The death of a drug seller ~ Fixing the minimum term of imprisonment

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Adam Vincent was a drug addict and in bad health as a result.  He sold drugs on the streets for the Griffiths family who operated their drug operation from a bungalow in Grimsby.  Lee Griffiths, Luke Griffiths, Thomas Griffiths and Mark Jackson were convicted before a judge and jury of the brutal murder of Vincent.  They appealed against the minimum terms of imprisonment determined by the trial judge who applied the Criminal Justice Act 2003 sections 269 and 270 and Schedule 21.

Lee Griffiths, Luke Griffiths, Thomas Griffiths and Mark Jackson v R [2012] EWCA Crim 2822 Hughes LJ, Ramsay and Irwin JJ

The court said - para. 15 - "We entirely agree with the judge's self direction that Schedule 21 cannot be applied mechanically, and that paragraph 5(2) is in no sense an exhaustive list of the kinds of case which a court may determine to be of particularly high seriousness. This court has said so on too many occasions to list. A mechanical application of the Schedule is apt to create absurd anomalies, such as that corrected in R v Height ; Anderson [2008] EWCA Crim 2500; [2009] 1 Cr App R(S) 676, where a simplistic application of the schedule would have resulted in the paid contract killer being subject to a starting point double that of the employer who incited and engaged him and for whose purposes the killing was carried out. Nor can the Schedule be applied in an arithmetical manner, by adding or subtracting years attributable to separate features of the case: that was demonstrated to be unworkable in R v Peters and others [2005] EWCA Crim 605; [2005 2 Cr App R (S) 101 at 627; see paragraph [8]. As was observed in R v Jones [2005] EWCA Crim 3414; [2006] 2 CR App R(S) 18 at 117, the very large gaps between the starting points identified in the Schedule present a sentencer with considerable difficulties in his quest to match the penalty to the infinitely variable circumstances of crime. It is nonetheless clear that it was not Parliament's intention that the Schedule should be applied mechanically by fitting each case into the nearest available starting point and making only minor adjustments to it. That is clear from paragraph 9 of the Schedule, which says:
"Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point)…."

It is perhaps somewhat surprising, so long after it came into law, that the court needed to re-emphasise then non-mechanical approach necessary when applying Schedule 21.  The aim is to pass a minimum term which reflects the true criminality involved.

The result is not necessarily a simple exercise for the judge to conduct but it is plainly what Parliament intended.  The judgment is not particularly lengthy and is well worth reading by the general public.  In the result, the minimum terms for these men were set by the Court of Appeal at:

Lee Griffiths: 30 years
Luke Griffiths: 23 years
Thomas Griffiths: 25 years
Mark Jackson: 25 years.

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Guilty Pleas ~ sentence reduction

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The last day of the Michaelmas Law term 2012 was 21st December and no less than nine Court of Appeal (Civil Division) judgments and four Criminal Division judgments were handed down that day.  These can all be seen on the Bailii website along with the numerous judgments of other courts and tribunals.

The Criminal Division considered the effect of guilty pleas in relation to sentence - Caley and others (Guilty Pleas) v R [2012] EWCA Crim 2821 Hughes LJ, Wilkie and Popplewell JJ.

It has been long standing practice to give a "discount" on sentence when there is a guilty plea.  The amount of the discount depends on the time at which the defendant indicates "his intention to plead guilty."  Here is a powerful incentive to indicate an intention to plead guilty at the earliest possible stage since the discount can be as high as one-third.  Such a discount can amount to several years in cases where lengthy sentences of imprisonment are inevitable.



The reasons in favour of discounts are said to be: the benefit to victims and witnesses and the saving of public money which has to be expended on preparation for a full trial.  (See the judgment at paras. 5 and 6).

The Court of Appeal noted that "something of the order of 75% of all Crown Court cases result in pleas of guilty; if in all those cases the defendants were out of defiance or otherwise to insist on each detail of the case being proved to the hilt the administration of criminal justice would be in danger of collapse."

The Court was not undertaking a full re-appraisal of reduction for plea.  The Sentencing Council has the overall approach to pleas of guilty and sentencing on its agenda, having deferred further consideration of the topic when the possibility existed (now no longer present) that the Government might seek to introduce legislation upon it. However, in the court's words: "Some questions, ... , arise as to how the SGC guideline should normally be applied.  Furthermore, some aspects of the handling of cases in the criminal courts have altered in recent years and the manner in which the Guideline should be applied to present procedures needs to be considered. It is to these topics that we address ourselves."

Readers may find the court's views on reduction of sentence even in cases of "overwhelming evidence" of interest (paras 23 to 25).  The existing Sentencing Council guidance indicates that reduction may be limited to one-fifth in such cases though the wording of the guidance is very cautious.   The appalling case of R v Paul Wilson [2012] EWCA Crim 386 concerned two oral rapes of a three year old, which had been recorded on camera.  The trial judge refused to make any reduction in sentence for guilty plea even though it was indicated within a week of police interview.  The Court of Appeal reduced the sentence with the Lord Chief Justice noting that - "Even in an overwhelming case the guilty plea has a distinct public benefit. The earlier that it is indicated, the better for everyone…..There are two examples we wish to highlight. First, none of the repellent movie of the little girl would ever be shown in public. No one would ever see her face. In addition, none of it would ever be seen by the jury [who]….would have been horrified… Those are but two advantages of the guilty plea."

It will be interesting to see the outcome of any revision of the Sentencing Council guidance.  The large amount of discount in some serious cases is capable of producing public dissatisfaction with the administration of justice and it may be that Parliament will have to visit this topic in the future.

Existing Guidance - published 2007 by the Sentencing Guidelines Council (as it then was).

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The Lord Chief Justice warns

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In a light hearted speech with a serious message, the Lord Chief Justice has warned of the need for vigilance where the rule of law is concerned.

"I am not sounding a clarion call against any imminent threat to the rule of law.  What I am, however, saying is that even in a country with the values with which we are blessed, it is unwise to take them for granted or to assume that we can be sure that in years to come that some new force may not emerge to undermine them; it may be insidious, maybe almost imperceptible. Indeed if insidious and almost imperceptible it is probably more dangerous. So in this context the “may be” is enough.  The future, after all, is long as well as short and the world is changing fast."

Speech at Mansion House, London.

The tragedy is that, in 2012, Parliament enacted the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which will soon come to remove access to justice for thousands of people who, when in conflict with authority, need an advocate with good understanding of the law and its practical application.

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Seasons Greetings

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The Greetings of the Season to all readers.  Thank you for your interest in the various stories and for your interesting comments.  All much appreciated.


Christmas tree in the foyer of the Supreme Court.



Please return to the blog over the coming period for some more stories.

It's interesting to note that Fairytale of New York (The Pogues & Kirsty McColl) has recently been voted the nation's favourite Christmas song.   For me, there is no doubt that the greatest of all Christmas songs is "In the Bleak Midwinter" - here it is sung by Sissel.

