Saturday 29 December 2012

The death of a drug seller ~ Fixing the minimum term of imprisonment

Adam Vincent was a drug addict and in bad health as a result.  He sold drugs on the streets for the Griffiths family who operated their drug operation from a bungalow in Grimsby.  Lee Griffiths, Luke Griffiths, Thomas Griffiths and Mark Jackson were convicted before a judge and jury of the brutal murder of Vincent.  They appealed against the minimum terms of imprisonment determined by the trial judge who applied the Criminal Justice Act 2003 sections 269 and 270 and Schedule 21.

Lee Griffiths, Luke Griffiths, Thomas Griffiths and Mark Jackson v R [2012] EWCA Crim 2822 Hughes LJ, Ramsay and Irwin JJ

Friday 28 December 2012

Guilty Pleas ~ sentence reduction

The last day of the Michaelmas Law term 2012 was 21st December and no less than nine Court of Appeal (Civil Division) judgments and four Criminal Division judgments were handed down that day.  These can all be seen on the Bailii website along with the numerous judgments of other courts and tribunals.

The Criminal Division considered the effect of guilty pleas in relation to sentence - Caley and others (Guilty Pleas) v R [2012] EWCA Crim 2821 Hughes LJ, Wilkie and Popplewell JJ.

It has been long standing practice to give a "discount" on sentence when there is a guilty plea.  The amount of the discount depends on the time at which the defendant indicates "his intention to plead guilty."  Here is a powerful incentive to indicate an intention to plead guilty at the earliest possible stage since the discount can be as high as one-third.  Such a discount can amount to several years in cases where lengthy sentences of imprisonment are inevitable.

Thursday 27 December 2012

The Lord Chief Justice warns

In a light hearted speech with a serious message, the Lord Chief Justice has warned of the need for vigilance where the rule of law is concerned.

"I am not sounding a clarion call against any imminent threat to the rule of law.  What I am, however, saying is that even in a country with the values with which we are blessed, it is unwise to take them for granted or to assume that we can be sure that in years to come that some new force may not emerge to undermine them; it may be insidious, maybe almost imperceptible. Indeed if insidious and almost imperceptible it is probably more dangerous. So in this context the “may be” is enough.  The future, after all, is long as well as short and the world is changing fast."

Speech at Mansion House, London.

The tragedy is that, in 2012, Parliament enacted the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which will soon come to remove access to justice for thousands of people who, when in conflict with authority, need an advocate with good understanding of the law and its practical application.

Monday 24 December 2012

Seasons Greetings

The Greetings of the Season to all readers.  Thank you for your interest in the various stories and for your interesting comments.  All much appreciated.

Christmas tree in the foyer of the Supreme Court.

Please return to the blog over the coming period for some more stories.

It's interesting to note that Fairytale of New York (The Pogues & Kirsty McColl) has recently been voted the nation's favourite Christmas song.   For me, there is no doubt that the greatest of all Christmas songs is "In the Bleak Midwinter" - here it is sung by Sissel.

Saturday 22 December 2012

Sentencing ~ Common assault

A father attends a school and assaults the Head Teacher.  Should this merit a custodial sentence?  This was the issue in the case of Paul Stratford  - see Daily Mail 21st December.   The Head Teacher wished to exclude Stratford's son from school for 1 day for 'racial abuse.'  On attending the school, Stratford punched and pushed the teacher and later claimed that he was protecting his son's eye from the teacher's pointing finger.  Stratford's attack on the teacher ended when the caretaker intervened and it is reported that Stratford 'continued to rant' as he left the school.  The Daily Mail commented:  "Despite the gravity of the offence, magistrates decided to impose only a community sentence, telling Stratford to pay his victim £100."  Of course, here was a case which is grist to the mill of a "get-tough-on-criminals" newspaper but it is not unreasonable to think that many ordinary people will agree that the sentence was light.

Let us leave aside Stratford's case for a while since we just have a media report and do not know every detail.  Instead, let us focus on the sentencing guidelines to see what they indicate as a sentence for an assault on a teacher when, perhaps fortuitously, there is no injury despite the teacher being punched once and pushed.

Friday 21 December 2012

Drinking and driving ~ the government's consultation

With the festive season upon us, here is a timely reminder that the government has plans to amend the law of drinking and driving. 

Have a look at the government's consultation:

This consultation encompasses the legislative changes the government proposed in its response of March 2011 to the reports by Sir Peter North and the Transport Select Committee on drink and drug driving (“the government’s response”). The changes covered in this consultation do not, however, include creating a new offence related to driving with a specified impairing drug in the body, which is also being progressed by the government.

The only safe advice which can be given about drinking / driving is do not do it. 

The changes are considered in an excellent post on CharonQC's blog - Timely advice on the drink driving laws from Jeanette Miller - solicitor.

Thursday 20 December 2012

A man and his bicycle on an important street

The original event:

On the evening of 19th September 2012, the former government Chief Whip (Mr Andrew Mitchell MP) cycled along Downing Street in the direction of Whitehall.  The Guardian (19th December) has some CCTV pictures - Pleb row: what does CCTV show?    Mr Mitchell can be seen, on his bicycle, at time 19:36:01 proceeding toward Whitehall.    A short time later, he arrived at the gates across the entrance to Downing Street.  The Police Officers on duty can be seen by the gates.  He probably arrived at the gates by around 19:36:20 (latest).  At time 19:36:47, Mr Mitchell can be seen, with his bicycle, walking out of the side gate - a further CCTV picture of him leaving via the gate is here.  An Officer opened the gate for him and closed it afterwards.

