August: will voices of calm prevail?

* A Northern Viewpoint *

With Addendum 1st September 2011  

Let sense be dumb, let flesh retire; Speak through the earthquake, wind, and fire, O still, small voice of calm! - John Greenleaf Whittier (1807-92) - "The Brewing of Soma"

Writing on the UK Constitutional Law Group blog, Professor Keith Ewing - Professor of Public Law, King's College, London - reflects on the reaction to the disorder which occurred in early August.  Britain's political classes were "gripped by panic" .... the country responded in a "wholly disproportionate manner ..." and there were "grand-standing prosecutors and District Judges."  Professor Ewing's article is well worth reading in full - UK Constitutional Law Group - "The Sound of Silence - Human Rights, the Rule of Law and the Riots."

Eoin McLennan-Murray, president of the Prison Governors’ Association, claimed that magistrates had lost all sense of proportion. “It’s like when you’ve got sharks and there’s blood in the water and it’s a feeding frenzy,” he told The Independent on Sunday. “There’s a sentencing frenzy and we seem to have lost all sight of proportionality.”  This claim was countered by Mr John Thornhill of

Explaining our law and legal system ... No.7 ... Youth Justice ... Part 2 (Modern System)

Updated 30th August

The key features of the youth justice system:

For youth justice purposes, a child is aged 10 to 13 and a young person is aged 14 to 17.  Persons under age 10 cannot, in law, be guilty of a criminal offence though local authorities may apply to a Magistrates' Court for a Child Safety Order (Crime and Disorder Act 1998 s11) and they are empowered to institute "care proceedings" under the Children Act 1989.

Part 1 of this post noted that the principal objective of the youth justice system is prevention of offending by children and young persons.  Further, every court in dealing with a child or young person shall have regard to the welfare of the child or young person.

The Criminal Justice and Immigration Act 2008 s.9 was enacted to alter the law relating to the purposes of sentencing for offenders aged 10 to 17.  This has not yet been implemented.

The principal objective appears to be somewhat at odds with the U.N. Convention on the Rights of the Child which states in Art 3:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

There is a Youth Justice Board (YJB) and also local authorities operate Youth Offending Teams (YOT).

Youth Courts which are based in Magistrates' Courts.  Exceptionally, children or young persons can be tried in the Crown Court.

The Youth Justice Board (YJB):

The YJB was created by the Crime and Disorder Act 1998 s.41 and it oversees the youth justice system in England and Wales.  The YJB is an executive non-departmental public body and its board members are appointed by the Secretary of State for Justice.  However, it operates at arms length from the government and has an extensive list of functions set out in section 41(5).  A fuller description is in "Introduction to the Youth Justice Board."

Youth Offending Teams (YOT):

Local authorities are required to establish Youth Offending Teams - Crime and Disorder Act 1998 s.39.  The teams are multi-disciplinary bodies, comprising staff from the Police, Probation Service, Social Services, Health and Education services.  This enables them to more comprehensively respond to the needs of children and young people who have offended and those who are at risk of doing so.  The YOT will identify the needs of each young person, the specific problems leading to offending and the risk that he or she poses to others.  The YOT can then identify suitable programmes to

Explaining our law and legal system ... No.7 ... Youth Justice ... Part 1 (Background)

Previous posts in this series:
No.1 - Legal Personnel
No.2 - Courts of Law and Tribunals
No.3 - The Judges
No.4 - Juries
No.5 - Magistrates

No.6 – Sources of Law

For the purposes of youth justice, a "child" is under age 14.  A "young person" is aged 14 to 17 inclusive.  This post, on the Youth Justice System, will be in two parts.

The poster (pictured above left) was produced in 2009 when Sheffield Youth Court held an "open day."  It encapsulates the development of youth justice from the merciless severity of pre-Victorian England to the modern system which has the principal aim of preventing offending by children and young persons (Crime and Disorder Act 1998 s.37).  Furthermore, since the Children and Young Persons Act 1933 s44, every court in dealing with a child or young person shall have regard to the welfare of the child or young person.

A sketch of the history:

"Juvenile Courts" - (as they were then known) - did not come until the Children Act 1908.  The Act also abolished the death penalty for children under age 16 and made child neglect and abuse a criminal offence.  Before this Act, children were tried as adults and frequently given punitive sentences.  The Act created a court which not only addressed criminal matters but also covered care proceedings.  Here was a recognition that criminality in the young can be linked to the "care" given to the child in the home environment.  Interestingly, the Children Act 1989 separated the functions of juvenile courts so that welfare-related matters are now dealt with as "family proceedings" and crime is handled by the juvenile courts.  The Criminal Justice Act 1991 s.70 renamed the juvenile courts as Youth Courts.

