Corners of the law: liability for omissions

Smile for the Camera: The Double Life of Cyril Smith is a new book looking at the alleged sexual activities of the late Cyril Smith MP.   It is written by Simon Danczuk MP and Matthew Baker and published by Biteback Publishing.  The Daily Mail also reproduced lengthy sections of the book and one headline stated - Cyril Smith victims may sue Lib Dems .. - 'Victims of Cyril Smith are threatening to sue the Liberal Democrats for covering up his decades of sickening sexual abuse ...'   In a previous post - Sir Cyril Smith ~ Corroboration of Evidence (30th November 2012) -  Law and Lawyers looked at the decision not to prosecute Smith in the 1970s.


An Anglican prayer includes the words - ' ...We have left undone those things which we ought to have done; And we have done those things which we ought not to have done ...' - but when, in law, is an individual to be held liable for not doing something?  An alternative way

Unpleasant truths ~ 'Justice' at the crossroads

'Unpleasant truths' is the title of an article by Roger Smith (Visiting Professor London South Bank University) published in the Law Society Gazette 14th April 2014.  Smith begins by noting that - 'We are not winning the battle on legal aid.'  This is not the fault of lawyers, many of whom have fought against cuts to legal aid and other 'justice' reforms introduced by the coalition government since 2010. The country is in limbo with massive cuts being imposed over almost the entire field of public expenditure.  Nowhere near enough voters realise just how much of value is being lost.   Smith argues that the public fight must continue if only to deter worse.  Nevertheless, the legal aid scheme as it has developed since the second world war is bust.  It is not capable of delivering an acceptable breadth of service to the public.  Therefore, Smith argues, a fundamental 'reconceptualisation' is required.

Such an exercise

Means test for Crown Court legal aid

Even where a defendant is found not guilty, he or she may face ruinous costs after acquittal.

Nigel Evans MP (pictured), a former Deputy Speaker of the House of Commons, was acquitted of serious sexual offences - BBC News 10th April 2014. Mr Evans was first arrested on 4th May 2013 and he was acquitted on 10th April 2014.  It is now reported that Mr Evans will have to pay in the region of £100,000 costs - Telegraph 11th April 2014.   The Telegraph article states:

The Crown Prosecution Service’s “disproportionate” decision to use a top barrister in the case against Nigel Evans has left the MP with a huge legal bill, even though he was cleared of all charges.  Mr Evans, 56, was forced to pay more than £100,000 in legal bills to defend himself against a string of sex assault allegations and despite the not guilty verdicts will be unable to reclaim any of the money.  His solicitor, Daniel Burke, said the CPS’s decision to instruct Senior Treasury Counsel, Mark Heywood QC, was above and beyond what would happen in normal cases where the defendant was not in the public eye.  He said had Mr Evans relied on legal aid to fund his defence case, he would not have had the sort of representation to challenge the prosecution team on an equal footing.  Mr Burke suggested the decision had been based on Mr Evans’s profile rather than the requirements of the case.

The parlous state of civil legal aid

Writing in the Law Society Gazette 7th April, Catherine Baksi considered whether the legal profession's doom-laden predictions about the impact of deep civil legal aid cuts have been realised.  The article is at Law Society Gazette 7th April - Access Denied ?

Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, legal aid was turned off for most private family cases (except those involving evidenced domestic violence, child abuse or abduction.  Key further areas removed from the scope of legal aid were welfare benefits, clinical negligence, employment, housing disputes (other than serious disrepair, homelessness or anti-social behaviour), debt, immigration and education (except special needs cases).

Kenneth Clarke's plans to reduce prison numbers

Criminal Bar Association votes NO

Update 10th April:  Message from the Chairman of the Criminal Bar Association

As reported in my earlier post (A pivotal decision for the criminal bar), members of the Criminal Bar Association were balloted on the following motion:

“Do you wish to continue no returns and days of action until all the cuts and reduction in contracts are abandoned” Yes No

The result was that 1878 votes were received.  629 voted YES and 1249 voted NO.  I understand that the 1878 voting figure is under 50% of those who were eligible to vote.

More details of the result are at Criminal Bar Association - Results of the ballot

I suspect that there will be relief in the Ministry of Justice and despair from other legal professionals who are fighting against the government's regressive plans for justice.  I feel sure that the majority of the legal profession - irrespective of the part to which they belong - will feel that justice is under attack from the government which has enacted cuts to civil legal aid (see Access Denied - Catherine Baksi, Law Society Gazette 7th April), is imposing cuts to criminal legal aid and has acted to impose restrictions on access to judicial review.  The key question now

Joint Enterprise (1) or Parasitic Accessory Liabilty ~ Setting the scene

Individuals can participate in crime in various ways and the criminal law recognises this by enabling the conviction of not only principal offenders - (that is, those who actually commit the prohibited act with any necessary mental element or mens rea) - but also those who, in various ways, lend their support.  One of the most controversial aspects of participation in crime is what has come to be referred to as Joint Enterprise or "Parasitic Accessory Liability."

