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

Inverness

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.

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.

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.

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).

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,

Assault on Goalkeeper

The match between Sheffield Wednesday FC and Leeds United FC on 19th October was played at Sheffield Wednesday's home ground - Hillsborough. The match was a 1-1 draw but was marred by an ugly incident when 21 year old Aaron Crawley assaulted the Sheffield goalkeeper - Chris Kirkland.   Sitting at Sheffield Magistrates' Court - District Judge (Magistrates' Courts) Naomi Redhouse sentenced Crawley to 16 weeks imprisonment and imposed a Football Banning Order for 6 years.  Crawley is described in some media reports as an unemployed labourer.

A short video of the incident is at The Guardian 21st October. 

Lord Neuberger on Thomas Erskine

It is rare that on a Monday morning one comes across a speech which is such a pleasure to read as the Seckford lecture by the President of the Supreme Court (Lord Neuberger) at Woodbridge School 18th October - Lord Erskine and Trial by Jury  (Acknowledgment: Supreme Court - Speeches)

Lord Neuberger reminded us of many things which are particularly precious in our system of law and his lecture contains many interesting and pertinent observations relating to the independence of the judiciary (an independence referred to by Erskine as "sacred"); the benefits which life outside the law bring to advocacy [14], the courage and judgment possessed by only the best advocates [22], styles of advocacy [27] - Erskine's was "rhetorical, even orotund and extravagant" and would not go down well today; why cases take much longer in modern times [28]-[30]; a plethora of statutes not being conducive to the rule of law [31]; judgments [31] and that the law is becoming obscure, uncertain and forbidding.  He (rather mischievously) notes that "equity barristers are now used to public speaking" [43] and that the best barristers give the impression that the judge or jury is hearing a first class point from a third class advocate.  A comment related to sentencing is at [44]

"The Gordon Riots themselves emphasise that, viewed through the prism of history, the recent Tottenham riots were not as extraordinary as they seemed at the time. And hanging many of the rioters can be contrasted with the four year prison sentences for some of the Tottenham rioters. Our sentencing of criminals may be markedly more severe than in most of the rest of Western Europe, but we have come a long way since the 18th century."

Next, Lord Neuberger touched upon protest [46] and the need to balance the public interests involved.

.  At [53] Lord Neuberger reminds us of what Erskine said at the trial of Thomas Paine about the role of the advocate:

More sentencing ~ Trenton Oldfield ~ Christopher Halliwell

Updated 22nd October

As a number of recent posts on this blog show, sentencing is a far from easy exercise.  The Judiciary has just published sentencing remarks in two cases.

Trenton Oldfield:

First, the case of Trenton Oldfield convicted of "Public Nuisance" in connection with him swimming into the path of the Oxford-Cambridge Boat Race on 7th April.  Her Honour Judge Anne Molyneux sentenced Oldfield to 6 months imprisonment - Sentencing Remarks and BBC News 19th October.

For information about the common law offence of Public nuisance see Odd Corners of the Criminal Law 24th April.

"A person is guilty of a public nuisance who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects" - Stephen Digest of the Criminal Law (1877) - approved R v Rimmington and R v Goldstein [2006] 1 AC 459 (HL), [2005] UKHL 63

His sentence attracted numerous adverse comments on Twitter - e.g. this selection ....

A northern Sunset

*** A lovely spectacular sunset this evening ***

Opt outs and the EU ~ Is the UK heading for the exit

There is little doubt that membership of the European Union (EU) is thoroughly disliked by some members of the present British government and public dislike of membership seems to have increased as a result of all the financial problems in the "Eurozone" which some politicians favoured joining.  Theresa May informed Parliament that the government's 'current thinking' was to opt out of around 130 EU measures concerned with police and justice matters  - BBC 15th October - though the UK might then apply to opt back in to some of them.  An article in the Law Society Gazette preceded May's announcement but indicates both the scope of the proposed "opt out" and some of the considerable problems which an opt-out raises.

News roundup - Savile ~ Hillsborough ~ Prince Charles ~ Supreme Court

Savile:

The BBC has announced that Dame Janet Smith (formerly Lady Justice Smith) is to lead their internal inquiry into the Savile affair - BBC 17th October and The Guardian 16th October - but her work will not begin until the Police give the go-ahead.   Dame Janet Smith conducted the inquiry into the Harold Shipman case.  Her inquiry produced six reports in the period 2002 to 2005.

Previous post on Savile - 4th October 2012

Government appoint barrister to oversee four investigations - The Guardian 18th October.   These investigations concern three hospitals where Savile had involvement and also the Department of Health itself.  The Department of Health had responsibility for "Broadmoor" prior to its transfer to a NHS Mental Health Trust in 2001.