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Sentencing ~ Common assault

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A father attends a school and assaults the Head Teacher.  Should this merit a custodial sentence?  This was the issue in the case of Paul Stratford  - see Daily Mail 21st December.   The Head Teacher wished to exclude Stratford's son from school for 1 day for 'racial abuse.'  On attending the school, Stratford punched and pushed the teacher and later claimed that he was protecting his son's eye from the teacher's pointing finger.  Stratford's attack on the teacher ended when the caretaker intervened and it is reported that Stratford 'continued to rant' as he left the school.  The Daily Mail commented:  "Despite the gravity of the offence, magistrates decided to impose only a community sentence, telling Stratford to pay his victim £100."  Of course, here was a case which is grist to the mill of a "get-tough-on-criminals" newspaper but it is not unreasonable to think that many ordinary people will agree that the sentence was light.

Let us leave aside Stratford's case for a while since we just have a media report and do not know every detail.  Instead, let us focus on the sentencing guidelines to see what they indicate as a sentence for an assault on a teacher when, perhaps fortuitously, there is no injury despite the teacher being punched once and pushed.



Sentencing - general principles:

Sentencing is far from an easy task.  The sentencer must apply all the relevant law (e.g. Part 12 of the Criminal Justice Act 2003 and Part 4 of the Coroners and Justice Act 2009).  In particular,
the sentencer must consider: the sentencing objectives (Criminal Justice Act 2003 s.142);  allowance for guilty plea (CJA 2003 s.144); general restrictions on custodial sentences (CJA 2003 s.152); pre-sentence reports (CJA 2003 s.156); and the duty to explain the sentence (CJA 2003 s. 174).  Furthermore, sentencing guidance must be followed (Coroners and Justice Act 2009 s.125) unless the court is satisfied that it would be contrary to the interests of justice to do so and, if so, the reasons for departure from the guidelines must be stated in open court - as required by the CJA 2003 s.174(2) aa.

Sentencing in the Magistrates' Court for Common assault

Sentencing guidance for common assault is in the Magistrates' Courts Sentencing Guidelines at page 213.  There is a 9 step approach:

Step 1 - the court decides the "Offence Category." This depends on an assessment of harm and culpability.  ONLY the factors set out on page 214 may be considered.  The offence must be allocated to one of 3 categories where Category 1 is a combination of greater harm and greater culpability, Category 2 is Greater harm with lower culpability and 3 is lesser harm with lower culpability.  [Query:  Should there not be a 4th category of lesser harm with higher culpability?]  Let us take, for the purposes of this exercise, a Category 2 case. 

Step 2 - The court now looks at the sentencing starting point and the sentencing range.  For Offence Category 2, the starting point is a medium level community order with a range of Band A fine to High Level Community Order.  [Only if the offence were Category 1 does the range include imprisonment].  Factors in the guidance state what makes an offence either more serious or less serious and there are factors reflecting personal mitigation.

Factors making the offence more serious include: previous convictions (though the period of time since the conviction is relevant), location of the offence, the timing of the offence, the effect on the victim, the fact that the victim is providing a service to the public, the presence of other people.  Factors making the offence less serious include a single blow and personal mitigation includes matters such as whether the defendant is a sole carer for another.

It is fairly obvious that a number of the "more serious" factors are present when an assault is of a teacher at a school.  Assuming our Category 2 offence, the case will be at the higher end of the sentencing range - i.e. high level community order.

Step 3 - Factors which indicate a reduction, such as assistance to the prosecution - The court should take into account any rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator. Not relevant to our offender.

Step 4 - Reduction for guilty pleas - The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Guilty Plea guideline.  Our offender was found guilty after trial.

Step 5 - Dangerousness - not relevant to our offender

Step 6 - Totality principle - If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour.  Not relevant to our offender.

Step 7 - Compensation and ancillary orders - In all cases, the court should consider whether to make compensation and/or other ancillary orders.  Our offender has reasonable means and could pay compensation and costs.  Available monies should be applied first to compensation and then to costs.

Step 8 - Reasons - Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence.

Step 9 - Consideration for remand time - not relevant here

Hence, on the basis of these guidelines, our offender is to receive a high level community order plus an order to pay compensation and an order to pay costs.

Had it been possible to place the offence in Category 1 (greater harm and higher culpability) then imprisonment might have been much more likely.

Guidelines are not tramlines?

The guidelines are NOT tramlines even if, recently, the scope for divergence has been narrowed.

Courts may depart from guidelines if satisfied that it would be contrary to the interests of justice to follow them.  In that event, the reasons for departure from the guidelines must be stated in open court - as required by the CJA 2003 s.174(2) aa.  In a case of assaults on teachers at schools, it might well be possible to argue that, even if the guidance leads to a high level community order in the particular case, imprisonment could be justified on deterrence grounds. 

On the basis of what we know, Stratford may well have deserved to hear the clang of the prison gates but we must bear in mind that there may have been other factors of which we are unaware.  The courts are bound by guidelines set out by the Sentencing Council and are mandated by statute to apply them unless there is good reason, in the interests of justice, to depart from them.  In that event, the reasons must be stated in open court.  Critics of the sentence should perhaps focus their attention on the guidelines.

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Drinking and driving ~ the government's consultation

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With the festive season upon us, here is a timely reminder that the government has plans to amend the law of drinking and driving. 

Have a look at the government's consultation:

https://www.gov.uk/government/consultations/enforcement-procedures-against-drink-drivers-and-other-offenders

This consultation encompasses the legislative changes the government proposed in its response of March 2011 to the reports by Sir Peter North and the Transport Select Committee on drink and drug driving (“the government’s response”). The changes covered in this consultation do not, however, include creating a new offence related to driving with a specified impairing drug in the body, which is also being progressed by the government.

The only safe advice which can be given about drinking / driving is do not do it. 

The changes are considered in an excellent post on CharonQC's blog - Timely advice on the drink driving laws from Jeanette Miller - solicitor.

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A man and his bicycle on an important street

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The original event:

On the evening of 19th September 2012, the former government Chief Whip (Mr Andrew Mitchell MP) cycled along Downing Street in the direction of Whitehall.  The Guardian (19th December) has some CCTV pictures - Pleb row: what does CCTV show?    Mr Mitchell can be seen, on his bicycle, at time 19:36:01 proceeding toward Whitehall.    A short time later, he arrived at the gates across the entrance to Downing Street.  The Police Officers on duty can be seen by the gates.  He probably arrived at the gates by around 19:36:20 (latest).  At time 19:36:47, Mr Mitchell can be seen, with his bicycle, walking out of the side gate - a further CCTV picture of him leaving via the gate is here.  An Officer opened the gate for him and closed it afterwards.

There is no sound recording with the CCTV.  What happened in the short time between Mr Mitchell arriving at the gate and him leaving the street - a period of time of around 27 seconds?   It appears that the officers did not wish to open the main gates and so Mr Mitchell was asked to exit via the side gate.  Mr Mitchell has admitted making some remarks to the officers and, afterwards, he apologised for whatever he had said and the apology was accepted.   Two Police Officers stated that Mr Mitchell had called them "fucking plebs" but Mr Mitchell has consistently denied using those words.

The event was reported
in the national press - for example, The Sun 22nd September - Top Cop calls for Tory Chief Whip to quit over 'pleb' rant

Public Order Act 1986 section 5:

Assuming that something untoward had been said, here is a situation which, if dealt with by law at all, would probably merit no more than a charge under section 5 of the Public Order Act 1986.  This is the least serious of the offences in the 1986 Act - an Act passed after a Law Commission review of public order offending prompted by the 1984 Miner's Strike. The offence is triable summarily (in the Magistrates' Court) and, upon conviction, the maximum fine is level 3 (currently £1000).

