Short term prison sentences in the news again !

It is reported that the Secretary of State for Justice is now coming out against the use of short term prison sentences - see Daily Mail 14th June 2010.  He argues that such sentences are ineffective in reforming offenders.  In many cases he is right BUT that does not mean that alternative "community sentences" are always effective either though they may be somewhat cheaper.  Most people with knowledge of the Magistrates' Courts will know that there are repeat offenders whose "antecedents" show numerous different types of sentence having been tried but the offending continues.  There is also the question of what courts should do with those who breach either suspended sentences of imprisonment (which often have requirements such as "unpaid work" attached) or community sentences.  A further point is that, if jail is not to be used, there would have to be an expansion of resources relating to community sentences - e.g. it is necessary to have trained people to run or supervise most forms of community sentence and those resources are already thin on the ground.  This is a big question and simple abolition of short prison sentences is too simplistic an answer.

Picture: Lord Phillips, then Lord Chief Justice, attended an unpaid work session - see here.

MPs expenses case: judicial ruling favours trial before impartial jury

Law and Lawyers covered the MP's expenses case here.  The trial judge, Saunders J, has ruled that no bar to a trial before judge and jury can be based on parliamentary privilege.  Saunders J is reported as having said that there was no logical, practical or moral justification for them using parliamentary privilege to prevent a trial and he added that there was no legal basis either.  "Unless this decision is reversed on appeal, it clears the way for what most people accused of criminal behaviour would wish for: a fair trial before an impartial jury."  This is actually an interesting legal issue.  Parliamentary Privilege belongs to parliament and not to individual members.  Privilege exists essentially to ensure that members have freedom in debate to speak their minds.  Even if the defence had not raised this point, the trial judge would have had to consider it so as to be sure that the matter was not covered by privilege.  The fact that the point has been argued is by no means an indicator of guilt.  See BBC 11th June 2010.

Addendum: 25th June - The Law Society Gazette (24th June) published an article by Joshua Rozenberg which is definitely worth reading on this topic.

Bloody Sunday - report imminent

The Guardian 10th June states that it has "learned" that killings on so-called Bloody Sunday (30th January 1972) in Northern Ireland are to be ruled unlawful.  Whether this proves to be the case remains to be seen.  The Saville Inquiry has run on for 12 years and has cost some £200m.  The report is to be released to the public on Tuesday 15th June at 3.30 pm.  It is likely to be a very lengthy report and the estimable Joshua Rozenberg has already labelled the Inquiry as a "failure of the judicial process" - see here.

As we await the report, it is worth recalling that many hundreds of people died in Northern Ireland as a result of violence originating from all sides of the sectarian divide and a list of single incidents in which 5 or more people were killed is available here.

Background to the Inquiry:  There is no doubt that the original inquiry held by Lord Widgery CJ was not sufficiently thorough and satisfied nobody who was truly interested in an objective finding of the true facts. The 1972 Widgery Report has not stood the test of time.  Prime Minister Blair was persuaded to set up a further inquiry which he announced on 30th January 1998.  (This was at a time when the first Blair government was embarking on new peace initiatives in Northern Ireland - see Good Friday agreement of 10th April 1998).  Announcing the Saville Inquiry, Blair stated that it was "expedient" that a Tribunal be established for inquiring into a matter of urgent public importance".  The Tribunal was set up to run under the Tribunals of Inquiry (Evidence) Act 1921 and the tribunal comprised Lord Saville of Newdigate (Chairman), The Hon. Mr. William L. Hoyt (a Canadian Judge) and The Hon. Mr John L. Toohey (an Australian Judge who replaced the New Zealand Judge Sir Edward Somers in 2000).  It cannot have been in the mind of Blair that the inquiry would take as long as 12 years and run up such enormous costs.

Addendum - 14th June 2010:   The Daily Mail 12th June 2010 - article which looks at the Saville Inquiry from the viewpoint of a journalist who attended it in the year 2002-3.  The author argues that much of the testimony was conflicting and that it is very difficult for people to remember exactly what they observed if asked to testify many years later.  He also makes the point that, whatever the outcome of the inquiry, few are going to be satisfied.  A further valid observation is that Bloody Sunday was one of many horrific events spawned by the sectarian violence connected with Northern Ireland.  The author sees Saville as "one-directional justice" in that the inquiry was mandated to investigate just the one event.

