Sir Cyril Smith ~ Corroboration of evidence

Revelations relating to the activities of the late Sir Cyril Smith have been in the media - BBC Sir Cyril Smith: Former MP sexually abused boys, police say 27th November 2012.   Sir Cyril's family are deeply saddened by these allegations - Telegraph 28th November 2012  - where it is reported that Smith’s family laments the fact that the claims had been resurrected "so long after Sir Cyril's death and at a time when he is no longer able to defend himself".

Evidence now made public indicates that a file compiled by Lancashire Constabulary in 1970 contained allegations made by eight men that they had been subjected to indecent assaults by Sir Cyril when they were teenagers.  The file was considered by the Director of Public Prosecutions (DPP) Sir Norman Skelhorn KBE QC who advised that no charges should be brought against Cyril Smith.  (Skelhorn was Director of Public Prosecutions from 1964 to 1977.  The Crown Prosecution Service was not created until 1986 - Prosecution of Offences Act 1985). 

The reasons given by Skelhorn for advising against prosecution are of some legal interest.  The reasons were in a letter from Skelhorn to the Chief Constable of Lancashire (19th March 1970).    Skelhorn stated that the allegations were "without corroboration."

Who is to guard the guardians - Leveson report - Immediate reaction

Lord Justice Leveson has published his report following the end of the first part of his Inquiry at which some 337 witnesses gave evidence and 300 other statements were taken into account.  The report is available via the Leveson Inquiry website.  A video of Lord Justice Leveson launching his report is also available - see The Guardian 29th November.

"The goal must be a genuinely independent and effective self regulatory system. I have therefore set out, and recommend a model for independent self regulation that I am confident would protect both the freedom of the press and freedom of speech along with the rights and interests of individuals; it should therefore command public
confidence."

"An independent regulatory body should be established, with the dual roles of promoting high standards of journalism and protecting the rights of individuals. That body should set standards, both through a code and in relation to governance and compliance. The body should: hear individual complaints against its members about breach of its standards and order appropriate redress while encouraging individual newspapers to embrace a more rigorous process for dealing with complaints internally; take an active role in promoting high standards, including having the power to investigate serious or systemic breaches and impose appropriate sanctions; and provide a fair, quick and inexpensive arbitration service to deal with any civil law claims based upon its members’ publications."

Whole life terms for murder - Vinter and others v UK

Today, the Grand Chamber of the European Court of Human Rights heard argument in Vinter and others v United Kingdom - see video of the hearing.   The case concerns three applicants who are serving sentences of life imprisonment for murder: Douglas Gary Vinter, Jeremy Neville Bamber and Peter Howard Moore.  The three argue that their imprisonment without hope of release is contrary to Article 3 of the Convention - (No one shall be subjected to torture or to inhuman or degrading treatment or punishment).

Submissions were made for the British government by Mr David Perry QC and, for the applicants by Mr Pete Weatherby QC.

The British government submitted that whole life terms - for murders of the most extreme gravity - do not breach Article 3.  This position was supported on 21st November by the Court of Appeal (Criminal Division) sitting as 5 judges with the Lord Chief Justice presiding - David Oakes and others v R [2012] EWCA Crim 2435 - (post at Law and Lawyers 22nd November Two BIG stories).

Cruel Britannia ~ serious material to consider

Suspicions about recent UK involvement in torture or (other cruel, inhuman or degrading treatment ) committed abroad have never been properly laid to rest and they are unlikely to be resolved if the Justice and Security Bill reaches the statute book. Some of the available material is disturbing.

Fourth Annual Baha Mousa Lecture:

On 19th October, my companion blog published - Fourth Baha Mousa Memorial Lecture - Iraq - Unlawful treatment of detainees 'institutional'.  That post covered a lecture delivered by a former Senior Legal Adviser to the British Army in Iraq - Lt. Col. Nicholas Mercer.  The lecture is reported at The Guardian 19th October 2012 where Colonel Mercer said the UK's complicity in the unlawful treatment of detainees was "institutional" and must be wiped out to prevent future abuses by British troops.  Colonel Mercer described how he was gagged by the Ministry of Defence after he criticised senior British commanders and MoD officials in the case of Baha Mousa, who died while in the custody of British troops.  Mercer said his attempts to set up independent judicial monitoring of the treatment of detainees were blocked by the MoD. Britain's obligations under domestic and international law were routinely ignored, he added.

