Tuesday, 16 December 2014

The truth, the whole truth and nothing but the truth

The Torturer has long been regarded as the enemy of mankind (Hostis humani generis).  Those who authorise the use of torture or who, when in an official capacity, condone it or turn a blind eye to it should also be condemned - see, for example, Prosecutor v Furundzija

The US Senate "Torture" report:

The US Senate Select Committee on Intelligence has released an important summary of a report covering the period September 2001 to January 2009 - Committee Study of the Central Intelligence Agency's Detention and Interrogation Program .  The document contains the Executive Summary, Findings and Conclusions of a much larger report that remains classified though declassification may be considered later.  In the Foreword to the document, the Chairman of the Committee (Senator Dianne Feinstein) stated - " .... it is my personal conclusion that, under any common meaning of the term, CIA detainees were tortured ....".  She goes on to add, " ... conditions of confinement and unauthorised interrogation and conditioning techniques were cruel, inhuman and degrading ..."   See the comments of 9th December by Senator Feinstein on her website.

Criticism and and concerns:

Friday, 12 December 2014

R v Teret ~ "Historical" sexual offending

The Judiciary website has published the sentencing remarks of Mr Justice Baker in the case of R v Teret.

"Disc jockey" Ray Teret was well-known in the North West of England during the 1960s and 1970s.   He has been sentenced to a total of 25 years imprisonment.  He will serve half of that in custody and then be released on licence.  He is subject to the notification requirements of the Sexual Offences Act 2003 section 80.  He was convicted of 11 counts of indecent assault and the applicable maximum sentence for each of those offences was 2 years.  Baker J imposed sentences of 18 months imprisonment on each of five of the counts and 12 months imprisonment on each of six counts.  Teret was also convicted of seven counts of rape and he received 25 years imprisonment on each count.  ALL of the sentences will run concurrently - thereby making 25 years in total. 

The sentencing may seem severe

Thursday, 11 December 2014

Supreme Court ~ taking into account Strasbourg decision but not bound

The Supreme Court judgment in R (Haney, Kaiyam and Massey) v Secretary of State for Justice and R (Robinson) v Governor of HMP Whatton and Secretary of State for Justice [2014] UKSC 66 concerns individuals who had been sentenced to Imprisonment for Public Protection (IPP) under the regime imposed by the Criminal Justice Act 2003 s.225 (in force 4th April 2005) but now abolished by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 s.123.   IPP applied to those convicted before 3rd December 2012.

Supreme Court judgment and associated press release.

IPP caused serious problems for the Prison Service and the Parole Board - see Oxford Human Rights Hub - James, Wells and Lee v UK.  The House of Lords

"Drink / drive" ~ lower limits apply in Scotland

From 5th December, the alcohol limit for driving in Scotland has been reduced - see Scottish Government - Lower Drink Drive limits and also Scottish Government - New Drink drive limit.  It appears that prosecutions are likely to be brought even in marginal cases where the reading is just above the limit - Why the new Scottish Drink Drive Limits are even tougher than you think.

The relevant Scottish legislation is the Road Traffic Act 1988 (Prescribed Limit)(Scotland) Regulations 2014 and the new limits are:

a) 22 microgrammes of alcohol in 100 millilitres of breath ... 35;
b) 50 milligrammes of alcohol in 100 millilitres of blood ... 80
c) 67 milligrammes of alcohol in 100 millilitres of urine ... 107

The figures in red show the corresponding limits for England, Wales and Northern Ireland. 

Monday, 8 December 2014

Was this entirely right? A mother's dilemma.

There will not be too much public sympathy for Yusuf Sarwar and Mohammed Ahmed who were recently sentenced to a custodial term of 12 years 8 months for Preparation of Terrorist acts - Terrorism Act 2006 section 5.  Under this extended sentence (Criminal Justice Act 2003 section 226A*) there is a custodial term and, thereafter, an extension period during which time the offender is on licence.  The extension period here is 5 years.  One aspect of an extended sentence is that the the court must 'consider that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences.'

I have not been able to find publication of the sentencing remarks of His Honour Judge Topolski QC who sentenced the men at the Crown Court sitting at Woolwich.  It is a pity that sentencing remarks are not readily available and that we are in the position of having to rely on media reports.  Clearly, from the fact of an extended sentence, prime concerns of Judge Topolski would have been deterrence and prevention of further offending.  The whole purpose of the extension period is to give further protection to the public from serious harm occasioned by the commission by the defendant of further 'specified' offences.

Here are three reports offering details of the case:  The Guardian 5th December 2014;   BBC 7th December;   Birmingham Mail 9th July 2014.

