Category: Criminal
8 December 2011 by Alasdair Henderson
R v. H & others [2011] EWCA Crim 2753 – read judgment.
One of the most popular ideas in crime fiction is the ‘cold case’; the apparently unsolved crime which, through various twists and turns, is brought to justice many years after it was committed. Indeed, at least two recent long-running TV dramas (the American show ‘Cold Case‘ and the more imaginatively and morbidly named British show ‘Waking the Dead‘) have been entirely based on this concept.
But what happens when such cases do turn up in real life, get to trial and the perpetrator is found guilty? In particular, how does a judge approach sentencing for a crime which might be decades-old, in the light of Article 7 ECHR? The Court of Appeal recently provided some answers to those questions.
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1 December 2011 by Karwan Eskerie
Harvey v Director of Public Prosecutions [2011] EWHC Crim B1 – Read judgment
“What on earth was he thinking?” asks a Telegraph article bearing as its title another rhetorical question, “Would Judges like to be told to eff off in court?”. This is in reference to Mr Justice Bean’s judgment in Harvey v Director of Public Prosecutions in which he overturned Mr Harvey’s conviction under section 5 of the Public Order Act 1986 for swearing at a police officer.
Alarmed at the corrosion of the rule of law and standards of public behaviour that the judgment propagates, the author of the article admonishes Bean J for ignoring the moral and social significance of “such insolent defiance” of the Police.
So, why such disapproval?
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1 December 2011 by Adam Wagner
There is just over a month left to respond to the Government’s consultation on the Justice and Security Green Paper. Responses have to be be sent via email or post by Friday 6 January 2012.
The proposals have been little reported, save for journalist Joshua Rozenberg, channeling Dinah Rose QC, warning that they will “undermine a fundamental constitutional right:”. Perhaps legal correspondents prefer to pick over testimony from the glamorous Leveson Inquiry as opposed to complicated government proposals involving clunky phrases – some would say fig leaves – like “Closed Material Procedure” and “Special Advocate”.
But these proposals are extremely important. If they become law, which is likely given the lack of opposition from any of the main parties, the justice system will look very different in the coming years. Many civil hearings could be held in secret, and although (as the Government argues anyway) more justice may be done, undoubtedly less will be seen to be done.
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9 November 2011 by Rachit Buch
JGE v The English Province of Our Lady of Charity & Anor [2011] EWHC 2871 (QB) (08 November 2011) – Read judgment
Elizabeth Anne-Gumbel QC and Justin Levinson of One Crown Office Row acted for the Claimant in this case. They did not write this post.
A Roman Catholic diocese can be held liable for the negligent acts of a priest it has appointed, the High Court has ruled. The ruling is a preliminary issue in the Claimant’s proceedings against alleged sexual abuse and rape at a children’s home. The trial of these allegations are to follow.
The Claimant, a 47-year-old woman, is suing the Portsmouth Roman Catholic diocese for the injury she alleges she suffered from abuse and rape while living at a children’s home run by the diocese in the early 1970s. The priest involved, Father Baldwin, is now dead. The High Court was asked to determine, before the trial of the allegation, whether the diocese – that is, the district under supervision of the Bishop – could be held liable for Father Baldwin’s acts; whether the principle of vicarious liability applies to a diocesan bishop for the acts of a priest he has appointed.
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4 November 2011 by Adam Wagner
JUSTICE, a law reform and human rights organisation, has today published a significant and wide-ranging critique of state surveillance powers contained in the Regulation of Investigatory Powers Act (RIPA).
The report – Freedom from Suspicion – Surveillance Reform for a Digital Age – is by Eric Metcalfe, former director of JUSTICE and recently returned to practise as a barrister. It reveals some pretty stunning statistics: for example, in total, there have been close to three million decisions taken by public bodies under RIPA in the last decade.
The report is highly critical of the legislation, which it argues is “neither forward-looking nor human rights compliant“. Its “poor drafting has allowed councils to snoop, phone hacking to flourish, privileged conversations to be illegally recorded, and CCTV to spread.” Metcalfe recommends, unsurprisingly, “root-and-branch” reform.
