Tuesday 31 January 2012

Stereotypes: do they affect the outcome of cases?

Alison Saunders - CPS London
Without attempting to define the meaning of "stereotype" it is possible to describe the word as a widely held but fixed and oversimplified image or idea of a particular type of person or thing.  "Stereotypes" abound.  Characteristically, a stereotype is, at best, based on very broad generalisation with little factual support.  Stereotypical views can be prejudicial and stand in the way of seeing each person as a unique individual and they can distort decision-making. 

Alison Saunders is the Chief Crown Prosecutor for London and, on 30th January, made a speech in which she tried to start a debate about how we in society view the offence of rape and whether we bring our conscious or subconscious views and stereotypes to our consideration of it.  See the speech on the prosecution of rape and serious sexual offences (CPS website).   In the speech, examples of myths and stereotypes are given together with their implications and the true facts.  For example: rape only occurs between strangers in a dark alley; if the victim didn't complain immediately it wasn't rape" etc.

This speech, by a highly experienced criminal lawyer, is well worth reading in full.  Saunders hopes that the facts and issues raised in her talk will prompt people to start thinking about how "we together can combat and dispel the myths and stereotypes that affect public perception of rape offences."

"How do we make it easier for women to feel that

Monday 30 January 2012

Criminal cases: burden and standard of proof

In a news report published by the BBC on 21st December 2011, John Terry - footballer at Chelsea FC - is reported to have said - ""I'll fight tooth and nail to prove my innocence."  Mr Terry is charged under section 31(1)(c) of the Crime and Disorder Act 1998.  It will be noted that this offence is, in essence, a racially (or religiously) aggravated version of Public Order Act 1986 section 5.   (Religious aggravation is not alleged against Mr Terry).  The meaning of racial aggravation is set out in section 28 of the Crime and Disorder Act 1998.  The case is triable summarily only (i.e. in the Magistrates' Court) and carries a maximum penalty of a fine of £2500.  Mr Terry is to appear at West London Magistrates' Court on 1st February.  See the CPS statement for further details.  Very fairly, the statement emphasises that - "[Mr Terry] .. is summonsed with a criminal offence and has the right to a fair trial. It is extremely important that nothing should be reported which could prejudice his trial."

This post does not seek discuss the case as such.  What is interesting is the comment

Sunday 29 January 2012

Sentencing: Suspended Sentence Orders

Crown Court - Manchester
Prisons and Young Offenders Institutions (YOI) are in the news again.  On 27th January, The Guardian reported that the prison population in England and Wales was 87,668.  This is said to be 3500 higher than at the same time in 2011.  In a 3 week period in January 2012, the prison population had risen by 1000.  This, seemingly inexorable rise, is clearly placing pressure on the Ministry of Justice budget.  More money on prisons is less money for elsewhere.   Of course, as pointed out on this blog on 19th December, there seems to be a vast sum of money owed in unpaid fines and other financial orders - "Fines ... all is not fine." 

A further, and very serious issue, is the number of suicides committed by young persons in custody - The Guardian 28th January 2012.   The deaths of Jake Hardy (aged 17) and Alex Kelly (aged 15) are the latest of these tragic events.  Campaigners have been demanding a public inquiry into the treatment of children within the juvenile justice system since the death of 16-year-old

Thursday 26 January 2012

Scotland's (and UK's) future - more consultation

Edinburgh Castle
The Scottish Government has now issued - "A consultation on Scottish proposals for a referendum on independence."    This appears to have been prompted by the earlier UK Government consultation paper -  "Scotland's Constitutional Future."

In the Scottish paper, the question proposed is "Do you agree that Scotland should be an independent country?"  Yes / NO.  This question has been criticised as "loaded and biased" - The Telegraph 26th January.    Interestingly, the Scottish paper states that the Scottish Government is "ready to work with the UK Government to agree a clarification of the Scotland Act 1998 that would remove their doubts about the competence of the Scottish Parliament and put the referendum effectively beyond legal challenge by the UK Government or any other party. Its preference is for a Section 30 order, but whichever legislative approach were taken, any change to the definition of the Scottish Parliament's competence would require the consent of the Scottish Parliament as well as the UK Parliament."

