A breathtaking Bill of which even Henry VIII would have been proud ...!

On 28th October, the government's Public Bodies Bill received its first reading in Parliament - actually it has been first introduced via the House of Lords.  We all knew that, mainly for economic reasons, a "Bonfire of the Quangos" was being planned but the interesting question was just what form the legislation would take.

We now know that the plan is to hand Ministers sweeping powers to abolish, merge, or modify these public bodies or offices.  The powers are to be exercised by "Orders" (in the form of Statutory Instruments).  Although those orders have to be laid in draft form before Parliament and an "affirmative resolution" of each House obtained, the reality is that, in practice, only rarely will there be any debate.

The basic ministerial powers to abolish etc. are set out in Clauses 1 to 6 which have to be read with Schedules 1 to 6.  In exercising their powers to make orders, Ministers have to "consider" the matters set out in Clause 8. 

The Bill is replete with "Henry VIII" powers.   For example, under Clause 11, a Minister is permitted to make certain amendments to Schedules 1 to 6.  Under Clause 27, an order may repeal, revoke or amend an enactment whenever passed or made.  The Bill contains some restrictions on the use of these powers.  Under Clause 20, an order may not authorise the creation of a power to make subordinate legislation; or grant a power of forcible entry/search or seizure; or grant a power to compel the giving of evidence.  Under Clause 22 - an order may not create or authorise the creation of criminal offences punishable with imprisonment for more than 2 years.  Surely, that is far too extensive a right granted to Ministers to create new criminal offences.  One might be forgiven for thinking that earlier this year the coalition government had mentioned introducing a mechanism to prevent the proliferation of unnecessary new criminal offences - see here. 

This Bill will extend to England and Wales, Scotland and Northern Ireland.  [There are various clauses in the Bill dealing more specifically with Scotland, Wales and Northern Ireland].

Once this Bill is on the statute book as an Act, it will be there as a permanent extension to Ministerial powers exercisable with quite minimal Parliamentary oversight.

On 4th November 2010 the Solicitors Journal published - "Lords rap government over hasty bonfire of quangos."   In July 2010. the Lord Chief Justice expressed considerable concern over the use of "Henry VIII" powers - see Speech by Lord Judge at the Mansion House dinner for H.M. Judges.  It appears that, since Ministers like such clauses, their use will continue unabated.  Please also see UK Human Rights Blog 5th November 2010.

Addendum 9th November:  See The Guardian 9th November (Public Bodies Bill - a vampire law) which has picked up on the rather objectionable nature of this Bill.

For a further post please see UK Human Rights Blog - "Henry VIII stalks the Public Bodies Bill."

Addendum 11th November: See Joshua Rozenberg in the Law Society Gazette - 11th November.  Rozenberg argues that this Bill, if it were to become law, would destroy the independence from the executive which many public bodies are supposed to have.

European Convention is 60 years old: new website

4th November 1950 saw the adoption of the European Convention on Human Rights.  A new website has been set up to celebrate this immensely valuable development in the law.  Those who criticise the Convention should remember that under the British doctrine of the Sovereignty (or Supremacy) of Parliament nothing is actually guaranteed to the British people.  Since the UK is a signatory - and has been since the beginning - there are some constraints on governmental power and, since the Human Rights Act 1998, it is easier to enforce the Convention rights in British courts.  Further discussion of the Convention is here.

See also "Human Rights are our best safeguard against tyrannical rule" - Sigrid Rausing - Guradian 5th November.

Reports coming thick and fast: Victims Commissioner: Police Inspectorate

In March 2010, as the general election approached, Louise Casey was appointed Commissioner for Victims and Witnesses by Jack Straw (read).  She has produced a short 4 page report which, to be fair, levels valid criticisms at the criminal justice system - "Ending the Justice Waiting Game: a plea for common sense" - see Ministry of Justice website.  The report argues that delays in the Crown Court could be reduced by removing the right to trial by jury for many "either-way" offences such as minor theft.  Casey also argues that the sentencing powers of the Magistrates' Court should be increased.  (In fact, the latter was envisaged in the Criminal Justice Act 2003 but the change has not been implemented).  The Solicitor's Journal has published a somewhat emotive response - "Labour's ASBO apparatchik warned to keep her hands off trial by jury."