Savile scandal - government could face civil claims - The Guardian 12th October

 

Hillsborough:

Gary McKinnon will not be extradited to the USA

On human rights grounds, the Home Secretary has blocked the extradition to the USA of Mr Gary McKinnon - Full statement to Parliament 16th October 2012 and see video Channel 4.   Mrs May's statement went well beyond the McKinnon case and is reproduced below.

Media comment/articles:

An interesting article by David Allen Green - New Statesman 16th October - notes that what you believe about the McKinnon extradition case is probably false and looks at the actual legal position in the case - Why did it take 10 years to block the extradition of Gary McKinnon.    See also the piece by Joshua Rozenberg in The Guardian 16th October - Gary McKinnon: Theresa May had no choice but to use human rights grounds. Rozenberg begins - "Theresa May must have found it galling to use the despised Human Rights Act as a get-out-of-jail-free card for Gary McKinnon. But there was no alternative to her using article 3 of the human rights convention, which says that no one shall be subjected to inhuman or degrading treatment or punishment.  How else was she going to be able to stop McKinnon being extradited to the US, with the risk that he would end his own life and, with it, May's political career? ...."

Police assaulted man in custody suite

Crown Court ~ Teesside

The Telegraph 11th May 2012 published a video showing an assault by Police Sergeant Harvey on an arrested man - Mr David Healer.  The assault took place at Peterlee (County Durham) in March 2011.  See also the BBC's report of the case heard at Teesside Magistrates Court - Peterlee 'torture' officers fined for David Healer attack .

In May 2012, Sergeant Harvey was convicted at Teesside Magistrates Court of common assault - (a common law offence which is triable summarily - see Criminal Justice Act 1988 section 39).  It is clear from the video that Mr Healer was not co-operating with the Police and was unwilling to answer questions.  Sergeant Harvey argued in court that he had used reasonable force only.

Just wondering ... sentencing of Justin Lee Collins

The Guardian asked - "Why did Justin Lee Collins get such a lenient sentence?"    Justin Lee Collins - a comedian and TV presenter - was sentenced to 140 hours unpaid work in respect of an offence involving harassment of Anna Larke with whom Collins had been living - report BBC News  9th October.  According to a further BBC report (10th October), Mr Collins has not accepted that he was either violent or an abuser.

Regrettably, the media reports of this case do not report the exact charge though it looks as though it was section 4 of the Protection from Harassment Act 1997.  Mr Collins was convicted after trial in the Crown Court and it is reported that the jury deliberated for some 12 hours.  The media reports indicate that, in the period January to July 2011, Anna Larke was subjected to sustained emotional abuse.

Tweets, Facebook ~ Go to Jail

Earlier this year, the conviction of Mr Paul Chambers was quashed by the High Court.  Mr Chambers had been found guilty of an offence under section 127 of the Communications Act 2003. The quashing of Mr Chambers' conviction was hailed as a victory for free speech and the High Court's judgment illustrated some of the problems inherent in the interpretation of section 127 and its application to cases where stupid or ill-considered remarks are placed on modern social media such as Twitter.  Earlier posts - The Twitter Joke judgment considered and Paul Chambers wins the appeal.

Recent cases:

This week, two more cases under section 127 came up for sentencing in Magistrates' Courts.

From the Party Conferences No. 3 ~ Human Rights

"I still believe we should scrap the Human Rights Act altogether" - Mrs Theresa May - Home Secretary - 2012 Conservative Party Conference.

"At the last election we promised to do something about our out of control human rights culture. It’s just crazy that people who are determined to attack our society are able to go back to the courts again and again and claim that it would infringe their human rights to send them back to the countries they come from. We know we cannot deal with this in the way we want while we are in coalition. But we cannot go on the way we are.  So my commitment to you is that Damian Green and I will give this Party a clear plan for change on human rights" - Mr Chris Grayling MP - Lord Chancellor and Secretary of State for Justice" - 2012 Conservative Party Conference.

From the Party Conferences No.2 ~ Dangerous Offenders

Here are the conference speeches of Labour's "Shadow" Justice Secretary (Mr Sadiq Khan MP) and the present Lord Chancellor and Secretary of State for Justice - Mr Chris Grayling MP.

Mr Sadiq Khan             Mr Chris Grayling

There are many interesting comments Mr Khan's speech.  One of his points was that the Coalition has promised to keep the most violent and persistent offenders off the streets but has abolished "indeterminate sentences key in keeping the most dangerous offenders safely in prison."  This statement is disingenuous.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 will rid the criminal justice system of indeterminate sentences (IPP) but it does this for very good reason since, as originally enacted (Criminal Justice Act 2003), these sentences could be applied to a much too wide range of offenders.  The backlog of such offenders who remain in prison long after their tariff has expired has yet to be completely addressed.  The scope of indeterminate sentences was reduced by the Criminal Justice and Immigration Act 2008.  However, throughout the life of this form of sentence, government has failed to provide the resources needed to make it work effectively.  It is this failure which was criticised by the European Court of Human Rights in James, Wells and Lee v UK 2012 - for more on this, please see post of 20th September.