A podcast of Colonel Mercer's speech is now available at Public Interest Lawyers. 

Female bishops - is the Church of England for turning?

The Church of England is the "established" church in England.  It has the right to have 26 Bishops (including the two Archbishops) in Parliament - they sit in the House of Lords.  All Bishops are male and females may not be appointed.  An attempt in the Church of England's General Synod to reverse this was defeated on 20th November - see C of E statement.  The Synod is made up of the "Convocations of Canterbury and York", a house of bishops, a house of clergy to which is added a house of laity.  To change the position, a majority of two-thirds was required in each House.  It was the Laity which, by just 6 votes, rejected the proposal to have female Bishops.

The rejection of female bishops has upset many in the church and also, it appears, in Parliament - The Guardian 21st November.  Also, whilst the church has exemptions under equality law, the move is seen by many as perpetuating unacceptable discrimination.  An e-petition has been raised to try to get a debate in Parliament on the issue.

BBC Question Time (Abu Qatada) and SIAC

On BBC Question Time 22nd November 2012 an audience member asked a question - "Should we simply put Abu Qatada (AQ) on a plane to Jordan?" - see BBC QT at time 8mins 25 secs.  The responses to this question raise some serious concerns about the stance of British politicians regarding the rule of law and the future protection of human rights.

The clear inference in the question is that, irrespective of the decision of the Special Immigration Appeals Commission (SIAC) on 12th November 2012, AQ should simply be deported anyway.   See also Law and Lawyers - Mohammed Othman (Abu Qatada).   In fairness, I am not sure that the man asking the question realised that it was a British court which, in the end, decided that the assurances provided by Jordan were still insufficient to ensure that AQ would receive a fair trial in Jordan.  The key point was that Jordanian criminal law did not necessarily prevent evidence being used by the prosecution at AQ's trial given that it might have been obtained by torture some years ago.

The Question Time Panel was David Dimbleby (Chair), Chris Grayling (Secretary of State for Justice and Lord Chancellor), Harriet Harman (a one-time Solicitor General), Tessa Mount (Liberal Democrats), Nigel Farage (UKIP) and Moray MacLennan (CEO of Saatchi).

Prisoner voting

By today, the government was required to bring forward legislative proposals relating to prisoner voting.  A DRAFT Bill has been issued - Voting Eligibility (Prisoners) Draft Bill

The Bill presents three options for reform:

Option 1: ban for prisoners sentenced to 4 years or more

Option 2: ban for prisoners sentenced to more than 6 months

Option 3: ban for all prisoners - (the draft bill states - "re-enacts the current general ban on prisoner voting, but with a few minor changes")

Quite clearly, Option 3 cannot be compliant with the obligation placed on the UK by decisions of the European Court of Human Rights since the court decided that it was the blanket ban which was non-compliant with Protocol 1 to the Convention.

Two BIG stories

The Court of Appeal (Criminal Division) sat with 5 judges with the Lord Chief Justice presiding and considered whole life tariffs for those convicted of murder.

David Oakes and others v R [2012] EWCA Crim 2435 - Lord Judge LCJ, Hallett, Hughes, Leveson and Rafferty LJJ

This is an important decision not only because of the immediate subject matter but also because the judgment appears just in advance of the European Court of Human Rights decision in the Jeremy Bamber case.  This is the strongest Court of Appeal constitution that I am able to recall and it sends out a very strong message that the principle of a judge being able to impose a whole life tariff is lawful in relation to exceptionally serious murders.

Interestingly, there is a very strong possibility that one of those who sat with Lord Judge will become the next Lord Chief Justice since Lord Judge has now announced his retirement in September 2013.

The other big story is

Sergeant Danny Nightingale ~ Court-Martial and sentence

Update 1st May 2013 - The Guardian reports ruling of judge that there was no abuse of process revealed by certain e-mails.

Update 22nd March 2013 - R v Sgt Nightingale – An unsolicited sentence indication by the trial Judge placed undue pressure on the defendant to plead guilty. Conviction quashed. LINK (Full judgment).  Sgt Nightingale's conviction quashed - retrial ordered.

Update 29th November:  The Court Martial Appeal Court altered Sgt. Nightingale's sentence to 12 months detention to be suspended for 12 months - Telegraph report.   Sgt Nightingale was told he would be freed immediately and was also granted leave to appeal against his conviction on the grounds that his guilty plea had been made on the basis of unsound advice.  This later hearing will be particularly interesting.

