Tuesday, 30 July 2013

Tuesday roundup ~ Access to justice; judicial review; Military justice; apologies and pardons'; Jurors and the internet

Access to justice continues to be under attack from the coalition government.  It appears that their latest gambit concerns 'standing' to bring judicial review.

 The Transforming Legal Aid proposals were issued earlier this year and, despite the consultation period being short, resulted in over 13000 responses which, one hopes, are being carefully considered by the Ministry of Justice.

The Justice Committee has decided to issue a report on Transforming Legal Aid.  This follows the committee’s two recent oral evidence sessions – one with representatives of the professional bodies and one with the Lord Chancellor.  The Transforming Legal Aid proposals have attracted what appears to be almost universal condemnation and so it will be of major interest to see the views of the committee.

The Joint Committee on Human Rights
has asked for evidence to be submitted regarding the government's legal aid proposals - (HERE).   Written evidence is requested by 27th September and hearings will take place in October.  The committee has requested that the government do not proceed with changes until the committee has reported.

Protests are to be held today (30th July) at the Old Bailey (London) and in Manchester.

Judicial Review:

The UK Human Rights blog in its weekly roundup of news looks at a report which appeared in The Times about plans to alter the test for 'standing' to bring judicial review proceedings.  Judicial Review is a key method by which all manner of Ministers and officials are kept within the law.  Narrowing the standing test will enable those officials to avoid challenge in the courts in a wider set of situations.  The Times said that 'Ministers are planning a new assault on what they condemn as the “growth industry” of time-wasting judicial reviews in the courts.  They say that pressure groups, campaigners and lobbyists are abusing the procedure for public relations purposes, clogging up the courts and delaying the implementation of policy.'

Writing in Public Law for Everyone, Dr Mark Elliott  argues that this reported proposal 'fits with the overarching narrative emerging from (certain parts of) government, according to which accountability to law—whether domestic or European—is increasingly characterised as a brake on economic progress, a challenge to democracy by unelected judges, or little more than a public-relations tool that is strategically deployed so as to “play the system” - see 'Standing, Judicial Review and the rule of law ...'

Military Justice:

Following on from the Sergeant Danny Nightingale court martial, Simon McKay looks at the 'monolith of military justice' and asks why serious cases cannot be simply tried in the Crown Court - see The Guardian 29th July -  Military 'justice' is screaming out for reform   Simon McKay acted for Sgt. Nightingale at the Court Martial.  McKay also refers to the matter of "Breaker" Morant, a Boer war veteran, executed by firing squad over a century ago.  A pardon is being sought.

Apologies and pardons:

The business of 'apologies' for the conduct of those historically in power seems to be on the increase.  Sometimes, as in the Kenyan case, these apologies are associated with claims for compensation.  There have also been developments with regard to posthumous pardons for actions taken many years ago within very different circumstances and where attitudes to draconian punishment were not as they are today.  Derek Bentley received a royal pardon in 1993.  In 2006, the 306 men who were executed for desertion and similar offence in world war one were granted what was called a statutory pardon; but again, the pardon only went to their punishments (Armed Forces Act 2006 s.359).  Those soldiers who had been convicted of exactly the same offences but received lesser sentences had no pardon.

In the context of a bill now in Parliament to grant a posthumous (statutory) pardon to mathematician Alan Turing, the question of such pardons has been discussed in two excellent items by David Allen Green New Statesman (Putting right the wrong done to Alan Turing) and by Carl Gardner, Head of Legal blog (Alan Turing: the stain should not be erased).   Pardons do not remove convictions but they can alleviate the consequences for the convicted person.

David Allen Green makes the interesting point that having pleaded guilty to the offence of 'gross indecency' (section 11 of the Criminal Law Amendment Act 1885), Turing received a probation order which, at at the time, was not a sentence but an alternative way of disposing of cases (see section 3 of the Criminal Justice Act 1948).  The probation order involved terms that Turning undergo 'medical treatment'.  As Green argues, if there was no actual sentence, then a pardon for Turing has no legal effect though it is undoubtedly some recognition of the appalling way in which he (and many others) were treated by the law.

Green argues that cases such as Turing could, if Parliament so wished, be brought with a scheme such as the Protection of Freedoms Act 2012 Part 5 Chapter 4 which provides a scheme where those who had been convicted of the section 11 offence (and similar offences) can apply for their entire criminal records to be removed if the facts of the case would no longer count as a crime.  Such a way forward would be preferable and would go much further than a pardon. 

Note - 24th December - Turing received Royal Pardon

Jurors, the internet and contempt:

Two Jurors have been held in contempt of court -HM Attorney-General v Davey and Beard [2013] EWHC 2317 (Admin).  These cases raise some questions of juries in the internet age.  See also earlier post on the Joanne Fraille case in 2011.   The judges are asking the Criminal Procedure Rules Committee in consultation with the Judicial College to review the terminology used in the material given to juries and to consider whether to recommend that the practice to which we have referred in paragraph 59 should be universally followed.  Para 59 states:

'Many judges have adopted the practice not only of warning the jury in terms similar to what the judges in these two cases did, but also handing the jury a notice setting out what they must and must not do and the penal consequences of any breach. They have done this so that no juror can subsequently claim that he or she did not understand what they should not do and what the consequences might be. It is to be noted that in civil proceedings, committal for contempt for breach of an injunction ordinarily requires not only proof of the breach of the terms of an injunction, but that the injunction contained a penal notice.'

In my opinion, jury trial should be retained for serious cases but it is somewhat worrying if jurors are unable to either understand or abide by simple directions with regard to the internet and researching the case they are trying.  Having said this, I do sometimes wonder whether there ought to be a different approach involving openly dealing with any publicity.  However, there would be costs associated with researching the media to find out just what publicity there has been.  This is likely to become a difficult issue and jury service will become even less attractive if more and more jurors find themselves hauled before the High Court on charges of contempt.

See UK Crime - Jurors imprisoned for internet research/Facebook messages

1 comment:

  1. Re jurors. Perhaps 'if you look don't blab' might be more realistic advice. These two jurors seem pretty reprehensible but surely many jurors must feel the wool is being pulled over their eyes. Trying to maintain the authority of the court through injunctions 'don't look while we tell you half the story' seems doomed to failure.

    Ostensibly the rule is there to maintain fairness but many must feel it has more to do with giving one side or the other an undeserved sporting chance and providing employment for lawyers.

    Maybe justice would be better served if 'the truth, the whole truth in its entirety' were dragged out in court and given a jolly good examination rather than maintaining legal fictions. Hiding historical WEB entries - just a silly idea.