Section 5:  (1) A person is guilty of an offence if he - (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, 0r (b)  ..... , within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

Had the Police Officers in Downing Street considered that Mr Mitchell was engaging in "offensive" conduct then he could have been warned and, if he then engaged in further such conduct immediately or shortly after the warning he could have been arrested without warrant - section 5(4).  "Offensive conduct"means conduct the constable reasonably suspects to constitute an offence under this section .... s.5(5)  

Mr Mitchell was NOT arrested and neither was he charged with any offence but there were to be other ramifications for him since, in October 2012, he felt that he had to resign his government position.

The story develops:

It now appears that some 30 Metropolitan Police Officers (The Guardian 19th December) are engaged in an investigation into the matter. This can, it seems, be explained by some further developments.

1.   An e-mail was sent by a constituent to the Deputy Chief Whip (John Randall MP) who passed the email on to No.10 - see Daily Mail 19th December  This constituent claimed to have seen and heard the incident.  It is said that the e-mail contains an identical story to that set out at the time by the officers who had been involved with Mr Mitchell.  The e-mail was sent from Ruislip (North-West London) and said:  "Other people/tourists standing with us were also shocked and some were even, inadvertently, filming the incident … the public looked visibly shocked." 

2.   A Police Officer was arrested over the leak of the Police log of the incident - see The Independent 17th December.  The constable, who serves in the Diplomatic Protection Group, was detained on suspicion of misconduct in public office.   He is now on police bail.

3.   A 23 year old man, not employed by the Police, has also been arrested - The Guardian 20th December.  The man was arrested on suspicion of intentionally encouraging or assisting the commission of an indictable offence.  Reports are not making it clear which indictable offence is in issue.

So, where does this leave Mr Mitchell?
Andrew Mitchell MP

Mr Mitchell has certainly never denied that he said something to the officers in Downing Street .  He apologised for whatever he said and we, the public, were told that the apology had been accepted.  Mr Mitchell has consistently denied using the word "plebs."  He was not arrested at the time and has not been charged with any offence.

Mr Mitchell further challenges the statements that there were many people watching the events - see again his interview in Pleb row: what does CCTV show?   The email stated - "other people/tourists standing with us were also shocked ....."  It is not clear where these other people were, if they were there at all.  The CCTV pictures appear to show just a few people walking along Whitehall past the Downing Street gates.  Unless others were definitely there watching the event, the value of this email as evidence in support of other police statements must be in tatters and the further question is raised as to whether the email was, in some way, mischievous.

There was massive schadenfreude at the political downfall of Mr Mitchell. Nevertheless, all citizens (irrespective of their position in life and irrespective of whether they are popular or unpopular figures) deserve fair treatment by the Police.  The focus is now upon them in this interesting matter which clearly has some considerable distance yet to travel !

Other points:

Interestingly, the House of Lords has voted to remove the word "insulting" from section 5 of the Public Order Act 1986 - The Guardian 12th December.  It remains to be seen whether this change is brought into law.

The gates across Downing Street were put there in 1989 - see Downing Street.    Certainly, for most of its history, Downing Street was just another London thoroughfare linking Whitehall to St. James' Park.  The legal basis for the gates is considered by David Allen Green in The New Statesman 19th December.

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Hillsborough Disaster ~ New inquest to be held

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Update:  The judgment of the court quashing all the inquest verdicts - Her Majesty' Attorney-General v HM Coroner for South Yorkshire (West) and HM Coroner for West Yorkshire (West)  [2012] EWHC 3783 Admin  - Lord Judge LCJ, Burnett LJ and HHJ Peter Thornton QC (Chief Coroner)

---

Following the publication of the Hillsborough Independent Panel Report, the Attorney-General applied to the High Court for a new inquest to be ordered into the deaths arising from the Hillsborough disaster of April 1989 - BBC 19th December 2012.  The High Court sat with Lord Judge CJ presiding and quashed the earlier inquest verdicts and ordered a new inquest.  Their legal power to do this is in the Coroners Act 1988 section 13.

The Home Office has announced a fresh Police investigation    Former Durham Chief Constable Jon Stoddart will lead the new inquiry, which will focus specifically on the 96 deaths of Liverpool fans at the FA Cup semi-final in 1989. Mr Stoddart will be able to recruit investigators and staff to his team, but he will not be allowed to employ officers or former officers with any prior connection to the Hillsborough Disaster, nor those who have worked in West Midlands, South Yorkshire or Merseyside police forces.  He will be required to work closely with the Independent Police Complaints Commission investigation and pass any findings of misconduct against officers to IPCC investigators to ensure the police are not being investigated by the police.

In addition
to announcing the new investigation, the Home Secretary also revealed a Liaison Board will be established to bring together all organisations working to deliver justice for the Hillsborough families. It will help meet the government's pledge to deliver swift results by ensuring work and information is shared.


Further scrutiny of the investigations will be performed by an Independent Challenge Panel to be established by the IPCC and the Director of Public Prosecutions. It will include independent experts nominated by family organisations and will also provide scrutiny of the Crown Prosecution Service's role in the investigations.

A body appointed to scrutinise the role of the Crown Prosecution Service is an interesting development.  The lawyer naturally questions the remit of such a body and what are its legal powers (if any).  At the time of writing, there is little further detail available beyond the Home Office Press release.  See the DPP's statement of 12th October.   IPCC statement of 12th October.

It is likely to be some time before the new inquest is actually held and the actual verdicts (or determinations)  of the new inquest will depend on the evidence presented to that inquest.  The likelihood is that a High Court Judge (or other senior judicial figure) - whether serving or retired - will be appointed to preside at the inquest.  Any new inquest will take place around the time that changes to the law of inquests is coming about due to implementation of the Coroners and Justice Act 2009.

Chief Coroner and Updating the system - Law and Lawyers 18th September

Chief Coroner: 10 point plan - Law and Lawyers 21st September

Coroners - Verdicts

The Guardian 19th December - Owen Gibson - High Court quashes Hillsborough inquest verdicts

The JC.Com 19th December - Marcus Dysch - High Court quahses Hillsborough inquest verdicts

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Commission on a Bill of Rights ~ A UK Bill of Rights? Perhaps, but not yet !

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Long grass
19th December ~ Updated with some additional links

On Tuesday 18th December, the Commission on a Bill of Rights produced its report - A UK Bill of Rights? - The Choice Before Us

Ministry of Justice -  Press release and Commission on a Bill of Rights web page

There are two volumes to the report though it is Volume 1 which contains the substantive material: Volume 1 and Volume 2

Volume 1 contains a brief Letter to Ministers, the Commission's Terms of Reference, an outline of the Commission's approach to their work and an Overview.  12 chapters then follow and a further 8 individual papers.

According to the section headed "Our approach to our work", we are informed that the Commission members were nominated by the two coalition parties.  The Commission described itself as "politically disparate" but also claimed to have "surprisingly wide areas of agreement." 