Tuesday, 2 December 2014

Judicial Review at Bay ~ Criminal Justice and Courts Bill ~ Ping Pong

Update:  On Tuesday 9th December, the House of Lords will consider whether to back down in the 'ping pong' over the judicial review proposals.

Update 10th December:  The House of Lords "ping pong" took place on 9th December and the House remained firmly opposed to the government's plans to make access to judicial review more difficult.  The debate may be read here.  See also Law Society Gazette - Grayling admits misleading Parliament as JR reforms defeated again where it is noted that the matter will return to the House of Commons in the New Year.

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Judicial review has been described by Liberty as - “a crucial tool which allows ordinary people to challenge decisions by the authorities—either because they’re unlawful, irrational, or made in the wrong way.”  This crucial tool has come under attack from the government.  In this post, I look at the House of Commons debate on 1st December when House of Lords amendments to the Criminal Justice and Courts Bill were considered.

At times, the process referred to a "ping pong" (or "consideration of amendments") can be rather like a showdown in a western movie.  Parliament's description of "Ping Pong" states that - "When a bill has passed through third reading in both Houses it is returned to the first House (where it started) for any amendments made by the second House to be considered."  A bill may go back and forth between each House until both Houses reach agreement on the exact wording of the bill.

"Ping pong" is the present stage

Thursday, 27 November 2014

Magna Carta


The UK Human Rights blog has drawn attention to a new book - "Magna Carta and its progeny" - Hart Publishing, October 2014 - details here

The authors are  Anthony Arlidge QC and the former Lord Chief Justice  - Lord Judge.

Magna Carta was the subject of my blogpost on 17th June - Magna Carta - is she still alive?

Magna Carta contained the important ideas that those who govern must abide by the law and also that the governed would have access to justice.  The need for access to justice is as important as ever and, in today's society with highly complex law, legal representation should be a basic right.  The government will wish to capitalise on 2015 being the 800th Anniversary of Magna Carta BUT it cannot and must not be forgotten that the government has minimised legal aid and, as a consequence, access to justice for the majority of the population.  For the very rich, the legal system continues to offer a "Rolls Royce" service as discussed here in this excellent post on the Steve Cornforth blog.


The Independent - Magna Carta: Contemporary account of the signing of historic document discovered

The Counter-Terrorism and Security Bill ~ Overview

Once enacted, the latest Counter-Terrorism and Security Bill will be the 6th terrorism-related Act since year 2000.  The announcement of the need for additional legislation was covered in my blogpost of 15th November.   Earlier this week the Home Secretary spoke about the terrorism threat to the UK, the Intelligence and Security Committee issued a report relating to the murder of Fusilier Lee Rigby and the Prime Minister spoke in the House of Commons about the report (Law and Lawyers 25th November).

Parliament's website has this PDF version of the Bill as introduced on 26th November.  The publication of the Bill is accompanied by Explanatory Notes (PDF 56 pages).   Matters such as the need for the legislation and the need for fast-tracking it through Parliament are addressed in the first 54 paragraphs.  Thereafter is a more detailed look at the clauses in the Bill.  The Explanatory Notes are well worth reading in full by any reader requiring a detailed look at the Bill.

The Bill is divided into 7 Parts and 5 schedules. The following paragraphs take a brief look at each Part.

Wednesday, 26 November 2014

The Birmingham Pub Bombings 1974

21st November 1974 is another day that should live in criminal infamy.  Two explosions in Birmingham wrecked the Mulberry Bush and the Tavern in the Town.  21 people were killed and 182 injured.  A third explosive device failed to detonate.  Six men - (Hugh Callaghan, Patrick Joseph Hill, Gerard Hunter, Richard McIlkenny, William Power and John Walker) - were arrested and subsequently tried in the Shire Hall of Lancaster Castle (pictured) before Bridge J and a jury.  The trial commenced on 9th June 1975 and the men, having been convicted, were sentenced on 15th August 1975.  Bridge J rejected legal argument to the effect that the men's statements ought not to be admitted in evidence.  The statements were later shown to be unreliable.  It was not until 14th March 1991 that the convictions were finally quashed by the Court of Appeal (Criminal Division).  Financial compensation was subsequently paid.  Bridge J went on to eventually become Lord Bridge of Harwich and he sat in the Appellate Committee of the House of Lords from 1980 until 1992.

The Birmingham Six case, as it came to be known, has resulted in extensive literature including the book by Chris Mullins - "Error of Judgment: The truth about the Birmingham Bombings" - (see London Review of Books) and Chris Mullins' own comments about his book).

