Forensic science ... Breaking the Cycle ... Prisoner voting ... Some important decided cases

On 27th January 2011 the government announced in Parliament that there is to be a review of Forensic Science Research and Development - see Home Office   The review is to consider the current and likely future status of research and development relevant to forensic services for the Criminal Justice System within England and Wales.  Could it just be the case that it has now dawned on Ministers that their decision to axe the Forensic Science Service - (see Law and Lawyers 28th December 2010) - might adversely affect future development in this field?

Mr Crispin Blunt MP (Parliamentary Under Secretary of State at the Ministry of Justice) has made a speech to the Social Market Foundation in which he extols the virtues of "payment by results" and "outcome based commissioning" in relation to dealing with offenders.  See Ministry of Justice 25th January 2011.   This speech has to be seen in the context of the government's green paper "Breaking the cycle ...." - see Law and Lawyers 7th December 2010.   The Green Paper is something of a curate's egg: good in parts.  There are certainly proposals to be commended but there is also quite a bit which is controversial.   For example, few would disagree with the notion that prisons should be places of hard work with an emphasis on reform.  Similarly, most agree that community sentences have to be delivered very soon after the offender is sentenced and that they must also be effective with breaches dealt with robustly.

In his speech, Mr Blunt commented that punishment alone is not enough.  "We also need to make sure that we rehabilitate offenders. For the truth is, under almost any system, most offenders will eventually return to the community. If we haven’t addressed their propensity to commit crime, we are not keeping the public safe. It is only through cutting reoffending that we can reduce crime over the long-term."

It is therefore interesting that the government seems to be squaring up
for a scrap with the Council of Europe over Prisoner Voting rights - see Politicshome.  Is it not the case that a strong argument for giving prisoners voting rights is that it could have a rehabilitative possibility?  The "Straw-Davis" motion to be debated in Parliament reads - "That this House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically elected lawmakers; and supports the current situation in which no sentenced prisoner is able to vote except those imprisoned for contempt, default or on remand."   It would have been more accurate for the motion to have said that the European Court noted the absence of debate in the U.K. Parliament on the matter since it is not for the Court to dictate what must be debated and the court did not attempt to do so.  Given the trend which is evident in the European Court's decisions on voting it is likely that continued denial of the vote to prisoners will result in successful human rights claims against the United Kingdom and also result in the U.K. being declared in breach of its human rights obligations under the Convention.  The possible consequences of the latter are not clear at the moment.  Please see also the earlier post on Law and Lawyers 20th January. 

A very interesting post appears on the UK Human Rights blog - "Should people with low IQ be banned from sex?"   The post looks at a difficult case decided recently in the Court of Protection - D Borough Council v AB [2011- EWHC 101 (COP) - note the judgment is anonymised.  The local authority sought a declaration that a man - (referred to as Alan) - could not consent to having sexual relations.  Thr trigger for the council's application was that Alan had made lewd gestures at children.  Alan lacked understanding of the consequences of sexual activity.  The judge (Mostyn J) granted the declaration.  A further question was whether that declaration should be final or, as argued for by the Official Solicitor, an interim declaration coupled with an order to require the local authority to provide Alan with sex education.  The judge ordered adopted the latter course and ordered that Alan receive sex education and the case will be reviewed in 9 months time.  Leave was granted to the local authority to appeal.

Other important recent cases have been the Supreme Court decisions in Yemshaw v London Borough of Hounslow 2011 where domestic violence was considered in the context of housing law - see Law and Lawyers 31st January. and ZH (Tanzania) v Home Secretary - judgment and press release.

A mother appealed to the Supreme Court against her deportation arguing that it would disproportionately interfere with her private and family life as guaranteed by Article 8 of the European Convention on Human Rights.  ZH came to the U.K. in 1995.  ZH had an "appalling immigration history" (per Lady Hale).  She made asylum claims using false names but these were rejected.  She formed a relationship with a British citizen and had two children who are now aged 12 and 9.  The children are British and have lived here all their lives.  Their parents separated in 2005 but the father continues to have contact with them.  Was it reasonable to expect the children to leave the U.K. with their mother?    The Court of Appeal thought so.  When the case was appealed to the Supreme Court, the Home Secretary had accepted that deportation of the mother would be disproportionate but was concerned about the general principles to be applied in these cases by the authorities (e.g. the U.K. Border Agency etc).  The Supreme Court stated that the "best interests" of the children included deciding whether it was reasonable to expect them to live elsewhere.  Their nationality - (and, presumably, life history) - was of importance in assessing their best interests and those best interests were a primary consideration in making the proportionality assessment required by Article 8.  The judgment of Lady Hale contains observations about how the views of the children should be ascertained - para. 34 onwards.

An interesting view about this case is expressed by Rosalind English on the U.K. Human Rights blog - "Analysis: Children's "best interests" and the problem of balance."    Although the Supreme Court stated that the child's "best interests" might be outweighed by the cumulative effect of other considerations it is practically speaking very difficult to think of a set of circumstances where a deportation might now be possible where there are dependent children who hold British citizenship.

Addendum 4th February 2011:   See the Jailhouselawyers blog for considerable discussion on the Prisoner Voting issue.  See also "Prisoner voting: Convicts are human beings with human rights" - Thomas Hammarberg in The Guardian 4th February 2011.  Hammarberg is the Council of Europe's Human Rights Commissioner.  The UK Human Rights blog has previously posted on this subject - "Council of Europe warns UK again over prisoner voting rights" - UK HR blog 19th November 2010 and "European Court of Human Rights sharpens its teeth" - UKHR blog 2nd June 2010.  Please also see the comments to this post.