Justice Buses are not the answer to court closures ....

The Guardian 27th August carried an article "Justice buses are not the answer to court closures".  Ideas such as "courts" sitting in shopping centres and on converted buses have been popping up recently.  For many practical reasons, this is most unlikely to happen.  As a cost-saving exercise, the number of magistrates' courts in England and Wales will be reduced over the next 18 months to 2 years.  The consequence will be that summary justice will be less locally administered for many people.  Victims and witnesses will have to travel further and go to unfamiliar places to give their evidence.  Possibly, even the Police may end up being less keen to prosecute cases if officers have to be away from their base attending a distant court.

The article's author (Jon Robins) wrote - "There is also a question over the volunteer army of magistrates which has played such a fundamental part in the justice system, many of whom are about to be made homeless. Ken Clarke's glib comments that the locality of the courts depended on "how far it was reasonable for a man to ride a horse" suggest that he will not be overly troubled by abstract arguments in favour of local justice.

It is ironic that as justices of the peace contemplate their 650th anniversary next year, they face the greatest threat to their existence in living memory. They will have to make the case that they have a role outside their soon-to-be closed courthouses, hence the talk from the Magistrates Association of justice buses and supermarket courts. It is going to be a challenge."

Personally, I do not see that either the Magistrates Association nor individual magistrates need to make any case for a "role outside their soon-to-be-closed courthouses".  Why should they?  The responsibility for the demise of local justice - (by which I mean locally administered justice) - ought to rest with those Ministers who are advocating the cuts.  Is this a case of government knowing the price of everything and the value of nothing?  I would be interested in views on the vital topics of court closures and local justice.  These changes are likely to affect all of us eventually.

See Ministry of Justice for more details of specific proposals to close local courts.
See also CharonQC - "Law Review: an even more daft idea from a magistrate"

Polly Peck International ... the law of serious and complex fraud

Asil Nadir - formerly Chief Executive of Polly Peck International - has returned to the U.K. after 17 years living in Northern Cyprus.  In the 1980s he appeared to be an enormous business success story as his policy of "growth by acquisition" took place on an international scale.  This was largely done by "rights issues" through which company capital was raised from investors eager to make profits and many did.  The major steps in the history of Polly Peck are summarised here.  Polly Peck's capital grew to some £1.7 bn at its peak and there were over 200 subsidiary companies.  In September 1990, there was a raid organised by the Serious Fraud Office on South Audley Management (a company which managed Nasir's family interests).  This caused a run on Polly Peck shares.  Polly Peck ceased trading in September 1990 and went into administration the same month.  Eventually, some 66 charges of theft and false accounting were brought against Asil Nadir.  However, he fled to Cyprus in 1993 and only returned to the U.K. in August 2010.

At this stage it is far from clear (a) on what basis he has returned to the UK and (b) how this matter will develop.  So far, any suggestion of a "deal" between Asil Nadir and the Serious Fraud Office has been denied.  He is due at the Old Bailey in early September.  Clearly, any prosecution will face difficulties due to lapse of time and the possible difficulties of presenting a complex financial case to a jury.  The case will be watched with interest.

In 2005, views about serious fraud trials were put forward by the Criminal Bar Association which, at that time, wished to retain jury trials and considered that juries are well able to understand the issues of dishonesty which lie at the heart of fraud cases - see here.   The Criminal Justice Act 2003 s.43 was enacted to provide for non jury trial in serious fraud cases but this has not been implemented.

Other links of interest:

Events in 1990 as reported by the Financial Times - here
Is there a case for a unified serious fraud prosecution office - Barrister Magazine
Trial by jury struggling to survive - Barrister Magazine
Law relating to serious fraud - Wikicrimeline
Non-jury trial - CPS

Addendum 4th September: Nadir appeared at the Old Bailey and was granted bail subject to some ten conditions.  An argument by Nadir that the prosecution give details of all the charges within 28 days was dismissed and the judge granted them until 3rd December.   See The Independent 4th September.  Nadir next appears in court on 15th October.

An August Miscellany of Law

Quite a few items in the news deserve a mention.  Here are a few:

1. There is the woman dealt with by Blackpool Magistrates court  - (a District Judge took the case) - for urinating on the town's war memorial and peforming a "sex act".  She was charged with outraging public decency and received a suspended prison sentence of 12 week with a drug rehabilitation requirement - compensation of £50 to a police officer and costs of £200.  Daily Mail 26th August.  Will she manage to adhere to the order?  We'll see but she has been given a chance whether she deserved it or not.

2. There is the woman who was seen to put a cat into a wheelie bin.  This story is well covered by the Jack of Kent blog.  It is disturbing that West Midlands Police appear to have said that no crime was committed when it might be an offence under the Animal Welfare Act 2006 s.4. It seems that the woman is receiving police protection.  Just why someone would do this is a mystery but there has been considerable over-reaction in some quarters to it.  Daily Mail 26th August 2010.  It is reported that the RSPCA is conducting an investigation.

3. Then there is the juror who went on Facebook and commented about a case which she had been involved in.  Daily Mail 26th August 2010.  It appears that she was given a good talking to by the judge.  She claimed that she did not know that her action was wrong despite the fact the jurors are always informed that they must not discuss the case with others.  This behaviour lets the jury system down badly.