: The report draws the conclusions together in Volume 1 Chapter 12 :

The Commission did not wish
to reject the idea of a British Bill of Rights describing it as an "idea of potential value which deserves further exploration at an appropriate time and in an appropriate way."  Any future debate had to be "acutely sensitive to issues of devolution and, in the case of Scotland, to possible independence."  Furthermore, the Commission neatly side-stepped the fact that, in Northern Ireland, there is a separate Northern Ireland Bill of Rights process and the Commission did not wish to interfere with that in any way.  The creation of a UK Bill of Rights would have to be undertaken gradually, with full consultation and the process would have to reconsider "the scheme of the devolution Acts, which limit the powers of the devolved legislatures and governments by reference to respect for 'Convention rights.' Whatever the outcome of the independence referendum in Scotland (in 2014), it seems likely that there will subsequently be proposals for changes in the relationship of the nations that will then comprise the UK be that within a Constitutional Convention, as the Prime Minister has suggested, or in some other forum.  Such a forum would be the most desirable place to consider the promotion of a UK Bill of Rights within the context of a wider constitutional review.

Essentially then, the Commission has offered the government an option of the long grass into which to kick their own report.  It can all be deferred until we see what is to happen in Scotland, Northern Ireland and so on and maybe some other forum will return to the subject.

A majority view:

Chapter 12 continues.  "A majority of the members of the Commission, including the Chair, believe that, on balance, there is a strong argument for a UK Bill of Rights" and they note that many other Council of Europe States already have their own "written constitution, their own national bill of rights written in their own words or both."

The majority sees a lack of 'ownership' on the part of the general public in relation to human rights issues and it is this which is a powerful argument for a new constitutional instrument.

The argument about 'ownership' is not particularly convincing.  The majority of the public have minimal knowledge of anything to do with law but, when the issues are explained, people appear to be happy with the existing arrangements for protection of their rights even if some concerns are expressed.  The public is, regrettably, fed a diet of strident anti-human rights rhetoric by a number of daily newspapers and by certain politicians.  Much of this reporting relates to certain high profile cases at Strasbourg - e.g. prisoner voting or the Abu Hamza extradition case etc.  Sadly, members of the public rarely make the real effort needed to find out the true position and, even more lamentably, the subject is hardly taught in many schools (a point which the Commission makes).  Interestingly, the majority of the Commission see the strident voices as requiring the fresh beginning which a Bill of Rights might bring.  (Helena Kennedy QC and Phillipe Sands QC did not agree with the majority).

The majority further argues that a Bill would offer the opportunity to provide greater protection against the possible abuse of power by the state and its agents.  They nevertheless acknowledge that the Human Rights Act has provided a valuable safeguard against any such abuse of power.  It is not entirely easy to see how a UK Bill of Rights - (which would have to be enacted by Parliament) - would actually offer greater protection than existing arrangements and it may offer less if coupled with withdrawal from the European Convention.

For the majority, the Bill would have at is core the rights already in the European Convention on Human Rights including those protocols which the UK has accepted.  However, the Bill might be written in different words which the majority see as a means of securing greater public ownership.  Be that as it may, to use different words - (even if some other countries already do so) - seems likely to be a bonanza for some lawyers on points of interpretation and, in any event, the European Convention of Human Rights must be the overriding wording if the UK is to remain bound by it.

A minority view:

For the minority (2 out of 9), the time is not ripe to conclude that the focus should be on a new Bill of Rights.  The majority had failed to identify or declare any shortcomings with the Human Rights Act or its application by our courts.  (It might be noted here that, when interpreting Acts of Parliament, courts in the UK have been exceptionally careful in how they have decided convention points of law.  The traditional deference of the courts to Parliament is far from dead).

The minority would rather leave to a future Constitutional Convention issues such as whether to maintain the status quo, adopt a new and free-standing Bill of Rights or move to new constitutional arrangements which would incorporate and build upon the rights protected by the Human Rights Act.

Long grass
In offering what may be seen as rather more long grass, the minority point to three matters:

1. Devolution - given the uncertainties surrounding devolution (e.g. Scottish independence) a premature move to a UK Bill of Rights would be contentious and possibly even dangerous, with unintended consequences.  The minority refer to the UK moving toward a federal structure - a point made on this blog - e.g. here.

2.  Responses to consultations - a majority of respondents gave overwhelming support to retaining the structure established by the Human Rights Act.  Also, there was no 'ownership' issue in Northern Ireland, Wales and Scotland (or large parts of England) where the present arrangements are not merely tolerated but strongly supported.

3.  Some people support the idea of a UK Bill of Rights as a step toward withdrawal from the European Convention whereas the minority see the UK's future firmly as part of the European Convention.

In the minority view, the case for a UK Bill of Rights has not been made out.  However, the minority remain open to the idea of a UK Bill of Rights were they to be satisfied that it carried no risk of decoupling the UK from the Convention.  Perhaps some edging of bets there? 

Bets edged

Other matters:

Some other points from the report:

1.  Further rights are not opposed in principle and, in particular, an equality right but a majority (does not say which members formed this majority) opposed socio-economic or environmental rights.

2.  The UK Bill of Rights would offer an "irreducible core of rights available to everyone in the UK" but the devolved legislatures could, within their devolved powers, legislate for more.  (? Seems likely to end up offering the English less than elsewhere ?)

3.  Certain rights relating to civil and criminal justice have come under threat from short term political pressures and the Commission wished to see them protected if there were to be a UK Bill of Rights.

4.  The enforcement mechanisms in any UK Bill of Rights should be broadly similar to those in the Human Rights Act - e.g. power of higher courts to make a declaration of incompatibility.

5.  The definition of 'public authority' should be looked at again if a UK Bill of Rights were to be taken forward.  (? Probably should be reconsidered irrespective of the Bill of Rights question ?)

6.  A link between rights and responsibilities was rejected since human rights have to apply irrespective of behaviour.  Rights cannot be conditional on exercise of responsibility but they wished to see awards of damages for breach of rights being discretionary and dependent on the applicant's conduct.  They further wished to see a non-justiciable provision to emphasise the mutual ties and obligations on which society depends.  Such a provision might assist with acceptability of a Bill.

7.  Finally, they encourage the government to do everything possible to maintain the momentum of the Brighton Declaration and to continue to press for "fundamental reforms" of the European Court of Human Rights.

Overview:

Overall, an interesting report and necessary reading for an understanding of the issues but a lot of long grass which is hardly surprising as the government presses ahead inexorably with its own constitutional reform agenda - e.g. the independence referendum in Scotland.   Even the majority view in this report, whilst supportive of a Bill of Rights, is saying "NOT YET" though there is little doubt that the majority opinion here may well give some succour to those pursuing a UK Bill of Rights whether it be in or out of the European arrangements.

Would the "Constitutional Convention" ever be set up?  Obviously, it would be unwise to say "never" - (bit of my own bet edging here!) - but recent practice is not particularly encouraging.  Over the years, there has been considerable constitutional reform - including some major reforms - without recourse to any such "Convention."  Devolution itself is an obvious and major example.