Let us look at the "pros and cons."  It is true that many cases dealt with by the Crown Court could be dealt with by Magistrates.  Also, as envisaged in the Criminal Justice Act 2003 (but not implemented), Magistrates could be given greater powers.  Removing "lower level" cases from the Crown Court would enable that court to concentrate fully on the more serious cases and might enable some trials to take place sooner.  If that was achieved then it might help the victims of those offences.

Even with their present powers, there are delays in Magistrates' Courts and delays affect victims adversely.  It is not unusual for some cases to take a number of months from first hearing to finalisation and that is despite various efforts to reduce delay (e.g. CJSSS).  The Magistrates' Courts are also going to bear a large share of the governmental cuts in the administration of justice budget.  There will be far fewer courts.  For those reasons alone, it would seem far from sensible to simply give Magistrates more work at this time.

Next, there is the question of legal aid.  No additional work, especially serious work,  ought to be given to Magistrates' Courts without changes to legal aid to enable defendants to be represented.  The double test of "means and interests of justice" excludes most of the population from legal aid in Magistrates' Courts.  In the Crown Court, legal aid is also means tested but the position is better than in the Magistrates' Courts see "Crown Court Means Testing."

It must also be noted that the right to trial by jury is one of the oldest rights of the citizen and it is one which the Coalition government said it would "defend."  Mere financial savings should not be a reason in itself to remove this valuable right which some defendants choose to exercise.

That leads to the other criticism which Casey raises: namely, that many people who supposedly wanted jury trial end up pleading guilty in the Crown Court.  

"We need to stop the abuse of the process which allows defendants and their solicitors to string out a case at the expense of victims and the public.  I hope that the legal aid review will be looking at what role it can play in restricting such activity - for example through fixed fees for guilty pleas, whereby a solicitor is only paid a set amount if the defendant pleads guilty at any stage of the case."

It is true that defendants do often plead guilty in the Crown Court but there are many valid reasons for this which Casey does not appear to be concerned about.  Further, the later a guilty plea is entered then the lower will be the "sentencing discount."

A few years ago, Lord Justice Auld, produced a "Criminal Justice Review" - September 2001.  This suggested a tier of jurisdiction between Magistrates and the Crown Court.  The "middle tier" (which Auld referred to as a "District Court") would have comprised magistrates sitting with a judge.  However, Auld's report included various other caveats relating to such a court - e.g. only the judge would deal with sentencing; defendants could, if they wished, opt for judge-only trial; magistrates would not be present if parties wished to discuss the law.  This proposal appeared to find little favour with either judges or, maybe because of the various caveats, magistrates.

Police Inspectorate Report

A further report which merits reading is from Her Majesty's Inspectorate of Constabulary - "Stop the Drift: A focus on 21st century criminal justice."   The report complains of waste and inefficiency in the system.  This may merit a post on its own later.

Other links:  See CJS Online re Victims and Witnesses.

Uninsured drivers beware

It is not possible to say exactly how many uninsured drivers are on the roads.  Nevertheless, the number is very substantial.  In July 2010, The Independent drew attention to the fact that premiums were rising and that this might be leading to even more uninsured drivers.  Of course, with Automatic Number Plate Recognition (ANPR) it is now easier for the Police to detect uninsured cars and vehicles may be seized under the powers in the Road Traffic Act 1988 sections 165A and 165B - discussed here. 

The Road Safety Act 2006 added a new offence of "causing death by driving when unlicensed, disqualified or uninsured."  The offence came into being on 18th August 2008 and is in the Road Traffic Act 1988 s3ZB.

A person is guilty of an offence under this section if he causes the death of another person by driving a motor vehicle on a road and, at the time when he is driving, the circumstances are such that he is committing an offence under - (a) section 87(1) of this Act (driving otherwise than in accordance with a licence, (b) section 103(1) of this Act (driving whilst disqualified), or (c) section 143 of this Act (using a motor vehicle while uninsured or unsecured against third party risks."

Jason Jon Williams drove whilst uninsured and without a licence.  In February 2009, in Swansea, he was driving on a dual carriageway which had a speed restriction of 30 mph.  Mr David Loosemore stepped out in front of Williams and was hit.  He died of his injuries the following day.  According to witnesses, Williams was not exceeding the speed restriction.  The Crown accepted that no fault, carelessness or lack of consideration in the driving could be attributed to Williams.

The Court of Appeal has considered this case in R v Jason John Williams [2010] EWCA Crim 2552 and upheld his conviction under section 3ZB.  He received a prison sentence of 24 weeks.  On the court's interpretation of the section, the driving did not have to be in any way blameworthy.  It sufficed that driving was a cause and this was so even though the deceased man was also substantially (and perhaps mainly) at fault.