There is no sound recording with the CCTV.  What happened in the short time between Mr Mitchell arriving at the gate and him leaving the street - a period of time of around 27 seconds?   It appears that the officers did not wish to open the main gates and so Mr Mitchell was asked to exit via the side gate.  Mr Mitchell has admitted making some remarks to the officers and, afterwards, he apologised for whatever he had said and the apology was accepted.   Two Police Officers stated that Mr Mitchell had called them "fucking plebs" but Mr Mitchell has consistently denied using those words.

The event was reported

Hillsborough Disaster ~ New inquest to be held

Update:  The judgment of the court quashing all the inquest verdicts - Her Majesty' Attorney-General v HM Coroner for South Yorkshire (West) and HM Coroner for West Yorkshire (West)  [2012] EWHC 3783 Admin  - Lord Judge LCJ, Burnett LJ and HHJ Peter Thornton QC (Chief Coroner)


Following the publication of the Hillsborough Independent Panel Report, the Attorney-General applied to the High Court for a new inquest to be ordered into the deaths arising from the Hillsborough disaster of April 1989 - BBC 19th December 2012.  The High Court sat with Lord Judge CJ presiding and quashed the earlier inquest verdicts and ordered a new inquest.  Their legal power to do this is in the Coroners Act 1988 section 13.

The Home Office has announced a fresh Police investigation    Former Durham Chief Constable Jon Stoddart will lead the new inquiry, which will focus specifically on the 96 deaths of Liverpool fans at the FA Cup semi-final in 1989. Mr Stoddart will be able to recruit investigators and staff to his team, but he will not be allowed to employ officers or former officers with any prior connection to the Hillsborough Disaster, nor those who have worked in West Midlands, South Yorkshire or Merseyside police forces.  He will be required to work closely with the Independent Police Complaints Commission investigation and pass any findings of misconduct against officers to IPCC investigators to ensure the police are not being investigated by the police.

In addition

Tuesday 18 December 2012

Commission on a Bill of Rights ~ A UK Bill of Rights? Perhaps, but not yet !

Long grass
19th December ~ Updated with some additional links

On Tuesday 18th December, the Commission on a Bill of Rights produced its report - A UK Bill of Rights? - The Choice Before Us

Ministry of Justice -  Press release and Commission on a Bill of Rights web page

There are two volumes to the report though it is Volume 1 which contains the substantive material: Volume 1 and Volume 2

Volume 1 contains a brief Letter to Ministers, the Commission's Terms of Reference, an outline of the Commission's approach to their work and an Overview.  12 chapters then follow and a further 8 individual papers.

According to the section headed "Our approach to our work", we are informed that the Commission members were nominated by the two coalition parties.  The Commission described itself as "politically disparate" but also claimed to have "surprisingly wide areas of agreement." 

: The report draws the conclusions together in Volume 1 Chapter 12 :

The Commission did not wish

Sunday 16 December 2012

Commission on a Bill of Rights ~ the report is a-coming !

The Commission was appointed by the government on 18th March 2011 and, at the time, comprised
The Chair of the Commission was former Civil Servant Sir Leigh Lewis

Law and Lawyers blog - Commission on a Bill of Rights -18th March 2011

Dr Pinto-Duschinsky - (a non-lawyer) - later resigned from the Commission and was replaced by Lord Faulks QC.    The make up of the Commission was considered by Liora Lazarus - "The composition of the UK Bill of Rights Commission" - 24th April 2011.

Friday 14 December 2012

Friday News roundup

Here is some of the legal news not covered in other recent posts.

Rendition and torture:

The Grand Chamber of the European Court of Human Rights has given judgment in El-Masri v The former Yugoslav Republic of Macedonia (application no. 39630/09).  The case concerned the complaints of a German national of Lebanese origin that he had been a victim of a secret “rendition” operation during which he was arrested, held in isolation, questioned and ill-treated in a Skopje hotel for 23 days, then transferred to CIA agents who brought him to a secret detention facility in Afghanistan, where he was further ill-treated for over four months. The Court found Mr El-Masri’s account to be established beyond reasonable doubt and held that “the former Yugoslav Republic of Macedonia” had been responsible for his torture and ill-treatment both in the country itself and after his transfer to the US authorities in the context of an extra-judicial “rendition”.

Thursday 13 December 2012

Many dimensions to the law ~ Supreme Court judgments of 12th December

The Supreme Court handed down three judgments on 12th December.

X (Appellant) v Mid Sussex Citizens Advice Bureau and another (Respondents)  

Judgment PDF

Press summary (PDF)

In the matter of A (A Child)

Judgment PDF

Press summary (PDF)

Imperial Tobacco Limited (Appellant) v The Lord Advocate (Respondent) (Scotland)

Judgment PDF

Press summary (PDF)
The cases were concerned, respectively, with the position of a volunteer adviser in a Citizen's Advice Bureau (CAB); whether social work records should be disclosed to the parties in proceedings concerning a child (A); and whether the Scottish Parliament was legally competent to legislate to prohibit the display of tobacco products.  The cases illustrate some of the numerous dimensions of modern day law.

Wednesday 12 December 2012

Northern Ireland ~ the 1989 Finucane murder ~ Independent Review Report

Patrick Finucane and his wife Geraldine were the parents of three children. He was a solicitor practising in Belfast. Like many in the legal profession he appeared in high profile cases that were often controversial. He acted frequently for those who were alleged to be members of the Irish Republican Army (IRA) or the Provisional Irish Republican Army (PIRA) when they were charged with terrorist offences. Yet he also acted for Protestants in similar situations. There can be little doubt that it was his role as a solicitor that led to his murder  which took place in February 1989.

