criminal law


Satirical insult of head of state should not be a criminal offence, rules Strasbourg

14 March 2013 by

PRS AUTOCEon 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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“Murder most foul”: whole life imprisonment not a human rights breach

22 November 2012 by

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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The right of property under A1P1- Supreme Court sees that it has teeth

18 November 2012 by

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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We need to think about Kevin

29 May 2012 by

Monsters are born, not made: the latest round in the debate about criminal responsibility questions the very  existence of intuitive morality.

US neuroscientist Sam Harris claims in a new book that free will is such a misleading illusion that we need to rethink our criminal justice system on the basis of discoveries coming from the neurological wards and MRI scans of the human brain in action.

The physiologist Benjamin Libet famously demonstrated in the 1980s that activity in the brain’s motor regions can be detected some 300 milliseconds before a person feels that he has decided to move. Subjects were hooked up to an EEG machine and were asked to move their left or right hand at a time of their choosing. They watched a specially designed clock to notice what time it was when they were finally committed to moving left or right hand. Libet measured the electrical potentials of their brains and discovered that nearly half a second before they were aware of what they were going to do, he was aware of their intentions. Libet’s findings have been borne out more recently in direct recordings of the cortex from neurological patients. With contemporary brain scanning technology, other scientists in 2008 were able to predict with 60% accuracy whether subjects would press a button with their left or right hand up to 10 seconds before the subject became aware of having made that choice (long before the preparatory motor activity detected by Libet).
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The coalition’s quiet legal revolution?

16 February 2011 by

Law by crowd

The new Protection of Freedoms Bill has become the first proposed law to be opened to public comments via the internet. This seemingly small technological advance could have very exciting effects.

The comments system works just like a blog post. Any member of the public can leave comments on any particular provision of the draft law. The deadline for comments is 7th March.

The Prime Minister says that the Public Reading Stage, which is touchingly in “beta”, will “improve the level of debate and scrutiny of bills by giving everyone the opportunity to go online and offer their views” on new laws.” “That”, he suggests “means better laws – and more trust in our politics.”

He might just be right.

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United Nations restores sexual orientation clause to extrajudicial killings resolution

21 December 2010 by

Updated | The reference to sexual orientation in a resolution on extrajudicial, summary and arbitrary executions has been restored. The General Assembly voted 93 in favour of the US proposal, with 55 countries voting against and 27 abstaining, with some 16 delegations taking the floor to explain their position.

As previously reported, for the first time since 1999 the resolution would not have expressly condemned such killings on the grounds of sexual orientation following an amendment by the African Group and the Organization of the Islamic Conference.

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Failure to deport Philip Lawrence killer was not about human rights

29 November 2010 by

It has been widely reported that Learco Chindamo, who was convicted of killing headmaster Philip Lawrence in 1995, has been rearrested only months after being released from jail. The story has reopened a debate over the Human Rights Act, on the basis that it prevented Chindamo from being deported to his native Italy. But did it?

In fact, what the case really highlights is that the unpopularity of the Human Rights Act is in part due to inaccurate media reporting of human rights cases, even 10 years after it came into force.

The Telegraph reported at the end of last week that Frances Lawrence, Philip Lawrence’s widow, has urged the prime minister to act on his previous pledges to scrap the Human Rights Act, as

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Law to change on terrorist asset freezing after critical Supreme Court judgment

3 November 2010 by

On 1 November 2010 the Terrorist Asset-Freezing etc. Bill received its third reading in the House of Lords. The bill, which started in the Lords, must now be passed by the Commons before receiving Royal Assent.

The Bill represents the coalition government’s response to the Supreme Court’s decision in HM Treasury v Ahmed (incidentally, the first appeal to have been heard in the Supreme Court) concerning the lawfulness of measures enabling the Treasury to freeze the assets of, amongst others, a person whom it has reasonable grounds for suspecting is or may be a person who facilitates the commission of acts of terrorism.

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Germany HIV popstar conviction: what would happen in the UK?

26 August 2010 by

Updated, 1 Sep | The high-profile criminal trial of a German popstar who caused her former partner to be infected with HIV has resulted in a 2-year suspended sentence. In other words, she has been convicted but escaped jail. What would happen in similar circumstances in the UK?

The facts of Nadja Benaissa’s case were relatively simple. She had been infected with HIV since the age of 16 and is 28 years old now. She had sex with three people without telling them she was infected, and as a result one of them became infected himself. She claimed that she did not intend to infect him, and that she had been told by doctors the risk of passing on the disease were “practically zero”.

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Courts entitled to ignore European Court decision on DNA and fingerprint retention

23 July 2010 by

DNA database impact on human rightsUpdated, 1/9/10 | R (C) v Commissioner of the Police of the Metropolis [2010] WLR (D) 193 – Read judgment

When faced with conflicting authorities from the European Court of Human Rights and the House of Lords (now the Supreme Court) on the indefinite retention of DNA profiles and fingerprints by the police, the Divisional Court held that they were bound to follow the House of Lords.

This was so despite clear indications from the previous and current governments that the law would be changed to take account of the Strasbourg decision. However, as leave to appeal was granted, the Supreme Court will now have the opportunity to revisit the issue and determine the law in this controversial area.

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Stalking, psychosis and detention: Habeas Corpus under the Human Rights Act

17 June 2010 by

TTM v London Borough of Hackney & Ors [2010] EWHC 1349 (Admin) (11 June 2010) – Read judgment

A man accused of harassing women he did not know has failed in his human rights challenge to his detention under the Mental Health Act 1983. Having successfully secured a writ of habeas corpus to release him from a mental health institution, he has lost his initial bid for the High Court to declare that his detention ran contrary to his human rights. He is now appealing the decision.

This case has raised important questions about the extent of the ancient right of habeas corpus (relief from unlawful detention) and its interaction with the far more recent Article 5 of the European Convention on Human Rights 1950 (“ECHR”), as well as the ability of any wronged claimant to recover damages in circumstances where they are wrongly detained.

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Child rape case sparks debate on child witnesses in criminal courts

28 May 2010 by

The recent Old Bailey case involving two boys aged 10 and 11 accused of rape on an eight year gold has reignited the long running debate over the treatment of child witnesses in the adversarial courts system.

In a Daily Telegraph article John Bingham and Caroline Gammell report that

More than 1,000 children under the age of 10 are called to give evidence in courts in England and Wales every year.Almost two thirds are themselves the victims of crime, asked to relive a traumatic experience, often as much as a year after the event. Although special measures are in place to make the ordeal of giving evidence in court less stressful, the current system remains open to criticism.There is no legal minimum age to give evidence in court but prosecutors must be satisfied that a child is capable of understanding evidence and being cross-examined before they can be called.

It should be noted at the outset that evidence from children can only be compelled by the courts in criminal prosecutions. We posted recently on the case of Re W (Children) [2010] UKSC 12 , where the Supreme Court ruled that refusing an application for a child to give evidence in a trial may contravene Article 6 of the European Convention on Human Rights (ECHR). Lady Hale said at para 22 of the judgment:  
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