Sgt. Danny Nightingale ~ Military justice under the microscope (1)

Duke of Lancaster's Regiment

Update 1st July - Court Martial to start hearing evidence

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Sergeant Danny Nightingale will be on trial - for the second time - at the Court Martial sitting at Bulford Military Court Centre, 1st July 2013 at 10:00 am, before HHJ Blackett, Judge Advocate General - for the background to this case see Law and Lawyers 21st November 2012. 

In November 2012, the Court Martial Appeal Court altered Sgt. Nightingale's sentence to 12 months detention to be suspended for 12 months - judgment of the Court Martial Appeals Court - Lord Judge CJ; Fulford and Bean JJ - 29th November 2012.   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. 

In March 2013, Sgt. Nightingale's sentence was quashed - (judgment - Lord Judge CJ; MacKay and Sweeney JJ)- and a retrial ordered.  The

27th June - The Backbench Legal Aid debate

Updated:

The Lord Chancellor 'is trying to weaken the golden triangle of Parliament, the judiciary and the Executive that underpins the rule of law and the framework of a good society—our society. These proposals are toxic to society and should be withdrawn.' - Valerie Vaz MP

The House of Commons held a backbench debate today (27th June) on Legal Aid Reforms.  The debate may be read HERE and there is no substitute for reading it in full.  The contributors to the debate generally accepted that the criminal justice system cannot be immune from cost savings but the Price Competitive Tendering model put forward in the consultation was castigated.  Numerous excellent points were made including some alternative and preferable ideas for saving money.  Other major concerns were: the 12 month qualification period for immigrants: the proposals to remove legal aid from most prison law matters and the attack on judicial review.  There was  deep concern that such a major change might be made - (as government currently intends) - by secondary legislation. 

The e-petition remains important ... please consider signing it. 

On Wednesday 26th June, there was also a short Westminster Hall debate about Legal Aid in rural Wales - HERE.  Ar ddydd Mercher 26 Mehefin, cafwyd dadl yn Neuadd San Steffan byr am Gymorth Cyfreithiol yn y Gymru wledig

Jeremy Wright (Parliamentary Under-Secretary Ministry of Justice), defending the government's position, indicated that £320m will have been taken from legal aid by 2014-15 as a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).  Changes under

Mid-week news roundup

* Stephen Lawrence / Undercover Policing and execrable behaviour:

The BIG story (so far) of the week takes us back to the Stephen Lawrence murder on 22nd April 1993.  On 23 June 2013, an interview with Peter Francis, a former under-cover police officer, was published in The Guardian.  In the interview Francis disclosed that while he was working undercover within an anti-racist campaign group in the mid-1990s, he was constantly pressured by superiors to "smear" the credibility of the Lawrence family so as to put an end to campaigns for a better investigation into Stephen's death.    After the revelation, Theresa May, the UK's home secretary pledged to be "ruthless about purging corruption from the police" (see her statement in Parliament), and Prime Minister David Cameron ordered Police to investigate the allegations, saying of them that he was "deeply worried about the reports".   Chief Constable Mick Creedon, who is leading Operation Herne, an ongoing inquiry into Metropolitan police undercover work against protest groups, said he would investigate the allegations as part of the inquiry

In February,

Magistrate reprimanded for expressing view about cannabis

The Daily Mail has taken up the story of a magistrate in Manchester who, so it is reported, has been pressured to resign despite an official investigation concluding that a reprimand was appropriate  - Magistrate is forced to quit ... for telling drug dealer in dock how cannabis had killed her brother.

When sentencing an offender for a drugs related offence, the magistrate spoke to the offender about her brother's addiction and subsequent death.  This prompted a complaint which was eventually duly investigated by the Office for Judicial Complaints (OJC) and. on 17th June 2013, a short statement of the outcome was issued.  Precisely why the outcome of the official investigation did not conclude this matter is a matter for some concern.  Of what value is that process if it is true that others take it upon themselves to act on their own opinions?