In October 2011, the Rt. Hon. Sir Desmond de Silva PC QC was requested by the Secretary of State for Northern Ireland (Mr Owen Paterson MP) to review aspects of this murder.  Sir Desmond's brief was:
Drawing from the extensive investigations that have already taken place, to produce a full public account of any involvement by the Army, the Royal Ulster Constabulary, the Security Service or other UK Government body in the murder of Patrick Finucane.
The Review will have full access to the Stevens archive and all Government papers, including any Ministry of Defence, Security Service, Home Office, Cabinet Office, or Northern Ireland Office files that you believe are relevant. The account should be provided to the Secretary of   State for Northern Ireland by December 2012, for the purpose of publication.

Tuesday 11 December 2012

Press regulation ~ The Labour Party's Draft Bill ~ a new role for the High Court?

The Guardian has linked to a draft Press Freedom and Trust Bill published by the Labour Party.  They are keen to provide a form of statutory underpinning for an independent press regulator.  It is a short bill - as bills go!

Clause 1 of the Bill is a guarantee of media freedom and independence.  This will be achieved by placing a duty on the Secretary of State, every Minister of the Crown and every other person exercising any public function relating to the media to uphold the freedom of the media and its independence from the executive.  Such duties are, in their nature, imprecise and they are usually enforceable only by political means - perhaps including public opinion.  Of course, the fact of including a guarantee of media freedom in a statute might be seen to have made it, effectively, something in the gift of the politicians as opposed to a basic fundamental of democracy.  The guarantee offered by Clause 1 would be in addition to the Convention rights of any person - where "convention rights" are those rights protected by the Human Rights Act 1998.

Clause 2 is concerned with an independent and effective system of self-regulation by the press.  The word "press" has a wide definition and will include online content published by newspapers.

Saturday 8 December 2012

Prosecution of Historical Child Abuse

Among the most difficult criminal cases to investigate and prosecute are those relating to allegations of historical child abuse.  Following the emergence of allegations against the late Jimmy Savile, a number of other cases have appeared as a result of Police investigations such as the Metropolitan Police's Operation Yewtree .

In October 2012, Commander Peter Spindler of the Metropolitan Police said:

"We are dealing with alleged abuse on an unprecedented scale. The profile of this operation has empowered a staggering number of victims to come forward to report the sexual exploitation which occurred during their childhood."

The investigation of such cases is complex, the decision for Crown Prosecutors as to whether to prosecute is very difficult and the conduct of a trial presents formidable difficulties in ensuring that, many years after the alleged events, the defendant receives a fair trial.

It is not appropriate to comment about any specific cases which may be likely to go to trial.  However, it is to be hoped that those involved in these cases have read the incredibly impressive study by Professor Penney Lewis - "Delayed Prosecution for Childhood Sexual Abuse."   The book is available for purchase - here

Wednesday 5 December 2012

LASPO 2012 ~ Some materials

Updated 9th March 2013

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) is gradually being brought into force.  LASPO is one of 18 Public General Acts enacted in 2012.  On top of that, 3001 Statutory Instruments have been added.  The sheer volume of legislation is astounding and the increase seems set to continue despite calls for someone to somehow get a grip - (e.g. article by Dr Ruth Fox - Public Service 28th January 2011 - Getting a grip on legislation).

LASPO - recent commencements:

1st September  - new offence of squatting in a residential building - LASPO s.144 - Earlier post New squatting law in force 1st Sept

1st October - amendment of law relating to "Victim Surcharges"

3rd December -

new youth remand framework and amendments to adult remand provisions.  For adult defendants, the Bail Act 1976 is amended to remove the option of remand in custody in most circumstances where there is no real prospect of the defendant being imprisoned if convicted. These changes apply to adult defendants who have not been convicted. They do not apply to extradition proceedings.  Provision is also made for prosecution appeals to the High Court from a decision of the Crown Court to grant bail.

Youth Justice - new referral order provisions

Dangerous Offender provisions - ss. 122-128 and Schedules 18-22 - Earlier posts -  LASPO Part 3 Chapters 2 to 8 and  From the Party Conferences No. 2 Dangerous Offenders

New offences - s. 142 (threatening with article with blade or point or offensive weapon in public or on school premises); s.143 (causing serious injury by dangerous driving); s.146 (buying scrap metal for cash) - Earlier post - LASPO Part 3 Chapter 9 Criminal Law

Full list of LASPO provisions coming into force on 3rd December

Monday 3 December 2012

Guarding the guardians - the Leveson report and the Rubicon

Updated 5th December

Cameron makes the editors an offer they can't refuse!!  Culture Secretary chairs meeting with newspaper editors - Dept. of Culture, Media and Sport


Lord Justice Leveson recommended legislation to (a) place a duty on government to uphold and protect the freedom of the press;  and (b) to give recognition and certification powers to a Recognition Body (such as Ofcom).   

The Recognition Body would be responsible for the recognition of the Regulatory body and for its certification and the Recognition Body would have powers to review the regulator at specific intervals.   

The Regulatory Body itself would be set up by the press and membership would be voluntary but there would be powerful incentives to join.  Life outside the fold might prove to be very risky legally!   

Other bodies would also have responsibilities – in particular, the Information Commissioner in relation to Data Protection and the Independent Police Complaints Commission in relation to Police matters.  Various amendments to the Data Protection Act 1998 were suggested as well as amendments to the Police and Criminal Evidence Act 1984.