The Children and Young Persons Act 1933 created the "welfare principle" in youth court proceedings (s.44) and raised the age of criminal responsibility to 8 - (1933 Act s.50).  This age was raised to 10 years by the Children and Young Persons Act 1963 s.16.   This remains a controversial issue - see earlier Law and Lawyers post "Criminal Liability of Children and their trials" - 26th May 2010.   A White Paper in 1965 - ("The Child, the family and the Young Offender") - proposed raising the age to 16.  The Children and Young Persons Act 1969 contained provision to make it 14 but, following a change of government from Labour to Conservative, this was never implemented.

One matter which was abolished by the Crime and Disorder Act 1998 s.34 was the "rebuttable presumption of law" known to lawyers as "doli incapax" - that is, that a person under age 14 was presumed to be incapable of committing a crime unless it could be shown that he knew that he was doing something that was wrong.  The matter was considered by the House of Lords in R v JTB [2009] UKHL 20 where it was held that section 34 had abolished not only the presumption of doli incapax but also any such defence.  The existence of the presumption was

(1) The August Disorder - more sentencing .... (2) A seriously disturbing family case

Disorder - sentencing:

Sentencing remarks by His Honour Judge Milmo QC for the case of R v Ahmed Pelle at the Crown Court Nottingham are now available.  Pelle pleaded guilty to incitement of violent disorder.  Amongst other things he put on Facebook the remark - "Kill one black youth; we'll kill a million Fedz: riot until we own the cities."  Judge Milmo's remarks are a concise model of a sentencing announcement which meets the various legal requirements - please see earlier Law and Lawyers post "Recent Disorder: Bail and Sentencing."  Allowing for his guilty plea, Pelle was sentenced to 2 years and 9 months imprisonment.

Further sentences - imposed at Inner London Crown Court by His Honour Judge Chapple - are available and the sentencing appears to be in line with those being imposed at other Crown Court locations.  See R v Alagago, Patel and Khanom.  

Crimeline also has links to other sentences arising from the disorder.

These include R v Fitzpatrick - (aged 18) - sentenced to 2 years and 4 months in a Young Offenders Institution for 3 counts of burglary and 1 count of handling stolen goods.  Also, R v Marley, King, Millers, Fernandes and Ieta sentenced at the Crown Court Manchester.  His Honour Judge Henshall stated - "The five defendants before this court today clearly felt that they were able to do as they pleased because of their perception of there being strength in numbers. No doubt they felt secure amongst a large crowd of which each member in turn felt similar strength and encouragement from those around.  This is why offences such as these fall outside what might be described as the normal context of criminality for offences of dishonesty ....."

Pre-sentence reports:   In his sentencing remarks in R v Pelle, Judge Milmo said - "

I see no reason why Pre Sentence Reports should not be called for in these cases: it is clear that in Manchester both Judge Gilbart and Judge Atherton had PSR’s in all the cases in which they recently sentenced. I have made local arrangements for their preparation on the morning of the hearing if no report has been prepared previously. But I would invite Justices and District Judges

The Hillsborough Disaster - April 1989 - the search for information continues

Update 13th September - there will be a debate in Parliament on 17th October

Updated 25th August

The 1980s saw a number of appalling disasters at Football grounds: Heysel stadium 29th May 1985; Bradford City 11th May 1985 and Hillsborough 15th April 1989.  An e-petition relating to the Hillsborough disaster has reached over 100,000 signatures.  The petition follows a Decision Notice (Ref: FS50350458 of 20th July 2011) by the Information Commissioner.  The decision may be accessed via the Information Commissioner's website - on the July 2011 page - here. 

The complainant requested information dating from April 1989 relating to the Hillsborough disaster that was provided to the then Prime Minister (Margaret Thatcher) or material which recorded meetings on this matter which were attended by the Prime Minister. The Cabinet Office refused

Detained persons: blanket refusal to bail: possible legal challenge

Burning bus at Tottenham

During the recent extensive public disorder, many arrests were made.  Naturally, this made it difficult for Custody Officers at some Police Stations to process detainees as quickly as normal.  However, did this justify a blanket policy of the Police not granting bail?