The phrase "that would remove their doubts" is suggestive

Wednesday 25 January 2012

Mr Cameron's Address to the Council of Europe - 25th January

The Prime Minister, David Cameron, has addressed the Parliamentary Assembly of the Council of Europe and his address is available via the 10 Downing Street website.  Mr Cameron began by saying - "I want no one here to doubt the British commitment to defending human rights."  However, this did not mean "sticking with the status quo."  The Europe Court of Human Rights (ECtHR) needs to be "a beacon for the cause of human rights, ruthlessly focussed on defending human freedom and dignity, respected across the continent and the world."  He argued that the ability of the Court to play this role is under threat in three areas:
  • Too many cases - threatening the court's ability to do what is most important
  • Court of the fourth instance - whilst the court is properly safeguarding the right of individual petition, there is the risk that the court is becoming a court of "fourth instance" giving an extra bite of the cherry to anyone who is dissatisfied with a domestic ruling, even where that judgement is reasonable, well-founded, and in line with the Convention.
  • Slim margin of appreciation  - the Court is, quite rightly, determined to make sure that consistent standards of rights are upheld across the 47 member states… but at times it has felt to us in national governments that the ‘margin of appreciation’ – which allows for different interpretations of the Convention – has shrunk…and that not enough

Tuesday 24 January 2012

Sir Nicolas Bratza: the European Court of Human Rights

Updated with links to some other blogs

To say the least, Sir Nicolas Bratza is a very eminent lawyer - see his profile on the Bar Council website.  His CV is also on the European Court of Human Rights website.  Sir Nicolas was in private practice at the English Bar for 29 years - from 1969 to 1998.  He was appointed Queen's Counsel in 1988 and appointed Judge of the High Court in 1998.  However, most of his judicial work has been as a British judge of the European Court of Human Rights and he is now the court's President.

As it happens, since 7th November 2011, the United Kingdom holds the Chairmanship of the Council of Europe's Committee of Ministers.  It will hold this until 14th May 2012 when Andorra takes this rotating post.  On Wednesday 25th January, David Cameron is to address the Council of Europe's Parliamentary Assembly which will be attended by representatives of all 47 Member States of the Council of Europe - quite a number of which are emerging democracies struggling to establish the rule of law.  It is widely anticipated that Mr Cameron's address will include reform of the European Court of Human Rights which the U.K. is pressing for.

In advance of Cameron's address,

Monday 23 January 2012

The Royal Prerogative: the "honours" system

The United Kingdom is noted for having a complex honours system the workings of which are somewhat mysterious and secretive.

In December 2011, the Financial Services Authority published its lengthy (452 page) report into the Failure of the Royal Bank of Scotland.    Sir Fred Goodwin was Chief Executive of the bank from 2001 to January 2009 - see his Wikipedia entry.   For several years, the bank grew massively in size due to acquisitions and enjoyed soaring profits.  Not surprisingly, Goodwin was feted by many politicians during these "successful" years and he was honoured by the award of a knighthood "for services to banking" - London Gazette 12th June 2004.  Now there are calls for him to be "stripped of his knighthood" - The Guardian "Sir Fred could lose knighthood says Cameron" and The Telegraph "Nick Clegg: I understand outrage over Fred Goodwin's knighthood" and BBC 20th January - "Miliband: Fred Goodwin should lose knighthood."   What is the legal basis for the  "honours" system?  How are they awarded and how are they removed?  General information about the honours system is available via the Directgov website.  See also Royalty UK - Honours.

The Honours system rests on the Royal Prerogative

Saturday 21 January 2012

Scotland's Constitutional Future: an influential Scottish voice

Lord Wallace of Tankerness QC
I do not myself regard politics and law as, in any way, in conflict because politics in our country should be carried on under the rule of law - Lord Wallace of Tankerness QC

 A few days ago, Law and Lawyers ventured the tentative view that Scotland could not lawfully hold any form of referendum relating to independence unless the UK Parliament has granted specific authority for it - "Scotland: We need to talk."   The argument is not repeated here but it is interesting that Lord Pannick QC expressed a firmer view in an article in the Times on Thursday 19th January.  Unfortunately, due to the "pay wall", I cannot link to the article but he wrote that a referendum was a reserved matter and therefore not within the legislative competence of the Scottish Parliament.  Put simply, any form of referendum would "relate to" the reserved matter of "the Union of the Kingdoms of Scotland and England."   A further article to the same effect appeared in The Scotsman 20th January - "Iain Jamieson: Alex Salmond lacks legal strength."

Section 29(3) of the Scotland Act 1998  states

Thursday 19 January 2012

Joint Enterprise

On 19 October 2011, the House of Commons Justice Committee. announced an inquiry into the aspect of secondary liability in a criminal venture commonly known as joint enterprise. The inquiry was prompted by dissatisfaction with the operation of the doctrine amongst campaigning groups. Concerns were expressed both by groups representing victims and groups representing those who believe they have been convicted following a miscarriage of justice.

