Thursday, 8 December 2011

Europe ... Murder ... Hatred ... Gangs ... Committals ... Magistrates ... Sentencing

Surface Chart 1200 UTC 8 Dec

Europe - Today - 8th December - was notable for the country being dominated by a deep low pressure area and a cold front sweeping from west to east.  The wind has been strong and the rainfall considerable.  Combined with the sky hardly getting light, the result has been a miserable day.   This is also the day when European Heads of State and Government meet at the European Council.  According to the Council's announcement, they will "discuss economy, energy and enlargement. In the margins of the European Council, the accession treaty with Croatia will be signed.

The leaders will discuss the overall economic situation, with a focus on structural reforms and fiscal consolidation as the basis for a return to sustainable growth, including exploring the possibility of limited Treaty changes, and proposals for possible steps aimed at deepening economic integration in the EU.

Talks will amongst others be based on the interim report "Towards a stronger economic Union", elaborated by the President of the European Council in close collaboration with the President of the Commission and the President of the Eurogroup. The report addresses economic coordination and convergence in the euro area; budgetary discipline, including possible treaty changes; economic union; and strengthening the existing crisis mechanisms."

Addendum - Friday 9th December -  23 of the 27 EU member States agreed to proceed with a new treaty - see European Council "Agreement on immediate action and on new fiscal rule for the eurozone."   The new inter-governmental treaty is to be signed by March 2012.  The UK opted out - The Independent 9th December.   The political and legal ramifications of this will be profound and cannot be entirely predicted at the moment.  The UK's "opt out" was joined by Sweden, the Czech Republic and Hungary.  However, it seems that Sweden and the Czech Republic are to consult their Parliaments on what to do next.  Hence, they might yet join the other 23.  Would referring the matter back to Parliament have been the better course for the UK government given that sovereignty supposedly lies with Parliament and not with the executive?  This is perhaps an example where the UK's unwritten constitutional arrangements permit the executive too much power.  Only time will tell.  See also remarks of Herman van Rompuy (President of the European Council) - 9th December and also Actuarial Post "Reaction to the Eurozone summit."

Murder:  Meanwhile,
back at home, there are new calls from the "Homicide Review Advisory Group" for the mandatory life imprisonment sentence for murder to be abolished so that judges can take full account of all the circumstances and sentence accordingly.  It is true that the mandatory sentence fails to recognise the wide variation of situations which can amount to murder.  However, politicians are invariably mindful of public opinion and would perhaps fear a situation arising in which very few life sentences are actually imposed even for the more serious murders.  All in all, it is a moot point whether such a reform should proceed on its own.  Perhaps it should be part of a complete overhaul of the law of murder which, as recently as 2006, the Law Commission recommended - (Law Com 304 - Murder, Manslaughter and Infanticide).   The Lord Chief Justice has said - "It seems to me perhaps the real problem is with the law of murder itself."

Hateful murder:  The Legal Aid, Sentencing and Punishment of Offenders Bill has passed through the Commons and is in its committee stage in the Lords.  Nevertheless, the Ministry of Justice is going to bring forward an amendment so that murderers of disabled and transgender people in hate crime attacks will face life sentences with a starting point of 30 years.  This will require amendment of Schedule 21 to the Criminal Justice Act 2003.   This appears to bring such murders in line with the 30 year minimum set out for murders which are racially or religiously aggravated or aggravated by sexual orientation - Sched. 21 para 5(2)(g).   See the Ministry of Justice's announcement.

Gang Violence:  The Law Society Gazette 8th December has a very useful article on what have been sometimes (inaccurately) referred to as "Gangbos."  The Policing and Crime Act 2009 Part 4 enables the police, or local authority, following consultation with other agencies, to apply with or without notice to a county court or the High Court for an injunction to prevent gang related violence.

Committals:  The Ministry of Justice has announced that"committal hearings" in Magistrates' Courts will be finally abolished.  The process will commence in April 2012 and will be achieved by phased implementation of Schedule 3 to the Criminal Justice Act 2003.  See Law Society Gazette 8th December.  Historically, committal proceedings have played an important part in the criminal justice process.  However, in recent times they have been gradually removed.  For example, the Crime and Disorder Act 1998 s.51 removed them for offences triable only on indictment (i.e. only in the Crown Court).  They currently remain for offences triable either-way.

Magistrates:  Less magistrates feel that they will be losing further work, there seems to be a move to give them power to pass swifter sentences in uncontested cases - see The Guardian 8th December - which states - "Magistrates could be given the power to hand down sentences as soon as someone is charged in simple non-contested cases, under justice ministry proposals.  Nick Herbert said giving magistrates the power to hand out summary justice outside of courts, and to pass sentences immediately in some cases, could be 'simple, swift and need not involve expensive lawyers.'  Concerns have been raised over the rise of out-of-court disposals such as cautions and fines. In July the most senior judge in England and Wales warned that police officers should not be acting as prosecutor, jury and judge.  Lord Judge, the lord chief justice, said persistent and violent offenders should not be allowed to escape justice through police use of out-of-court disposals."   Fuller details of this proposal are awaited but one wonders whether a harder look at the extensive use of cautioning is also required.

Sentencing of historic cases:   In R v H and others [2011] EWCA Crim 2753 the Court of Appeal has considered how a judge should approach sentencing in cases where a sexual offence was committed a long time ago but where the conviction for it is recent.   A very useful article on this case is at UK Human Rights.

All in all, despite the weather, an interesting day !

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