Additional Links:

Applying for Law - Dr Mark Elliott (Cambridge University) - Ten things you wanted to know about the Bill of Rights Commission's report but were afraid to ask

The Telegraph 19th December - Mary Riddell -   There is no magic solution to out human rights quandary
- "Chris Grayling bewails the use of the convention as a protection for “people who want to destroy the freedoms of a democratic society”. The truth is that the values that bind our nation will never be wrecked by Abu Qatada and his ilk. Our precious liberties are instead imperilled by law-makers who do not see that human rights must, by definition, extend to the reviled and to the just alike."

UK Human Rights Blog 18th December - The Bill of Rights Commission's report: a modest proposal

Open Democracy - Geoffrey Bindman - British Bill of Rights report shows none is needed

London Review of Books - Phillipe Sands QC and Helena Kennedy QC - In Defence of Rights
"A UK Bill of Rights may seem harmless and even attractive at first sight, but alarm bells should be ringing about motivations. For us, human rights is about working not just within our own country but with other countries to improve the human condition, to engender respect for all individuals, to protect those who are vulnerable, and to create the conditions for the delivery of justice and peace. To remove the glue that holds us together with other nations is dangerous. Our criticisms of the European Court should galvanise us to reform it, not lead to our cutting ourselves off. If there is to be a Bill of Rights, or any change to the Human Rights Act, it should reinforce the European Convention, not undermine it."

UK Constitutional Law Group blog - Colm O’Cinneide: The Commission on a Bill of Rights: Playing On Even While the Goalposts Have Shifted?

Joshua Rozenberg - The Guardian 18th December - UK Bill of Rights: Grayling wrote off the report months ago

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Commission on a Bill of Rights ~ the report is a-coming !

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The Commission was appointed by the government on 18th March 2011 and, at the time, comprised
The Chair of the Commission was former Civil Servant Sir Leigh Lewis

Law and Lawyers blog - Commission on a Bill of Rights -18th March 2011

Dr Pinto-Duschinsky - (a non-lawyer) - later resigned from the Commission and was replaced by Lord Faulks QC.    The make up of the Commission was considered by Liora Lazarus - "The composition of the UK Bill of Rights Commission" - 24th April 2011.



The Commission has held two consultations in which it was open to anyone to respond.  (Whether these consultations were adequately advertised is another matter).

The terms of reference:

As with all bodies set up to consider any matter, the terms of reference are important. 

"The Commission will investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties.

It will examine the operation and implementation of these obligations, and consider ways to promote a better understanding of the true scope of these obligations and liberties.

It should provide interim advice to the Government on the ongoing Interlaken process to reform the Strasbourg court ahead of and following the UK’s Chairmanship of the Council of Europe.

It should consult, including with the public, judiciary and devolved administrations and legislatures, and aim to report no later than by the end of 2012."


The terms of reference did not envisage the UK withdrawing from the Council of Europe or the European Convention on Human Rights - (assuming that the latter is possible without the former).   Much of what is in the terms of reference is laudable.  Any UK Bill of Rights is to incorporate and build on the UK's obligations under the convention.  Also, there is certainly a crying need for better understanding of the true scope of the obligations and liberties.


The Terms of Reference of the Commission and the options open to it were considered by Mark Elliott in The UK Bill of Rights Commission - The UK Constitutional Law Group 18th April.

Criticisms:

Criticisms of the Commission have been directed at its make up since it has looked rather like a club for Queen's Counsel and at the rather limited involvement with the general public on this vitally important subject.  A further criticism has concerned lack of diversity among the Commission members - see Law Society Gazette 24th March - "Human Rights Commission prompts diversity concerns.".

The Commission issued interim advice to Government on reform of the European Court of Human Right and the Chair of the Commission published a letter to ministers on reform of the Court .  These actions might be criticised as the Commission forming a very early view on any reforms perceived to be necessary to the court.   However that may be, the interim advice was required by the terms of reference and the advice and letter preceded the Brighton Conference (18-20 April 2012) and Declaration  by which the governments of the Council of Europe member states agreed on a number of reforms including reduction of the large backlog of cases at Strasbourg.

Report by the Commission:

The report is expected imminently.  The Human Rights Act 1998 may be seen as a form of Bill of Rights for the UK in that it weaves convention rights into the law.  On this, the article in The Guardian 13th December by Francesca Klug is particularly interesting - The Human Rights Act is a British Bill of Rights.

I would not expect the Commission to recommend any reduction in the core human rights given to people by the European Convention.  After all, as the late Lord Bingham asked, which of the rights in the convention would people wish to give up - the right to life, perhaps, or the prohibition on torture, or the freedoms of speech or association?   Please read the eloquent tribute to Lord Bingham by Jesse Norman.

There may be some scope for review of some aspects of the later Protocols to the Convention such as Protocol 1 Article 3 which has been interpreted by the European Court of Human Rights in a way which condemns the UK's blanket ban on prisoners voting.  Of course, whatever the Commission recommends (if anything) in this area will not alter the fact that the UK is bound already by the European Court's decision.

Will the Commission propose additional rights - such as a right to trial by jury (a very British right which has been under attack from time-to-time) or perhaps social or economic rights such as "equality" rights or a right to good care at reasonable cost in old age?   The Commission's consultation included questions about such additional rights.  To move into those areas would be controversial territory for the Commission which will be all too aware of the "opt out" to the Lisbon Treaty in relation to the European Union's Charter on the Fundamental Rights.

A correlative of rights is a responsibility to respect the rights of others.  It will therefore be interesting to see whether the Commission has anything to say about responsibilities.  This would be a significant step away from the idea that human rights are solely about how the State treats individuals within the State.

The second element in the terms of reference refers to promoting a better understanding of the true scope of these obligations and liberties.  This is a process by which information needs to be made available and then there is the important question of education of the young as well as the population in general.  A tremendous amount of work is required in those areas.

The report is awaited with considerable interest.  There will be much comment about it and the government's response to it will be crucial for the future of human rights protection in the UK - a nation in which access to justice is certainly under threat with huge reductions to the scope of legal aid, tighter rules being proposed for judicial review, the controversial Justice and Security Bill with its extension of closed material procedures, the Communications Bill with its "snooper's charter" provision and so on.  The enormous benefit of the Human Rights Act 1998 is that it enables the courts in the UK to examine the compatibility of the government's legislation with convention rights.  It would be a sad day if that is lost.

I particularly recommend the reader to listen to the podcast on CharonQC's Tour blog - #Report 16: On Human Rights law with Kirsty Brimelow QC and Francis FitzGibbon QC.   This contains a most interesting discussion about the impact internationally of the stance taken by the UK in relation to human rights protection.

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Friday News roundup

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Here is some of the legal news not covered in other recent posts.

Rendition and torture:

The Grand Chamber of the European Court of Human Rights has given judgment in El-Masri v The former Yugoslav Republic of Macedonia (application no. 39630/09).  The case concerned the complaints of a German national of Lebanese origin that he had been a victim of a secret “rendition” operation during which he was arrested, held in isolation, questioned and ill-treated in a Skopje hotel for 23 days, then transferred to CIA agents who brought him to a secret detention facility in Afghanistan, where he was further ill-treated for over four months. The Court found Mr El-Masri’s account to be established beyond reasonable doubt and held that “the former Yugoslav Republic of Macedonia” had been responsible for his torture and ill-treatment both in the country itself and after his transfer to the US authorities in the context of an extra-judicial “rendition”.