4.  The Independent 26th August took a look at the issue of reforming the libel laws.  Lord Lester of Herne Hill QC has decided to allow the Ministry of Justice to bring forward reform proposals rather than press ahead with his Defamation Bill at the present time.  There are several recent instances where the libel laws are having a severe chilling effect on free speech and reform appears to be necessary to achieve a better balance.

5.  The government's budget is also being questioned on the basis that there was no "equality impact assessment".  Daily Mail 26th August.   The Equality and Human Rights Commission is taking a considerable interest in this matter and it is reported that a judicial review is being considered.    There is concern that the budget affects some people in a disproportionate and adverse way.  See the comment on the Commission's website.

6.  Mr Justice Collins - sitting in the High Court - has said that the Legal Services Commission's tendering process on welfare law was "uttrely absurd and irrational".  Bizarrely, the tender process seemed to favour those law firms who got more cases appealed and worked against firms who managed to avoid appeals.  Good legal practice is to avoid appeals wherever possible.  See Law Society Gazette 26th August.

Whilst the Senior Courts of England and Wales are taking a break prior to the Michaelmas Law Term, there certainly seems to be plenty brewing elsewhere !

"Miscellany at Law" is the title of entertaining books by the late judge Sir Robert Megarry (1910-2006).

The Mark Berry ("Bez") Case ....

From time to time various "celebrities" appear in the courts to stand trial for serious matters.  Mark Berry - (of  "Happy Mondays" and "Domino Bones fame") - has been before the magistrates' court at Manchester and has been sentenced to 4 weeks imprisonment.  His first appearance before the magistrates was reported by the Manchester Evening News on 28th May where he pleaded not guilty to charges of assault on his partner Monica Ward, using violence to gain entry to their flat and failing to provide a sample for a drugs test.  That is quite a serious package of charges.

The relevant law is not referred to in the media reports but seems to be Criminal Law Act 1977 s6 and Police and Criminal Evidence Act 1984 s63B - inserted by the Drugs Act 2005 s7.

The Manchester Evening News reported his conviction ( after trial ) on 11th August - here.  The reported facts in the Telegraph article make for interesting reading.  Basically, there was a row over some money and it is reported that Berry squeezed Ward's neck (using both hands) and she told the court that she had been dragged from the kitchen to the front door and that she "feared for her life".  A child was present at the time.  At some point she was able to contact the Police.  Berry left but returned later and forced his way in.  On being convicted by the magistrates he said that this was a "Kangaroo Court".  Sentencing was adjourned with, presumably, a pre sentence report to be prepared.

At the sentencing hearing (see Guardian 26th August and  BBC 25th August ) it appears that the magistrates decided on a community sentence of 100 hours unpaid work plus a restraining order and costs of £450.  I make no comment about that proposal (which would presumably have been based on a pre-sentence report)  though it is reported that the bench chair referred to it as a "relatively gentle attack" and a "technical assault".  However, Berry refused to do the community sentence and was therefore sentenced to 4 weeks imprisonment.  It seems that Berry was not represented by a solicitor or counsel.  Also, Berry's behaviour before the court left a great deal to be desired - (to put it mildly).  He refused to recognise the court's authority and accused the magistrates of ignoring the facts and not listening to the evidence.  Afterwards, it is reported that a solicitor who was present has lodged an appeal on Berry's behalf to the Crown Court.  The outcome of that is awaited with interest.  Appeals against conviction by magistrates are heard in the Crown Court by a Judge who sits with two JPs and the evidence is reheard.

There is an old saying that a person who represents himself before a court has a fool for a client.  Regrettably, they sometimes do themselves no favours.  It is not clear why Berry was unrepresented but it is worth noting that a person has to pass both a means test and an interests of justice test to obtain a legal representation order in the magistrates' court.

Addendum:  He was released on 8th September 2010 - see Manchester Evening News.

"Loophole lawyers"

The Guardian reports about certain "loophole" lawyers who have captured a niche market in defending celebrities accused of motoring offences - see Guardian 25th August 2010 "The Loophole Lawyers who help clients beat motoring charges".  These lawyers do not come cheaply but they are very expert in their field and they carry out very well the duty of the defence lawyer which is to test the case against their client and to expose weaknesses.  The more worrying feature of these cases is that, without such a lawyer, the prosecution evidence is not tested in the same way.  It is also noticeable that, when a "loophole lawyer" is going to appear, the case is frequently handled by a District Judge (Magistrates' Courts).  No doubt this is because points of law are going to be raised but it has always been possible to raise points of law in the Magistrates' Courts irrespective of the composition of the bench.  The bringing in of District Judges may - and I emphasize may - be giving an impression that some magistrates' courts are not being exactly neutral in the handling of these cases.

A further aspect concerns costs where a defendant, who is unable to obtain a legal representation order,  exercises his right to pay for a lawyer albeit at commercial rates.  Can he receive his costs if he "wins" the case?  Currently, the answer is that the costs are payable from central funds.  The last government attempted to restrict such payments to the lower legal aid rates so that the successful defendant might not receive all his costs. The responses to a government consultation on this actually favoured making no change but that was ignored by the Labour government and new regulations were introduced on 31st October 2009.  However, in June 2010, the Law Society successfully challenged the matter in the High Court - see R (Law Society) v Lord Chancellor [2010] EWHC 1406 (Admin).  The court ruled that the Lord Chancellor had tried to achieve objectives which were inconsistent with the purpose for which he was empowered to make regulations in this area.  See also this Parliamentary Briefing Paper.