Here is the judgment of the Court Martial Appeals Court - Lord Judge CJ; Fulford and Bean JJ - 29th November 2012.

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Original post:

Sgt. Danny Harold Nightingale (Duke of Lancaster's Regiment) was sentenced to 18 months detention (see Footnote 1) by the court martial for being in possession of a pistol and to 6 months for possession of ammunition - the sentences to be concurrent.  The Offences arose under the Armed Forces Act 2006 section 42 (Criminal Conduct).  The specific criminal conduct was (Count 1) Possession of a prohibited firearm contrary to the Firearms Act 1968 section 5(1)(aba) and (Count 2) Possession of Ammunition contrary to Firearms Act 1968 section 1(1)(b).  A particular feature of the offence under section 1(1)(aba) is that it carries a mandatory sentence of imprisonment of 5 years unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify it not imposing this - see Firearms Act 1968 section 51A.  On my reading, if exceptional circumstances are found to exist, section 51A would justify the imposition of either a shorter sentence of imprisonment or a suspended sentence of imprisonment or a non-custodial sentence.  The court found that exceptional circumstances did exist and they may be read in the Reasons for Sentence at pages 30 and 31 of the Transcript of the Court Martial proceedings (via Judiciary website)

Supreme Court ~ Judgment on Vicarious Liability in Tort

The Supreme Court has handed down judgment in The Catholic Child Welfare Society and others (Appellants) v Various Claimants and The Institute of the Brothers of the Christian Schools (Respondents) [2012] UKSC 56

The question was whether the Institute was responsible in law ("vicariously liable") for alleged acts of sexual and physical abuse of children by its members between 1952 and 1992 at St Williams, a residential institution at Market Weighton for boys in need of care (‘the School’).   Claims were brought by 170 men alleging abuse at the school. 


There are two groups of defendants - referred to in the judgment as the Middlesborough defendants and the De La Salle defendants.  The "Middlesbrough Defendants”  were those who took over the management of the school in 1973 and inherited, under statute, the liabilities of the managers of the school before that date. They, or those they represent, concluded contracts of employment with the brother teachers.

Crown Court at Carlisle ~ Sentencing - R v Ahmed ... R v Johns

Two sentencing cases at the Crown Court in Carlisle are of interest.  Both cases offer excellent examples of good sentencing practice and demonstrate the value of sentencing remarks which assist public understanding of the workings of the law.

On 4th August, this blog looked at the sentencing of Iftikhar and Farzana Ahmed for the murder of their daughter Shafilea Ahmed - (Law and Lawyers 4th August).   They were sentenced to life imprisonment with the trial judge - Roderick Evans J - stipulating a minimum custodial term of 25 years (less 66 days on remand). 

On Friday 16th November, at the Crown Court sitting in Carlisle, Irwin J sentenced Alesha Ahmed for robbery at her parent's home in 2003.  It was, in Irwin J's words, a violent and terrifying robbery.  Alesha had actively helped the men who came to the house armed though it was accepted that Alesha did not know they would come armed.  Alesha had used text messages to communicate with the robbers and was present during the robbery.  She pleaded guilty.

This was a case with truly exceptional circumstances which are described eloquently in Irwin J's excellent sentencing remarks - (Judiciary website - Sentencing remarks of Irwin J).  The learned judge was able to exercise mercy and sentenced Alesha to 12 months imprisonment suspended for 2 years with conditions of supervision and mental health treatment.

Cut the crap ~ We are at economic war ... David Cameron and Judicial Review

Updated

The Prime Minister has launched what will be seen as a further attack on access to justice.  In a speech to the Confederation of British Industry, Mr Cameron said that the nation is in the "economic equivalent of war" and that he wishes to rein in certain processes which he considers are hindering infrastructure projects and economic growth.  He listed some of these "inconveniences" - impact assessments, consultations, audits, reviews, EU procurement rules, assessing sector feedback.  "If Christopher Columbus had an Advisory Committee he would probably be still in dock", said Cameron.  As for Judicial Review, Mr Cameron expressed the desire to cut back on the number of applications by imposing tighter time limits (already only 3 months), higher application fees and reducing the number of opportunities to argue about the court's permission to allow an application to proceed.  