The

NO to PCT - Backbench Legal Aid debate coming up 27th June

I do not deny that government needs to save money though I seriously question some of its priorities (e.g. Trident replacement, ring-fencing of the huge overseas aid budget etc).  The government's latest legal aid proposals are to be debated in a backbench debate on legal aid in Parliament on 27th June.

The President of the Supreme Court has had his say; the Attorney-General appears to have concerns and says that he is trying to ensure that the Ministry of Justice (which owns legal aid policy) acts in a fully informed way.  It also seems that the Deputy Prime Minister has questioned the plans.  There are vast numbers (13,000 or more) responsible responses to the legal aid consultation opposing the proposals though quite a number suggest alternative ways in which money could be saved.  Meanwhile, 'Justice' Ministers such as Lord McNally - (guaranteed seat in the Lords for life) - continue to brazen things out in public. 

Pressure your MP to attend the debate and to say NO to the Price Competitive Tendering (or PCT) aspect of these plans.  This will

Challenger tanks; Snatch Land Rovers; Human Rights and good old common law

The judgment of the Supreme Court of the UK in Smith and others v Ministry of Defence has upset the Secretary of State for Defence who is now talking about entering into a derogation from the European Convention on Human Rights or even a complete withdrawal - Daily Mail Saturday 22nd June.   Here are the judgments to which the Minister takes exception:

Smith and Others (Appellants) v The Ministry of Defence (Respondent)
Ellis and another (FC) (Respondents) v Ministry of Defence (Appellant)
Allbutt and others (FC) (Respondents) v The Ministry of Defence (Appellant)

• Judgment

At the heart of these cases is

R v Forrest ~ Teacher and Pupil relationship ~ Sentencing

In the Crown Court at Lewes, Jeremy Forrest (now aged 30) has been convicted by a jury of child abduction.  He also pleaded guilty to 5 counts of sexual activity with a child.  Forrest was a teacher at Bishop Bell C of E School in Eastbourne, East Sussex.  He and the girl (aged 15) - (who may not be named) - developed a relationship which became sexual and which lasted for a considerable period.  The substance of the abduction charge is that they went to France on 20th September 2012 and a European Arrest Warrant was issued.  They were found in Bordeaux on 28th September.

Forrest was sentenced to five and half years imprisonment and the sentencing remarks of His Honour Judge Lawson QC are available via the Judiciary website - (HERE).   The Independent 21st July reported on the sentencing and also see The Guardian 'Jeremy Forrest jailed for pupil abduction and sexual offences.' 

Unfortunately, the judge's remarks do not specify

R v Abdulrahman ~ Grievous bodily harm to baby ~ Post partum psychosis ~ Sentencing

In the Crown Court at Birmingham, Mrs Justice Thirlwall has imposed a sentence of 30 months imprisonment on Jaymin Abdulrahman who was convicted of causing grievous bodily harm to her then six day old baby in September 2012.  The judge's concise sentencing remarks are available via the Judiciary website - (HERE).

The baby was born on 2nd September 2012. On 8th September, Abdulrahman placed the baby in a bin liner, put the liner in a rubbish
chute and closed the chute causing the baby to fall from the 5th floor to the bins below.  The result was that the baby suffered
catastrophic head injuries which, according to the judge, will last for life.

Mid-week News Roundup

Updated 20th June ... Crown Prosecution Service 11th June - Interim Guidance on prosecuting cases of child sexual abuse

DPP - final guidelines for prosecutions involving social media communications


Human Rights ~ Remember the Commission on a British Bill of Rights? - Law and Lawyers 18th December 2012.   A Library Note has been issued by the House of Lords in advance of a debate on 20th June about “the report of the Commission on a British Bill of Rights”. The Note contains a brief summary of the development of human rights law in the United Kingdom and previous proposals for a British Bill of Rights, before précising a selection of the findings of the report of the Commission on a Bill of Rights. The Note concludes with an overview of some of the responses to the report.