Friday 30 November 2012

Sir Cyril Smith ~ Corroboration of evidence

Revelations relating to the activities of the late Sir Cyril Smith have been in the media - BBC Sir Cyril Smith: Former MP sexually abused boys, police say 27th November 2012.   Sir Cyril's family are deeply saddened by these allegations - Telegraph 28th November 2012  - where it is reported that Smith’s family laments the fact that the claims had been resurrected "so long after Sir Cyril's death and at a time when he is no longer able to defend himself".

Evidence now made public indicates that a file compiled by Lancashire Constabulary in 1970 contained allegations made by eight men that they had been subjected to indecent assaults by Sir Cyril when they were teenagers.  The file was considered by the Director of Public Prosecutions (DPP) Sir Norman Skelhorn KBE QC who advised that no charges should be brought against Cyril Smith.  (Skelhorn was Director of Public Prosecutions from 1964 to 1977.  The Crown Prosecution Service was not created until 1986 - Prosecution of Offences Act 1985). 

The reasons given by Skelhorn for advising against prosecution are of some legal interest.  The reasons were in a letter from Skelhorn to the Chief Constable of Lancashire (19th March 1970).    Skelhorn stated that the allegations were "without corroboration."

Thursday 29 November 2012

Who is to guard the guardians - Leveson report - Immediate reaction

Lord Justice Leveson has published his report following the end of the first part of his Inquiry at which some 337 witnesses gave evidence and 300 other statements were taken into account.  The report is available via the Leveson Inquiry website.  A video of Lord Justice Leveson launching his report is also available - see The Guardian 29th November.

"The goal must be a genuinely independent and effective self regulatory system. I have therefore set out, and recommend a model for independent self regulation that I am confident would protect both the freedom of the press and freedom of speech along with the rights and interests of individuals; it should therefore command public

"An independent regulatory body should be established, with the dual roles of promoting high standards of journalism and protecting the rights of individuals. That body should set standards, both through a code and in relation to governance and compliance. The body should: hear individual complaints against its members about breach of its standards and order appropriate redress while encouraging individual newspapers to embrace a more rigorous process for dealing with complaints internally; take an active role in promoting high standards, including having the power to investigate serious or systemic breaches and impose appropriate sanctions; and provide a fair, quick and inexpensive arbitration service to deal with any civil law claims based upon its members’ publications."

Wednesday 28 November 2012

Whole life terms for murder - Vinter and others v UK

Today, the Grand Chamber of the European Court of Human Rights heard argument in Vinter and others v United Kingdom - see video of the hearing.   The case concerns three applicants who are serving sentences of life imprisonment for murder: Douglas Gary Vinter, Jeremy Neville Bamber and Peter Howard Moore.  The three argue that their imprisonment without hope of release is contrary to Article 3 of the Convention - (No one shall be subjected to torture or to inhuman or degrading treatment or punishment).

Submissions were made for the British government by Mr David Perry QC and, for the applicants by Mr Pete Weatherby QC.

The British government submitted that whole life terms - for murders of the most extreme gravity - do not breach Article 3.  This position was supported on 21st November by the Court of Appeal (Criminal Division) sitting as 5 judges with the Lord Chief Justice presiding - David Oakes and others v R [2012] EWCA Crim 2435 - (post at Law and Lawyers 22nd November Two BIG stories).

Tuesday 27 November 2012

Cruel Britannia ~ serious material to consider

Suspicions about recent UK involvement in torture or (other cruel, inhuman or degrading treatment ) committed abroad have never been properly laid to rest and they are unlikely to be resolved if the Justice and Security Bill reaches the statute book. Some of the available material is disturbing.

Fourth Annual Baha Mousa Lecture:

On 19th October, my companion blog published - Fourth Baha Mousa Memorial Lecture - Iraq - Unlawful treatment of detainees 'institutional'.  That post covered a lecture delivered by a former Senior Legal Adviser to the British Army in Iraq - Lt. Col. Nicholas Mercer.  The lecture is reported at The Guardian 19th October 2012 where Colonel Mercer said the UK's complicity in the unlawful treatment of detainees was "institutional" and must be wiped out to prevent future abuses by British troops.  Colonel Mercer described how he was gagged by the Ministry of Defence after he criticised senior British commanders and MoD officials in the case of Baha Mousa, who died while in the custody of British troops.  Mercer said his attempts to set up independent judicial monitoring of the treatment of detainees were blocked by the MoD. Britain's obligations under domestic and international law were routinely ignored, he added.

A podcast of Colonel Mercer's speech is now available at Public Interest Lawyers

Monday 26 November 2012

Female bishops - is the Church of England for turning?

The Church of England is the "established" church in England.  It has the right to have 26 Bishops (including the two Archbishops) in Parliament - they sit in the House of Lords.  All Bishops are male and females may not be appointed.  An attempt in the Church of England's General Synod to reverse this was defeated on 20th November - see C of E statement.  The Synod is made up of the "Convocations of Canterbury and York", a house of bishops, a house of clergy to which is added a house of laity.  To change the position, a majority of two-thirds was required in each House.  It was the Laity which, by just 6 votes, rejected the proposal to have female Bishops.

The rejection of female bishops has upset many in the church and also, it appears, in Parliament - The Guardian 21st November.  Also, whilst the church has exemptions under equality law, the move is seen by many as perpetuating unacceptable discrimination.  An e-petition has been raised to try to get a debate in Parliament on the issue.