Law Society Gazette - 19th November 2012 - Fury and Bewilderment at plans to curb judicial reviews

Ministry of Justice - 19th November - Unclogging the Courts  where the Justice Secretary states:

Supreme Court ~ Important decision due about Vicarious Liability in Tort

On 21st November, the Supreme Court will hand down judgment in The Catholic Child Welfare Society and others v The Institute of the Brothers of the Christian Schools and others .  This is an appeal from the decision of the Court of Appeal (Civil Division) - Pill, Hughes and Tomlinson LJJ - in October 2010.

The issue in the Supreme Court:

The Supreme Court's website states that the question is whether the defendant Institute is vicariously liable for acts of sexual and physical abuse committed by its members who were working at a School.

170 pupils, who attended the School in Market Weighton between 1958 and 1992, brought claims alleging sexual and physical abuse by teachers and staff at the school. The claims were against 35 defendants, some representing the Roman Catholic Diocese of Middlesbrough, which appointed managers of the school and others connected with the Institute of the Brothers of the Christian Schools, of which some of the teachers had been members.

Mohammed Othman (Abu Qatada)

Update 4th December:  The Government is to appeal the decision of SIAC.  As predicted (below), the Home Secretary is not yet prepared to give up the chase!  The Guardian 3rd December.

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The most recent round of litigation concerning Mohammed Othman (Abu Qatada) commenced in 2005 and continues with the distinct possibility that it may continue for some time to come.  In August 2012, the High Court said - "There has been a prodigious litigation history to this claimant’s position in this country."   Previous posts on this case are:

Pesky time limits and Abu Qatada ..... Pesky time limits and Abu Qatada - No.2

Theresa May's trip to Jordan .....Othman - High Court ruling

Why does the government wish to deport Abu Qatada?

Since before 2002, the government has viewed AQ as an exceptionally high terrorist risk.  The Special Immigration Appeals Commission has agreed with this.  In 2007, SIAC found - [AQ's] views on the use of violence in the UK have, ... , hardened, and his expressions of them do encompass the legitimacy of attacking people in the UK. ”

Stories for Monday morning

Here is my selection of five stories this Monday morning.

In Kent, a 19 year old man was arrested - The Guardian 12th November - after a picture of a burning poppy was posted on a social networking website.  The arrest was on suspicion of "malicious communications."  This arrest comes as the Crown Prosecution Service (CPS) is preparing to release interim guidelines for prosecution of offences on social media.  Unless there is something about the case which has not yet been published, this appears to be an exceptionally heavy-handed arrest.  One might have thought that one of the reasons that World War II was fought was to preserve a right to free speech (freedom of expression) within proper limits.  Good read - UK Crime Blog

The BBC is melting down with its Director-General resigning and calls for the resignation of its Chairman (Lord Patten). A possible legal issue to watch here is the publication on Newsnight of comment relating to the Conservative Peer Lord McAlpine - The Guardian 9th November.

Iraq - claims against the government

British military operations in Iraq lasted from March 2003 to May 2011 - Operation Telic - and they have spawned a considerable volume of litigation such as the recent Court of Appeal (Civil Division) case of Smith and others v Ministry of Defence [2012] EWCA Civ 1365.

A number of separate claims are being considered together.

One set of claims relates to three soldiers killed in Iraq whilst on patrol using a "Snatch Land Rover."  Improvised Explosive Devices (IEDs) detonated near their vehicles.

A second set of claims relates to soldiers either killed or injured as a result of so-called "friendly fire" when their Challenger Tank was fired upon.

Private Prosecution ~ Supreme Court judgment due

Update 14th November 2012

English law permits "private prosecution."

General:

A Parliamentary Briefing Paper contains a considerable amount of information about such prosecutions.  A private prosecution is “a prosecution started by a private individual who is not acting on behalf of the police or any other prosecuting authority or body which conducts prosecutions”.  The right of a private individual to bring a criminal prosecution is a historical one originating in the earliest days of the legal system. Although the need for private individuals to bring (and pay for) criminal prosecutions has largely disappeared since the creation of the office of Director of Public Prosecutions (DPP) in 1879 the right to do so nevertheless remains.  It has been described as a “useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders": Gouriet v Union of Post Office Workers [1977] 3 All ER 70 per Lord Diplock.