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4 November 2011 by Daniel Sokol
Gale & Anor v Serious Organised Crime Agency [2011] UKSC 49 – Read judgment
The Supreme Court has ruled that applying the civil standard of proof (‘balance of probabilities’) to confiscation proceedings does not breach Article 6 of the European Convention on Human Rights (right to fair trial).
David Gale and his ex-wife Teresa were accused of drug trafficking, money laundering and tax evasion in the UK, Spain, Portugal and elsewhere. They were never convicted. The Serious Organised Crime Agency (SOCA), whose job it is to identify and recover the fruits of criminal activity, nonetheless sought to recover these fruits from David Gale and Teresa (‘the appellants’) by recovering property worth about £2 million. SOCA obtained an order to do so under Part 5 of the Proceeds of Crime Act 2002 (POCA).
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19 October 2011 by Adam Wagner
The Cabinet Office has released its long awaited (by this blog at least) Justice and Security Green Paper, addressing the difficult question of to what extent the state must reveal secret information in court proceedings. A consultation has been launched on the proposals; responses can be sent via email by Friday 6 January 2012.
The review was announced shortly after the Coalition Government came to power, on the same day that Sir Peter Gibson’s Detainee Inquiry was launched. In summary, the Government has recommended that controversial Closed Material Procedures and Special Advocates are used more frequently, particularly in civil proceedings. The courts have been reluctant to take this step themselves as any expansion of secret procedures will have significant effects on open justice and the right to a fair trial.
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19 October 2011 by Adam Wagner
A review of the UK’s extradition laws by a former Court of Appeal judge has found that existing arrangements between the UK and USA are balanced but the Home Secretary’s discretion to intervene in human rights cases should be removed.
The review by Sir Scott Baker was commissioned shortly after the Coalition Government came to power, fulfilling the pledge in its programme for government to ”review the operation of the Extradition Act – and the US/UK extradition treaty – to make sure it is even-handed”. In my September 2010 post I said that the review marked a victory for campaigners against certain extradition agreements, most notably the supporters of alleged Pentagon hacker Gary McKinnon (pictured).
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18 October 2011 by Guest Contributor
R v Blackshaw and others [2011] EWCA Crim 2312 – Read judgments / press summary
The Court of Appeal (Criminal Division) has issued judgment in relation to ten appeals against sentences imposed for convictions arising from the August disorder.
On 20th August, in a post related to the August disorder, Law and Lawyers looked at relevant sentencing principles and also at the views arrived at by the Crown Court judiciary in Manchester. It was clear, even at that stage, that the context of widespread disorder would be seen as a serious aggravation of offences such as burglary, theft and handling stolen goods. The 20th August post commented that – “It must be doubtful whether the Court of Appeal would adopt a substantially different viewpoint” to that of the Manchester judiciary.
This has proved to be the case though the Court of Appeal said that it is inappropriate for Crown Court judges to “issue, or appear to be issuing, sentencing guidelines.” That is a task for
the Court of Appeal and the Sentencing Council – and the court and council have a relationship of “mutual respect and comity.”
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13 October 2011 by Rosalind English
R (on the application of Quila and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant); R (on the application of Bibi and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant) [2011] UKSC 45 – read judgment.
The Supreme Court has ruled that the Home Secretary’s refusal to grant visas to non-resident spouses under a certain age breached their right to family life under Article 8 of the Convention. A strong dissent from Lord Brown touches on the raw nerve of judicial competence and the role of Article 8 in policy making.
The Supreme Court press summary sets out the factual details of the two cases. Essentially, the issue was whether the ban on the entry for settlement of foreign spouses or civil partners unless both parties are aged 21 or over, contained in Paragraph 277 of the Immigration Rules, was a lawful way of deterring or preventing forced marriages, or at least those associated with assisting a claim for UK residency and citizenship. The minimum age requirement – recently raised from 18 to 21 – was designed to prevent young women who have UK citizenship or residence permission from being pressurised into sponsoring a fiancée or spouse seeking admission to this country.
