view was right then it would be probably necessary for the prosecution to prove that the defendant was engaged in an actual communication and that would make the offence significantly harder to prove.

The word "using" is an ordinary word of the English language.  Ordinary words are normally to be given their everyday (ordinary) meaning.  Interestingly, it is almost impossible to define or describe "using" without including either the word "use" or "using" in the definition !  Thus, "using" would normally be taken to mean that the device was being operated for the purpose (or one of the purposes) for which the device exists (i.e. to communicate etc).  If that view is taken then perhaps whether the phone was in use is just a question of fact for the magistrates to decide and they would bear in my mind the mischief at which the Regulation is targeted?  If an actual call or text could be proved then fair enough.  If the court accepts Police evidence that the driver was seen looking at the mobile telephone for a fairly lengthy period (e.g. several seconds) then perhaps the court might find as a fact that the phone was in use making or receiving a call or text or viewing something on the screen.  If the holding of the phone was very momentary then perhaps a court would find that the phone was not actually being used.  It's an interesting one and there does not appear to be a crystal clear and straightforward answer!

Monday, 1 March 2010

The Smoking Ban: former landlord jailed

The Health Act 2006 sets out to prohibit smoking in certain premises, places and vehicles.  A former landlord of a Bolton public house was fined for 4 offences of breaching his duty (under section 8) to prevent persons from smoking in the pub.  He appealed to the Crown Court but lost the appeal.  He has now been jailed for 6 months for non-payment of the fine of £3000 and costs which have taken the sum owed to almost £10,000.  The high level of costs is due to the fact that the prosecution was brought by the local council.  The Daily Mail (1st March) carried the story.  The legislation is rather convoluted and is backed up by various regulations.  Persons who smoke in smoke-free premises (places or vehicles) commit an offence (under section 7) but they are normally offered a fixed penalty notice.

It is beyond doubt that smoking is harmful to health and the legislation was generally welcomed by many people but criticised by many others.  It seems that this man has taken a view that this law is not justified.  He is paying a heavy price for his stance.  History is replete with people who have taken the stance that they will not obey what they see as an "unjust" law.  Is this an unjust law or is it a perfectly proper exercise of law-making powers?  The Old Holborn blog takes the view that the punishment is outrageous and the excellent CharonQC blog agrees.  Big Brother Watch sees the imprisonment as being out of proportion and they point out (accurately) that some offenders (even of violent offences) do not receive that level of punishment.  Of course, imprisonment is there as the ultimate sanction for enforcement of fines.