Time off for early admission of guilt

The Times, which is unfortunately hidden behind a "pay wall", reports that there are plans to reward those who admit their crimes at the first possible stage.  Under present sentencing guidelines a discount on sentence of up to one-third is available to the defendant who pleads guilty at the first court appearance.  The idea appears to be that even more discount will be available to those who admit their guilt to the Police.  Thus, a sliding scale of discounts will apply.

Whilst this is supported by a number of senior lawyers including Lord Justice Leveson (Chairman of the Sentencing Council), some lawyers are warning that persons in custody should not be offered greater discounts because it may result in false confessions or in the Police not investigating cases fully.  Certainly, a large reduction in sentence is a powerful incentive to admit guilt.  Within the Crown Court system there is considerable concern at the numbers who plead guilty on the day of trial having run up considerable costs in case preparation.  In the Crown Court over 70% of cases are guilty pleas.

Although this is reported in the media, it appears that the Sentencing Council is considering the idea and proposals will go out to public consultation later - see London Evening Standard.

Fixed penalty notices .... bad character evidence ....

Penalty notices have become a commonplace method of dealing with a considerable amount of less serious "offending".  One Act permitting a constable to issue such notices is the Criminal Justice and Police Act 2001 which was enacted to deal with a number of "disorder offences" by way of notices rather than by prosecution in the magistrates' courts.  Notices issued under this Act are often referred to as "Penalty Notices for Disorder" (PND) though the Act itself merely refers to them as penalty notices.  When a notice is issued and is accepted by the person then it discharges any liability to be convicted.

Does acceptance of such a notice amount to "bad character" which might be admissible in some future criminal case?  In the recent case of R v Hamer 2010, the Court of Appeal decided that a notice issued under the 2001 Act was "not a conviction, admission of guilt, proof that a crime had been committed, or a stain on the defendant’s character ...."   It followed that it could not be regarded as evidence which impugned the character of the defendant or admitted into evidence as such.

This is an interesting state of affairs since the court also said that - "It might be that in some cases the Crown might wish to adduce evidence regarding matters in respect of which the notice had been issued."  This does not have an entirely satisfactory look to it.  Would it not be preferable that the acceptance of a fixed penalty notice prevented any future mention of the matter or the conduct which caused the notice to be issued?  After all, it is an official of the State (i.e. a constable) who is authorised to issue the FPN in the first place rather than prosecute the matter before the courts.

Note: Cautions are not in the same category.  They cannot be administered unless there is an admission to the alleged offence.  Whilst a caution is not a conviction it may have sometimes have long-term adverse effects for the person.

Children and the courts .... concern over delays in care proceedings

The Guardian has recently published interesting items about delays in cases involving the care of children ("care proceedings").  Many of these cases are far from straightforward.   Barnardos are suggesting a 30 week period in which care cases should be completed - see The Guardian 9th August - "Children left in danger by court delays".  At the end of 2009, there were 12,994 open care cases in the courts.  Cases are taking an average of 57 weeks to complete in the county courts or, in the magistrates' Family Proceedings Courts, an average of 45 weeks.  A second article is by Mr Leslie Baker JP who is a member of the family proceedings panel in Wiltshire - The Guardian 20th August - "Decisions on care proceedings are too sensitive to be given a fixed deadline".  He says that delays are due to the need to obtain the necessary information so that the court can make a proper decision.  "Care orders, allowing children to be removed from their parents, are life-changing instruments and courts must be satisfied that a case merits such draconian action".

The essential fact is that both Barnardos and Mr Baker are basically right:  delay is prejudicial to a child's welfare but always the full facts must be ascertained.  An artificial 30 week "cut off" therefore seems impracticable.  The real question then becomes - how can a better balance be achieved between delay and adequacy of information?

A further problem is that the Legal Services Commission (LSC) has succeeded (from October 2010) in taking away legal aid franchises from some 46% of the firms who practise in this vital area of law.  Whilst there are some legal challenges afoot to the tender process used by the LSC, the outcome may still be a very big cut in legal aid and it would be almost impossible, in this complex area of the law, for an unrepresented parent to cope against the local authority and perhaps the Children's Guardian as well.  Note: guardians are independent of the local authority and are usually assigned to particular cases by the Children and Family Court Advisory and Support Service (CAFCASS).  The Guardian's role is to safeguard the interests of the child.  The absence of legal representation is likely to make cases take even longer than at present.

The Lord Chief Justice has called for proceedings to be shorter - see Family Law 20th July.  He also questioned whether the present ADVERSARIAL system is the right approach.  Adversarial proceedings often polarise the parties who frequently adopt very entrenched positions and come to think of themselves as "winners" or "losers".  See also Law and Lawyers 10th July. 

Anthony Walker Scholarship

The Crown Prosecution Service are offering a Scholarship which is memory of Anthony Walker who was savagely murdered in Liverpool.  This is certain to be a wonderful opportunity for a potential lawyer.  Anthony had hoped to become a lawyer.  See the details on the CPS website.

Sion Jenkins' Guardian interview - prisoner's rights

The Guardian has published an interview with Sion Jenkins - The Guardian 20th August 2010 " Sion Jenkins: I don't want sympathy from anyone ".  Law and Lawyers touched upon this matter a few days ago - see here -  The Jack of Kent blog also carries a post - well worth a look.