Sunday 25 November 2012

BBC Question Time (Abu Qatada) and SIAC

On BBC Question Time 22nd November 2012 an audience member asked a question - "Should we simply put Abu Qatada (AQ) on a plane to Jordan?" - see BBC QT at time 8mins 25 secs.  The responses to this question raise some serious concerns about the stance of British politicians regarding the rule of law and the future protection of human rights.

The clear inference in the question is that, irrespective of the decision of the Special Immigration Appeals Commission (SIAC) on 12th November 2012, AQ should simply be deported anyway.   See also Law and Lawyers - Mohammed Othman (Abu Qatada).   In fairness, I am not sure that the man asking the question realised that it was a British court which, in the end, decided that the assurances provided by Jordan were still insufficient to ensure that AQ would receive a fair trial in Jordan.  The key point was that Jordanian criminal law did not necessarily prevent evidence being used by the prosecution at AQ's trial given that it might have been obtained by torture some years ago.

The Question Time Panel was David Dimbleby (Chair), Chris Grayling (Secretary of State for Justice and Lord Chancellor), Harriet Harman (a one-time Solicitor General), Tessa Mount (Liberal Democrats), Nigel Farage (UKIP) and Moray MacLennan (CEO of Saatchi).

Thursday 22 November 2012

Prisoner voting

By today, the government was required to bring forward legislative proposals relating to prisoner voting.  A DRAFT Bill has been issued - Voting Eligibility (Prisoners) Draft Bill

The Bill presents three options for reform:

Option 1: ban for prisoners sentenced to 4 years or more

Option 2: ban for prisoners sentenced to more than 6 months

Option 3: ban for all prisoners - (the draft bill states - "re-enacts the current general ban on prisoner voting, but with a few minor changes")

Quite clearly, Option 3 cannot be compliant with the obligation placed on the UK by decisions of the European Court of Human Rights since the court decided that it was the blanket ban which was non-compliant with Protocol 1 to the Convention.

Two BIG stories

The Court of Appeal (Criminal Division) sat with 5 judges with the Lord Chief Justice presiding and considered whole life tariffs for those convicted of murder.

David Oakes and others v R [2012] EWCA Crim 2435 - Lord Judge LCJ, Hallett, Hughes, Leveson and Rafferty LJJ

This is an important decision not only because of the immediate subject matter but also because the judgment appears just in advance of the European Court of Human Rights decision in the Jeremy Bamber case.  This is the strongest Court of Appeal constitution that I am able to recall and it sends out a very strong message that the principle of a judge being able to impose a whole life tariff is lawful in relation to exceptionally serious murders.

Interestingly, there is a very strong possibility that one of those who sat with Lord Judge will become the next Lord Chief Justice since Lord Judge has now announced his retirement in September 2013.

The other big story is

Wednesday 21 November 2012

Sergeant Danny Nightingale ~ Court-Martial and sentence

Update 1st May 2013 - The Guardian reports ruling of judge that there was no abuse of process revealed by certain e-mails.

Update 22nd March 2013 - R v Sgt Nightingale – An unsolicited sentence indication by the trial Judge placed undue pressure on the defendant to plead guilty. Conviction quashed. LINK (Full judgment).  Sgt Nightingale's conviction quashed - retrial ordered.

Update 29th November:  The Court Martial Appeal Court altered Sgt. Nightingale's sentence to 12 months detention to be suspended for 12 months - Telegraph report.   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.  This later hearing will be particularly interesting.

Here is the judgment of the Court Martial Appeals Court - Lord Judge CJ; Fulford and Bean JJ - 29th November 2012.


Original post:

Sgt. Danny Harold Nightingale (Duke of Lancaster's Regiment) was sentenced to 18 months detention (see Footnote 1) by the court martial for being in possession of a pistol and to 6 months for possession of ammunition - the sentences to be concurrent.  The Offences arose under the Armed Forces Act 2006 section 42 (Criminal Conduct).  The specific criminal conduct was (Count 1) Possession of a prohibited firearm contrary to the Firearms Act 1968 section 5(1)(aba) and (Count 2) Possession of Ammunition contrary to Firearms Act 1968 section 1(1)(b).  A particular feature of the offence under section 1(1)(aba) is that it carries a mandatory sentence of imprisonment of 5 years unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify it not imposing this - see Firearms Act 1968 section 51A.  On my reading, if exceptional circumstances are found to exist, section 51A would justify the imposition of either a shorter sentence of imprisonment or a suspended sentence of imprisonment or a non-custodial sentence.  The court found that exceptional circumstances did exist and they may be read in the Reasons for Sentence at pages 30 and 31 of the Transcript of the Court Martial proceedings (via Judiciary website)

Supreme Court ~ Judgment on Vicarious Liability in Tort

The Supreme Court has handed down judgment in The Catholic Child Welfare Society and others (Appellants) v Various Claimants and The Institute of the Brothers of the Christian Schools (Respondents) [2012] UKSC 56

The question was whether the Institute was responsible in law ("vicariously liable") for alleged acts of sexual and physical abuse of children by its members between 1952 and 1992 at St Williams, a residential institution at Market Weighton for boys in need of care (‘the School’).   Claims were brought by 170 men alleging abuse at the school. 

There are two groups of defendants - referred to in the judgment as the Middlesborough defendants and the De La Salle defendants.  The "Middlesbrough Defendants”  were those who took over the management of the school in 1973 and inherited, under statute, the liabilities of the managers of the school before that date. They, or those they represent, concluded contracts of employment with the brother teachers.

