crime
13 October 2013 by Guest Contributor
Osborn v The Parole Board [2013] UKSC 61 – Read judgment / Press summary
1 Crown Office Row’s David Manknell acted as junior counsel to the Parole Board in this case. He had no involvement in the writing of this post.
Writing in his magisterial new work, Human Rights and the UK Supreme Court, Professor Brice Dickson noted that the Human Rights Act had created ‘an internationalized system of human rights protection rather than a constitutional one.’ Indeed, there had been a marked resistance on the part of the Supreme Court to use the common law to achieve the same goal of human rights protection. In Osborn v The Parole Board the Supreme Court seemed to resile from this position.
Osborn, and the co-joined appeals, concerned the circumstances in which the Parole Board is required to hold oral hearings. Osborn had been recalled to prison after an immediate breach of his licence conditions. Booth and Reilly had been sentenced to life imprisonment, and in both cases the minimum term had expired. The appellants sought early release and had been denied an oral hearing by the Parole Board under the operation of the statutory regime (detailed in paras 3-17). Instead their cases had been decided on paper by a single anonymous member of the Board.
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9 October 2013 by Rosalind English
MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 – read judgment
In what circumstances can a foreign criminal resist deportation on the basis of his right to family life under Article 8 of the Convention? Until 2012 this question was governed entirely by judge-made case law. Then rules 398, 399 and 399A were introduced into the Immigration Rules HC 395. I have posted previously on the interpretation of these rules here and here.
The rules introduced for the first time a set of criteria by reference to which the impact of Article 8 in criminal deportation cases was to be assessed. The intention of the legislature in introducing these rules was to state how the balance should be struck between the public interest and the individual right to family life:
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17 September 2013 by Adam Wagner
Yesterday, before His Honour Judge Peter Murphy ruled that a female Muslim defendant in a criminal trial must remove her face-covering veil (niqaab) whilst giving evidence, Home Office Minister Jeremy Brown said he was “instinctively uneasy” about restricting religious freedoms, but that there should be a national debate over banning the burka.
Many of us have a gut reaction to the niqaab, which poses particular problems for our mostly liberal, secular society. Arguably, it also prompts less laudable instincts originating in fear of the ‘other’. But trusting in our instincts is never a good way of solving complex problems. As I have suggested before, when politicians appeal to their gut they are often just avoiding making an intellectually sound case for their position.
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27 August 2013 by David Hart KC
In Re Rameshwar Prasad Goyal, Advocate, Supreme Court of India, 22 August 2013, read judgment
For the moment, at least, the idea of Stobart-law, supermarket-law, or call-centre-law as the solution to the increasing cost of criminal justice seems to be on hold. But this broadside from the Indian Supreme Court (including my title) helpfully reminds us that the relationship between judges, advocates and their clients fits with difficulty into the bilateral model of most of the entirely commercialised world. The advocate owes a more complex set of duties to the court as well as to his or her client than are typically found in a haulage contract.
Shri Rameshwar Prasad Goyal, Advocate-on-Record or AOR in this case, is, according to Indian court statistics, a very busy man. He was acting in 1678 cases in 2010, 1423 cases in 2011, and 1489 cases in 2012. But he has never actually appeared in court on behalf of his clients. Indeed a request from the Court in the present case for him to appear to explain himself was refused – try that in the High Court in the UK. It did not go down well in New Delhi either. The Court, having chucked out his hapless client’s application, declared that Goyal was guilty of conduct unbecoming an advocate, and told him that if he did not do better over the next year (i.e. turn up to court for his clients) he would get struck off.
The underlying facts show the dangers of allowing all of law to be run completely on business lines. Goyal had found an excellent and cost-efficient business niche. But as the Court explained
In a system, as revealed in the instant case, a half baked lawyer accepts the brief from a client coming from a far distance, prepares the petition and asks an AOR , having no liability towards the case, to lend his signatures for a petty amount. The AOR happily accepts this unholy advance and obliges the lawyer who has approached him without any further responsibility. The AOR does not know the client, has no attachment to the case and no emotional sentiments towards the poor cheated clients. Such an attitude tantamounts [sic] to cruelty in the most crude form towards the innocent litigant.