The Committee has now issued its report - "Joint Enterprise" - 11th report of Session 2010-12.  The Preface to the report states - "Having examined the law in this area, and heard from witnesses who have recent experience of the operation of the doctrine, both as the victims of crime and as defendants’representatives, we have concluded that joint enterprise should be enshrined in statute to ensure clarity for all involved in the criminal justice system. While we recognise that there are particular problems with the operation of the joint enterprise doctrine and murder, we feel strongly that reform in this area should not have to wait for a wider review of the law on homicide."

In response to the report, the Director of Public Prosecutions issued a statement indicating that the CPS will now produce guidance on the approach it will take to cases of joint enterprise, including guidance on the proper threshold at which association potentially becomes evidence of criminality.

The Guardian 18th January carried an article - "When should one gang member take responsibility for the actions of the others?"   The article states that

Wednesday 18 January 2012

Homicide: A major Court of Appeal judgment

Lord Judge LCJ
"We have proceeded on the assumption that legislation is not enacted with the intent or purpose that the criminal justice system should operate so as to create injustice" - per Lord Judge.

The Court of Appeal Criminal Division (Lord Judge, Henriques and Gloster JJ) has handed down judgment in R v Clinton, Parker and Evans [2012] EWCA Crim 2.   This is a judgment which should be required reading by all legislators as well as lawyers and students. 

The three cases are unconnected factually but each raised the question of interpretation of provisions in the Coroners and Justice Act 2009 Part 2 Chapter 1 (CAJA) relating to the partial defence to murder of what is now known as "loss of control."   That this change to the law is formidably difficult will be seen from the court's judgment.

In relation to Clinton, the trial judge - as permitted by CAJA s. 54(6) - had refused to allow his defence of loss of control to be put to the jury.  Clinton's case also involved the redefined diminished responsibility defence - now defined in CAJA s. 52 (inserting a new section 2 into the Homicide Act 1957)..  He was granted a retrial.  The appeals of Parker and Evans related to loss of control and their "loss of control" defence had been allowed to go to the jury.  Their appeals against conviction were dismissed.

The changes to the partial defences available on a murder charge were looked at by Law and Lawyer 8th September 2010   just prior to them coming into force on 4th October 2010.  The changes to the law are (a) a redefined defence of diminished responsibility (section 52) and (b) the replacement of the old provocation defence with a new defence of "loss of control" - sections 54 and 55.    In that post, it was said that - "The new law of "qualifying triggers" is complex."  That statement is amply borne out by the Court of Appeal's judgment.

The opening paragraphs of the court's judgment deal with the background to the law and are worth setting out in full.  [My emphasis]

"The difficulties

Tuesday 17 January 2012

A trio of European Court of Human Rights decisions

Today, 17th January, the European Court of Human Rights (ECtHR) was scheduled to deliver some 35 judgments.  The reader will perhaps be particularly interested in the following three judgments which are all judgments of Section IV of the Court sitting as a Chamber.  (Sections explained).

Vinter and Others v. the United Kingdom - (Judgment of 4th Section)

The applicants, Douglas Gary Vinter, Jeremy Neville Bamber and Peter Howard Moore, are currently serving mandatory sentences of life imprisonment for murder.  When convicted the applicants were given whole life orders, meaning they cannot be released other than at the discretion of the Secretary of State on compassionate grounds.  They argued that their whole life orders amounted to a breach by the UK of the prohibition of inhuman or degrading treatment (Art 3).  They also relied on Article 5(4) (right to have lawfulness of detention decided speedily by a court), Article 6 (right to a fair hearing), and Article 7 (no punishment without law).

The E Ct HR held unanimously that Art 3 was not violated.

Vinter was convicted

Monday 16 January 2012

Vicarious Liability for Intentional Tort

Royal Courts of Justice, London
In what circumstances should a person (D) be liable in tort for the intentional tort (e.g. an assault) committed by another person (T)?  In other words, when may D be vicariously liable in tort for the deliberate act of T?   May a diocesan bishop be held vicariously liable for the torts of a priest of his diocese?  The latter question arose in the JGE case.

The JGE case:

In November 2011, MacDuff J handed down his eminently clear and concise judgment on a preliminary point in the case of JGE v (1) The English Province of Our Lady of Charity (2) The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2011] EWHC 2871 (QB) 1. 

For the purposes of this litigation, the Trustees stood in the place of the Bishop of Portsmouth.  The issue was whether the diocesan bishop could be held vicariously liable for the torts (civil wrongs) of a Priest (Father Baldwin - now deceased) of his diocese.  It is alleged that, in the early 1970s, Father Baldwin had sexually abused the claimant (JGE) who is a lady now aged 46.  Thus, the case raised, not for the first time, the tricky question of vicarious liability for an intentional tort.  This is one aspect of the wider subject of Vicarious Liability in Tort. 