Tuesday 20 November 2012

Crown Court at Carlisle ~ Sentencing - R v Ahmed ... R v Johns

Two sentencing cases at the Crown Court in Carlisle are of interest.  Both cases offer excellent examples of good sentencing practice and demonstrate the value of sentencing remarks which assist public understanding of the workings of the law.

On 4th August, this blog looked at the sentencing of Iftikhar and Farzana Ahmed for the murder of their daughter Shafilea Ahmed - (Law and Lawyers 4th August).   They were sentenced to life imprisonment with the trial judge - Roderick Evans J - stipulating a minimum custodial term of 25 years (less 66 days on remand). 

On Friday 16th November, at the Crown Court sitting in Carlisle, Irwin J sentenced Alesha Ahmed for robbery at her parent's home in 2003.  It was, in Irwin J's words, a violent and terrifying robbery.  Alesha had actively helped the men who came to the house armed though it was accepted that Alesha did not know they would come armed.  Alesha had used text messages to communicate with the robbers and was present during the robbery.  She pleaded guilty.

This was a case with truly exceptional circumstances which are described eloquently in Irwin J's excellent sentencing remarks - (Judiciary website - Sentencing remarks of Irwin J).  The learned judge was able to exercise mercy and sentenced Alesha to 12 months imprisonment suspended for 2 years with conditions of supervision and mental health treatment.

Monday 19 November 2012

Cut the crap ~ We are at economic war ... David Cameron and Judicial Review


The Prime Minister has launched what will be seen as a further attack on access to justice.  In a speech to the Confederation of British Industry, Mr Cameron said that the nation is in the "economic equivalent of war" and that he wishes to rein in certain processes which he considers are hindering infrastructure projects and economic growth.  He listed some of these "inconveniences" - impact assessments, consultations, audits, reviews, EU procurement rules, assessing sector feedback.  "If Christopher Columbus had an Advisory Committee he would probably be still in dock", said Cameron.  As for Judicial Review, Mr Cameron expressed the desire to cut back on the number of applications by imposing tighter time limits (already only 3 months), higher application fees and reducing the number of opportunities to argue about the court's permission to allow an application to proceed.  

Law Society Gazette - 19th November 2012 - Fury and Bewilderment at plans to curb judicial reviews

Ministry of Justice - 19th November - Unclogging the Courts  where the Justice Secretary states:

Saturday 17 November 2012

Supreme Court ~ Important decision due about Vicarious Liability in Tort

On 21st November, the Supreme Court will hand down judgment in The Catholic Child Welfare Society and others v The Institute of the Brothers of the Christian Schools and others .  This is an appeal from the decision of the Court of Appeal (Civil Division) - Pill, Hughes and Tomlinson LJJ - in October 2010.

The issue in the Supreme Court:

The Supreme Court's website states that the question is whether the defendant Institute is vicariously liable for acts of sexual and physical abuse committed by its members who were working at a School.

170 pupils, who attended the School in Market Weighton between 1958 and 1992, brought claims alleging sexual and physical abuse by teachers and staff at the school. The claims were against 35 defendants, some representing the Roman Catholic Diocese of Middlesbrough, which appointed managers of the school and others connected with the Institute of the Brothers of the Christian Schools, of which some of the teachers had been members.

Monday 12 November 2012

Mohammed Othman (Abu Qatada)

Update 4th December:  The Government is to appeal the decision of SIAC.  As predicted (below), the Home Secretary is not yet prepared to give up the chase!  The Guardian 3rd December.


The most recent round of litigation concerning Mohammed Othman (Abu Qatada) commenced in 2005 and continues with the distinct possibility that it may continue for some time to come.  In August 2012, the High Court said - "There has been a prodigious litigation history to this claimant’s position in this country."   Previous posts on this case are:

Pesky time limits and Abu Qatada ..... Pesky time limits and Abu Qatada - No.2

Theresa May's trip to Jordan .....Othman - High Court ruling

Why does the government wish to deport Abu Qatada?

Since before 2002, the government has viewed AQ as an exceptionally high terrorist risk.  The Special Immigration Appeals Commission has agreed with this.  In 2007, SIAC found - [AQ's] views on the use of violence in the UK have, ... , hardened, and his expressions of them do encompass the legitimacy of attacking people in the UK. ”

Stories for Monday morning

Here is my selection of five stories this Monday morning.

In Kent, a 19 year old man was arrested - The Guardian 12th November - after a picture of a burning poppy was posted on a social networking website.  The arrest was on suspicion of "malicious communications."  This arrest comes as the Crown Prosecution Service (CPS) is preparing to release interim guidelines for prosecution of offences on social media.  Unless there is something about the case which has not yet been published, this appears to be an exceptionally heavy-handed arrest.  One might have thought that one of the reasons that World War II was fought was to preserve a right to free speech (freedom of expression) within proper limits.  Good read - UK Crime Blog

The BBC is melting down with its Director-General resigning and calls for the resignation of its Chairman (Lord Patten). A possible legal issue to watch here is the publication on Newsnight of comment relating to the Conservative Peer Lord McAlpine - The Guardian 9th November.

Saturday 10 November 2012

Iraq - claims against the government

British military operations in Iraq lasted from March 2003 to May 2011 - Operation Telic - and they have spawned a considerable volume of litigation such as the recent Court of Appeal (Civil Division) case of Smith and others v Ministry of Defence [2012] EWCA Civ 1365.

A number of separate claims are being considered together.