Tuesday, 25 November 2014

Terrorism ~ Report on the Murder of Fusilier Lee Rigby

The need for legislation to give Ministers more anti-terrorism powers was announced earlier this month - Further anti-terrorism powers (15th November).  The new Anti-terrorism and Security Bill is to be presented to Parliament on Wednesday 26th November.  Comment to follow when its contents are fully known.  However, this week has seen a number of other terrorism-related matters.

1) On Monday 24th November, the Home Secretary (Theresa May MP) spoke of the terrorism threat facing the UK.
 
2) Parliament's Intelligence and Security Committee (ISC) has issued a report on the intelligence relating to the murder of Fusilier Lee Rigby - and see BBC 25th November - Woolwich murder: Lee Rigby's death 'not preventable'.  Michael Adebolajo and Michael Adebowale were convicted of the murder and sentenced to life imprisonment with, respectively a whole life term and a 45 year minimum term. - see Sentencing Remarks of Sweeney J (26th February 2014)

Saturday, 22 November 2014

A few items of interest ...

A little list of items of interest ............

1. Severe cuts to legal aid have taken place in England and Wales.  The impact of these cuts is certainly being felt by many people who need access to law and must now try to fight their own case amid the thicket of law or, alternatively, who must simply give up the fight against the more powerful opponent with deeper and often publicly funded pockets.  In a report by the National Audit Office, the Ministry of Justice has been accused of slashing legal aid without understanding the impact of the cuts.  According to the National Audit Office, the £300m cuts to legal aid ‘cannot be said to have delivered better overall value for money for the taxpayer’.  
  • Read the full report here
The report's conclusions are not surprising

Tuesday, 18 November 2014

Reforming the role of magistrates

This morning I draw attention to an article in Modern Law Review (November 2014) - Reforming the role of Magistrates: Implications for summary justice in England and Wales

The article may be obtained (£) from the Wiley Online Library.  The Library website offers the following introductory paragraph.


"The role of lay magistrates in England and Wales has been progressively undermined by protracted processes of reform over the last two decades. Current government proposals aim to reorient and ‘strengthen’ their function through the creation of new magisterial responsibilities such as oversight of out of court disposals and greater involvement with local justice initiatives. This article argues that while these proposals embody necessary and important areas for reform, taken in isolation they will fail to consolidate the role of magistrates in summary justice unless they are enacted alongside other measures which aim to reaffirm the status of lay justices, and which seek to reverse the trend which has prioritised administrative efficiency at the expense of lay justice. Rapidly declining magistrate numbers together with continuous (and continuing) programs of court closures are irreconcilable with the future viability of a lay magistracy."

Some of the "reforms" have included:

Saturday, 15 November 2014

Further anti-terrorism powers

The Government is particularly concerned about UK citizens who travel to conflict zones and perhaps return to the UK with skills and intentions acquired from fighting or training with terrorist groups.  In a speech to the Australian Parliament, the Prime Minister (David Cameron) indicated that a new Counter-Terrorism Bill is to come before the UK Parliament with a view to getting it on the statute book by January 2015.  The Prime Minister noted that Australia had already passed new legislation to tackle foreign fighters - see the Australian Counter Terrorism Legislation Amendment (Foreign Fighters) Bill

According to Mr Cameron, the UK Bill will contain - "New powers for police at ports to seize passports, to stop suspects travelling and to stop British nationals returning to the UK unless they do so on our terms.  New rules to prevent airlines that don’t comply with our no-fly lists, or our security screening measures, from landing in the UK."  See The Guardian 14th November and  BBC 14th November


Wednesday, 12 November 2014

Law Commission ~ Offences against the Person

The Law Commission has commenced a "scoping consultation" about Offences against the Person - Law Commission 12th November 2014.  and also see Law Commission Offences against the Person.  The consultation remains open until 11th February 2015.  The Commission comments that :

"Offences of violence are some of the most common in our criminal justice system: those covered in our paper are charged anything up to 200,000 times each year.  It is, therefore, essential that the laws in this area are clear, fit for purpose in the 21st century and (ideally) collated together in a single, readily-accessible statute. This is especially so in an era with increasing numbers of litigants in person, even in criminal cases.