The terminology:

Joint enterprise as an everyday phrase would be capable of embracing any criminal activity in which two or more persons act together such as where X and Y carry out a pre-arranged criminal activity such as robbery at a garage or where X carries out robberies at various dwelling houses on an estate whilst Y acts as driver and look-out.

Particular legal difficulties have resulted from situations where X and Y embark on an offence (call it Crime A such as robbery at the garage) but X goes beyond mere robbery and commits Crime B such as killing the cashier at the garage.  Under what circumstances should Y also be liable for the killing?

The law relating to such situations law has proved to be (a) confusing and difficult to state clearly, (b) arguably too uncertain to meet Article 7 standards, and (c) capable of producing severe injustice particularly when combined with the mandatory life sentence for murder.

Though it is a controversial point, the law may have taken an incorrect turning with the decision of the Judicial Committee of the Privy Council in Chan Wing-Siu (1984)  and the change of approach became locked into English law by the House of Lords decision in R v Powell and English.

The term "Joint Enterprise" could usefully be confined to cases such as this garage example of X and Y and it is on this, that our focus lies.  I will therefore, for present purposes, use the term joint enterprise in this limited sense.  Making Y criminally liable for the killing is sometimes described as "parasitic accessory liability".   The terminology is discussed in the case of A,B,C,D v The Queen [2010] EWCA Crim 1622 at paras. 9 to 11.  In that case, Hughes LJ described this form of liability as:

"Where D1 and D2 participate together in one crime (crime A) and in the course of it D1 commits a second crime (crime B) which D2 had foreseen he might commit."

As Francis Fitzgibbon QC's points out - The Trouble with Joint Enterprise - The meaning and application of joint enterprise (as used in our limited sense) in murder cases has occupied the country’s most senior judges in the House of Lords/Supreme Court and the Court of Appeal (Criminal Division) with worrying regularity over the last 20 years, and each time the Court has given subtle but important variations to its statements of what the law is. (For reference, the leading cases are R. v Powell and English (1997) House of Lords; R. v Rahman (2009) House of Lords; Yemoh (2009) Court of Appeal; Mendez (2010), Court of Appeal;  R. v A (2010), Court of Appeal).

Statistics:

The Guardian 1st April 2014, drew attention to statistics obtained by the Bureau of Investigative Journalism.  The statistics may be seen at Joint Enterprise in numbers. The Bureau found:

• Between 2005 and 2013, 1,853 people were prosecuted by the CPS for homicides that involved four or more defendants. This is the closest approximation that can be made to the use of joint enterprise. Most academics agree these prosecutions almost certainly relied on the joint enterprise doctrine.

• In the same eight years 4,590 people were prosecuted for homicides involving two or more defendants – a definition the CPS suggests is a clear indication of the use of joint enterprise.

CPS - Joint Enterprise Charging Decisions - December 2012

It tends to be homicide cases that come to greater public notice and joint enterprise frequently plays a part in such cases.  It is also far from uncommon for joint enterprise cases to arise from events involving numbers of young people (loosely referred to as "gangs").  There are certainly some instances where convictions for murder have been obtained against individuals whose degree of participation in the offending can be said to be quite minimal or peripheral.

Joint enterprise is NOT confined to homicide cases and could, in principle, be applied to other types of offending (e.g. theft or public order offences etc). 

Joint enterprise is frequently defended as a necessary tool in the criminal law's armoury to deal with "gangs".  In a response to a Parliamentary Report on Joint Enterprise, Kenneth Clarke (then Secretary of State for Justice and Lord Chancellor) said - "I am keen to avoid consulting on measures that could weaken the law in this area or undermine the Government's efforts to tackle crimes committed by gangs."  Clarke shelved any possibility of reform for the duration of the present Parliament.  

The campaign  group JENGBA (Joint Enterprise Not Guilt by Association) seeks changes to the substantive law. I am not connected to JENGBA but, as we shall see, they have a strong case for reform.  The following short video is worth watching:

Joint Enterprise and Jordan Cunliffe

Newlove killers jailed for life - BBC News 11th February 2008

National Audit Office and Royal Mail

My local red post box was placed in the wall (where, thankfully, it still remains) at some point in the 63 year long reign of Queen Victoria (20 June 1837 to 22nd January 1901).  One can only wonder at the variety of mail that has passed through that box.  Many a business letter, job application, love letters, mail to those serving at the front in two world wars. The Royal Mail is (or was) a national institution.  The old box could tell a fine story but is the recent sale of the Royal Mail - a national institution with a long and interesting history - a fine story or another fine mess? 

Was this a good deal for the taxpayer.  The government says Yes.  Well it would say that wouldn't it !  In a  carefully worded but critical report, the National Audit Office certainly has doubts,  The matter remains to be considered by the Public Accounts Committee.  For an overall picture of the taxpayers true position, the arrangements with regard to pensions should also be considered - see Notes below.

The National Audit Office (NAO) exists by virtue of the National Audit Act 1983.   The NAO is headed by the Comptroller and Auditor General (CAG) and the NAO website describes the current leadership team.   The history of the NAO is, in itself, an interesting read.  

Under