What is it about law that gives rise to this imbalance? If I go into the bread shop, and am asked £10 for my loaf, I walk out, because I know the price of bread. If I go to my lawyer about a case, which as an individual, I may do (if I am unlucky) once in my life, I have little idea of the standard of the service which I might receive. Even if it were Stobart- or Tesco- law, I might hope that they do things reasonably well, but in truth most people would not really know. Indeed most of us expect never to be arrested in our lives, so we don’t know what can be done by our lawyers if we end up there.
That said, turning up to court is normally expected of an advocate. Indeed, a little more than that, as the Court cuttingly observed
Thus, not only is his physical presence but effective assistance in the court is also required. He is not a guest artist nor is his job of a service provider nor is he in a professional business nor can he claim to be a law tourist agent for taking litigants for a tour of the court premises.
“Service provider”, now there is a phrase beloved of those designing our new criminal justice system – necessary, but not sufficient, for justice.
The Court continued by pointing out that in the present era, the legal profession, once known as a “noble profession”,
has been converted into a commercial undertaking. Litigation has become so expensive that it has gone beyond the reach and means of a poor man. For a longtime, the people of the nation have been convinced that a case would not culminate during the lifetime of the litigant and is beyond the ability of astrologer to anticipate his fate.
The UK system still has to crack the costs of litigation, given the conflicting difficulties of litigating properly and cost-efficiently for clients, but it is at least working on that hard, But we do seem to have sorted the time it takes to get to answer problems which we set our judges. Timing has been ruthlessly policed by our courts in recent years, so that you need a pretty good excuse for doing something late or slowly. So, unlike the gloomy picture presented by the Indian Supreme Court, most people know whether they have won or lost before they die – so astrologers are not generally necessary.
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2 July 2013 by David Hart KC
Bedford v. Bedfordshire County Council, 21 June 2013, Jay J – read judgment
On 29 May 2004, Bradley Bedford, then aged 13, was beaten senseless by one AH, then 15, whom he had the misfortune to encounter entirely by chance near the seaside in Torbay. AH was in a children’s home there which was contracted to the Defendant Council; AH was a “looked after” child under section 20 of the Children Act 1989. Bradley sued the Council for failing to protect him. His claim was limited to one under the Human Rights Act, and Article 8 ECHR in particular.
Jay J dismissed the claim on the grounds that (a) it was brought too late; (b) there was not a real and immediate risk of harm to Bradley of which the Council should have been aware; (c) even if there was, the local authority took reasonable steps to eliminate or substantially reduce any risk. All these rulings are of some interest.
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16 May 2013 by Guest Contributor
One of the most contentious proposals in the Consultation Paper on the transforming legal aid is the removal of client choice in criminal cases. Under the proposals contracts for the provision of legal aid will be awarded to a limited number of firms in an area. The areas are similar to the existing CPS areas. The Green Paper anticipates that there will be four or five such providers in each area. Thus the county of Kent, for example, will have four or five providers in an area currently served by fifty or so legal aid firms. Each area will have a limited number providers that will offer it is argued economies of scale.
In order to ensure that this arrangement is viable the providers will be effectively guaranteed work by stripping the citizen of the right to choose a legal aid lawyer in criminal cases. Under the new scheme every time a person needs advice they will be allocated mechanically by the Legal Aid Agency to one of the new providers. It may not be the same firm the person has used before. The citizen will therefore not be able to build up a relationship with a solicitor. From a human rights perspective this, of course, begs the question would the removal of choice be compatible with the ECHR?
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2 May 2013 by Rosalind English
Faulkner, R (on the application of ) v Secretary of State for Justice and another [2013] UKSC 23 – read judgment
The Supreme Court has taken a fresh look at what is meant by the Human Rights Act exhortation to take Strasbourg jurisprudence “into account” when fashioning remedies for violations of Convention rights, in this case the right not to be arbitrarily detained under Article 5.
These appeals concerned the circumstances in which a prisoner serving a life sentence or an indeterminate sentence of imprisonment for public protection (“IPP”), who has served the minimum period specified for the purposes of retribution and deterrence (the “tariff”), and whose further detention is justified only if it is necessary for the protection of the public, should be awarded damages for delay in reviewing the need for further detention following the expiry of the tariff.