In the European Court of Human Rights, an application may be rejected if it is 'manifestly ill-founded.'  Ever wondered just what this phrase means?  Is it possible for a decision that a claim is 'manifestly unfounded' to be made by a majority?  The answer to that is YES.  Strasbourg Observers consider this in an interesting and useful post.  They note - ' ... unlike in judgments – no information is given on the division in the Chamber that delivered these decisions. The decision merely states “manifestly ill-founded, by a majority”, without indicating how many Judges

R v Benjamin Curtis ~ Sentencing ~ Manslaughter (by shaking) of baby

Benjamin Curtis has been sentenced to serve 2 years imprisonment for the manslaughter of Ocean Elliott.  The brief sentencing remarks of Nicol J are available via the Judiciary website - (HERE).  The judge described Curtis as having learning disability and as having a limited ability to understand verbal information.

Curtis pleaded guilty to manslaughter at a late stage in the proceedings but he was allowed a full one-third discount on the basis that expert evidence was required to establish a causal link between Curtis shaking baby Ocean and her subsequent death.   The shaking occurred when Ocean was 14 weeks old but she lived - albeit with serious disability - until approximately age 2 years 9 months.

In 2006, Curtis had received a caution for

R v Stuart Hall ~ Sentencing

Update 16th December 2015 - Stuart Hall has been released from prison.  He has served half his 30 month sentence and will be on licence for the remainder - BBC 16th December 2015.

 
Update 11th July 2013 - the Attorney-General has referred the sentence imposed on Stuart Hall to the Court of Appeal.

Original post

Sentencing offenders is a difficult legal art and not a science.  From time to time there are particular cases where one is saddened to see a particular defendant in the dock but the law must be upheld.

One such case is, to my mind, that of the veteran broadcaster and presenter Stuart Hall who has been sentenced to a total of 15 months imprisonment for 14 counts of indecent assault committed in the period 1967 to 1985/6 on victims in age range 9 to 17.  Some of the offences involved breaches of trust.  The sentencing remarks of the Recorder of Preston ( His Honour Judge Anthony Russell QC) are available via the Judiciary website - (HERE). 

In his remarks, the judge noted that the offences varied in seriousness.  There were

Legal Aid: that was the week that was.

Save Justice -  The government is changing legal aid!  It will affect you!   This explains why.

The campaign against the government's proposals for Reforming legal aid continues so please consider signing the e-petition on Legal Aid.  This seeks to persuade the House of Commons that a debate is necessary about proposals which will put numerous firms of high street solicitors out of business, effectively remove your right to choose your solicitor, hand public money to a chosen few private suppliers of legal aid work, and devastate the independent criminal bar.  Even if you get legal aid and are acquitted, you may still have to pay a considerable contribution to your own defence.  This could lead to many DIY defendants: people who feel forced to defend themselves rather than expose their savings and home to a legal aid contribution.  Surely, the Secretary of State should not be simply allowed to sign this into law.  Parliament must do its job and hold him to account.

The consequences for those charged

Murder: Crown Court at Preston ~ R v Cregan, Livesey, Gorman, Wilkinson, Ward and Ali

At the Crown Court (Preston) after a 77 day trial before Holroyde J and a jury, a sentence of imprisonment for life with a whole life term has been imposed on Dale Cregan.  He is guilty of four murders (including two Police Officers in September 2012), three attempted murders and causing an explosion.  Other defendants were also sentenced.  The judge's sentencing remarks are here.   Holroyde J stated that the defendants had shown 'no hint of remorse or compassion'.

Wilkinson was sentenced to life imprisonment for murder with a minimum term of 35 years.  Livesey and Gorman - life imprisonment for murder - minimum term 33 years.  Ward - life imprisonment for murder - minimum 33 years.  Ali - assisting an offender 7 years.

BBC News England 13th June 2013

Manchester Evening News - Full coverage: Cregan Trial

Legal news in brief

Supreme Court UK

* Two cases concerned with prisoners and voting have been heard in the Supreme Court of the UK - R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent) and McGeoch (AP) (Appellant) v The Lord President of the Council and another (Respondents) (Scotland).  See Prisoner Voting: Murderers challenge ban - BBC 10th June 2013.