According to a document published by The Guardian on 22nd August, the Metropolitan Police decided that it was impractical to bail for the purpose of protracted investigation - see "Prisoner Processing Strategy."  In all cases an application would be made for a remand in custody both at the Police Station and later at court.  This was argued to be in the interests of public safety and the prevention of further cases of public disorder.   It seems that a legal challenge to this policy is under consideration - see article by Polly Curtis (Whitehall Correspondent) in The Guardian 22nd August 2011.

Terminology?  Persons arrested and held by the Police are "suspects" or "detainees" - see, for instance, PACE Code C where the word "detainee" is generally used.  The word "prisoner" is usually reserved for those held in one of H.M.Prisons.

Further analysis:

The recent disorder: bail and sentencing.

Arson at "Miss Selfridge" - Manchester

Controversy:

Much controversy has been raised by the sentencing meted out to some of those charged with offences committed during the recent disorder.  Many cases have already been sentenced either in the Magistrates' Court.  A lesser number of cases have been dealt with by the Crown Court.  (Given the short time between committal to Crown Court and sentence, the latter would be guilty pleas).

In the Magistrates' Courts, the majority of the cases have been dealt with by professional District Judges (Magistrates' Courts).  The use of "lay benches" has been very much the exception.  The reason for that is not entirely clear at this time.

The District Judges have taken a "tough line" both by way of refusal of bail and by sentences of imprisonment which are seen, in some quarters, as disproportionate to the seriousness of the actual offending - see BBC 17th August - "Some England riot sentences too severe."  The stance taken by the courts reflects views expressed by David Cameron that offenders should feel the "full force of the law."

In one instance where a lay bench was used - (at Camberwell Green Magistrates' Court) - it was reported that the Bench Chair stated that the court had been issued with a "...government directive..." to jail all riot offenders.  Such a directive would be unlawful and unconstitutional since it is the judiciary which has the responsibility for sentencing.  Subsequently, the Judicial Office issued a statement which said: - "The senior judiciary has given no directive in relation to sentencing for offences committed during the recent widespread public disorder."

Refusal of bail:

Bail appears to have been refused in a high proportion of the cases.  The Bail Act 1976 begins with the proposition that the UNCONVICTED defendant has a right to unconditional bail.  This right may be lost when one or more stipulations set out in Schedule 1 of the Act apply.  For example, bail may

Some thoughts on a desperate August week

Saturday 13th - brief update:  "Police revolt against David Cameron's reform agenda" - The Guardian.  "Public lack confidence in Tory leaders following disturbances" - The Independent.   "Riot boy's family is kicked out ..." - Daily Mail - which reports on the first case in which a Council is seeking to evict a tenant from social housing.  "Judges warned by Law Society not to hand down 'rushed justice' - Guardian. 

-----

This week has seen major and, to my mind, inexcusable, disturbances and criminality in many English cities and towns.  Lives have been lost, buildings destroyed, businesses ruined.  Most businesses will, hopefully, recover.  Others will decide not to bother and their premises will stand empty and boarded up on the "high streets".  The criminal damage and theft will amount to losses to be counted in millions of pounds.  Law and lawyers looked at the Riot (Damage) Act 1866 in a post below.

Amid the tragic images of burnt out buildings and feral looting, there have been some magnificent examples of the English people at their absolute best and the majority of people have expressed their continuing desire to live under the rule of law even if they wish that the criminal courts were generally tougher on offenders.   The example set by Mr Tariq Jahan was exemplary when he appealed for calm in Birmingham following the death of three men including his son Haroon (aged 21).  (The case is being treated as murder).

Lawyer David Allen Green published some

Defence of property: what is permissible?

Reeves at Croydon - burnt out

Normally, in a democratic society, people rely on the Police to be able to respond in a way which makes it unnecessary for the individual to have to act to defend his property.  The responsibility for the maintenance of law and order rests primarily with the State authorities: principally, with the Police.

The Telegraph 10th August  - "Close knit neighbourhoods rally for their own defence" - reports that people are acting to protect their businesses against possible attacks by those intent on either stealing or causing criminal damage.  See also Independent 10th August. and SkyNews "Fed up residents form Anti-looter patrols."  It is human nature to act to protect self, family and one's property but to what extent is it permissible by law?

Statute Law:

The Criminal Law Act 1967 s.3 is headed "Use of force in making arrest, etc."

(1)A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

(2)Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.

The word "crime" clearly covers acting to prevent theft, burglary, criminal damage (including arson).  Thus, the key question comes down to what "is reasonable in the circumstances."