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12 October 2011 by Alasdair Henderson
AM v. Secretary of State for the Home Department [2011] EWHC 2486 – read judgment
The Home Secretary Theresa May was lambasted last week for an inaccurate reference to cats, but the more general view expressed by her and most of the media that the Human Rights Act is routinely getting in the way of national security interests is also arguably misleading.
Ironically, in the same week as the Home Secretary was telling the Conservative Party conference that ‘the Human Rights Act must go’ the High Court emphatically upheld her decision to renew a control order on a suspected terrorist.
There is a handy guide to the control orders regime here, and to “TPIMs”, their proposed successor, here. Essentially, control orders are strict conditions imposed on a terrorist suspect such as a curfew, electronic tagging or regular searches. In this case the suspect’s conditions included a ban on any internet access at his home, a ban on using USB memory sticks to transfer any data from his home to his university, restrictions on his access to the internet at university or when he visited his parents, and a requirement to make a phone call every day to a monitoring company.
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10 October 2011 by Isabel McArdle
A proposal to retain DNA samples taken from people who have been arrested but not charged with a crime for up to five years has come under criticism from the Joint Committee on Human Rights.
The committee has been reviewing the Protection of Freedoms Bill for its compatibility with human rights (see our post: Protections of freedom bill under scrutiny and the Committee’s conclusions). The retention of DNA has long been a hot topic.
On the one hand, many people feel strongly that retention of something as personal as someone’s genetic code should never be done when the person has not been convicted of a crime. As DNA analysis gets more advanced, it can reveal increasingly large amounts of information about a person.
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6 October 2011 by Guest Contributor
Equality and Human Rights Commission v Prime Minister & Ors [2011] EWHC 2401 (Admin) – Read judgment
A challenge to published guidance for intelligence officers interviewing detainees overseas has been partially successful.
Mr Al Bazzouni and the EHRC argued that the guidance as to what officers should do if they suspect detainees might be subject to torture or to cruel, inhuman or degrading treatment or punishment (“CIDT”) was unlawful.
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26 September 2011 by Adam Wagner
Today, an open letter from 158 lawyers and academics has been published in The Guardian claiming that the law on squatting, on which the Government has proposed reforms, has been misrepresented by politicians and the media.
I am one of the letter’s signatories. Amongst other things, it states that:
a significant number of recent media reports have stated that squatters who refuse to leave someone’s home are not committing a criminal offence and that a change in the law – such as that proposed by the government – is needed to rectify this situation.
The accompanying article is here. One interesting aspect of this campaign is that it was organised in part by one of the longest standing and best legal blogs, Nearly Legal. Nearly Legal have used social media, which an ever increasing number of lawyers follow, to gather many of the signatures. Their response is here and some of their previous posts on the topic here and here.
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21 September 2011 by Rosalind English
A.A. v. THE UNITED KINGDOM – 8000/08 [2011] ECHR 1345 – Read judgment
The Strasbourg Court has ruled unlawful the deportation of a Nigerian man convicted of rape. Considering the facts of his case afresh, the Court came to the conclusion that the 24 year old student’s right to family life would be violated if he were removed to Nigeria.
The applicant arrived in the United Kingdom in 2000 at the age of 13 join his mother. At the age of 15, he was convicted of rape. After serving less than two years of his four-year sentence he was released on licence in 2004. The Home Office served him with a notice of liability to a deportation order on account of the rape conviction. Although the Immigration Judge of the Asylum and Immigration Tribunal (“the AIT”) allowed the applicant’s appeal, the Secretary of State’s appeal against this finding ultimately prevailed since it was found that the various factors in respect of his family life and his good conduct in remand did not outweigh the presumption in favour of deportation in accordance with the current version of the Immigration Rules.
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R v. H & others [2011] EWCA Crim 2753 – read judgment. 
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