In several ways, this is a disturbing case.  The interview with Sion Jenkins gives his account of his time in prison and he talks about his compensation being refused by the Ministry of Justice.  He states that he was subjected to violence from other prisoners and refers to dirty conditions in which he was, at one stage, held.  He further comments that he was asked which prison he would wish to go to.  Upon saying - anywhere but Wakefield - he was taken to Wakefield which, as it happened, did not turn out to be as bad as he feared.

I do not know whether the actual comments made by Jenkins are all true but there are many similar stories from many others.  This ought to be raising the very serious question of just what sort of regime should exist in modern prisons and about the ability (or maybe willingness) of the prison authorities to protect certain prisoners and to ensure that their RIGHTS IN PRISON are safeguarded.

A good text on Prisoner's Rights is "Prisoners: law and practice" - Simon Creighton and Hamish Arnott - Legal Action Group. The BBC's " Five live " looked at prisoner's safety earlier this year.  The Daily Mail - 8th June - published an article about prisoners converting to Islam in order to win "perks" and to get protection.  The Daily Mail's article followed a report from the Inspectorate of Prisons.  There are Independent Monitoring Boards to monitor conditions in prisons - see their website for further.  The IMBs replaced Boards of Visitors some years ago - some of the background may be read here.  The management of prisoners is the remit of the National Offender Management Service (NOMS).

The oldest "profession" ...

From time-to-time there are calls for prostitution to be controlled or licensed - e.g. Craig Murray and it has been argued that a considerable amount in tax could be raised from this activity - e.g. The Independent 9th April 2001.  Prostitution is not, in itself, unlawful but there are several criminal offences linked with it and, it can be argued, those offences cause prostitution to exist in a shadowy world in which crime is prevalent.  Further, the trafficking of people into prostitution is a major concern.

The latest prostitution linked offence, which came into force on 1st April 2009, is that of "paying for sexual services of a prostitute subjected to force" - Sexual Offenders Act 2003 s.53A (which was enacted by the Policing and Crime Act 2009 s.14).  Senior Police Officers warned the government of the potential difficulties involved in actually applying this new law - see BBC - and, so far, it appears that only three men have been dealt with by way of cautions - The Guardian 18th August 2010.  The maximum penalty for this offence is a fine of £1000 and this seems to have made the Police decide that it is not worth dedicating resources to it even though the very serious "mischief" at which the offence is aimed is that of violent exploitation of women and many of those women are trafficked into prostitution.

To obtain a conviction for this offence, the prosecution would have to prove that a third person had engaged in "exploitative conduct" for gain.  However, it is NOT necessary for the prosecution to prove that the "punter" knew or even suspected that.

Offences which are inadequately enforced is not a desirable state of affairs but who can be seriously happy with the existing state of our law in this area?  Yet, is there any country with a perfect system for controlling "the oldest profession"?

Just one last comment on this.  I just wonder how, in these difficult financial days, people see the use of a £520m CARE fund which, according to theTelegraph 14th August, is sometimes used to give money to persons who intend to pay for sex.  Scandalous?  Beneficial to society?  Somewhere on the spectrum in between?  Is it not time for our country to decide where it stands on these issues.

Children and Criminal Justice

On 26th May, Law and Lawyers took a look at how children and tried in England and Wales for serious offences - see here.  The system of trying children in the Crown Court remains open to considerable criticism.  The two boys (now aged 11) who were convicted at The Old Bailey of attempted rape on a girl have been sentenced to supervision orders for 3 years - see The Guardian 18th August.  They will also be on the sex offenders register for two and a half years though their mothers have been made responsible for compliance with any notification requirements.  The parents have also received 12 month parenting orders.

Here is an item from the Solicitors Journal on this case.  Appeals against the convictions were dismissed in July - see BBC 27th July.

State funding; car clampers; how to deal with four year olds and high street justice

The attack on legal aid is well underway.  The "behind a pay wall" Times reports that the Ministry of Justice is now planning to slash legal aid for deportation cases.  They say that Kenneth Clarke, the Justice Secretary, wants to end repeated challenges to decisions about asylum and last-minute challenges to deportation orders.  A "Whitehall source" is reported to have said - "We cannot go on allowing judicial reviews of every decision.  We are just going round and round on a merry-go-round".

Other areas where savings are to be made are medical negligence cases where, it is argued, people could take out insurance against the risk of a "botched operation".  In the past 3 years, legal aid costs in these cases has come to £82m.   It sounds a lot but it is a complex area and liability is often difficult to establish.   Then there is legal aid to prisoners (£21m in 2008-9) and taxpayer help for divorcing couples (£25m in 2009).

As The Times points out, the government is probably unlikely to find much opposition to cutting legal aid in immigration cases and there has undoubtedly been some abuse - e.g. here?.  Politically, cutting this area is likely to be a "crowd pleaser" despite the inconvenient fact that it will leave some of the most vulnerable, poor and desperate people without representation.

This comes on top of a cull of practitioners providing legal services to families - here - and a huge programme of court closures - here.  Never mind, I suppose that it's all in order so long as the legal great and good get their annual dinner with the Lord Mayor of London.