 The scope of the consultation is limited to

R v Max Clifford - Appeal against sentence


On 2nd May 2014 Frank Maxwell Clifford ("Max Clifford") was sentenced to a total of 8 years on eight counts of indecent assault contrary to s14(1) of the Sexual Offences Act 1956.   He appealed against the sentence and his appeal was dismissed.  The judgment is worth reading in full - R v Frank Maxwell Clifford [2014] EWCA Crim 2235

The judgment is considered in an interesting article by Joshua Rozenberg - The Guardian 12th November 2014 - Appeal court ruling on Max Clifford shows how far defendants can go 

Addendum 24th November:

Silence if Golden -  Law Society Gazette - David Corker comments - "Some may regard with alarm the establishment of this sentencing principle; essentially whether the defendant showed adequate respect for the criminal justice system. Bearing in mind the presumption of innocence, it seems inapt to hold that those who reiterate that by claiming to be so should be exposed to the risk of punishment."

Thursday, 6 November 2014

European Arrest Warrant and other EU measures

Update 11th November:  The Criminal Justice and Data Protection Regulations were approved in the House of Commons. This completed the transposition into domestic law of 11 of the 35 measures that the government wished to retain.  The debate was dogged by procedural tactics and, to the annoyance of many MPs, there was no separate vote on the European Arrest Warrant even though there had been political assurances in advance that there would be.  Nevertheless, legally, a vote was not required on opting back into the EAW and so it will remain in force in relation to the UK.

Update 8th November: Parliament -  The UK's 2014 block opt-out decision: Joint Commttee Statement  and see the DRAFT Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014
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On Monday 10th November, the House of Commons will vote on a package of EU measures and one concern is whether the European Arrest Warrant (EAW) will continue to have force in the UK- BBC News 6th November 2014.   This is to be part of a one day debate relating to the opting out by the UK of some 110 EU Police and Criminal Justice measures and the opting back into 35 including the EAW - please see the post on 5th September.  

Monday, 3 November 2014

Three questions needing satisfactory answers

1.  Why should lawyers continue to offer pro bono work as a means of covering up the fault-lines in government lack of legal aid policy?

Steve Cornforth blog - Who needs legal aid when lawyers do it for free?


Friday, 31 October 2014

Family Court and (lack of) legal aid

Sir James Munby P
Government 'washing its hands' of legal aid problem for vulnerable parents - Owen Bowcott - The Guardian 31st October 2014

The legal aid regime currently in place for "public law" family cases has this, to say the least, highly bizarre effect:

A parent whose child is subject to an application for a care order under Children Act 1989 s.31 is automatically entitled to legal aid, irrespective of means. Not so a parent whose child is living at home under a care order and who wishes to challenge a local authority's proposal to remove the child.


Here are two parents who are beset by problems and face the possibility of their child being adopted.  They do not qualify for legal aid and lawyers have acted for them without remuneration (pro bono).

The President of the Family Division (Sir James Munby) has handed down a very robust judgment - Re D (A Child) [2014] EWFC 39.  Please read it in full.  He said [para 3]:

'What I have to grapple with is the profoundly disturbing fact that the parents do not qualify for legal aid but lack the financial resources to pay for legal representation in circumstances where, to speak plainly, it is unthinkable that they should have to face the local authority's application without proper representation.' [My emphasis].

The EU Referendum Bill has been "killed off"

Amid various political shenanigans within the coalition government, the EU Referendum Bill has been "killed off" - Telegraph 28th October. The Bill was discussed in the Law and Lawyers post of 19th October. The German Chancellor - Angela Merkel - stated that she would not support changing the fundamental EU policy of freedom of movement of individuals though she was prepared to support some reform to welfare benefit claims by migrants so as to try to prevent abuse - Reuters 25th October

Thursday, 30 October 2014

Abdul-Hakim Belhaj and Fatima Boudchar v Jack Straw and others

Belhaj
The Court of Appeal (Civil Division) - Lord Dyson MR, Lloyd-Jones and Sharp LJJ - has affirmed the right of Mr Abdel-Hakim Belhadj – an opposition commander during the Libyan armed conflict of 2011 and now leader of the Libyan Al-Watan Party – and Ms Bouchar, his wife, to pursue a claim in the domestic courts against the UK officials allegedly involved in their abduction from China through Malaysia and Thailand and their transfer to Libya.  The Court stressed that a failure to allow UK courts to consider the complaint would unacceptably result in a denial of a legal remedy for very grave allegations of human rights violations. The Court dismisses the view that the risk of displeasing other States could outweigh the imperative of providing access to justice to victims of such alleged violations.

A summary of the court's judgment and the full judgment are available on the Judiciary website or Bailii at [2014] EWCA Civ 1394.  The appealed judgment of Simon J in the High Court is at [2013] EWHC 4111 QB.  

See also JUSTICE -  Court of Appeal confirms access to court in torture cases.  JUSTICE was one of six interveners in the case.  The submissions of the interveners may be seen via REDRESS.

The UK Government