Appellate courts do not ordinarily interfere with an award of damages simply because they would have awarded a different figure if they had tried the case. However, as the Supreme Court was being asked in this case to give guidance on quantum, the Court determined the level of the award that would adequately compensate the appellants.
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14 March 2013 by Rosalind English
Eon v France, no. 26118/10 14 March 2013- read judgment (in French only)
The applicant, Hervé Eon, is a French national, a socialist and anti-GM activist living Laval (France). The case concerned his conviction for insulting President Sarkozy.
During a visit by the President to the département of Mayenne on 28 August 2008, Mr Eon had waved a placard reading “Casse toi pov’con” (“Get lost, you sad prick”), a phrase uttered by the President himself several months previously when a farmer had refused to shake his hand at the International Agricultural Show. The utterance was widely disseminated in the media and on the internet, attaining the status of a slogan.
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22 November 2012 by Rosalind English
Oakes and others v R [2012] EWCA Crim 2435 – read judgment
The imposition of whole life orders for extremely serious crimes does not violate the prohibition on inhuman and degrading treatment under Article 3.
Until relatively recently, the Secretary of State decided the minimum term to be served by a “lifer” – a defendant who subjected to a sentence of life imprisonment. This is now a matter for the sentencing judge whose jurisdiction is conferred by the 2003 Criminal Justice Act. Schedule 21 para 4 allows judges to order a whole life minimum term, a jurisdiction of last resort in cases of exceptional criminality.
It was submitted in these conjoined appeals that this provision contravenes Article 3 of the European Convention of Human Rights. Not so, said the Court of Appeal, Criminal Division.
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18 November 2012 by David Hart KC
R v. Waya [2012] UKSC 51, 14 November 2012, read judgment
Traditionally, the qualified right to peaceful possession of property conferred by Article 1 of the 1st Protocol (A1P1) has been thought of as a rather feeble entitlement, easily outweighed by public interests. After all, every day of the week, the modern state affects that right – think taxes or planning restrictions, or business bans arising out of public health concerns (e.g. see here), where removal and confiscation or restriction on what we do with property is readily accepted. Last week the Supreme Court ruled that the Proceeds of Crime Act 2002 (POCA) needs a bit of remedial HR surgery as and when its blunderbuss rules would otherwise have a disproportionate effect on those affected. But the importance of the ruling extends far beyond the specific statutory context.
The story is a familiar one. Parliament, quite rightly, decided that we needed a way of taking the benefits of crime away from criminals on conviction – over and above the system of fines. But it also realised that without some set rules this will prove difficult, if not impossible, to administrate. If the exercise were to be to ascertain the net benefit of the crime, then we get into frightful tangles. Can a defendant set off against his profit of crime his expenses – the cash to the getaway driver, the bung to the dodgy public official, or the contract killing payment? The answer in the statute, and in this decision, is – No. This would be offensive and impractical. So far, so good.
But how far may the answer to the question – what did D really gain from this crime – diverge from the answer given by the statute? This was the conundrum facing the Supreme Court. And it found it very difficult. It had an initial hearing in 2011 in front of 7 judges – but then requested a re-hearing in front of 9. And those 9 split 7-2 in the result, thought the critical reasoning was common to all 9 judges.
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15 November 2012 by Guest Contributor
M.M. v United Kingdom (Application no. 24029/07) – read judgment
The European Court of Human Rights yesterday handed down a Chamber judgment in declaring that the arrangements for the indefinite retention of data relating to a person’s caution in a criminal matter and for the disclosure of such data in criminal record checks infringe Article 8 of the ECHR.
Although the Court recognised that there might be a need for a comprehensive record of data relating to criminal matters, the indiscriminate and open-ended collection of criminal record data was unlikely to comply with Article 8 in the absence of clear and detailed statutory regulations clarifying the safeguards applicable and governing the use and disposal of such data, particularly bearing in mind the amount and sensitivity of the data.
