Legal News and Views

Whitby Pier in Snow

Over the last few weeks there has been a torrent of legal news as well as many decided cases.  Here are some of the stories:

Undercover Policing - In 2010, revelations about the activities of Mark Kennedy, a police officer working undercover for the National Public Order Intelligence Unit (NPOIU), led to the collapse of the trial of six people accused of planning to shut down a large power station in Ratcliffe-on-Soar, Nottinghamshire. Later that month, Her Majesty‟s Inspectorate of Constabulary (HMIC) announced a review of the systems used by the NPOIU to authorise and control the development of intelligence.  This report outlines the findings and recommendations made by Her Majesty's Inspectorate of Constabulary.  Law and Lawyers looked at the Ratcliffe-on-Soar story here.

"Goodyear" and terrorism - Mohammed Chowdhury and Shah Rahman pleaded guilty to various "terrorism" offences after a so-called "Goodyear" hearing which
allows defendants to decide whether they should plead guilty, depending on the sentence they are likely to face - see Telegraph 1st February.   Goodyear indications are discussed at Law and Lawyers "Plea bargains or plea discussions" 18th December 2010.   Additional offenders followed suit and also entered guilty pleas. Of course, a lengthy trial, with the possibility of acquittal of one or more of the defendants, was avoided.  Nevertheless, this process remains somewhat controversial in the public mind - see, for example, Anne's Opinions.

In the care of the State? - is the title of a new book  available from INQUEST - (Authors Barry Goldson and Deborah Coles).  The book provides the first detailed analysis of child deaths in penal custody.   See also Community Care 27th January.  INQUEST has consistently argued for an inquiry, in public, to examine the underlying systemic and policy issues. The failure of successive governments to hold an inquiry makes it impossible to learn from failures that have cost children their lives.

Juries - the paradox of jury trial - The Times, Thursday 2nd February, carried an interesting article by Lord Pannick QC - "How do you defend trial by jury when you don't trust the jurors."  (£ Paywall).  Lord Pannick picked up on the case of juror Theodora Dallas who was jailed for contempt of court because she conducted her own internet research about the case.  According to Pannick, the Dallas case illustrates the paradox of jury trial.  "We allocate to ordinary men and women the vital role of deciding whether those accused of serious crime are guilty or not guilty. .... Yet we do not trust jurors to know about the previous convictions of the defendant - and to decide what weight to give to such information - except when the judge thinks the probative value outweighs the prejudicial effect."

There is some danger of losing trial by jury for a number of reasons.  One is that lawyers do not appear to be able to trust jurors to reach a decision solely on the precise evidence in the case and to disregard, or give little weight to, matters which are not absolutely central to the case.  Jurors are not to be entrusted with certain information except in some situations where legal rules permit - (e.g. Bad Character evidence is admissible subject to the Criminal Justice Act 2003 Part 11 Chapter 1).  In making most decisions in life generally or in business etc., a rational decision-maker would wish to see all the available material.  However, in a criminal trial, matters which a decision-maker might well consider to be very relevant are sometimes withheld from the jury (or magistrates).

A further threat to jury trial is the constant pressure of finance.   As Pannick says - "The government will soon be announcing plans to restrict jury trial in cases of minor theft and other less serious alleged crimes.  Allocating such cases to the Magistrates' Courts will save millions of pounds.  But such a change will be highly controversial."    Pannick goes on to say - "Moving minor theft cases and other less serious alleged crimes out of the Crown Court would not mean that such trials would be heard by professional judges alone.  Lay magistrates sit with, and indeed without, professional judges.  The magistrates' court would be given power to order a trial by jury in a particular case if it is thought there were exceptional reasons to do so."

Naturally, we await the emergence from the Ministry of Justice of precise proposals.  A few points of detail arise from Pannick's article.  (1) A considerable number of trials in the Magistrates' Court are now conducted by a judge sitting alone.  (2) Lay magistrates seem to rarely sit with a professional judge - with the exception of when they sit on appeals in the Crown Court.  In 2002, the Auld Report suggested a form of trial in which lay magistrates would sit with a judge.  This idea did not seem to be particularly welcome on the part of either judges or magistrates though there have been some occasions when a District Judge (Magistrates' Courts) has sat with two Justices of the Peace.  (I prefer the term Justice of the Peace to the term "lay magistrate" though the latter label seems to have stuck since its introduction by the Courts Act 2003).   (3) It is intriguing as to what will amount to "exceptional reasons" to permit a jury trial but the detailed proposals are awaited.  (4) A final point here is that it will be all very well keeping some of the more serious cases in Magistrates' Courts and increasing the maximum sentence power of that court but this should not, in my view, be done without a return to better legal aid provision in the Magistrates' Court.  (Some hope of that, I hear you say)!

Other blogs commenting about Jury trial are: Halsbury Law Exchange - barrister Felicity Gerrity  - "Trial by jury: the importance of ordinary jurors" and  Nothing Like the Sun - Francis Fitzgibbon QC - "Professor Dawkins' jury delusion."

Rehabilitation of Offenders - For many years, it has been the law that most convictions (not all) will become spent after a period specified in the Rehabilitation of Offenders Act 1974.   Reforms are now proposed - see The Guardian 2nd February - "Kenneth Clarke to 'wipe slate clean' for hundreds of thousands of ex-offenders."   This move comes as a further "add on" to the Legal Aid, Sentencing and Punishment of Offenders Bill" (LASPO)  currently before Parliament - see Ministry of Justice for further details.

Justice and Security Green Paper - a round up of some responses to this important Green paper is to be found on the UK Human Rights Blog - "More secret trials? No thanks."  For a more detailed look at the Green Paper see the links here.

Well, that's a few of the recent items .... more later ....