Friday, 2 September 2011

Friday 2nd September - a Friday look around

Castell y Gwynt - Snowdonia
The disorder of early August and the aftermath of "swift justice" has tended to dominate the news over the last few weeks.  It is time to see what else is or might be sneaking under the radar.

Ministry of Justice

The Ministry of Justice has released statistical information - (please keep awake !) - relating to knife offences and how offenders are dealt with.  The statistics are for Quarter 2 of 2011 compared to Q2 of 2010.  We are informed that in Q2 of 2011, there were 5190 "disposals" for knife-related offences which is down 3% on Q2 of 2010.  Further, in Q2 2011, 23% were cautioned, 31% received community sentences, 11% received suspended sentence orders and 20% immediate custody.  I could be missing something but some 15% of cases are therefore unaccounted for?  It is somewhat surprising that sentencing for this offence is still tending to be averse to custody despite the views of the Court of Appeal in R v Povey and others [2008] EWCA Crim 1261.  The high cautioning rate is also to be noted.

The Ministry has also announced that it has "signed up" to European Directives relating to protection for victims of crime - see Ministry of Justice Press Release.  A number of other EU justice initiatives may be seen on the Europa website.

Also from the Ministry of Justice is a "protocol" concerned with the difficult problem of persons held in custody still being able to intimidate witnesses.

Also running until 11th October is the Ministry of Justice consultation - "Strategy for the Secure Estate" - which relates to youth offending.

Corporate Manslaughter

the Corporate Manslaughter and Corporate Homicide Act 2007 was passed, certain aspects of it were not implemented.  The Act amends the law relating to how a "Corporate Body" (such as a Limited Company) can be criminally liable if its activities result in a death brought about by gross negligence.  Under common law principles of liability this had proved to be very problematical and a number of high profile cases arose such as Herald of Free Enterprise.  From 1st September 2011 where the death of a person in custody arises, an offence under the Act is a possibility.  Commencement Order No. 3 has activated Section 2(1)(d) which refers to a relevant duty of care owed to a person in custody.

For an interesting post on all of this see UK Human Rights Blog - Melina Padron - "Kicking and Damning Corporate Souls."  The Guardian has a considerable number of items relating to deaths in custody.  Further links: Independent Advisory Panel on Deaths in Custody and Inquest.

Terrorism powers

Back in January, Law and Lawyers posted "Control Orders to become T-Pims: A rose by any other name."  At the time, it was noted that the government appeared to be abandoning powers to require terrorism suspects to "relocate."  It now appears that such powers are to re-appear - perhaps as part of a new Terrorism Bill to be presented to Parliament in the near future - see The Guardian 2nd September - "Exile plan for terror suspects is a bungled measure, says civil liberty groups." 

The blogtour

It seems that CharonQC is becoming something of an author - see Mosi-oa-Tunya * - which begins with a 1970s visit to Zambia by one Carter.  His usual blog continues as ever with his perceptive views of legal events.   The Magistrates' Blog has several posts looking at the recent disorder and how District Judges dominated.   Jack of Kent offers some "General thoughts on abortion" - always an extremely emotive subject.   The UK Supreme Court blog has a link to the Cambridge Student Law Review: Supreme Court Annual Review.  This blog is professionally written and offers some excellent previews of Supreme Court cases as well as reports about the court's decisions.  Family Lore looks back to an "age when life was so much simpler" - (if there ever was such a time?) - with posts such as "Women: if you want to keep your man, make him a good cup of coffee."  Finally, in the light of interruption to the Proms concert by the Israel Philharmonic, Carl Gardner asks "Why were there no arrest at the Proms."  It's a fair question.  Good old-fashioned arrest for breach of the peace would, I think, have been acceptable here.

* Mosi oa Tunya - The Smoke that Thunders - Victoria Falls


  1. The majority of cases of knife crime brought to court are far removed from the case of Povey. He had 97 previous convictions including manslaughter by stabbing. He was in the street at 12.45am wearing an army camouflage jacket, combat trousers and black army style boots, carrying a flick knife and a wooden handled kitchen knife with a 6 inch blade.

    One case I remember when the CPS asked the court to take note of Povey was a young, very pleasant, frightened and tearful mother of 2 children (no previous convictions) who had a very small penknife in the glove compartment of her car which she used to cut fruit for her kids. The CPS were dismayed when the court ruled out a prison sentence.

  2. The views of the LCJ are crystal clear - paras. 1-5 of the judgment in Povey and others. The case lays down general guidance for sentencing these offences. Of course, every case depends on its own facts but Povey tells courts to generally take a strong line.

  3. There is no doubt in my opinion that "knife crime" is what is commonly termed a "political football". It is used as a template by our lords and so called masters as a weather vane for their "hardness" on crime. I commented yesterday also on this topic:-

    Perhaps it has become a weather vane for legal bloggers also?

  4. I commented on the JP's blog and won't repeat what I said here.

    CallItJustices makes an excellent point.

    Povey is the archetypal case of knife posession, but it is far from typical.
    I have no argument with harsh treatment for men like Povey, but most cases are not like that.

    Courts are quite rightly finding that to deal harshly with many of the cases they see would be unjust - simply because the case bears little resemblance to the archetype. That is why harsh sentences are not being given, and rightly so.


    The judgment in Povey is disturbing. I challenge anyone to read it without finding it tinged with hysteria. Nevertheless even in Povey

    "when considering the seriousness of the offence courts should bear in mind the harm which the weapon might foreseeably have caused. "

    In many cases the only reasonable answer to the question "what harm might the (weapon?) forseeably have caused" is "none at all".

  5. Magistrates' Court Sentencing Guidelines

    Sentencing Council - after R v Povey

    The latter document states - "When the current concerns have been overcome, courts will be notified that the approach
    should return to the guideline as published."

    Has any such notice been given?

  6. The sentencing council uses the interesting phrase "where the offensive weapon is a knife".

    Persons prosecuted for posessing a bladed article are not prosecuted for posessing an offensive weapon - it is a separate offence to posess a knife which does not require that it be "made, adapted or intended" for use as a weapon. For example the lady intending to cut fruit in the case above.

    It's not clear that this guideline can be properly applied in such cases.

    Of course I am not a lawyer, and I may have this wrong.