The Daily Telegraph also carried considerable coverage about Bloody Sunday - see "The Bloody Sunday Inquiry: Was it Worth it?" The article is by the eminent historian Lord Paul Bew.  His article concludes by asking how would it now serve the public interest to prosecute former soldiers so long after the event - not least when many paramilitary killers were given early release as part of the Good Friday agreement?

Government has announced a review of child protection arrangements

The government has requested Professor Eileen Munro to undertake a review of child protection and social work arrangements - see Department of Education.   Her review will set out the obstacles preventing children's social workers from making the best judgments and interventions, including considering how effectively professionals in various agencies work together. The review will also consider if we should emulate best practices in child protection systems in other countries.  See also Family Law.  The Secretary of State has requested an interim report by January 2011 and a final report by April 2011.

As mentioned in the post immediately below, "serious case review" reports will be published.  It appears that some reports will be published retrospectively including Baby P and Khyra Ishaq.

It has also been announced that the government plans to scrap the Contact Point database "as soon as possible".  The Liberal Democrats published some information on this - see Freedom Bill.

A day with many legal news items .... here are a few

Judicial review not to be allowed to stand in the way of deportations:  Fellow blogger CharonQC has wondered whether the present government plans to abolish all law!  He writes about the planned deportation of a number of people to Iraq.  It seems that the government has "respectfully" informed the High Court that a mere judicial review will not be allowed to stand in the way of the deportations.  It is stated that this has been done on some 16 previous occasions.  This certainly has a disturbing look to it since the legality of a deportation is often tested by way of judicial review.  The story seems to be well covered by The Guardian 9th June.

Interestingly, although it is a somewhat separate issue, the refusal of courts to deport terrorist suspects to countries where they may face torture and/or execution has been defended by Lord Phillips (President of the Supreme Court) - see The Times 9th June.

Prisoners voting:  The U.K. has maintained a blanket ban on all serving prisoners voting despite a European Court of Human Rights ruling that the blanket ban is unlawful under the European Convention on Human Rights. Law and Lawyers took a look at this prior to the general election - see here.  The British government has now been told by the Council of Europe's Committee of Ministers that compliance with the European Court's ruling is expected in time for the elections to devolved assemblies in May 2011.  See Telegraph 9th June - Tom Whitehead (Home Affairs Editor).

Children and the law:  The former President of the Family Division (Sir Mark Potter) has commented about the crisis in child care law generally - see The Guardian.  Sir Mark is noted for his careful "nuanced" choice of words and his remarks ought to make us worried.  Quite simply, he is right.  Law and Lawyers touched on child care law in connection with the Edlington case , the Khyra Ishaq case and with the aftermath of the Baby P case and then again on 24th April (a lurking sense of unease - relating to criticism of social services).  There is a vast amount of excellent work done with children and with problem families but social service departments tend to be understaffed and seriously overworked.

A development which is to be welcomed is that "serious case review" reports will be published - see The Independent 9th June.   It appears that some reports will be published retrospectively including Baby P and Khyra Ishaq.

Libel trials:  One of the few remaining civil cases where a jury can be summoned is to hear a libel action.  Lord Neuberger, the Master of the Rolls, is to preside over an appeal against a decision by Tugendhat J to refuse a jury in a libel action which, at the time of the hearing before Tugendhat J, had already cost some £3m. The judge was moved to remark that "costs are now acknowledged to be a chilling effect on freedom of expression" but he nevertheless refused a jury since it would add to the costs further.  [Personally, I have often wondered just how much a jury in a civil case does cost?  Jurors are hardly paid a fortune for their time and trouble though the argument must be that having to explain matters to a jury lengthens the case and therefore adds to the lawyers costs].  This story is well covered in The Lawyer magazine 8th June.  Law and lawyers looked here at the almost astronomical costs which accrue in some forms of litigation.  Note: 12th June - the Court of Appeal has ruled No Jury.  Reasons remain to be published.  Additional Note: 24th June - the claimant decided not to proceed with his libel action - see Solicitors Journal.