* Three Supreme Court judgments were handed down on Tuesday 11th June: In the matter of B (A Child) - (Youtube); Petrodel Resources Ltd v Prest - (Youtube); Ust-Kamenogorsk - (Youtube).   For a view of the Petrodel case see the article by Chris Bryden (barrister at 4KBW) - Solicitors Journal - Prest: transfer of assets to corporate stuctures will be harder to challenge. 

*  The 8 year prison sentence imposed on Sarah Louise Catt has been reduced to three and a half years - The Guardian 12th June 2013.   Catt was sentenced for procuring a miscarriage - Offences against the Person Act 1861 s.58.  Law and Lawyers considered the case at the time and formed the view that the sentence was too high.

*  Michael Brewer's appeal against his 6 year sentence for 5 counts of indecent assault on Frances Andrade has been dismissed - Manchester Evening News 12th June.  This appeal

Yuppy, beady-eyed crowds; Fat Cats and Moggies! Wednesday thoughts.

Updates 16th June *** Mail on Sunday corrects daily's legal aid sums *** So that league table of supposed greed is selective bunk.

*** Please sign the e-petition on Legal Aid

The government's purge of legal aid crosses the border into authoritarianism and tyranny - Conservative Student 20th May

Lord McNally's balloons - Guy Gozem QC

Natural justice faces a savage loss of innocence - Nick Cohen - 15th June 2013


Like many nations, the UK has been hit by the general economic crisis.  It is generally accepted that there is a need to save considerable sums of money and it is for government to identify ways in which the money might be saved.  Most areas of government are having to take cuts and the decisions needed are not easy.  We all wish to have good health care, fine schools and many other things including access to justice with legal aid for those who cannot afford it.

Having said this, we have a government maintaining a militaristic foreign policy which does not seem to baulk at replacing the ageing Trident programme - £100bn a considerable underestimate?    Neither does it seem to worry about the huge 'ring-fenced' overseas aid budget even though government borrowing remains high.  In addition, huge sums of money have been doled out to various private sector service providers - see Ministry of Justice contracts for 2012 .

It is in this financial context

Act NOW to try to stop 'Justice' being only for the rich and powerful

*** Please sign the e-petition on Legal Aid - the aim is to try to persuade Parliament to debate the Ministry of Justice plans to slash legal aid.  Why should any Minister be allowed to seriously alter the rights of the British citizen just by stroke of his pen?

It beggars belief that any elected British government could put forward proposals so damaging to justice for the citizen as those in the Ministry of Justice consultation.

The Guardian - Sunday 9th June 2013 - Editorial:

"Last week, the government last week closed its hurried consultation on cuts to the £2bn legal aid budget. Few proposals have met with a more unified opposition among lawyers than the suggestion that £220m can be saved by introducing a system of price competitive tendering (PCT). This would see defendants deprived of the right to choose a defence lawyer and the number of criminal legal aid firms cut from 1,400 to 400.

VAT ~ an interesting case in the First Tier Tribunal (Tax Chamber)

'Value Added Tax' is disliked by most end-of-the-line consumers but it is a major 'earner' for governments.  In the UK, it was introduced in 1973 following entry to the European Economic Communities (EEC).  From 4th January 2011, the coalition government increased the rate to 20%.   Some things (such as 'food') are 'zero-rated' so there is VAT in theory but not in practice and it is, technically speaking, open to government to impose a rate.  More details of VAT are at HM Revenue and Customs (HMRC).

From a business viewpoint, where the 'registration threshold' is exceeded, a supplier of goods or services has to register for VAT and, in other cases, a business may apply for voluntary registration.   Registered businesses account to HMRC for the difference between output and input VAT.  Consider a business (B).  Output VAT is that which B collects from sales of its business output.  Input VAT is that which B has to pay on its purchases (i.e. input to the business) - see HMRC - How VAT is charged and accounted for.  The difference between output and input has to be accounted for.  Clearly, if output exceeds input then B has to pay the balance to HMRC.  Conversely, a claim may be made to HMRC.