So, just what will replace indeterminate sentences?  The answer lies in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 Part 3 Chapter 5.  (Post of 8th May took a brief look at this).

From the Party Conferences No.1 ~ Burglary

The political party conferences are over.  Politicians have grandstanded before their supporters.  In the field of "law and order" there have been speeches by Labour's "Shadow" Justice Secretary (Mr Sadiq Khan MP) and the present Lord Chancellor and Secretary of State for Justice - Mr Chris Grayling MP.  Their speeches are here:

Mr Sadiq Khan             Mr Chris Grayling

It seems fair to say that it has been Mr Grayling's speech which has received the greater media coverage since headlines appeared such as that in the Telegraph 8th October New right to attack burglars or The Sun which announced - "It's official: You can batter a burglar."  All such headlines are completely misleading.  The law remains that "reasonable force" may be used in defence of person or property though Parliament has legislated in recent times to "tweak" the law somewhat.  The concept of reasonable force  takes into account the situation as perceived by the person who has used the force and already makes due allowance for the fact that, in the heat of the moment, the attacked person cannot be expected to "weigh to a nicety" his reaction.  In 1921, the American judge Oliver Holmes said: "Detached reflection cannot be demanded in the presence of an uplifted knife" - Brown v US 1921. 

Party conference time madness and other business

UPDATED

A news round up today since there seems to be a lot going on the moment!  So, in no particular order, here we go!!

Matthew Woods (aged 19) posted on Facebook some offensive remarks about the missing child - 5 year old April Jones.  A number of the remarks, it is said, were of a sexually explicit nature.  Woods pleaded guilty to an offence under the Communications Act 2003 and was sent to prison for 12 weeks by Chorley Magistrates.  The 2003 Act is aimed at dealing with communications which are "grossly offensive", "indecent", "obscene" or "menacing."  Talking to some members of the public about this, their view was that the sentence was well deserved but there is a different view in some legal circles that the sentence is excessive - see UK Human Rights blog "12 weeks in prison for sick jokes on Facebook?  Really?  We shall see whether Woods appeals the sentence to the Crown Court as is his right.  Comment about the case by Joshua Rozenberg is here.  Woods' sentence comes as the CPS reviews how to treat social media and electronic communication in the light of several cases where substantial sentences have been handed down after people have posted offensive remarks on Twitter and Facebook or sent them directly via email.  For example, Liam Stacey, 21, received a 56-day jail term after tweeting "LOL" ["laugh out loud"] in response to the on-pitch collapse of the footballer Fabrice Muamba and subsequently posting racist and offensive comments when other users criticised him.  A number of lawyers have been invited by the DPP to meet with him to discuss prosecution policy in this area.

Interestingly, another "Facebook case" was dealt with by a District Judge (Magistrates' Courts) sitting at Huddersfield Magistrates' Court - a community sentence was imposed - Case of Azhar Ahmed.

The Magistrates’ Court sentencing guidelines of the s127 offence really do require updating. You would think that only telephone calls were covered – see page 42 of the Sentencing Guidelines

See also The Guardian's editorial "Jaw-jaw and Law-law: freedom of speech online"

The Five are extradited ~ Is this a time for rejoicing?

On 5th October, the High Court finally cleared the way for the extraditions to the USA of Al Fawaz, Abdel Bary, Abu Hamza, Babar Ahmad, Talha Ahsan.  The British and US governments clearly wasted no time in getting the men out of the UK as, during the night of 5th-6th October, they were flown to the USA from RAF Mildenhall - an air base which primarily supports US Air Force operations.   Here is some of the media coverage.

Daily Mail 6th October  - "Good Riddance: Hate preacher Abu Hamza finally on a flight to US after losing last-ditch attempt to stay in Britain".  The Mail article contains many photographs including scenes outside the High Court where protesters demonstrated.  The photographs merit a close look. 

The Sun 6th October - "Hook Off" - "HOOK-handed hate cleric Abu Hamza was finally booted out of Britain across the Atlantic last night after an eight-year legal battle.  The vile extremist lost a last-ditch bid against extradition to the US yesterday — and left British soil on a jet bound for New York just before midnight."

The Telegraph 6th October - Abu Hamza leaves Britain after final appeal fails -Radical cleric Abu Hamza has left British soil ...