Perhaps one welcome bit of news is that the government is planning to ban the clamping of cars on private land - Home Office 17th August "End of the road for cowboy clampers".  It is certainly high time that the government got to grips with this practice which is, regrettably, frequently extortionate.

"Restorative justice" has also hit the news with a report - Telegraph 17th August - that a child aged FOUR has admitted "criminal damage" and was made to apologise and carry out "other suitable acts to make amends for his wrongdoing".  This was in Norfolk where, in 2009, over 500 children under 12 were "dealt with" last year.  Is this the way we should be dealing with children as young as four when the age of criminal responsibility is 10  ?

The Magistrates' Blog reports a suggestion that justice be meted out in high street stores and perhaps local halls - see " I hope this is a silly season story ".   Then there is the excellent Charon QC blog which asks just where will all the law students work - "Brave New World: Results". 

Just where will all this end? ...................

Addendum - 18th August:  Apologising will not reduce re-offending rates (Guardian 18th August);  Magistrates call for courts in shopping centres (Guardian 18th August); One in Five offenders "let off" (Daily Mail 18th August).  Follow up thread on the Magistrates' Blog and comment about courts in shopping centres on Charon QC.

Addendum - 19th August: "Legal aid is in tatters and only long-term thinking can mend it" - Alice Sachrajda - The Guardian.  This article argues that, for immigration and asylum cases, there is a need for better initial decision-making which would, eventually, lead to fewer appeals.

Can this be right ....it makes you wonder ....

Police Officers in Manchester were ordered not to give chase to men who stole expensive motorcycles.  Why?  Because the thieves were not wearing helmets!  See Manchester Evening News 16th August 2010.

It makes you wonder ..... but see ACPO "Management of Police Pursuits" - link via this.

An appalling trade ....

In the U.K. trafficking of young girls for sex is rife.  Many of the girls are British born and others are "trafficked" in from abroad.  The girls are passed from gang to gang and from town to town.  Threats of violence are made to the girls and sometimes to their families.  The Independent - Sunday 15th August - has highlighted this story.

In the UK, "Trafficking" has tended to be seen as international and the first anti-trafficking law was framed that way - see Nationality, Immigration and Asylum Act 2002.  Obtaining convictions appears to be difficult - see Guardian July 2010 (Prosecutors call on sex trafficking victims to testify).   Trafficking within the UK is an offence under the Sexual Offences Act 2003 s.58 - (the offence requires proof of 'mens rea' and that will not necessarily be easy).

There is a UK Human Trafficking Centre which, in April 2010, became part of the Serious Organised Crime Agency.  Of course, the government is now planning to abolish SOCA which is seen by Ministers as costly and ineffective - here.

Greater concerted action is urgently required to get a grip on this insidious and appalling crime.  The CPS is consulting about its Public Policy Statement - see here.

Beyond justice, anarchy reigns .... Judicial arrogance .... DNA .... No compensation

Joshua Rozenberg's trenchant comments about the proposed £2bn cuts in the Ministry of Justice budget may be read in The Guardian.  It would be ridiculous to argue that savings are not possible given that the Ministry's overall annual budget is £9bn.  Yet cuts in the wrong areas may well have major long term implications and may turn out to be false economies.

The Judges seem to have got on to their very high horses when it comes to the matter of allowing people to serve as jurors over the age of 70 - The Guardian 10th August.  There are thousands of fit and bright septagenarians who would be perfectly able to do civic duty as jurors and they might even be better able to sit on lengthier cases.  Judges and magistrates have to retire at 70.  There may be a case for some increase in that age - 72 or 75?  However, I don't see serving as a juror as the same thing as holding a judicial office.  There needs to be a retirement age for office holders in order for the system to be able to bring in new people.

The New Scientist has published a very interesting article about the use of DNA evidence in criminal cases - see here.  It is not necessarily anything like as infallible as many people think and what can be presented to courts as "gospel" is often little more than an interpretation.  Often, insufficient attention is given to how forensic evidence is presented and possible weaknesses are addressed inadequately in some cases.  [See the case of Hoey in the Crown Court of Northern Ireland where Weir J considered DNA evidence].

The Billie Jo-Jenkins murder is again in the news.  Her foster carer Sion Jenkins was refused compensation for having served 6 years in prison for her murder prior to him appealing in 2004.  The Court of Appeal ordered a retrial.  In fact there were two retrials and, on both occasions, the jury was unable to reach a majority verdict.  The Independent 2006 covered the formal acquittal of Sion Jenkins.

Compensation is payable for "miscarriages of justice" but it has to be shown beyond a reasonable doubt that there has been such a miscarriage - see Criminal Justice Act 1988 s.133 (as originally enacted).  When an application is made for compensation it is for the Secretary of State to decide whether there has been a miscarriage and, if the decision is in favour of compensation, the amount is determined by an assessor - (see CJA 1988 Schedule 12).  Given the history of the case - (appeal ordering a retrial and two undecided juries) - it is not possible to say beyond a reasonable doubt that there was a miscarriage of justice.  However, the case has an uneasy feeling about it.  When a retrial was ordered, the State was not able to secure a conviction by proving the case against Sion Jenkins beyond a reasonable doubt.  Instead, there were undecided juries.  Is it right that the formal acquittal does not have the same status as an acquittal by the jury or a quashing of a conviction by the Court of Appeal (with no retrial ordered)?

