In the News:
Lord Janner died on Saturday, aged 87, after a long battle with dementia. The former labour peer was due to face a “trial of the facts” in April, after being accused of a string of child sex abuse offences. The special hearing, for suspects unfit to defend themselves in a normal criminal trial, takes place before a jury, yet there is no formal verdict, nor sentencing procedure. It is speculated that, if the trial had continued when Janner was alive, he would have been given a discharge, if not altogether acquitted. It now looks unlikely that the trial will proceed. “I can’t think of any way in which the Crown Prosecution Service could even reinstate the case. It dies with the unfit defendant”, writes academic Ronnie Mackay. It’s a dim prognosis for Janner’s alleged victims, who still hope to have their day in court, after many abortive attempts to bring their claims against Janner before he fell ill. Their hopes are now confined to the forthcoming civil proceedings against Janner’s estate, and the Goddard inquiry. Yet former DPP, Ken Macdonald, has held that the decision whether to proceed with the trial is “quite finely balanced” and, despite his personal preference, there stands a credible case for it taking place. As there’s no question of a penal sanction in a trial of the facts, the presence of the defendant is not strictly required. In light of this, Lord Macdonald has suggested “the argument for continuing is that [Janner] was not going to play any part in these proceedings in any event”.
Yet the case for abandoning the trial remains compelling. The culmination of such proceedings involves the court giving some form of disposal – be it a hospital order, supervision order, or discharge. None of these options, of course, are now possible. The inability to formally conclude the trial may compromise “the whole purpose and legal justification” for the process, Macdonald cautioned. The CPS has yet to confirm how it intends to proceed, but the prevailing presumption is that the criminal proceedings will now be halted. If the proceedings do continue, they would be “ground-breaking”, Macdonald averred, “probably….in an unfortunate way”. The prospect of determining the acts of a person no longer alive is certainly an uneasy one, which risks becoming a ghoulish posthumous spectacle. Even if the trial of the facts does not continue, the coda to the CPS debacle will be considerable. Questions still need to be answered, such as how Janner eluded prosecution for some 20 years, and the final, tortuous attempt to bring Janner to trial – culminating in Saunder’s eleventh hour volte-face last April.
In Other News..
- Only 18 of the new specialist protection orders designed to safeguard young girls at risk of FGM have been issued in the three months since their introduction. The news has prompted calls from the head of the new National FGM Centre for teachers and social workers to be “braver” when identifying vulnerable girls and alerting the authorities. The few orders starkly contrast with the estimates of the scale of FGM; according to a 2011 report, it is suggested 63,000 girls were at risk of FGM, AND 170,000 women aged over 15 living in England and Wales had undergone it. The new government initiatives allow concerned third parties, such as social workers, to apply for girls to be made subject to special protection orders issued by family courts. Statutory guidance is expected next year, to help agencies make fuller use of the new orders.
- Phone-hacking victims have called on the CPS to review its decision not to take further action against Murdoch’s News UK, and various individual Mirror Group journalists. Lady Justice Arden revealed the news at the end of her judgment dismissing an appeal by the publisher of the Daily and Sunday mirror against the level of damages awarded to the victims in civil cases brought against the publisher. The high court received a letter from the CPS, announcing they had been notified by Hacked Off that victims of Operation Golding are seeking to have the CPS decision reviewed, already lodging a formal request.
- An interesting twist on the R v Dudley and Stephens cannibalism conundrum. José Salvador Alvarenga, the sailor who survived at sea for than a year after being cast adrift, is now being sued for $1m by the family of his fellow deceased sailor, Ezequiel Córdoba, who claim the older sailor turned cannibal to survive. The question posed, Homa Khaleeli writes, is whether eating another’s flesh in such extreme circumstances is against the law? Whilst there is no necessity defence for murder, there is no separate offence for cannibalism – instead, would-be cannibals face possible charges of outraging public decency or preventing a lawful burial. In 1988, performance artist Rick Gibson claimed to be the first cannibal in British history to legally eat human meat in public, consuming human tonsils on the street. Food for thought, perhaps, this festive period.
In the Courts:
The death of a patient following post-operation negligence was held to be a violation of ECHR Article 2 (right to life). The case concerned the death of the applicant’s husband, following nasal polyps surgery, and subsequent post-operative procedures. The Court found that the mere fact the patient had undergone an operation which presented a risk of infectious meningitis should have warranted more stringent compliance with the medical protocol on post-operative supervision. ECtHR observed that the lack of coordination between the ENT department and emergency unit revealed a deficiency in the public hospital service, depriving the patient of the possibility of accessing the requisite emergency care. The Portuguese legal system was also to held to have fallen short: the three internal proceedings failed to prove prompt, or satisfactorily address the possible causative link between the various illnesses suffered by the patient in the days following his operation. ECtHR also, finally, held that the patient should have been clearly informed of the possible risks incurred prior to the operation.
Raihani v Belgium (judgment only available in French)
The application of unclear rules on the time-limit for appealing against a decision given by default was held to be a violation of ECHR Article 6 § 1 (right of access to court). The case concerned the a former prisoner’s appeal against his maintenance contribution to his child, which was declared inadmissible as being out of time. The Court identified two grounds on which the fixing of the starting point of the appeal time-limit lacked clarity. Firstly, the determination of the relevant event for the calculation of the time-limit depended on an assessment which could, and did, give rise to divergent results. Secondly, on the date finally taken as the starting point, the applicant would not necessarily have known that there was a judgment against which he could appeal. In declaring the appeal admissible, the national courts had not respected the reasonable nexus of proportionality between the aim pursued, and means used. It was duly found that Mr Raihani had not had a practical and effective right of access to a court, and there was an attendant Article 6 violation.
ICLQ Annual Lecture 2016
22nd March 2016: 17:30-19:30.. Allen & Overy, Bishops Square, London, E1 6AD.
The annual lecture will be given by Professor Sandra Fredman, of Oxford University, on the subject “Foreign Fads or Fashions? The Role of Comparativism in Human Right Law”, based on her article published in the ICLQ in July 2015. Book your tickets here
Finally, a very merry christmas to all UKHRB readers.