Legal challenge to the Child Protection database:   The Telegraph carries the story that the Royal College of Nursing is to mount a legal challenge in connection with the child protection database.  The politicians have said that they plan to review the "vetting and barring" schemes administered by the Independent Safeguarding Authority.

The Armed Forces to continue to exist ....!

It is an interesting quirk of English law that it is necessary for Parliament to renew the existence of the Armed Forces of the Crown.  This is usually done annually.  The government is now taking the appropriate steps to renew them until 8th November 2011 - see Draft Renewal Order.  This requirement stems from the Bill of Rights 1689 which states that - "raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law".

From October 2009, the Armed Forces Act 2006 provides a uniform code of law for the Armed Forces and has replaced earlier "Service Discipline Acts" - viz. Army Act 1955, Air Force Act 1955 and the Naval Discipline Act 1957.  The process used to change from the old discipline acts to the 2006 Act regime was exceptionally convoluted - (see the Explanatory note to the renewal order).

Addendum:  Simon Jenkins writes in The Guardian 9th June that the armed forces should be wrapped up saving the country £45bn per year.  I would certainly not go as far as Mr Jenkins since there has to be the capability to defend essential British interests including those abroad.  Also, Mr Jenkins does not consider the amount of employment which the defence industry, rightly or wrongly depending on your viewpoint,  generates.  I think that I will leave it there since (a) this is a law blog and (b) I wondered here and here whether British foreign policy would be all that different under the new government.

Tragedy in Cumbria: will it lead to an overhaul of gun laws?

Wednesday 2nd June was a day of major tragedy in West Cumbria.  Derrick Bird, a cab driver who lived in the village of Rowrah, went out on a journey of around 44 miles during which he killed 12 people and severely wounded others.   His reasons for this are, as yet, not understood.  The Police Investigation will doubtless try to piece together the full details of Bird's journey up to the time when he killed himself in a wood near the village of Boot.  This will be a difficult and painstaking task.  They will also try to establish any reasons as to why Bird embarked on such a course.  One victim was Bird's brother.  Another was a local solicitor who appears to have done legal work for Bird.  Yet another was a fellow taxi-driver.  Other victims were members of the public and unknown to Bird.

Both the Prime Minister and the Home Secretary stated that there would not be a "knee-jerk" rush to legislate further.  This approach is sensible but it is to be questioned whether either further legislation or tighter enforcement (or both) can be avoided.  It is true that there are strong controls over guns but The Guardian has already highlighted a number of weaknesses in the system - see "The loopholes in Britain's gun laws" (Alan Travis, Home Affairs Editor 3rd June 2010).  Problems include: treating shotguns with a "lighter" touch than other weapons; renewal processes; acceptable reasons for requiring a gun etc.  The legislation on firearms has been extensively amended over the years and is exceptionally complex.  [See the 2002 Police Guidance].  The situation with regard to devolution of aspects of firearms law to Scotland should also be examined.  Would it not be preferable to maintain a United Kingdom approach to firearms regulation (including air guns)?   [Note: The Calman Commission on Scottish Devolution recommended devolution of control over air guns to Scotland but recognised the strong arguments for maintaining control at a UK level over firearms - see para. 5.156 of the Calman report].

The Police response:   Cumbria Police clearly faced major difficulties in dealing with this situation and there is a level of criticism.  They are not a massive force since they police a large - (mainly rural/coastal) - area which has little very serious crime.  They were faced with an unfolding; highly serious and, mercifully, very rare situation.  There will undoubtedly be lessons to learn.  The Daily Mail carried an interesting article on the Police response.

Timeline of witness testimony:  The Guardian 9th June (Helen Pidd) published a "timeline" of the Cumbrian shootings.

Memorial services were held on 9th June 2010 and the House of Commons observed a minutes silence.  The Guardian reports that the Cumbrian Police response is to be "peer reviewed" by firearms experts.  Prime Minister David Cameron told the House of Commons that there would be no rush to legislate but the law would be examined - Guardian 9th June.  This is surely the sensible way forward.  For a further article see Guardian 10th June.