The UK is reported to have paid £2.23m to Sami al-Saadi who was abducted  to Libya where he was tortured.  The British government has not made any admission of liability but evidence of UK involvement was discovered in Libya after the fall of Gaddafi in 2011.  It is against the background of cases such as this that the government is pressing ahead with its Justice and Security Bill which will bring about closed material procedures in civil cases.  Mr al-Saadi is reported to have said - "I started this process believing that a British trial would get to the truth in my case. But today, with the government trying to push through secret courts, I feel that to proceed is not best for my family. I went through a secret trial once before, in Gaddafi's Libya. In many ways, it was as bad as the torture. It is not an experience I care to repeat.  Even now, the British government has never given an answer to the simple question: 'Were you involved in the kidnap of me, my wife and my children?' I think the payment speaks for itself."  The Guardian 13th December 2012.

Justice and Security Bill:

The House of Commons second reading of the bill is set for 18th December - Parliament Briefing Paper

Amnesty - The Justice and Security Bill - has your MP responded to you?

Judicial review under siege:

Following on from David Cameron's vociferous attack on judicial review, the Ministry of Justice has published a consultation - Judicial review: proposals for reform.  The consultation remains open until 24th January 2013.  Some commentary about the consultation is at UK Human Rights blog 13th December - Quicker, costlier and less appealing: plans for judicial review reform revealed.

Official Secrets case:

The sentencing remarks of Saunders J in the case of R v Edward Devenney have been published via the Judiciary website.   Between 17th November 2011 and his arrest on 6th March 2012, this Defendant made determined efforts to enter into an agreement to supply secret information to representatives of another country.   Making it clear that such cases would always attract deterrent sentences, Saunders J said that a starting point of 12 years imprisonment was appropriate but this was reduced to 8 years because of Devenney's guilty plea.    Saunders J said: "One principle established in the cases is that it is appropriate in cases like this to pass deterrent sentences. While it can properly be said that the Defendant achieved nothing and is unlikely to be in a position even if he had the inclination to pass on secret information in the future, others must be discouraged from behaving in a similar way. It needs to be understood by those who may be tempted to pass on secrets that long prison sentences must follow even unsuccessful attempts. For those reasons I reject the Defence submission that a deterrent sentence is not appropriate. A consequence of that is that while I take into account the Defendant’s good character, it is of less significance than it would have in other cases. The Court also has to mark the Defendant’s attempted betrayal of not only his country but also his colleagues who must feel great anger at his behaviour. Those who serve their country loyally must know that those who don’t will receive proper punishment."

Welcome as sentencing remarks are, in this case they do not make clear the exact offences and they also fail to make clear what allowance (if any) was made for the defendant's previous good character.

Gary McKinnon:

There will be no further action in relation to Gary McKinnon - Crown Prosecution Service/Metropolitan Police Service statement   In October, the Home Secretary decided that Mr McKinnon would not be extradited to the USA.

New appointments:

From 1st January 2013, the new Senior Presiding Judge will be Lord Justice Gross and the Chairman of the Special Immigrations Appeal Commission will be Mr Justice Irwin.

Court of Appeal Report:

The annual report for 2011-12 of the Court of Appeal (Criminal Division) has been published.   The Court continues to be concerned by the long and short term issue of the way in which modern technology will impinge on trial by jury. There have been an increasing number of cases in which grounds of appeal against conviction have featured allegations of jury impropriety relating to the misuse of technology. This is a matter that will require close attention over the coming year to ensure the continuing integrity of the jury system.


Communications Bill:

The Joint Committee on the Draft Communications Data Bill - (labelled a "snooper's Charter") - has published a report arguing that the draft bill must be narrowed in scope.  The Committee considered that Clause 1 which gives the Home Secretary sweeping powers to order retention of any kind of communications data by any communications service provider is too wide. Only if the clause is narrowed, and safeguards put in place to prevent an abuse of power, would the privacy of UK citizens be maintained. It also says that there must be much better consultation with industry, technical experts, civil liberties groups, public authorities and law enforcement bodies before a new Bill is introduced. The full report can be read here and the press release here.

Succession to the Crown Bill:

The government has published its Succession to the Crown Bill which will alter the law so that succession does not depend on gender.  The bill also removes the disqualification arising from marriage to a Roman Catholic.  The bill also reforms the law relating to the Queen's consent being required for certain marriages.  Certain historic legislation will be amended including the Treason Act 1351 and the Bill of Rights 1688.

Family Law:

The Justice Committee has now published its report on the draft Children and Families Bill – to be introduced early 2013 – click here.

Same-sex marriage:

The Scottish government has published a draft Marriage and Civil Partnership (Scotland) Bill which is open for consultation.  South of the border, the Prime Minister is being warned that "gay marriage" will split the Conservative Party in two - The Independent 10th December.

Hillsborough:

The High Court is to hear the Attorney-General's application for new inquests for those who died as a result of the Hillsborough tragedy.  The hearing - subject to any applications from interested parties to adjourn - is set for 19th December.  Writing on Halsbury's Law Exchange, barrister Michael Uberoi questions whether the procedures adopted by the Hillsborough panel were fair.

The Hillsborough Independent Panel Report

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Many dimensions to the law ~ Supreme Court judgments of 12th December

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The Supreme Court handed down three judgments on 12th December.


X (Appellant) v Mid Sussex Citizens Advice Bureau and another (Respondents)  

Judgment PDF

Press summary (PDF)

    In the matter of A (A Child)

    Judgment PDF

    Press summary (PDF)

      Imperial Tobacco Limited (Appellant) v The Lord Advocate (Respondent) (Scotland)

      Judgment PDF

      Press summary (PDF)
        The cases were concerned, respectively, with the position of a volunteer adviser in a Citizen's Advice Bureau (CAB); whether social work records should be disclosed to the parties in proceedings concerning a child (A); and whether the Scottish Parliament was legally competent to legislate to prohibit the display of tobacco products.  The cases illustrate some of the numerous dimensions of modern day law.



        The CAB case:

        The CAB volunteer was not an employee and was not in a contractual relationship with the CAB.  There was a "volunteer agreement" - signed by both parties - setting out the nature of the role and what was expected of them.  X was asked to stop working as a volunteer in circumstances which, X claimed, amounted to disability discrimination but did the protection of discrimination law extend to a volunteer?  The Supreme Court held that it did not.  Volunteers were not within the protection offered by the either the Disability Discrimination Act 1995 or Directive 2000/78/EC (“the Framework Directive”). The court also held that the matter was not open to reasonable doubt and that a reference to the Court of Justice of the EU was not required.

        A (A child):

        The court felt that it was being asked to try to reconcile the irreconcilable!  An individual (referred to as X - but not the same X as in the previous case) had made allegations relating to sexual abuse against the child's (A's) father.  X claimed that disclosure of social service records would violate her rights under Articles 3 and 8 of the European Convention on Human Rights.  However, the child A also had rights under Article 3 and 8.  Furthermore, all of the parties were entitled to a fair trial in the proceedings - Article 6.  The Supreme Court held that the records were to be disclosed - the principal concern in family proceedings was to get at the truth.