Extradition to the USA ~ Five lose in the High Court

Update 9th October:  The full judgment

A few days ago, at his annual Press Conference, the Lord Chief Justice expressed "fury" at "any case that takes eight years through a whole series of judicial processes to come to a conclusion -- "  The cases of Al Fawaz and Abdel Bary have been oscillating around the legal system for 14 years and the extradition cases of Abu Hamza, Babar Ahmad and Talha Ahsan for 8 years.  In those 8 years, Abu Hamza served a sentence of imprisonment which accounts for some of the delay in his case.   (Earlier post on the Press Conference). 

These cases were back in the High Court Queen's Bench Division (Sir John Thomas President and Ouseley J) this week but the court has robustly rejected their new attempts to prevent extraditions to the USA.  The court's reasons are set out in a 14 page summary available via the Judiciary website.  The written judgment is to be published next week.

In the summary, the court makes six general observations.

Allegations against the late Sir Jimmy Savile

UPDATES

22nd April 2014 - The Guardian - Newspapers run ads telling Jimmy Savile victims how to claim

A compensation scheme was approved following a ruling at the high court in February (Judgment).  Mr Justice Sales sanctioned the scheme after agreement between NatWest, the executor of Savile's estate, lawyers representing Savile's alleged victims, the NHS and the BBC.  He described the compensation scheme as a sensible and pragmatic attempt at solving a complex situation, and also approved the publishing of the newspaper advertisements.


14th January 2013 - Giving Victims a Voice - a report issued jointly by the Metropolitan Police and the NSPCC.

1st November - Two articles in The Solicitors Journal - Could Jimmy Savile's employers be liable for his actions ... and ...  Jimmy Savile's victims still have serious obstacles to overcome

The first of these articles has a reference to the decision of MacKayJ in XVW and YZA v Gravesend Grammar School for Girls [2012] EWHC 575 (QB)


12th October - BBC to launch inquiries


Original Post:

On 3rd October, ITV broadcast a programme - "Exposed: The other side of Jimmy Savile."  The programme may be viewed until 23rd October.

"Jimmy" Savile (1926-2011) - full name James Wilson Vincent Savile, was a show business personality who devoted much of his efforts to raising some £40 million for varous charities and good causes.  He was also noted as being the first presenter of Top of the Pops and for his Clunk-Click Every Trip advertisement relating to the wearing of seat belts and for other programmes such as Jim'll fix it.

In essence, the programme contains allegations that Savile was a serial sex offender against teenage girls with a considerable number of the girls being under age 16.    At times when these alleged offences occurred, Savile was considerably older than the girls in question.  The programme further alleges that sexual activity between girls and Savile took place on BBC (and other) premises.  Further, it was alleged that Savile had relations with girls who were at an approved school "Duncroft" and that, at least in one instance, staff there knew of the allegations.  Ian Glen QC appears on the programme and commented that whilst Savile's side of all of this cannot now be heard, the information from those women interviewed by the programme researcher would constitute reasonable grounds for suspicion and would justify the arrest of Savile if he were still alive.  It is also known that Savile was interviewed under caution by Surrey Police in 2007 but no action was taken against him.

Scotland ~ Constitutional Futures Forum ~ Scottish cases at Supreme Court

Edinburgh Castle

Back in January some interesting points arose regarding the question of a referendum on Scottish independence.  Please see the posts:

Scotland: We need to talk

Scotland's constitutional future: an influential Scottish voice

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

In the post, Scotland: We need to talk , I ventured to look at alternatives to full Scottish independence:

The legal year commences ~ formalities

The 2012-13 Legal Year commenced today with the traditional Judges Service at Westminster Abbey followed by "the Lord Chancellor's breakfast" in Westminster Hall - see Ministry of Justice .  The Ministry of Justice website informs us that - "The Lord Chancellor wore formal dress, alongside Judges and QC’s who were dressed in ceremonial robes."

The new Secretary of State for Justice and Lord Chancellor (Mr Chris Grayling MP) was sworn in and took the oath laid down in the Constitutional Reform Act 2005 section 17- (CRA).  The oath has to be taken "as soon as may be after his acceptance of office."

Earlier, the new President of the Supreme Court - Lord Neuberger of Abbotsbury - was sworn as a Justice of the Supreme Court in at a short ceremony held in Court 1 of the Supreme Court building.  Lord Hope - the court's Deputy President presided at the ceremony.  Lord Neuberger had not previously been a Justice of the Supreme Court though he served as a Lord of Appeal in Ordinary from January 2007 to September 2009 and then became Master of the Rolls.  However, Lord Neuberger has sat occasionally in the Supreme Court as an "acting justice" - for example in Manchester City Council v Pinnock [2010] UKSC 45 where he delivered the court's judgment - (The court comprised 9 justices).