These arrangements often result in businesses

Legal News - Legal aid - Hillsborough - Human Rights - Road safety - Kenya: a colonial legacy

Legal Aid - The Ministry of Justice received in the region of 13000 responses to their Transforming Legal Aid consultation.  Many of the responses are from bodies and practitioners with immense experience in the legal world.  Links to a sample of such responses are on the earlier blogpost.  On 4th May, a protest at the Ministry of Justice was addressed by several speakers including excellent speeches from Dinah Rose QC (a declaration of a lack of interest), Michael Fordham QC (the avocado of justice) and Geoffrey Robertson QC (there is a hidden agenda) - have a look at Head of Legal blog.    See also Garden Court Chambers blog - Speech of Stephen Knafler QC.  At this stage, it is possible for the Ministry to rethink their proposals given the overwhelming evidence that immense damage will be caused to justice should they bulldoze ahead and simply go for implementation.  The Ministry should rethink and engage with the legal profession and others to see where savings can be made without destroying the very fabric of justice for the citizen.

The MoJ is also beginning a full scale review of the legal services framework - Solicitors Journal 5th June. 

Hillsborough - In December 2012

Some responses to MoJ consultation on Transforming legal aid

Protest at Liverpool 4th June

*** Please sign the e-petition on Legal Aid

Now at 73 links:

Legal aid is the beating heart of the rule of law - Michael Fordham QC

No lawyer should have a financial interest to betray his client - Geoffrey Robertson QC

The proposals fail the basic test of good administration - Dinah Rose QC

The government's consultation on Transforming legal aid ends today.  At court locations throughout England and Wales there were brief  'silent protests' just before 10 am.

Over the next few days I will add to this post links to some responses to the consultation where the writers have chosen to publish them - for example, on their blogs or via legal practice websites etc.  Inevitably, these will just be a sample of a very large number.  They appear in no particular order other than the order in which I came across them.

The Ministry of Justice has indicated that it will consider the responses and comment in the autumn.

There are signs that the general public is becoming aware of the devastating impact of these proposals on their rights - e.g. to choose their own solicitor if charged with a criminal offence.

Here are the links ...................

Legal Aid ~ consultation closes 4th June

Under government proposals, criminal legal aid will be severely curtailed - Money, money, money ... just where is Justice heading?. and 'The real 'scumbag criminal' is still free ~ A matter at democracy's heart'.   The government's consultation ends on 4th June - see the consultation  here.

Recently, Gabriela Knaul (United Nations Special Rapporteur on the Independence of Judges and Lawyers) has urged world governments to develop and sustain effective legal aid systems as an essential component of a fair and efficient justice system founded on the rule of law - see Office of the High Commissioner for Human Rights

" Legal aid, a right in itself" - UN Special Rapporteur

GENEVA (30 May 2013) – “Legal aid is both a right in itself and an essential precondition for the exercise and enjoyment of a number of human rights, including the rights to a fair trial and to an effective remedy,” said Ms. Knaul, presenting her latest report to the UN Human Rights Council. “It represents an important safeguard that contributes to ensuring the fairness and public trust in the administration of justice.”

60 years ago today

2nd June is the 60th Anniversary of the Coronation of HM Queen Elizabeth II.  The BBC has had the original footage digitally remastered - see here and the The Coronation of Queen Elizabeth II  may be viewed on BBC Parliament from 1010 BST on Sunday 2 June.

The Queen's accession to the throne actually took place upon the death of her father King George VI on 6th February 1952 - 60 years a Queen: the Diamond Jubilee.  In the years of post war austerity, the Coronation was a splendid occasion and seemed, at the time, to lift the spirits of the country.  It was televised but few homes, at least where I lived, had a receiver.  In those - now seemingly far away days - the Queen made her Coronation Oath :

Archbishop. Will you solemnly promise and swear to govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, Canada, Australia, New Zealand, the Union of South Africa, Pakistan, and Ceylon, and of your Possessions and the other Territories to any of them belonging or pertaining, according to their respective laws and customs?