It is important to note

Saturday 14 January 2012

Mid-January News

Law and Lawyers blog is two years old - hence the birthday card.  It has been an interesting period and 2012 promises to be a challenging year.  The very first post on this blog hoped that, from time to time, the blog would throw at least a little light on the laws which govern us and the lawyers who implement those laws.  That continues to be the aim of the blog.


Extradition is in the news again.  The USA is seeking the extradition of Sheffield student Richard O'Dwyer and a judge, sitting at Westminster Magistrates' Court, has ruled that there is no bar to his extradition - see Daily Mail 14th January.  The US authorities allege that Mr O'Dwyer listed on a website places from where pirated films and TV programmes could be downloaded.  See the judgment of District Judge Purdy.  With respect to the learned judge, it is not entirely clear whether Mr O'Dwyer's conduct would constitute an offence in England though it may do so.  "Dual criminality" is a requirement for extradition.

This case - like that of Gary McKinnon - brings into focus the Extradition Act 2003.  Turkey has charged Sarah, Duchess of York with offences

Thursday 12 January 2012

Judicial Review: "Keep out of politics" ... but can the judges do so?

HM The Queen at the Supreme Court
Mr. Jonathan Sumption QC was sworn in as a Supreme Court Justice on 11th January - the start of the Hilary Law Term.   His appointment is notable in that he is the first judge since Lord Radcliffe to be appointed directly from the Bar to the highest court.  (Lord Radcliffe - 1899 to 1977 - was appointed to the House of Lords in 1949).  Lord Sumption (as he is now styled) sat for the first time on 12th January - in the shipping case of Petroleo Brasileiro S.A. (Respondent) v E.N.E. Kos 1 Limited (Appellant) - (see UK Supreme Court blog for details and see Court of Appeal judgment)    

The Times (12th January) carried details of an interview given by Lord Sumption - "Keep out of politics, top judge warns his peers" - (Subscription required).   The Times reports Lord Sumption as saying - "It is one thing for judges to review whether a government policy was being lawfully applied and another to review the policy itself."  In November 2011, Mr Sumption (as he then was) delivered

Tuesday 10 January 2012

Scotland: we need to talk ....

Scotland's Grand Scenery
Updated x 2

Prime Minister David Cameron said on the Andrew Marr Show that the government would be setting out the legal position regarding a referendum on Scottish Independence.  Cameron said that the uncertainty was damaging to the economy and added that the present situation was unfair on the Scottish people who did not know when the question would be asked, what the question would be and who would ask it.  The Scottish people were owed something which was "fair, legal and decisive."  Cameron also said that he believed in the United Kingdom and it would be "desperately sad" if Scotland left.

Further questions could be asked, such as what would be the actual nature of "independence."  Would it be a complete and entire separation or would, for example, Scottish finances continue, in some way or other, to remain linked to the remainder of the UK?  What would be Scotland's relationship (if any) to the Crown.  What would be the defence situation?  What would Scotland's status be with regard to the European Union given that it is the United Kingdom which currently has the membership.  All these, and many other questions, are difficult political and practical questions and, in the present harsh economic times, it is tempting to wish that the questions would go away but, in reality, they will not simply disappear and must be answered.

What then of the legality?

Monday 9 January 2012

Do we need the Obscene Publications Acts?

R v Penguin Books 1961

‘The Obscene Publications Act equally protects the less innocent from further corruption, the addict from feeding or increasing his corruption’ - per Lord Wilberforce in DPP v Whyte [1972] AC 849

The Obscene Publications Act 1959 s.1 commences by defining the test of obscenity:

For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

"Article” means any description of article containing or embodying matter to be read or looked at or both, any sound record, and any film or other record of a picture or pictures.

The 1959 Act s.2  (as amended by the Obscene Publications Act 1964) states:

Saturday 7 January 2012

Hate Crime

A look at racial murder, hate crime and the criminal offences available.

Institute of Race Relations - data on "racial" murder:

Stephen Lawrence was murdered on 22nd April 1993.  Since then, according to the Institute of Race Relations (IRR), there have been 96 murders involving a known or suspected racial element- See Institute of Race Relations.  The victims were overwhelmingly young men under the age of 30 and four deaths were of white British citizens with the others from "Black Minority Ethnic" (BME) communities or migrant workers.