One set of claims relates to three soldiers killed in Iraq whilst on patrol using a "Snatch Land Rover."  Improvised Explosive Devices (IEDs) detonated near their vehicles.

A second set of claims relates to soldiers either killed or injured as a result of so-called "friendly fire" when their Challenger Tank was fired upon.

Friday 9 November 2012

Private Prosecution ~ Supreme Court judgment due

Update 14th November 2012

English law permits "private prosecution."


A Parliamentary Briefing Paper contains a considerable amount of information about such prosecutions.  A private prosecution is “a prosecution started by a private individual who is not acting on behalf of the police or any other prosecuting authority or body which conducts prosecutions”.  The right of a private individual to bring a criminal prosecution is a historical one originating in the earliest days of the legal system. Although the need for private individuals to bring (and pay for) criminal prosecutions has largely disappeared since the creation of the office of Director of Public Prosecutions (DPP) in 1879 the right to do so nevertheless remains.  It has been described as a “useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders": Gouriet v Union of Post Office Workers [1977] 3 All ER 70 per Lord Diplock.

Wednesday 7 November 2012

Worrying trends - No. 3 ~ Upholding the Queen's Peace

The Police are the sharp end of law enforcement and it is fortunate that they continue to enjoy the general support of the public in their work as was recently demonstrated in Manchester - BBC 3rd October and BBC 4th October.  Nevertheless, the Police are facing enormous changes and the future seems to be an uncertain one with morale reportedly at very low ebb - Telegraph 3rd November.  Whilst there is almost always some room for efficiency improvement, the recent cuts to budgets seem to be a huge gamble with public safety in the aftermath of the disorder in 2011.  Furthermore, due to austerity, certain forms of crime appear to be on the increase - (e.g. Austerity triggers economic crime wave).  The implementation of Police and Crime Commissioners (and the abolition of Police Authorities) is part of the coalition government's reform agenda but the implementation appears rushed with relatively minimal effort being made to adequately inform the public of the implications of these powerful Commissioners and the associated Police and Crime Panels - see Police Reform and Social Responsibility Act 2011.

Upholding the Queen's Peace: towards a new consensus on Policing is the title of a recent publication by the Police Federation which states: 

Tuesday 6 November 2012

Breach of the anonymity of a rape victim

Ched Evans
The law grants anonymity to the victims of certain sexual offences - Sexual Offences (Amendment) Act 1992.  This is subject to a discretion given to trial judges to disapply the anonymity if such a direction is required to induce potential witnesses to come forward and the conduct of the defence is likely to be substantially prejudiced if no such direction is given.  The victim or alleged victim may in writing agree to the restriction being lifted.  Written consent is not a defence if it is proved that any person interfered unreasonably with the peace or comfort of the person giving the consent, with intent to obtain it.

In April 2012, footballer Ched Evans was convicted of the rape of a 19 year old woman.  He was sentenced to 5 years imprisonment.  His application for appeal against conviction and sentence has been refused - BBC 6th November 2012

Nine individuals pleaded guilty at Prestatyn Magistrates' Court to the offence under the Sexual Offences (Amendment) Act s.5 - see Huffington Post 5th November.  Prosecutions for this offence require the consent of the Attorney-General.  The nine had revealed the identity on Twitter / Facebook  of Ched Evans' victim.  It is also reported that some of the defendants launched abuse at the victim.

Monday 5 November 2012

Worrying trends - No. 2 ~ Open Justice assailed

On Friday 2nd November, an "interesting exchange" was reported to have taken place in the High Court.  The Guardian - Torture claims halt Ministry of defence transfers to Afghan jails - reported that the MoD was seeking to transfer "insurgents to Afghan jails" but the High Court blocked the transfer having heard evidence that they would be handed over to a "notorious torturer and alleged killer."

Baroness Warsi - (Foreign and Commonwealth Office) - had failed to question assurances by Asadullah Khalid, the head of the Afghan National Directorate of Security (NDS), even though it is alleged that he has been personally been involved in torture.

Sunday 4 November 2012

Worrying trends - No. 1 ~ Lawyers as Gate Keepers

One of the most cherished aspects of the legal profession is its obligation to clients of confidentiality.  Almost from time immemorial, confidentiality (legal professional privilege) was drilled into "articled clerks" (as they once were), trainee solicitors (as they now are) and pupil barristers.  Is this important principle under increasing attack?

Writing in the Law Society Gazette 1st November - Jonathan Goldsmith draws attention to how lawyers are gradually being turned into gatekeepers for information they hold about their clients - see Information demands lay siege to confidentiality.  A major breach in the confidentiality of client information came with money laundering legislation which forces lawyers to provide investigators with information.  Two cases - (Michaud and Monaco) - on this are currently before the European Court of Human Rights.

In Patrick Michaud v France, one of the arguments is whether Article 8 (‘Everyone has the right to respect for his private and family life, his home and his correspondence’) has been breached by France when implementing EU money laundering legislation.  Michaud complains that, since a lawyer has to report suspicions relating to people coming for legal assistance, under the threat of disciplinary sanctions if he or she fails to do so, protection of lawyer-client confidentiality is inadequate.

Friday 2 November 2012

In the Supreme Court this week

Habeas Corpus:

The Supreme Court handed down judgment in Secretary of State for Foreign and Commonwealth Affairs v Yunus Rahmatullah [2012] UKSC 48.

The Court of Appeal (Civil Division) had issued a writ of habeas corpus with a view to securing Mr Rahmatullah's release.  He remains held by the USA at Bagram, Afghanistan.  Later, the Court of Appeal accepted that the Foreign Secretary had made an adequate "return" to the writ.

