Thursday, 19 May 2011

Kicking the "Rhino's Skin" ... (the discomfiture of Mr Clarke) - DNA profiles - the Stephen Lawrence murder

Breaking the Cycle and discount for guilty plea:

In December 2010 Law and Lawyers looked at the White Paper - "Breaking the Cycle ...." - which set out the government's thinking on reforms to the ways in which offenders are dealt with.  One proposal - at para. 216 - indicated that the government wished to give incentive to those who are guilty to so plead at the earliest opportunity and, to assist with this, a 50% reduction in sentence is proposed.   This particular proposal hit the headlines spectacularly on Wednesday 18th May after the Secretary of State for Justice and Lord Chancellor (Rt. Hon. Kenneth Clarke QC MP) gave an interview to Radio 5.  It certainly appeared at Prime Minister's Question Time - (see BBC) - that David Cameron might well now be distancing himself from this proposal.  Under present sentencing guidance a discount of up to one-third is possible for an early guilty plea but "early" would usually be taken to mean by the first appearance before the court which will try the case.  Sentencing guidance suggests only a 10% discount if the guilty plea is entered just as the trial is about to start.

Rape:

There was further and greater discomfiture for Mr Clarke over
his reference to "serious rape."  Mr Clarke is an old political warrior with a thick rhino-like political skin.  He will withstand the metaphorical kicking he has received.  As a matter of pure logic, a reference to "serious rape" does not necessarily imply that some rapes are not serious and quite clearly they are all serious.  Rape has a single definition in law (Sexual Offences Act 2003 s.1) but, after a finding of guilt, sentence has to be based on the actual facts of the case.  "Justice" demands no less.  As with all offences, there are gradations of seriousness.  This must have been the point which Mr Clarke intended to convey even if his wording was unfortunate.  In The New Statesman, David Allen Green takes a sensible look at this matter and also (rightly) deprecates the opportunism of David Miliband and the Labour Party.

Retention of DNA profiles etc.... Supreme Court

The UK Supreme Court has ruled that the policy of indefinite retention of DNA profiles taken from those later either acquitted or not charged is in breach of the European Convention on Human Rights - see the judgment in R (G and C) v Metropolitan Police Commission [2011] UKSC 21. This was a 5 to 2 majority decision and the actual decision is unsurprising in the light of the European Court of Human Rights judgment in S and Marper v UK (2008) 48 EHRR 50. As originally enacted, the Police and Criminal Evidence Act 1984 s.64 (PACE s64) required the destruction of samples or fingerprints taken from a person in connection with the investigation of an offence if he was cleared of that offence.  The Criminal Justice and Police Act 2001 s.82 inserted s64(1A) into PACE and altered the law so that samples could be retained but did not have to be.  There is a discretion.  The Association of Chief Police Officers (ACPO) issued guidance to the effect that samples could only be removed in exceptional cases leaving actual decisions to individual Chief Constables.  Naturally enough, the Police wanted the database to be as large as possible.  Some time after Marper was decided at Strasbourg, legislation was enacted to alter the position but was not brought into force.  The Protection of Freedoms Bill now seeks to address the incompatibility.

The majority considered that s64(1A) could be read in a way so as to make it compatible with Article 8 as explained in Marper.   (An example of "reading down").  Thus, a declaration of incompatibility under the Human Rights Act 1998 s.4 was avoided.  The minority (Lords Rodger and Brown) thought that Parliament intended s64(1A) to require the retention of samples indefinitely.  The Police had no option but to retain the data and, although it was not possible to read the section compatibly with the Convention, the actions of the Police were lawful by application of section 6 of the Human Rights Act 1998.

The outcome was that a declaration was granted to the effect that the ACPO guidelines were unlawful.  (This is an application of the Human Rights Act 1998 s8).  A declaration of incompatibility relating to s.64(1A) was not issued since Parliament was clearly dealing with the matter.  Meanwhile it was open to ACPO to alter the guidance for the interim.   For further on this case see UK Human Rights Blog.  It was also interesting that the Metropolitan Police removed the profile of Mr Damian Green MP.  It is not clear just what the "exceptional circumstances " were.

Stephen Lawrence and a further trial:  

In R v Dobson [2011] EWCA Crim 1256, the Court of Appeal (Lord Judge LCJ, Rafferty and Holroyde JJ) has permitted a further trial of Gary Dobson for the April 1993 murder of Stephen Lawrence.  He will stand trial with a David Norris.  A private prosecution of Dobson, Knight and Acourt failed in 1996.  The long-standing "double jeopardy" rule of English law was abrogated in limited situations by the Criminal Justice Act 2003 Part 10.  See also Parliamentary Briefing Paper on Double Jeopardy.

Addendum 20th May:  It appears that Mr Clarke has postponed his plans to announce sentencing reforms.  The idea of 50% discounts for early guilty pleas has now hit the public consciousness and is clearly unpopular.  See the Guardian 19th May.   The Telegraph 20th May looks at the case of Kendeh who was the man who attacked Gabrielle Browne in a park.  He pleaded guilty to rape at the start of his trial, was sentenced to 4 years imprisonment less a one-third discount.  He had previous convictions for sexual offences and was out of prison on licence when he attacked Gabrielle Browne.  All of those matters are, in law, aggravating features.  Cases like this demonstrate that there is an enormous and unacceptable gulf between the public view of what ought to happen to such serious offenders and what actually happens.

See also Solicitor's Journal - "Clarke's 50% discount plan to be ditched"

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