Addendum - 15th August:  The Guardian - Sion Jenkins: the Home Office decides that "not guilty" is different from "innocent" 

Addendum - 20th August: The Guardian - Sion Jenkins: "I don't want sympathy from anyone"   Sion Jenkins tells of his experiences in prison and refers to the process relating to compensation.

Speed Cameras - funding cuts - will the roads be less safe?

Early on in the days of the coalition government a cut to funding for speed cameras was announced - see Telegraph 18th June.  The Guardian 9th August reports that the Chief Constable of Gwent has said that cutting speed cameras will put lives at risk.  Julie Spence, the outgoing Chief Constable of Cambridgeshire, has referred to speeding as "middle class anti social behaviour".  Both Chief Constables have a point: excessive speed in the circumstances is a contributory factor in many serious road traffic accidents.  Maybe, in some cases, speeding might be seen as anti-social ?  However, I fail to see what it has to do with "middle class" - whatever that term either means or is intended to imply.  As far as I can see, speeding is commonplace across the social spectrum.

In 2009, the previous government consulted about road safety - see Department for Transport.   The consultation document informed us that, in 2007, there were 2946 deaths on British roads and almost 28000 serious injuries.   The BBC website offers further data.  In June 2007, Safespeed campaigned against the speed camera - see Telegraph 23rd June 2007.  They argued that more attention needed to be paid to "risk management" aspects of driving.  That would include better observation and anticipation of what might occur as well as adjustment to speed according to situations and weather.  The organisation Brake campaigns for speed cameras - see here. Whatever the truth in this matter, the 7 year sentence imposed on this man hardly seems to deter others and will not bring his victim back to life or give much comfort to her family - see Yorkshire Evening Post 18th May 2010.

The ever expanding influence of the EU in criminal matters - No. 3

Under the Stockholm Programme - agreed in December 2009 - the influence of the EU in criminal matters will increase markedly over the years 2010 - 2014.  See the Stockholm Agreement and the Action Plan.  This is a very far-reaching legislative programme as even a brief glance at the Tables in the Action Plan will reveal.

Following on from the Action Plan, the EU has issued a draft directive on the Right to information in criminal proceedings.  This will establish minimum rights across the EU for those suspected of having committed an offence or for those charged.  The minimum rights will include: written information about rights on arrest; written information about rights in the European Arrest Warrant process; information about the charge and access to the case file.  A further initiative is a proposed directive on Translation and Interpretation Rights.

Areas where further EU action will be taken are: Legal Advice and Legal Aid; Communication with Relatives, Employers and Consular Authorities; Special Safeguards for suspected or accused persons who are vulnerable and a Green paper of Pre-Trial Detention - see Road Map 2009.

It remains to be seen to what extent the U.K. government actually adopts many of these initiatives.  For example, will the government be keen to restore legal aid in Magistrates' Courts which has, in the last few years, been scaled back considerably.  Assuming that it does adopt some or all of them, it should not be assumed that everything in the English Law garden is rosy.  Some changes will be required if English Law is to comply fully with some of the proposals.

It is also interesting that the draconian European Arrest Warrant came first and that efforts to achieve minimal procedural rights have come later.  Cart before the horse?

Other EU Law posts:

European Arrest Warrant  ....... Ever Expanding Influence 1 ...... Ever Expanding Influence 2

So what would you do? .....

The Daily Mail (Sunday 8th August 2010 - "Half witted leniency failed again ...") has published an outspoken article about a community sentence handed down to Bradley Wernham aged 19.  Wernham is described as a "career burglar" who has been stealing since the age of 12.  A judge, who is severely criticised in the Daily Mail article, has now sentenced Wernham to 5 years imprisonment.

The case is also reported in The Independent and the BBC.  These reports offer further essential detail which is omitted from the Daily Mail report.  In particular, the reports bring out the fact that the judge had made use of an innovative programme for prolific offenders which was operating in Essex.  The Police had recommended use of this programme in Werham's case.  Wernham received a community sentence for 3 years with a considerable number of requirements attached.  As part of the prolific offender strategy, he was provided with accommodation.

See also BBC 4th August - "Trying to Stop England's prolific offenders"


Of course, the Daily Mail has every right to publish a critical article since justice "must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men" - (per Atkin J in Ambard v Attorney-General for Trinidad and Tobago 1936).  I am not so sure the Daily Mail is entirely "respectful" but let's leave that to one side.  The judge was also perfectly entitled to use the sentencing options available to him and that included the prolific offender strategy].  The real question however is - just what should be done about prolific offenders?

The Youth Justice Board has published information about Prolific and Other Priority Offender Strategies and there is an interesting, albeit lengthy, Ministry of Justice research report (pdf - 145 pages) published in July 2009 which considers the effectiveness of various sentencing options.

Is a rehabilitative sentencing regime right or should the law be much tougher as soon as anyone offends in the hope that further crime will be deterred?  Just how should the Youth Justice system deal with children and young persons who offend - remember that Wernham had been offending since age 12?  Since this year's general election, the public has been fed a diet of "prison does not work" since it fails to offer rehabiltation.  Sentencing has been a political football for a generation or more.  Just what is the way forward?