The Criminal Justice and Immigration Act 2008 s.76 comes into play.  This section

Who will pay? We all will ! The Riot (Damages) Act 1886

The damage caused by the events in London and elsewhere is extensive and the costs involved will be massive.  Who pays?  There is the Riot (Damages) Act 1886.  Section 2 of the Act states:

(1)Where a house, shop, or building in a police area has been injured or destroyed, or the property therein has been injured, stolen, or destroyed, by any persons riotously and tumultuously assembled together, such compensation as hereinafter mentioned shall be paid out of  the police fund of the area to any person who has sustained loss by such injury, stealing, or destruction; but in fixing the amount of such compensation regard shall be had to the conduct of the said person, whether as respects the precautions taken by him or as respects his being a party or accessory to such riotous or tumultuous assembly, or as regards any provocation offered to the persons assembled or otherwise.

(2)Where any person having sustained such loss as aforesaid has received, by way of insurance or otherwise, any sum to recoup him, in whole or in part, for such loss, the compensation otherwise payable to him under this Act shall, if exceeding such sum, be reduced by the amount thereof, and in any other case shall not be paid to him, and the payer of such sum shall be entitled to compensation under this Act in respect of the sum so paid in like manner as if he had sustained the said loss, and any policy of insurance given by such payer shall continue in force as if he had made no such payment, and where such person was recouped as aforesaid otherwise than by payment of a sum, this enactment shall apply as if the value of such recoupment were a sum paid.

An interesting recent case concerning the Act is Yarl's Wood Immigration Ltd v Bedfordshire Police Authority [2008] EWHC 2207 (Comm) Beatson J.  This decision was reversed by the Court of Appeal (Rix, Wall and Aiken LJJ).

In April 2002, the House of Commons Home Affairs Committee report on the Police Reform Bill said:

The Downton Abbey entail ....

Coutndown to Downton ... Independent ... 4th September 2011

Noticing the other day that the highly successful ITV series "Downton Abbey" is to resume this autumn, I decided to do a "refresher" by watching some of the episodes in Series 1 which I have on DVD.  The series is a fascinating and entertaining presentation of life in a large landed estate just before World War I.

That war resulted in a breakdown of much of the old social order where many people continued to be "in service."   It also eventually led to "universal suffrage" - though not finally achieved until 1928.  Nevertheless, the aristocracy is still with us and, until the House of Lords Act 1999, inheritance of a title meant receipt of a "writ of summons" to attend the House of Lords and to be part of the legislature.  Further reform of the House of Lords continues to be put forward.

In the story, the 6th Earl of Grantham (played by Hugh Bonneville) inherited both his title and Downton Abbey from his father.  The land is subject to what, before 1926, was referred to as an "entail" (or "fee tail").  Like many a student of my day, I read about "entails" but never actually encountered one!  However, what follows is a tentative look at what the law might have said about the fictitious Downton Abbey back just before the 1st World War.

Some history:

It seems that the ancient

DNA: Is it truly the "Gold Standard" of forensic techniques?

Updated 25th December 2011

Updated 6th August

Some are attributing it to the "silly season" but a debate has broken out about restoration of capital punishment.  I have no hesitation in declaring that I am opposed to it.  Furthermore, it cannot return as long as the United Kingdom is a member of the Council of Europe.  This is because the U.K. is bound by the European Convention on Human Rights Protocol 13 which abolishes the death penalty in all circumstances in Council of Europe States.  It seems particularly bizarre that, at a time when the UK will soon assume the Chairmanship of the Committee of Ministers of the Council of Europe, there might even be a debate in the UK Parliament about a return to hanging.

The death penalty is, of course, absolutely final.  Life cannot be restored no matter how wrongful the conviction is later proved to have been.  (Similarly, lost years spent in prison cannot be restored but sometimes compensation may be payable for miscarriage of justice).

One of the most frequent comments made by supporters of the death penalty is that - "We now have DNA evidence."  By this they seem to have the view that a miscarriage of justice is impossible in a case where there is DNA evidence.  In fact, there is much reason to be sceptical about such claims.

Forensic science exerts a powerful influence on the mind.  There is a general fascination with it and the results which are achievable.  TV programmes

What is a Segway?

Segways

General information about Segways

The Administrative Court recently gave judgment in Coates v CPS [2011] EWHC (Admin) 2032.  Mr Coates was charged with:

"On 12/02/2010 at Barnsley wilfully rode a motor vehicle, namely SEGWAY upon a footpath or causeway by the side of a road, namely PONTEFRACT ROAD, made or set apart for the use or accommodation of foot passengers. Contrary to section 72 of the Highway Act 1835."

