Government now attracted to reforming the law of murder ... wonder why?

Back in January 2010, Law and Lawyers had a brief look at the law of murder "Murder: a whole spectrum of conduct".  In 2004, the Law Commission described the law as a "mess" and, in 2006, published their report - Law Com 304 Murder, Manslaughter and Infanticide.  The Commission recommended fundamental reform and proposed a new Act of Parliament to create a 3 tier structure for general homicide offences.  The government (as is often the case) cherry-picked the report and implemented reforms to the law relating to "partial defences" to murder -  see Coroners and Justice Act 2009 Part 2 Chapter 1. 

It now seems that the new government is attracted to the idea of reforming the law of homicide along the somewhat complex lines suggested by the Law Commission: First degree murder; Second Degree Murder and Manslaughter.  See Telegraph 13th July.

It is worth noting that the Law Commission's report was in 2006 and there is therefore a case for reform even if not exactly on the lines suggested by the Commission.  We know from Kenneth Clarke's speech (looked at here) that the government wishes to reduce the prison population.  The removal of the mandatory life sentence for some murders - (i.e. those classed as 2nd Degree) - will assist with that aim.  It is perhaps unfortunate that the aim of reducing the numbers in prison is likely to be seen as the main "driver" behind government's conversion to reforms suggested some time ago.

It's over .... at last ....

The World Cup is over - at last !!  Spain is the champion.  England's performance was miserably uninspiring.  The retention of Mr Capello as Manager was inevitable because his contract with the FA was altered before he went to South Africa.  £12 million would have been one terrific golden goodbye!  I hope that, before the next world cup, there is a serious rethink at England's entire approach and attitude.  They seemed to me to have the attitude of some law students at a Monday morning tutorial after a weekend on the lash.  The next time is Brazil in 2014.  They will be the 5th country to host it twice.  Of course, in 2012, we get the Olympics and those will include football.

The most brilliant idea of the whole World Cup was Paul (The Octopus) - pictured above.  His uncanny ability at forecasting gave him 100% accuracy.  Paul is to retire and I will miss him.  I will not miss those awful Vuvuzelas.  Brazil has something similar - the Corneta!  Can't wait.

Brazil (or is it Brasil) has come up with a nice logo. I think that is a left hand coming from behind the cup?  Am I correct?

Indeterminate Imprisonment for Public Protection - Prison Reform Trust Report

I make no apology for again raising the seriously flawed system of Indeterminate Sentences for Public Protection (or IPP).  (See previous post).  The Prison Reform Trust has now issued a report - "Unjust Deserts: Imprisonment for Public Protection" (authors - Jessica Jacobson and Mike Hough).  This report is a well thought out and detailed examination of IPP and the serious issues it raises.  To quote from the report -

 The sentence of Imprisonment for Public Protection must count as one of the least carefully planned and implemented pieces of legislation in the history of British sentencing. Projections about levels of use were totally inadequate and, as a consequence, the resources required to implement the sentence were far too limited. Behind these practical problems lie more fundamental questions about the ability to predict the risks posed by those convicted of violent and sexual offences – and to predict reductions in risk. If the ability to predict risk has been overestimated – as we believe – then the basic rationale of the sentence may be open to question.

The Brian Barder blog has much more on this subject - please take a look.  The Guardian 8th July 2010 highlights the problems inherent in IPP and another article by Joshua Rozenberg contains trenchant criticism of this form of sentence.  There is really no sensible alternative but to abolish IPP.

Children and the courts ....Review by the Government

"The court therefore grants an interim care order to the local authority in respect of ...(child) ..."  Those words are the nuclear option in child care cases.  They often mean removal of the child from the family to foster carers of the local authority's choosing.   The word "interim" means that the removal will be temporary whilst the case proceeds to a "final hearing" several weeks or even months away.

Removal of children is essential in some cases where there is "clear and present danger" of serious injury or abuse.  In other cases, the decision to remove is difficult with considerable room for difference of opinion.  In those cases some argue for supervision rather than removal.  Others disagree and plump for removal on a "just in case" basis and perhaps because the children's guardian has recommended it and a decision to go against the guardian usually results in an appeal.  This is a difficult and controversial area.