This new law has been the subject of some trenchant criticism - e.g. by Smith and Hogan - Criminal Law 12th Edition at page 1111.  These criticisms are set out by Lord Justice Thomas at paras. 15 to 19 of the court's judgment.  Despite the criticism, the Court of Appeal held that the section was clear and that the defendant could cause death even though his actual driving was not at fault (or "blameworthy").  It is also worth noting that Lord Justice Thomas ended the court's judgment by saying that - "A custodial sentence was plainly appropriate" though the court reduced it from 9 months to 24 weeks.  Sentencing Guidelines may be read here.

Point for Law Students:  The court was presented with parliamentary material but decided that Pepper v Hart was not applicable here.

Attacker of Stephen Timms guilty of attempted murder

At the Old Bailey, Roshonara Choudhry (age 21) refused to enter a plea.  See The Guardian 2nd November and The Telegraph 2nd November.  In such circumstances the procedure is that a not guilty plea is entered and the prosecution version of the case is heard.  It appears that she also refused to enter any defence.  Perhaps unsurprisingly, the jury found her guilty of the attempted murder of Stephen Timms and two counts of poessession of an offensive weapon.  She is to be sentenced via a video link on Wednesday 3rd November.

The issue of refusal to enter a plea has an interesting history.  Prior to 1772 it was possible for a person to be pressed with weights until they either entered a plea or died under the weight piled upon them.  One of the most famous cases where this procedure, known as Peine Forte et Dure, was used was that of St. Margaret Clitherow who, in March 1586 at York, was pressed under a weight of 320 kgs.  She refused to enter a plea to a charge of harbouring a Catholic priest.  She died.  From 1772, this barbaric treatment was ended by a statute and a guilty plea was entered instead.  From 1827, by further legislation, a not guilty plea came to be entered.

The idea of not entering a plea and/or refusing to recognise the court is a tactic occasionally adopted by some defendants who often wish to make a form of political statement.  (Margaret Clitherow sacrificed her own life to spare her children almost certain torture and to save their inheritance which they would have lost had she been tried and found guilty).  Other notable cases of refusal to plead include that of Michael Murray (1936-1999) who was tried as part of the same trial which convicted the Birmingham Six (held at Lancaster Castle in 1975) and the trial of Radovan Karadžić before the International Criminal Tribunal for Former Yugoslavia (ICTY).

Addendum 3rd November:  Choudhry was sentenced to life imprisonment with a minimum term of 15 years imprisonment.   See Telegraph.  Her victim, Stephen Timms, called for an overhaul of websites hosting terror videos - see also Telegraph.

Addendum 6th November:   The remarks of the judge when sentencing Choudhry have "raised some eyebrows."  See The Guardian 5th November 2010.  

News Items 2nd November: IPP; Sentencing for Homicide; Prisoners and the vote

Three items in the news this morning concern imprisonment.

There has been a call for parole reviews to be accelerated for prisoners held under the “Imprisonment for Public Protection” (IPP) regime – see The Guardian 31^st October.   The call, by Peter Lodder QC, is to fast-track parole hearings for almost 2500 prisoners who have served their minimum tariff but are still held for public protection pending Parole Board decisions.   See earlier posts about IPP:  24^th June and 11^th July.

Next, a research paper by Barry Mitchell of Coventry University and Julian Roberts for the Law Faculty at the University of Oxford, found that the public believe different homicide scenarios warrant different sentences, with support for life imprisonment in only the most serious cases.  See Law Society Gazette.    The actual report may be read on the Nuffield Foundation website – here.

Finally, it is said in The Guardian 2nd November that the government is about to concede that prisoners should be permitted to vote.  The move comes after government lawyers advised that failure to comply with a European Court of Human Rights ruling could cost the taxpayer hundreds of millions of pounds in litigation costs and compensation.   See - Hirst v U.K. No.2 decided in 2005.   No decision is thought to have been taken on exactly how the change will be implemented and which inmates are to be given the right to vote.

Speech by Leveson LJ - Chairman of the Sentencing Council

Visitors to this blog may be interested to read a speech by Lord Justice Leveson - Chairman of the Sentencing Council - see "Sentencing in the 21st Century - The Conkerton Lecture - 21st October 2010."

For more details of the role of the Sentencing Council - see here.