The Foreign Secretary  appealed the decision of the Court of Appeal to issue the writ of habeas corpus and Mr Rahmatullah cross appealed the decision that the response by the US was sufficient to demonstrate that the UK could not secure his release.

Wednesday 31 October 2012

Scotland and the EU - No.2 ~ EU membership?

Updated 2nd November

IF Scotland eventually leaves the United Kingdom, then would it continue to be a member of the European Union?  Further, would England/Wales/Northern Ireland (EWNI) remain a member given that it is currently the United Kingdom of Great Britain and Northern Ireland which is a member.  These questions have been under consideration for some time as is shown by Commons Library Note of 8th November 2011 - Scotland, Independence and the EU.

The Treaty on European Union (TEU):

Article 49 of TEU states:

"Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.

Monday 29 October 2012

Enhanced Criminal Records Certificates

The Administrative Court has decided R (Application of J) v Chief Constable of Devon and Cornwall [2012] EWHC 2996 (Admin) Foskett J.  The application concerned an Enhanced Criminal Records Certificate which the Police were proposing to issue in respect of a nurse seeking employment.

The leading case in this area is R (on the application of L) (FC) (Appellant) v Commissioner of Police of the Metropolis [2010] 1 AC 410, a decision of the Supreme Court given in October 2009.

Enhanced criminal record checks are carried out in various specified circumstances, such as where people are applying to work with children or vulnerable adults, for various gaming and lotteries licences, for registration for child minding and day care or to act as foster parents or carers.

Child protection ~ Challenge to the CSOD Scheme

In March 2010 the Home Secretary issued non-statutory guidance entitled Child Sex Offender Disclosure Guidance (CSOD Guidance ) - see Home Office.   In X (South Yorkshire) v Home Secretary and Chief Constable of the South Yorkshire Police [2012] EWHC 2954 (Admin), this guidance came under challenge.

The claimant (X) had convictions in 1990 of indecent assault on a child and in 1996 for 4 further similar offences.   X was placed on the Register of Sex Offenders and will remain on it for life, subject to being able to make from 2013 an application for removal under the new legislative provisions which came into force on 1 August 2012.

Saturday 27 October 2012

Scotland and the EU - No.1 ~ Does legal advice exist?

Union Street Gardens, Aberdeen
Update 30th October: First Minister Alex Salmond shuns Scottish Parliament EU legal advice debate

I have always thought that the best answer to the Scottish Independence question would be for the United Kingdom to continue intact but internally change itself into a Federation.  Of course, such a solution is not without problems of its own but the possibility is not recognised by the recent Edinburgh Agreement which will offer the Scottish people a straightforward Yes/No vote on independence.

Previous posts at Scotland - Constitutional Futures Forum 2nd October 2012

A Federal solution might have the potential to avoid a very serious issue which could have massive impact not only on the people of Scotland but also on the people's of the remainder of the U.K. This is the important question of whether Scotland would remain a member of the European Union should independence come about.

Under the Treaty of Accession it was the United Kingdom of Great Britain and Northern Ireland which acceded to the European Communities from 1st January 1973.  Great Britain is England, Scotland and Wales.

It does not seem to automatically follow that an independent Scotland would continue as a member state of the European Union - see The Future of Scotland.

Thursday 25 October 2012

Prisoner Voting ~ The battle lines are drawn

Update 31st October: The Guardian "Let's not let popularism masquerade as sovereignty on prisoner votes"

Update 30th October: Head of Legal blog - Prisoners' votes: what's the government up to?  Are they missing a trick?

Update 29th October:  The Guardian (Sunday 28th October) - Prisoners to launch legal action on voting rights

Post updated 26th October  to include video of the Attorney General at the House of Commons Justice Committee.

The Prime Minister (Rt. Hon. David Cameron MP) said that serving convicted prisoners will never get the vote under this government.  The Attorney-General (Rt. Hon. Dominic Grieve MP QC) - the Senior Law Officer of the Crown - argues that the United Kingdom will lose respect in international circles if it fails to comply with the ruling of the European Court of Human Rights.  Grieve however acknowledges that whether prisoners are permitted to vote is essentially a matter for Parliament which is "sovereign."  On the differences between Cameron and Grieve see the article in The Guardian by Joshua Rozenberg.

Let's be clear right away.  The European Court of Human Rights came down against the blanket, disproportionate, ban on voting imposed by the UK.  The court did not rule against a ban in all circumstances.  It is entirely possible that a ban could be maintained in relation to prisoners serving sentences for very serious offences and, ironically, any such ban could (if Parliament were to so decide) include prisoners sentenced for offences similar to those committed by John Hirst (Manslaughter) and Greens (rape).

Wednesday 24 October 2012

Community sentences ~ Prisoner votes ~ European matters ~ Police Commissioners

Toughening Community Sentences:

The Ministry of Justice has brought forward proposals aimed at Toughening Community Sentences   A fuller explanation of the proposed changes has also been published - Community Sentences to deliver proper punishment.    The government's ideas will be brought into law via the Crime and Courts Bill which is currently before the House of Lords.  The detail of the changes may be seen in the various Bill documents - Amendment Papers.  The changes proceed, as is so often the case, by technique of "cutting and pasting" new sections into existing Acts.

Prisoner Voting:

Permitting serving prisoners to vote is anathema to many politicians (including the Prime Minister who is made "physically sick" by the idea) and members of the public. Against that,