The ever expanding influence of the EU in criminal matters - No. 2

A corpus of European Union (EU) law has grown up concerning Police and Judicial Co-operation.  Aspects of this are necessary given that there is extensive international crime.  However, the law-makers have paid insufficient attention to long-established rights of the British people.  The rights of British citizens before the law will again be altered in adverse ways given that the British government has agreed - (so far without debate in Parliament) - to opt in to negotiations about the proposed European Investigation Order (EIO) system - see Telegraph and BBC.  Whilst this looks like mere participation in negotiations, it has the effect that the U.K. will be bound by the outcome.  The Law Society reported on this development - here - and, in June 2010, the Society took a critical look at the proposal - see here.  As the Law Society points out: a judicial decision would be issued by a competent authority in the issuing Member State requesting one or more specific investigative measures to be carried out in another Member State with a view to gathering evidence relating to criminal proceedings. 

The potential scope of investigation is extensive and few safeguards are proposed.  In fact, a number of safeguards built into earlier EU Framework Decisions (e.g. on the European Evidence Warrant) do not appear in the Investigation Order proposal - e.g. it will not be possible to oppose an order on the basis of double jeopardy etc.  It could also be possible for a State to request investigation into a matter which, although criminal in the requesting State, is not criminal in the U.K. - (e.g. holocaust denial).  When an Order has been issued it could be possible for numerous investigatory measures to apply: interviews, bodily examinations; interception of communications; monitoring of accounts etc.

Analysis of the proposed EIO written by Steve Peers (Professor of Law, University of Essex) may be read at Statewatch.  Law and Lawyers recently looked at disclosure of criminal records - see here.

Politically, it is interesting to see how the new coalition government is acting on issues affecting the liberty of the British citizen.  Despite hopeful comments about restoring liberty, the new government's actions sometimes appear to be going in the opposite direction.  Downing Street comment on the opt-in may be read here.  

The potent views of Fair Trials International merit a full reading.

The cull in legal aid for family work - 46% fewer firms

Even the Legal Services Commission has admitted that a cut of 46% of solicitors firms providing family law services was not intended - see "LSC chief: tender outcome "unintentional" - Law Society Gazette 5th August.   Even if true, that is little consolation to anyone including, in particular, the many already disadvantaged people who may now struggle for access to justice.

The whole tender process was a debacle with the outcome of smaller (usually local) firms of solicitors and sole practitioners being forced out of the family law market.  In some places, well-established local firms have not been successful in securing a contract and the franchise has been granted to a bigger firm located elsewhere.  In the bidding process many promises were made by such larger firms - e.g. that they did not need to recruit additional staff or set up new offices etc.  There appears to be no system for policing such promises.

The longer term consequences of this hardly bear thinking about as many skilled and experienced lawyers who have consistently devoted their work to providing legally aided family law services for their clients will now be lost to the system.  The coalition government would have done well to apply the brakes to several reforms initiated by the Labour government and to take a more measured approach to what needs to be done.  Their bull in a china shop approach is unacceptable even if money does have to be saved.

Addendum 20th August 2010: See Law Society Gazette.  Some 31 firms in the NE of England are seeking a judicial review of the LSC's tender process.  The House of Commons Justice Committee has been asked to convene to look at the matter.  The Family Judges are extremely concerned.  The public ought to be also extremely concerned.

Secretive justice - is it justice?

"Secrecy, being an instrument of conspiracy, ought never to be the system of a regular government" - Jeremy Bentham (1748-1832).

In 2009, Justice published an interesting and important report on the extent of secrecy which has gradually built up over recent years in English legal proceedings - see Secret Evidence.  This is well worth reading for those who are concerned about modern legal process.

Should Bentham's notion still apply or is it somehow only relevant to a bygone era?  If it should apply, why are there so many exceptions?

An important tribunal of which seems to be little known

The Investigatory Powers Tribunal (IPT) was set up by the Regulation of Investigatory Powers Act 2000 s. 65 - (often referred to as RIPA). Investigatory powers which may be authorised are:  interception of communications; acquisition and disclosure of communications data; surveillance and covert human intelligence sources and investigation of data protected by encryption.  The 2000 Act provides for some scrutiny over the use of these powers.  There is an Interception of Communications Commissioner; an Intelligence Services Commissioner and there is the Investigatory Powers Tribunal.  Numerous public authorities - including local councils - are entitled to use certain of the powers.  It is a matter of serious concern that so many public bodies are equipped with these powers and that they are frequently used for the investigation of relatively low level activity some of which may not even be unlawful.

The IPT has recently decided Paton v Poole Borough Council where a mother was secretly investigated in relation to what the Council perceived to be her attempt to avoid the Council's school allocation policy. The case is well-covered on the Panopticon Blog which is managed by barristers at 11 King's Bench Walk.   The investigation against Mrs Paton including monitoring movements of family members and their car and examining the contents of their rubbish.  The Tribunal ruled that investigating a potentially fraudulent school application was not a proper purpose for the use of the RIPA powers.

In late 2009, the Supreme Court ruled that, even where a challenge to the use of the investigatory powers is based on human rights grounds, the challenge must be taken to the IPT instead of via judicial review in the High Court - see R (A) v B [2009] UKSC 12 .  Given the secretive nature of the IPT this is regarded by many as inherently unjust and alien to the general English culture of open adjudication.

The Guardian 2nd August published an article arguing that it is time to Review the Tribunal.  Further information about the IPT may be read at Security Services.

A dog which has been reprieved - contingently ....