He was convicted by District Judge (Magistrates' Courts) Rosenberg sitting at Barnsley Magistrates' Court.

Very little of this old Act survives but section 72 continues in force.  At para 16 of the judgment, the court said that section 72 contained 3 ways in which the offence could be committed.


1) If any person wilfully rides upon any footpath
.
2) If any person wilfully leads or drives any … carriage of any description, or any truck or sledge, upon any such footpath.

3) If any person tethers any horse, ass, mule, swine, or cattle on any highway, so as to suffer or permit the tethered animal to be thereon.

On a straightforward

The Shoesmith case: appeal to Supreme Court refused

On 30th May, Law and Lawyers looked at the Court of Appeal's decision in the Sharon Shoesmith case - see "Accountability" is not synonymous with "Heads must roll" - but are there really constitutional issues at stake?  The government and Haringey Council wished to appeal the Court of Appeal's judgment.  The present government, somewhat implausibly, stated that constitutional issues were at stake.  Hardly!  The Secretary of State - (at the time it was Rt Hon Ed Balls MP) - had ample powers.  The problem was with how he exercised them.  The Supreme Court has refused permission for an appeal - see 11 King's Bench Walk Education blog.  As 11KBW point out, this may not be entirely the end of the matter since other legal proceedings remain.

11KBW has an Education Law Practice Group and maintains an excellent blog on this increasingly complex subject. 

Liberty: deprivation or restraint?

The Trinity Law term ran from 7th June to 29th July and produced some important decisions.  The Michaelmas Law Term does not start until 3rd October so the senior courts will be relatively quiescent until then.  This provides an opportunity to look at a few of the decisions during Trinity term.

The Court of Protection:

Little is known by the general public about the Court of Protection.  It was created, from 1st October 2007,  by the Mental Capacity Act 2005 s45.  It has the same powers, rights, privileges and authority as the High Court.  A general description of the court's work is available via the Judiciary website.  Court of Protection Rules provide that the court usually sits in private (Rule 90).  The court may authorise publication of information about proceedings but, in doing so, is entitled to insist on the parties remaining anonymous. In fact, quite a number of judgments have been published.   Where the proceedings concern a person's personal welfare the general rule is that there will be no order as to the costs of the proceedings or of that part of the proceedings that concerns P’s personal welfare (Rule 157) but, under Rule 159, the court may depart from the general rule if circumstances justify.

Court of Protection Report for 2010

Recent decisions of the Court of Protection:

Two cases of particular interest arose in June.  First, was the very disturbing Steven Neary case which Law and Lawyers followed earlier.  The court's full judgment (of Peter Jackson J) is available.

The second case is that of Cheshire West and Chester Council v P and another [2011] EWHC 1330 (COP) - Baker J.   This case is of particular interest for three reasons.  The main reason is the consideration by Baker J of the distinction between deprivation of liberty and restraint.  It may be that, in the course of dealing with a person, the professional staff involved have to exercise restraint to some extent.  When does that amount to deprivation of liberty?  The case is also of interest because

A long time ago in a galaxy far, far, away ...

The Stormtrooper helmet case has been decided by the UK Supreme Court - Lucasfilm Ltd and others v Ainsworth and others [2011] UKSC 39.

Lucasfilm Ltd - (a company owned by Mr George Lucas the creator of Star Wars) - sued in the English High Court's Chancery Division claiming infringement of copyright in the Stormtrooper helmets.  The main defendant was Mr Andrew Ainsworth who is skilled in vacuum-moulding in plastic. 

Previously, Lucasfilm had obtained a judgment in California and, in the High Court action, they asked for enforcement of the Californian judgment (which had not been satisfied) and also asked the High Court to rule on copyright infringement claims arising under United States copyright law.

In the Chancery Division, Mann J gave judgment in July 2008.  He held: (1) that the English infringement of copyright claims failed because the helmet was not a sculpture within the Copyright, Design and Patents Act 1988 (CDPA); (2) the Californian judgment could not be enforced in England and (3) the United States copyright claims brought by Lucasfilm were justiciable in England and Mr Ainsworth and his company had infringed those rights.

The Court of Appeal [2009] EWCA Civ 1328 agreed that the helmets were not a sculpture.  They also agreed that the U.S. judgment could not be enforced in England and there was no further appeal on that point.  The Court of Appeal disagreed with Mann J on the justiciability of the US copyright claims.

The Supreme Court, in a very detailed judgment, approved nine "guidelines" contained in Mann J's judgment (para 118) and which Mann J had