The law is in the Children's Act 1989 and in binding judicial decisions.  One such decision is Re L-A (Children)(Care: Chronic Neglect) [2009] EWCA Civ 822 where the court of appeal confirmed that children should not be removed from home at an interim stage unless the safety of the child requires it.  ["Safety" appears to be rather an "elastic word" covering any form of "safety" - physical, emotional etc].  When the case eventually gets to a final hearing, there may be a "care order" based on a "care plan" involving permanent removal of the child and adoption.

Interestingly, these orders (interim or final) can be made by either the High Court, County Court (where judges sit alone) or by Family Proceedings Courts (FPC).  In the FPC, cases are heard either by panels of three magistrates or, sometimes, by a District Judge (Magistrates' Courts).  The latter are supposed to sit with one or two magistrates but this never seems to happen in practice - (see Magistrates Courts Act 1980 s.66).  [The question is never asked - "Why is this judge sitting alone?"].*  If an application for an interim care order is opposed (and not all are) then the magistrates will conduct a hearing which could take a full day or perhaps more.  At the end of that day, everyone is tired but the magistrates will then have to stay to consider the case, prepare written reasons and announce their decision.  Appeals are then common adding further stress to the family in question.  The magistrates are dissuaded from going home and returning another day with rested minds.  This is because it is usually hard to get the same panel of magistrates back together.

If a court is to exercise, even temporarily, a nuclear option then one has to question whether this form of decision-making process is the best that could be devised.  Also, it does not usually save money because appeals are common.  One option might be to have the cases heard entirely by professional judges who, as lawyers, have specialised in this work.  An alternative would be a new tribunal for Children Act cases.  The tribunal would take over the "child care" work of the FPCs and also that of the County Courts.  Hearings would be before panels of three with a qualified lawyer as chairman.  A third option would be to make some reforms within the FPCs to overcome the difficulties put in the way of magistrates.  Perhaps a better option by far would be the creation of a Family Court.  This was suggested many years ago.by the late Mr Justice Finer in his report on One Parent Families.

The magistracy contains many very capable, caring and conscientious people but, in these difficult cases, they are asked to make their decisions within a flawed system which is not of their making and over which they have little or no control.  It fails to allow them to take time to give calm and considered consideration to the evidence and to come to a well reasoned judgment.  Reform seems to be needed.

The government is looking at family law - see here.  The review is not just seeking the views of professionals.  Anyone may comment by completing the online questionnaire or by writing to the review.  If you have personal experience of these cases - maybe because you have been a party to a case - then the review would no doubt like to hear of those experiences.

Update:

* When the Family Court was created, section 66 was repealed by the Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 10 para. 48

Constitutional Tinkering .... continues .........

The previous Labour government introduced some major constitutional reforms.  These included devolution to Scotland, Wales and Northern Ireland and the Human Rights Act 1998.  They set up a Department for Constitutional Affairs (DCA) - which later morphed into the Ministry of Justice - and there were numerous constitutional initiatives such as the creation of the Supreme Court of the U.K. and major changes to the role and status of the Lord Chancellor.  They also looked at a number of areas but actually did little - e.g. reform of the role of the Attorney-General and a review of "Royal Prerogative Powers" which are, in practice, really common law executive powers.

The new "coalition government" also seems hell bent on some constitutional reforms including fixed term parliaments and the alternative vote (about which there may be a referendum).  Further reform of the House of Lords is also on the agenda (despite the creation of many new peers since the general election).

Should all these constitutional reforms be done in this piecemeal manner?  Maybe there should be some form of "constitutional convention".  Have a read of what Joshua Rozenberg has to say in the Law Society Gazette.  I tend to agree with him.  Do you?