The case of R v Davies [2010] EWCA Crim 1923 may be of interest to dog owners.  A destruction order for an alsatian was made but the Court of Appeal has quashed that order and put in its place a "Contingent Destruction Order" requiring the owner to keep the dog under control or else ....!  Such orders can be made under s.4A of the Dangerous Dogs Act 1991.  That section was inserted into the 1991 Act by an amending Act in 1997.  See here for further information on the law.

There is no honour in killing ... appalling murders in Blackburn

The Guardian 3rd August reports the conviction of four men for the murder of two people in Blackburn, Lancashire.  See also The Independent 2nd August.  The persons killed were not the intended victims.  The men: Ibrahim (aged 21); Iqbal (25), Sadek Miah (23) and Mohammed Miah (19) received life sentences with tariffs, respectively, of 28 years, 25, 21 and 19 years.  Henriques J referred to these crimes as "shocking and terrible murders".

In some quarters these crimes are referred to as "honour killings".  This terminology ought to be deprecated.  It is murder and should be referred to as that and that alone.

See the BBC website and the reader is also referred to Gendercide.

The ever expanding influence of the EU in criminal matters

The web of European Union Police and Judicial Co-operation is expanding.

From 15th August 2010, in English criminal proceedings, account will be taken of convictions in other EU Member States in a similar way to how domestic convictions are taken into account.  This comes about because the Coroners and Justice Act 2009 s.144 and Schedule 17 is implemented from that date - (see Commencement Order No.5).    This will have far-reaching implications.  For example, in sentencing a person, the court will be able to treat EU convictions as an aggravating factor.  Also, it will usually be possible to adduce EU convictions as evidence of bad character.

The UK is bound to implement this under EU Council Framework Decision 2008/675/JHA and 15th August was the latest date for implementation (see Article 5 of the Framework Decision).  A Ministry of Justice Circular (2010/2) offers more detailed explanation and explains that the new law generally only applies to EU convictions imposed on or after 15th August 2010.

What happened in Wigan to a War Hero

The estimable Jack of Kent legal blog carries a post about What Happened to Lance Corporal Mark Aspinall in Wigan on a night out in July 2008.  Jack of Kent has raised this because two of the officers have been acquitted by a jury at Manchester Crown Court of assault occasioning actual bodily harm to Mr Aspinall.  A verdict on the third officer - Special Constable Peter Lightfoot - is awaited in the near future - see BBC 30th July 2010.

This case is interesting in that Wigan Magistrates convicted Mr Aspinall of assault on the Police and sentenced him to 3 months imprisonment suspended with a condition of 200 hours unpaid work.  Mr Aspinall was also ordered to pay £250 in compensation - see The Times 1st December 2008.  Mr Aspinall appealed his conviction to the Crown Court and the conviction was quashed - see Daily Mail 1st December 2008.

The Independent Police Complaints Commission (IPCC) managed an investigation into this matter and their brief statement may be read here.  This report names the officers as Sergeant Stephen Russell, P.C. Richard Kelsall and Special Constable Lightfoot.  The report informs us that charges of assault occasioning actual bodily harm and conspiracy to pervert the course of justice were brought and a further charge against Special Constable Lightfoot of perjury.  Please see the Jack of Kent post.

Addendum 1st August 2010:  See the Manchester Evening News report on the case dated 1st August.

Addendum 2nd August 2010: Special Constable Lightfoot was convicted by a jury of assault occasioning actual bodily harm to Mr Aspinall - see Manchester Evening News 2nd August.  Lightfoot is also guilty of perjury which occurred at the Crown Court hearing of Aspinall's appeal.  Further coverage of the verdict is on BBC News Manchester.

See also the IPCC statement relating to the conviction.   Here is what they have to say:

It is clear from the evidence that Mr Aspinall was drunk, aggressive and causing a nuisance. He was exhibiting the kind of behaviour that police officers have the unfortunate duty to deal with on a regular basis. That is why officers are trained to deal with such individuals in a professional manner. However in this incident Special Constable Lightfoot's training would appear to have been replaced by a red mist. His actions were violent, excessive and unjustified.
I am grateful to Greater Manchester Police and our investigators for the thorough and professional work they have done in examining this matter. I have noted the jury’s decision in relation to the other officers and we respect that. The IPCC and Greater Manchester Police must still consider whether it is appropriate for any of the officers to be subject to misconduct action.”

This makes it clear that Mr Aspinall's conduct left a great deal to be desired.  Nevertheless, the assault occurred when he was down on the ground with 3 officers over him.  Whatever Aspinall was up to in the Walkabout Bar occurred before the confrontation on the streets with the three officers.  For whatever reason, it appears the Aspinall was not charged with any matter other than the assault on the Police for which he was later acquitted on appeal from the magistrates.  The Magistrates' Court trial is interesting in that the magistrates did not have the benefit of any visual evidence but, on appeal, the Crown Court did.  Another matter which is not reported is whether Aspinall had any legal representation in the Magistrates' Court.  Legal Aid is not easy to get in the magistrates' court since the defendant has to pass both a means test and an interests of justice test.  Where a charge is serious (as is Police Assault) then the interests of justice test is normally met since there is the possibility of imprisonment and unrepresented defendants have to face the difficulty of examining professional police witnesses.  That is something which requires considerable forensic skill and ability.

Lightfoot will be sentenced at the beginning of September.