Importantly, the IRR notes that the identification of racially motivated murders and attacks must depend on an objective evaluation of the whole context in which the murder or attack takes place and not just on the skin colour or ethnicity of the alleged perpetrator(s) or victim.  In particular, the IRR would regard a murder or attack as racially motivated if the evidence indicates that someone of a different ethnicity, in the same place and similar circumstances, would not have been attacked in the same way. Subject to the above, a formal legal finding or allegation of racial motivation would be taken as prima facie (but not definitive) evidence that a murder or attack was racially motivated.

Understandably, the Stephen Lawrence murder trial has attracted immense publicity and the figure of 96 murders since 1993 is very worrying.  Few of the other murders have attracted anything like the same degree of publicity and attention.

Before considering "hate crime" further, it is

Thursday 5 January 2012

Justice and Security Green paper - Human Rights Conference - Law of Contract online

Justice and Security Green Paper:

The government's Green Paper "Justice and Security" has been open for consultation since October 2011.  The consultation closes on 6th January 2012.  The proposals relate to civil proceedings and inquests and the following posts examined the proposals in greater detail:

Justice and Security Green Paper - Part 1 - The government's case for closed material procedure (CMP)
Justice and Security Green Paper - Part 2 - The proposals
Justice and Security Green Paper - Part 3 - Oversight of Security Services

The UK Human Rights Blog has a post entitled "Extension of secret hearings would be 'fundamentally unfair', say Special Advocates."   57 barristers (including 19 Queen's Counsel) have raised objection to the government's proposals for closed material procedure and greater use of special advocates.

Human Rights:

The conference held at Wilton Park in November 2011 has issued a report which may be downloaded here.   The conference was referred to in "Access to Justice - Human Rights - chuck 'em all in the melting pot."  The Conference occurred in the early days of the United Kingdom's Chairmanship of the Council of Europe.

Law of Contract:

This highly important legal topic is brilliantly covered in CharonQC's "Law of Contract online book and recorded lectures."  A definite must for students and perhaps many a practitioner !!  Also, CharonQC has added excellent material on Sale of Goods

Tuesday 3 January 2012

The Stephen Lawrence murder: convictions; double jeopardy and sentencing

ADDENDUM - 5th January - The Attorney-General is considering whether to refer the Dobson and Norris sentences to the Court of Appeal - The Guardian 5th January.   See Criminal Justice Act 1988 s.36.    A reference may be made if the sentence is considered by the Attorney to be "unduly lenient" and therefore the Court of Appeal will only intervene if the sentence was significantly less than that which should have been imposed.  The Court of Appeal must give leave for the reference to be made.  It is instructive to see the minimum terms set by the Lord Chief Justice for young offenders in some of the older cases.

On 1st February, it was announced that the Attorney-General would not be referring these sentences to the Court of Appeal - see The Guardian 1st February

UPDATED 4th January - Post-sentence

It was on 22nd April 1993 that Stephen Lawrence was attacked and killed.  The BBC has produced an excellent "time line" of this tragic case.  Today, at a trial held at The Old Bailey (Treacy J and a jury), two men - Gary Dobson and David Norris) - were convicted of the murder of Stephen - Telegraph 3rd January.

From the outset, Gary Dobson and David Norris were implicated in the murder along with certain other suspects.  However, a prosecution against two (Neil Acourt and Luke Knight) was discontinued in July 1993.  In 1994, a private prosecution was mounted against Gary Dobson, Luke Knight and Neil Acourt but formal acquittals were entered in 1996 when Curtis J ruled certain identification evidence to be inadmissible.

The Macpherson Report:

In July 1997 an inquiry under the Chairmanship of Sir William Macpherson was announced and reported in February 1999.  The report extends to 47 Chapters and Appendices and was condemnatory of policing. 

Double jeopardy:

Historically, the common law

Sunday 1 January 2012

A look back at 2011

A Very Happy 2012 to all readers.

The last 12 months brought numerous legal events and, doubtless, 2012 will do the same.  During 2011, it was sometimes difficult to choose which events to focus on but some of the stories were compelling.

January 2011 - "Policing" figured highly, particularly with the use of undercover Police Officers such as PC Mark Kennedy - see Climate Change Protesters sentenced ... use of undercover Police Officer revealed (where it was noted that a second trial, due to commence in early January, had been suddenly "dropped" ... Climate Change No. 3 ... where we looked at just some of the serious questions raised by the use of undercover officers ... Climate Change No. 4 ... where the Policing Minister (Nick Herbert MP) announced that the role of ACPO was to change.  These matters raised serious questions about policing in a modern democracy and also about the the criminal justice system.  We do not (yet) have really satisfactory answers.

February 2011 - The government's much vaunted