The case arose from a family dispute in Northern Ireland in the course of which the applicant, a grandmother, took her grandson away from his parents for two days before returning him unharmed. This resulted in her receiving a caution for child abduction in November 2000. In 2003 the police advised her that her caution would remain on record for only five years, i.e. until 2005. However, following the Soham murders and the Bichard report, there was a change of policy whereby any convictions and cautions where the victim was a child would be kept on record for the offender’s lifetime.
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30 October 2012 by Rosalind English
R (on the application of J) v the Chief Constable of Devon and Cornwall [2012] EWHC 2996, 26 October 2012 – read judgment
Close on the heels of last week’s decision regarding disclosure of information from the Child Sex Offenders Register comes this ruling on the police decision to disclose certain information from a nurse’s enhanced criminal records certificates without affording her an opportunity to make representations before the information was released.
The Legal Framework
Section 113B of the Police Act 1997 provides for enhanced criminal record checks to be carried out in various specified circumstances, such as where people are applying to work with children or vulnerable adults. The check is enhanced in the sense that it will involve a check with local police records as well as the centralised computer records held by the Criminal Records Bureau. As well as information about minor convictions and cautions, it will reveal allegations held on local police records about the applicant’s criminal or other behaviour which have not been tested at trial or led to a conviction.If the information satisfies certain threshold tests in the relevant statute, it must be given to the Secretary of State who must include it in the relevant individual’s Enhanced Criminal Record Certificate or “ECRC.”
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9 October 2012 by Adam Wagner
Updated x 2 | A 20-year-old has been sent to prison for twelve weeks for posting offensive and derogatory comments about missing five-year-old April Jones on his Facebook page. His attempts at humour were undoubtedly stupid, offensive and exhibited incredibly poor taste and timing. But is a long spell in prison really the way we should be dealing with offensive idiots? Is a law which was passed before social media existed now placing a significant chill on our freedom of expression rights?
Matthew Woods pleaded guilty to an offence under s.127 of the Communications Act 2003, which prohibits a person sending “by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character“. He was sentenced at Chorley Magistrates’ Court.
I will not republish Woods’ comments here, but some of them are quoted in this Evening Standard article.
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20 July 2012 by Rachit Buch
Millie Dowler
HM Attorney General v Associated Newspapers Ltd & Anor [2012] EWHC 2029 (Admin) (18 July 2012) Read judgment.
The Divisional Court ruled that reports of Levi Bellfield in the Daily Mail and Daily Mirror, published while a jury was considering his charge of attempted kidnapping, were in contempt of court.
On 6 May 2011, Levi Bellfield’s trial for the murder of Milly Dowler and attempted kidnap of Rachel Cowles began. He had already been convicted in 2008 of the murders of Marsha McDonnell and Amelie Delagrange, and the attempted murder of Kate Sheedy. On 23 June 2011, the jury convicted Mr Bellfield of the murder of Milly Dowler, but had yet to return a verdict on the charge of attempted kidnapping. The Daily Mail and Daily Mirror printed stories on 24 June 2011 including information that wasn’t before the jury in the trial. The question in the resultant contempt proceedings was whether these articles violated the Contempt of Court Act 1981 (CCA).
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21 June 2012 by Rosalind English
HH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa (Respondent); PH (Appellant) v Deputy Prosecutor of the Italian Republic, Genoa (Respondent) [2012] UKSC 25 – read judgment
These appeals concern requests for extradition in the form of European Arrest Warrants (EAWs) issued, in the joined cases of HH and PH, by the Italian courts, and in the case of FK, a Polish court. The issue in all three was whether extradition would be incompatible with the rights of the appellants’ children to respect for private and family life under Article 8 of the ECHR.
Put very briefly, HH and PH had been arrested in Italy on suspicion of drug trafficking. They left Italy in breach of their bail conditions and went to the United Kingdom. They were convicted in their absence. European arrest warrants were later issued. They challenged their extradition on the basis of the effect that it would have on their three children, the youngest of whom was 3 years old.
FK was accused of offences of dishonesty alleged to have occurred in 2000 and 2001. She had left Poland for the UK in 2002 and European arrest warrants had been issued in 2006 and 2007. F had five children, the youngest of whom were aged eight and three. She has not been tried or convicted of the alleged offences yet.
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