        The Tobacco case:

        Imperial Tobacco's case against the Scottish legislation was based on the fact that, under the Scotland Act 1998, the Scottish Parliament has to operate only within its legislative competence.  It is not (yet) - unlike the Westminster Parliament - a sovereign legislature.  The Supreme Court held that the legislation in question was within the powers of the Scottish Parliament.

        Dimensions:

        These are three interesting cases and this is particularly so since, in the same day, the Supreme Court's judgments touched upon a number of dimensions (or "pervasive themes") to the law which have come about in relatively recent years.  These dimensions are:

        European Union (EU) law - the force of which is recognised in the UK by virtue of the European Communities Act 1972.  The primary sources of EU law are the Treaties entered into by the member states of the EU.  It is the Treaties which, in turn, give force to the multitude of Regulations, Directives and Decisions emanating from the EU. 

        Discrimination law - developed by Parliament but also heavily influenced by the EU

        The European Convention on Human Rights - has bound the UK in international law since 1953.  It could be referred to in court before the Human Rights Act 1998 but had "persuasive authority" only.  Under the HRA 1998 courts and public authorities in the UK have an obligation, placed on them by Parliament, to apply convention rights.

        Devolution legislation - to Scotland, Wales and Northern Ireland.

        These dimensions have become vastly important though the foundation stones of our legal system - (built gradually over many centuries via common law and equity) - remain.

        Sovereignty and the future:

        Through all these dimensions runs the sovereignty of Parliament.  EU law has force in the UK because Parliament permitted the "incoming tide to flow into our estuaries and up the rivers ..." - (Lord Denning MR - HP Bulmer Ltd v J. Bollinger SA [1974] Ch 401 at 418).  The European Convention on Human Rights binds the UK because the UK government agreed to it and the courts apply it because Parliament told them that they must.  The devolved legislatures have only the powers granted to them by the UK Parliament.

        Vital decisions, arising mainly from political tensions, face the UK.  The EU is disliked in many quarters and the considerable advantages of membership are rarely mentioned.  There are continual demands for either the UK's relationship with the EU to be revised or for complete withdrawal.

        Some of the decisions of the European Court of Human Rights are highly unpopular with Ministers and the Commission on a British Bill of Rights is due to report.  How this will redefine the UK's relationship with the Convention system remains to be seen.  Devolution is a process which, once started, appears to lead onward to further devolvement of power or even to separation.  In 2014 a referendum on Scottish independence will be held.  At this time, the outcome cannot be confidently predicted.

        Altogether, 12th December 2012 was an interesting time in the Supreme Court which prompted thoughts on where we are and where we might be heading.

        Image (top left) - Multi-dimensional space - Hilbert curves

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        Northern Ireland ~ the 1989 Finucane murder ~ Independent Review Report

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        Update: Human Rights in Ireland - A Dark and Violent Time: the report of the Pat Finucane review

        Patrick Finucane and his wife Geraldine were the parents of three children. He was a solicitor practising in Belfast. Like many in the legal profession he appeared in high profile cases that were often controversial. He acted frequently for those who were alleged to be members of the Irish Republican Army (IRA) or the Provisional Irish Republican Army (PIRA) when they were charged with terrorist offences. Yet he also acted for Protestants in similar situations. There can be little doubt that it was his role as a solicitor that led to his murder  which took place in February 1989.


        In October 2011, the Rt. Hon. Sir Desmond de Silva PC QC was requested by the Secretary of State for Northern Ireland (Mr Owen Paterson MP) to review aspects of this murder.  Sir Desmond's brief was:
        Drawing from the extensive investigations that have already taken place, to produce a full public account of any involvement by the Army, the Royal Ulster Constabulary, the Security Service or other UK Government body in the murder of Patrick Finucane.
        The Review will have full access to the Stevens archive and all Government papers, including any Ministry of Defence, Security Service, Home Office, Cabinet Office, or Northern Ireland Office files that you believe are relevant. The account should be provided to the Secretary of   State for Northern Ireland by December 2012, for the purpose of publication.



        Sir Desmond has issued his report - available via the Review website.  The statement of the Prime Minister to Parliament is available via the Parliament website or BBC 12th December 2012.  The Prime Minister has requested Ministers to report back to him regarding any lessons which can be learned and he said that the responses would be published.

        The report does not pull any punches.  Whilst it was not for Sir Desmond to make specific recommendations, he offered some lessons for the future - (paras. 109-113 here). 

        "Perhaps the most obvious and significant lesson of all, however, is that it should not take over 23 years to properly examine, unravel and publish a full account of collusion in the murder of a solicitor that took place in the United Kingdom."

        There were different views as to what amounted to "collusion" between State authorities and others.  Sir Desmond adopted the definition used by Lord MacLean in the Billy Wright Inquiry Report and not the wider definition adopted by Canadian judge Peter de Carteret Cory in his Collusion Inquiry Report.  Nevertheless, Sir Desmond stated:

        " ..... , even by reference to that narrower definition, it is clear for the reasons I outline in this Report that the threshold for a finding of collusion is met in this case."

        Sir Desmond was left "in significant doubt as to whether Patrick Finucane would have been murdered by the UDA in February 1989 had it not been for the different strands of involvement by elements of the State. The significance is not so much, as Sir John Stevens concluded in 2003, that the murder could have been prevented, though I entirely concur with this finding. The real importance, in my view, is that a series of positive actions by employees of the State actively furthered and facilitated his murder and that, in the aftermath of the murder, there was a relentless attempt to defeat the ends of justice."

        Sir Desmond had no doubt that "that agents of the State were involved in carrying out serious violations of human rights up to and including murder. However, despite the different strands of involvement by elements of the State, I am satisfied that they were not linked to an over-arching State conspiracy to murder Patrick Finucane. Nevertheless, each of the facets of the collusion that were manifest in his case - the passage of information from members of the security forces to the UDA, the failure to act on threat intelligence, the participation of State agents in the murder and the subsequent failure to investigate and arrest key members of the West Belfast UDA - can each be explained by the wider thematic issues which I have examined as part of this Review."

        In spite of the gravity of Sir Desmond's findings, he said

        "it would be a serious mistake for this Report to be used to promote or reinforce a particular narrative of any of the groups involved in the Troubles in Northern Ireland. My remit has, by its nature, involved only an examination of the actions of the British State and its agents, and loyalist terrorist organisations. I have no doubt, however, that PIRA was the single greatest source of violence during this period and that a holistic account of events of the late 1980s in Northern Ireland would reveal the full calculating brutality of that terrorist group. The abiding impression of this period in Northern Ireland must be of an extremely dark and violent time in which a lawyer could so callously and tragically be murdered as a result of discharging his professional legal duties."

        Patrick Finucane's widow remains critical of the report and considers that it is a "sanitised report."  She argues that the government simply do not wish the train of command to be exposed.  Video of her interview in The Telegraph 12th December.

        Sir Desmond's review certainly falls short of a full Inquiry which some continue to demand into this case - (for example, David Miliband - Belfast Telegraph 12th December).  However, in 2005, Geraldine Finucane urged judges to shun an inquiry if held under the Inquiries Act 2005 - see The Guardian 14th April 2005.

        The 2005 Act has been the subject of severe criticism from Lord Saville who argued that the Act made "a very serious inroad into the independence of any inquiry; and is likely to damage or destroy public confidence in the inquiry and its findings, especially in any case where the conduct of the authorities may be in question."