Worrying trends - No. 3 ~ Upholding the Queen's Peace

The Police are the sharp end of law enforcement and it is fortunate that they continue to enjoy the general support of the public in their work as was recently demonstrated in Manchester - BBC 3rd October and BBC 4th October.  Nevertheless, the Police are facing enormous changes and the future seems to be an uncertain one with morale reportedly at very low ebb - Telegraph 3rd November.  Whilst there is almost always some room for efficiency improvement, the recent cuts to budgets seem to be a huge gamble with public safety in the aftermath of the disorder in 2011.  Furthermore, due to austerity, certain forms of crime appear to be on the increase - (e.g. Austerity triggers economic crime wave).  The implementation of Police and Crime Commissioners (and the abolition of Police Authorities) is part of the coalition government's reform agenda but the implementation appears rushed with relatively minimal effort being made to adequately inform the public of the implications of these powerful Commissioners and the associated Police and Crime Panels - see Police Reform and Social Responsibility Act 2011.

Upholding the Queen's Peace: towards a new consensus on Policing is the title of a recent publication by the Police Federation which states: 

Breach of the anonymity of a rape victim

Ched Evans

The law grants anonymity to the victims of certain sexual offences - Sexual Offences (Amendment) Act 1992.  This is subject to a discretion given to trial judges to disapply the anonymity if such a direction is required to induce potential witnesses to come forward and the conduct of the defence is likely to be substantially prejudiced if no such direction is given.  The victim or alleged victim may in writing agree to the restriction being lifted.  Written consent is not a defence if it is proved that any person interfered unreasonably with the peace or comfort of the person giving the consent, with intent to obtain it.


In April 2012, footballer Ched Evans was convicted of the rape of a 19 year old woman.  He was sentenced to 5 years imprisonment.  His application for appeal against conviction and sentence has been refused - BBC 6th November 2012

Nine individuals pleaded guilty at Prestatyn Magistrates' Court to the offence under the Sexual Offences (Amendment) Act s.5 - see Huffington Post 5th November.  Prosecutions for this offence require the consent of the Attorney-General.  The nine had revealed the identity on Twitter / Facebook  of Ched Evans' victim.  It is also reported that some of the defendants launched abuse at the victim.

Worrying trends - No. 2 ~ Open Justice assailed

On Friday 2nd November, an "interesting exchange" was reported to have taken place in the High Court.  The Guardian - Torture claims halt Ministry of defence transfers to Afghan jails - reported that the MoD was seeking to transfer "insurgents to Afghan jails" but the High Court blocked the transfer having heard evidence that they would be handed over to a "notorious torturer and alleged killer."

Baroness Warsi - (Foreign and Commonwealth Office) - had failed to question assurances by Asadullah Khalid, the head of the Afghan National Directorate of Security (NDS), even though it is alleged that he has been personally been involved in torture.

Worrying trends - No. 1 ~ Lawyers as Gate Keepers

One of the most cherished aspects of the legal profession is its obligation to clients of confidentiality.  Almost from time immemorial, confidentiality (legal professional privilege) was drilled into "articled clerks" (as they once were), trainee solicitors (as they now are) and pupil barristers.  Is this important principle under increasing attack?

Writing in the Law Society Gazette 1st November - Jonathan Goldsmith draws attention to how lawyers are gradually being turned into gatekeepers for information they hold about their clients - see Information demands lay siege to confidentiality.  A major breach in the confidentiality of client information came with money laundering legislation which forces lawyers to provide investigators with information.  Two cases - (Michaud and Monaco) - on this are currently before the European Court of Human Rights.

In Patrick Michaud v France, one of the arguments is whether Article 8 (‘Everyone has the right to respect for his private and family life, his home and his correspondence’) has been breached by France when implementing EU money laundering legislation.  Michaud complains that, since a lawyer has to report suspicions relating to people coming for legal assistance, under the threat of disciplinary sanctions if he or she fails to do so, protection of lawyer-client confidentiality is inadequate.

In the Supreme Court this week

Habeas Corpus:

The Supreme Court handed down judgment in Secretary of State for Foreign and Commonwealth Affairs v Yunus Rahmatullah [2012] UKSC 48.

The Court of Appeal (Civil Division) had issued a writ of habeas corpus with a view to securing Mr Rahmatullah's release.  He remains held by the USA at Bagram, Afghanistan.  Later, the Court of Appeal accepted that the Foreign Secretary had made an adequate "return" to the writ.

The Foreign Secretary  appealed the decision of the Court of Appeal to issue the writ of habeas corpus and Mr Rahmatullah cross appealed the decision that the response by the US was sufficient to demonstrate that the UK could not secure his release.