Texas to execute British woman: the Linda Carty case

The United States Supreme Court has denied an appeal by Linda Carty against her sentence of death by the Texas courts - see here.  The case is also highlighted by the CharonQC blog.  The U.S. authorities failed to inform the U.K. government about Carty's case.  That is, in itself, a serious breach of normal diplomatic relationships intended to enable consular assistance to those accused of crimes.  It also appears that Linda Carty was represented by incompetent counsel.  To carry out an execution in those circumstances would be a travesty of justice.  The matter now rests with the Governor of Texas (Mr Rick Perry).  In the 9 years he has held the governorship, he has reprieved one person only.  His predecessor - (George W. Bush) - was notorious for refusing to exercise clemency in death penalty cases.

Since the case of Furman v Georgia 1972, the death penalty in the USA has had a complex history.  One fact is that, in recent times, the majority of executions are in southern States most notably Alabama and Texas - (Death Penalty Information Center).  Within the 47 Council of Europe States, the death penalty is now completely abolished (Protocol 13 to the European Convention for Human Rights).  The USA, as a "civilised nation", should also abandon its addiction to judicial killing.

Any reader wishing to petition in relation to the Linda Carty case may do so via the REPRIEVE website.

Here are some statistics for executions in Texas and some details for Alabama.

British Military Action and Human Rights of Service Personnel

The Supreme Court of the U.K. delivered judgment in R (Smith) v Secretary of State for Defence [2010] UKSC 29.  Private Jason Smith went to serve in Iraq in 2003 and was sent to a base from where he was billeted at an old athletics stadium where daytime temperatures exceeded 50 degrees celsius (i.e. above 122F).  He reported sick but was still used on various duties off the base.  On the evening of 13th August 2003, he collapsed at the stadium and died of heat stroke.  An inquest found that Smith's death was caused by a failure to address the difficulty he had in adjusting to the hot climate.  Smith's mother wished to have the inquest verdict quashed and a new inquest held.  She argued that the U.K. owed her son a duty to respect his right to life (Article 2 of the European Convention) and that the more searching form of inquest demanded by Article 2 had to be held.

The government's case was that soldiers on military service abroad were not subject to the protections afforded by the Convention when outside their base.  However, the government accepted that Private Smith had died within the U.K.'s jurisdiction on the base.  The government had also argued that a fresh inquest was not required on the facts of this case.  The High Court and Court of Appeal found against the government.  Interestingly, in the Court of Appeal, the government conceded that it would not argue to a new coroner that the requirements of Article 2 did not apply.  At this point, Mrs Smith had actually achieved her aim.    However, despite this concession, the Court of Appeal and the Supreme Court looked at two issues of general importance:

1.  Whether British troops serving on foreign soil were entitled to the protection of the Convention and
2.  Whether the fresh inquest into Private Smith's death had to conform with Article 2 requirements.

The Supreme Court, by a 6 to 3 majority, allowed the government's appeal on [1] "the jurisdiction issue".   The court unanimously dismissed the government's appeal on issue [2] "the inquest issue".

Comment: This case was decided in the knowledge that the Al-Skeini case has been heard by the European Court of Human Rights (Grand Chamber) though judgment remains to be delivered.  The Al-Skeini case is also concerned with the extent of jurisdiction under the European Convention on Human Rights.

There is further comment on this case on the UK Human Rights Blog which argues that - ".... the Supreme Court justices have possibly written a very powerful academic essay, but not a binding judgment on battlefield human rights."  This is because it was accepted that Private Smith was within the jurisdiction of the U.K. at his base where he died and it was therefore irrelevant to discuss what the situation might have been had he died off the base.  The words of Lady Hale are worth noting - "The Ministry of Defence have appealed to this court because both the trial judge and the Court of Appeal accepted the invitation of both parties to decide more than they needed to decide. Of course they meant to be helpful. But because the Ministry of Defence did not like what they said, Mrs Smith has had to wait for more than two years for the case to be over so that the fresh inquest can be arranged."  Nevertheless, even if statements about the situation of British troops when not on their base are technically obiter dicta, in practice those dicta will be followed by lower courts unless and until Strasbourg makes some alternative ruling - see here.

 "The Human Rights Blog also carries an interesting item about the Article 2 duty to investigate deaths and questions whether the "two-speed" inquest system which has developed in the U.K. is actually in line with Strasbourg jurisprudence on this subject.

Further information about the al-Skeini and al-Jedda cases may be seen here.
See also BBC.