        Judge Cory was even more vociferous and said - "It seems to me that the proposed new act would make a meaningful inquiry impossible. The minister, the actions of whose ministry was to be reviewed by the public inquiry, would have the authority to thwart the efforts of the inquiry at every step .............. If the new act were to be come law, I would advise all Canadian judges to decline an appointment in light of the impossible situation they would be facing. In fact, I cannot contemplate any self-respecting Canadian judge accepting an appointment to an inquiry constituted under the new proposed act."

        The Inquiries Act 2005 replaced the Tribunals of Inquiry (Evidence) Act 1921The 2005 Act was enacted as part of the so-called "wash-up" process just prior to the 2005 general election.  On "Wash up" see Parliament Briefing Paper and also the House of Lords Library Note - Wash up: Bills receiving Royal Assent 1987-2005.

        In the light of the Prime Minister's statement to the House of Commons (12/12/12) it seems that a further inquiry is unlikely.  Cameron argued that such an inquiry was not likely to produce a fuller picture though it is reasonable to consider that this view is not entirely convincing.  In January 2012, the Finucane family were granted a judicial review of the government's decision not to hold an inquiry.  The final word may yet rest with the courts.

         : Postscript :

        "Nor should a lawyer be judged by the client he represents. Those untrained in the law all too often identify lawyers with their clients and consider them to be a party to the offence. Those who have studied law are aware that it is often the role, and indeed the duty, of counsel to act for an unpopular client. This must be the rule. Otherwise, unpopular but innocent individuals, who because of suspicious circumstances desperately need the services of able counsel, would be without representation."  From the  Report on Collusion by Judge Cory - 1st April 2004 at para. 1.13

        For barristers, this view is reflected in the Bar Standards Board - "Acceptance and return of instructions" - (the so-called Cab-Rank rule).



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        Press regulation ~ The Labour Party's Draft Bill ~ a new role for the High Court?

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        The Guardian has linked to a draft Press Freedom and Trust Bill published by the Labour Party.  They are keen to provide a form of statutory underpinning for an independent press regulator.  It is a short bill - as bills go!

        Clause 1 of the Bill is a guarantee of media freedom and independence.  This will be achieved by placing a duty on the Secretary of State, every Minister of the Crown and every other person exercising any public function relating to the media to uphold the freedom of the media and its independence from the executive.  Such duties are, in their nature, imprecise and they are usually enforceable only by political means - perhaps including public opinion.  Of course, the fact of including a guarantee of media freedom in a statute might be seen to have made it, effectively, something in the gift of the politicians as opposed to a basic fundamental of democracy.  The guarantee offered by Clause 1 would be in addition to the Convention rights of any person - where "convention rights" are those rights protected by the Human Rights Act 1998.

        Clause 2 is concerned with an independent and effective system of self-regulation by the press.  The word "press" has a wide definition and will include online content published by newspapers.



        The idea put forward by Lord Justice Leveson of using Ofcom as a Recognition Body appears to have met with general disapproval across the political spectrum - (discussion in the previous post Guarding the guardians - the Leveson Report and the Rubicon ).  In Clause 3, the bill comes up with a very novel idea.  The High Court would sit as a Recognition Panel with power to recognise a Press Standards Trust  (or, perhaps, trusts - since the bill does not rule out more than one).  When the High Court sits as a "Recognition Panel" the Lord Chief Justice would sit with holders of high judicial office and with assessors to be appointed by the LCJ.  The High Court will have the role of conducting reviews of any Press Standards Trust.

        Clause 4 is concerned with Press Standards Trust(s) which must meet criteria set out in a Schedule to the bill.  The clause also sets out the required reviews.  Clause 5 offers certain advantages in civil proceedings to members of press standards trusts.  These advantages appear to be broadly along the lines suggested by Leveson LJ as "incentives" to sign up to the regulator.

        This is an interesting attempt to meet Leveson's desire for statutory underpinning.  At its heart is the proposed new role for the High Court as a Recognition Body.  Here would be a new form of judicial proceeding.  Whilst the idea may have some members of the bar salivating at the prospect of hearings before what is effectively a "Recognition Court", the question has to be asked whether it is desirable that judges be handed this role.  The true role of the judges is the interpretation and application of the law in relation to actual cases coming before the courts.  It seems likely that their position could be compromised if they are required to act as a body recognising Press Standards Trusts.  If a regulatory body has to be recognised then decisions of the recognisation body would have to be subject to judicial review should questions arise - as they assuredly will - about legality.  Further questions come to mind such as whether it is sufficient to leave appointment of assessors to the LCJ; whether the court will have adequate resources to carry out the recognition task effectively and whether a door is opened to asking the court to be a recognition body for regulators in other areas.  Legislators will need to think long and hard before adopting this solution to statutory underpinning.

        Lord Justice Leveson was, of course, firmly of the view that Ofcom was the best qualified body to undertake the recognition role - see Volume 4 of his report - page 1775 where Leveson said:



        "There is no single obvious best option for a recognition body. Ofcom is by far the best qualified body for the role, and I do think it is important that the expertise that Ofcom holds is brought to bear on the recognition process. In all the circumstances:I recommend that the role of recognition body, that is to say, to recognise and certify that any particular body satisfies (and, on review, continues to satisfy) the requirements set out in law should fall on Ofcom. A less attractive alternative (on the basis that any individual will not have the requisite authority or experience and will only be occasionally be required to fulfil these functions) is for the appointment of an independent Recognition Commissioner supported by officials at Ofcom.  In either case, the decisions could be subject to appeal and would undeniably be liable to judicial review, so that ultimately responsibility would sit with the courts."

        I am not so sure that "ultimate responsibility" would lie with the courts since judicial review is concerned with legality and not merits.  However, if there was to be a merits-based appeals process then the judges would have that responsibility.

        Shami Chakrabarti of Liberty was one of the advisers to Leveson LJ.  She advised that she preferred the court to fulfill the recognition role.   His Lordship seems to have rejected that idea since in footnote 56 he said:

        Shami Chakrabarti has advised that she prefers this role to be fulfilled by the court but I do not see how the court, of its own motion, could adopt an adjudicative role in relation to certification or subsequent review. Somebody would have to be prepared to challenge either the extent to which the new body fulfilled the requirements of the legislation or the proposition that it should continue to do so. If that was Ofcom, and Ofcom raised no objection, there would be nothing upon which the court could adjudicate. Thus, the decision would become whether Ofcom was satisfied. A very similar role would be available to the court if there was an appeal from an adverse decision of Ofcom (which could allow a merits challenge rather than be limited to the more restrictive justification for intervention that is provided by judicial review


        Addendum:

        Lord Lester QC is to put forward his own suggested scheme for statutory underpinning - The Guardian - 10th December - Peer propsoes law to underpin press regulator

        Lord Lester's scheme appears to have similarities to the scheme in the Labour Party's bill with the exception that the recognising body would become the President of the Supreme Court.   As with the Labour Party bill, this must meet with the same objection that this is not the proper role of judges.

        A bill is also being drafted for the government - details are awaited.

        A further post of interest is Leveson: Ofcom, Royal Charters and Judicial Recognisers.  Or how about Sir Brian?  





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