Deprivation of Citizenship - Justice and Security Bill condemned again

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In an exclusive story, The Independent (27th February) tells of individuals being stripped of British Citizenship and then being killed by drones -  Exclusive: Secret war on enemy within - British terror suspects quietly stripped of citizenship ... then killed by drones

According to the article - 'The Government has secretly ramped up a controversial programme that strips people of their British citizenship on national security grounds – with two of the men subsequently killed by American drone attacks.  An investigation by the Bureau of Investigative Journalism for The Independent has established that since 2010, the Home Secretary, Theresa May, has revoked the passports of 16 individuals, many of whom are alleged to have had links to militant or terrorist groups.  Critics of the programme warn that it allows ministers to “wash their hands” of British nationals suspected of terrorism who could be subject to torture and illegal detention abroad.  They add that it also allows those stripped of their citizenship to be killed or “rendered” without any onus on the British Government to intervene.'

It is also alleged
that the Secretary of State is depriving certain dual nationality individuals of their citizenship when they are out of the UK.  This makes it difficult (if not impossible) for them to return and challenge the decision.

The argument here is NOT there should be no such power.  Clearly, some individuals would not merit retention of citizenship if their activities were particularly inimical to the interests of the UK.  However, the argument is about the method of exercising the power.  Surely, natural justice requires that individuals be notified of an intention to revoke citizenship so that they have a proper opportunity to make representations and, where appropriate, challenge the decision before a court.  That is the true rule of law in operation.

In fact, this is not the first time that this matter has come to public attention.  For example, on 15th August 2011, The Guardian reported that the Home Office was stripping more dual nationality Britons of citizenship.


The Immigration, Asylum and Nationality Act 2006 s.56 amended the British Nationality Act 1981 s.40 so as to enable the Secretary of State to deprive a person of a citizenship status "if the Secretary of State is satisfied that deprivation is conducive to the public good.”  The amendment to the law took effect on 16th June 2006 but, since 2010, use of the power has increased under the coalition government.

What is particularly interesting here is that the Secretary of State's power was effectively increased by this change.  Previously, the law stated:

"The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that the person has done anything seriously prejudicial to the vital interests of — (a) the United Kingdom, or (b) a British overseas territory."


See Nationality, Immigration and Asylum Act 2002 s.4 which also amended the British Nationality Act 1981.

Returning for a moment to The Independent's article.   It is said that, in 2010, Theresa May stripped a man (Mr Berjawi) of  his British citizenship and, soon afterwards, he was killed by a United States drone attack.  This, it is claimed, was within  hours of calling his wife in London to congratulate her on the birth of their first son.  His family argue that US forces were able to pinpoint his location by monitoring the call he made to his wife in the UK.

It is worth reflecting whether such allegations could ever come to public notice if the Justice and Security Bill becomes law with its provisions for closed material procedure in civil proceedings as opposed to just in particular instances such as hearings before the Special Immigration Appeals Commission.

Kenneth Clarke

The Justice and Security Bill is the subject of earlier posts on this blog and has very recently been condemned yet again - see The Guardian 28th February 2013 (Kenneth Clarke's plans for secret courts savaged by lawyers).  Some 702 lawyers - including many of the country's most eminent Queen's Counsel - have condemned this Bill as 'dangerous and unnecessary.'  For the letter from the lawyers to the Daily Mail (27 February) - see No to Secret Justice: The letter from 700 legal professionals


The controversial use of drones is the subject of a number of posts on my companion blog Watching the Law - e.g. here.

Lives of Great Men ~ Stéphane Hessel

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The death of Stéphane Frédéric Hessel (1917-2013) has been announced. By any standards, Hessel lived a most remarkable life during which he was a diplomat, ambassador, writer, concentration camp survivor, former French Resistance fighter and BCRA agent.   Hessel was born in Berlin and, in 1924, emigrated to Paris with his parents.  In 1939 he became a naturalised French citizen and the following year joined General Charles de Gaulle's group of resistance fighters.  He returned to France and organised Resistance communication networks in advance of D-Day (1944).

He was captured by the Gestapo and sent to the Buchenwald and Dora concentration camps, where he was tortured by waterboarding.  He later escaped during a transfer to Bergen-Belsen concentration camp, and went to Hannover, where he met the advancing troops of the United States Army.


He participated in the drafting of the Universal Declaration of Human Rights of 1948.


His writings include the essay Time for Outrage!   where he argued that the French need to again become outraged, as were those who participated in the Resistance during World War II.   His reasons for personal outrage included the growing gap between the very rich and the very poor, France's treatment of its illegal immigrants, the need to re-establish a free press, the need to protect the environment, the importance of protecting the French welfare system, and the plight of Palestinians.  He recommended that people read the September 2009 Goldstone Report.   After "Time for Outrage", came Hessel's new book "Engagez-vous!" where he appealed to his readers to save the environment and to embrace the positive.

It was from the horrors of the 1939-45 War that the Universal declaration of Rights was born.   The declaration was adopted by the United Nations General Assembly on 10th December 1948 and is the first global expression of rights to which all human beings are inherently entitled.  The full text is published by the United Nations on its website.

Eleanor Roosevelt asked - "Where, after all, do universal human rights begin?"  Her answer was striking in its simplicity - "In small places, close to home - so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory, farm, or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world."

The Universal Declaration begins - "All human beings are born free and equal in dignity and rights.  They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood"

Within Europe, there was a distinct move to adopt a European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention” - now simply referred to as the European Convention on Human Rights) .  It was adopted in 1950, ratified by the United Kingdom in 1951 and entered into force on 3rd September 1953.  The Convention, in common with all international treaties, binds the U.K. so far as international law is concerned.  It binds the government of the U.K. (and other "High Contracting Parties") to meet the standards set by the convention - (Article 1).  It was not until 1966 that the U.K. government permitted British citizens to petition and it was not until the Human Rights Act 1998 that the Convention effectively became part and parcel of our law.  (Since Protocol 11, the right of individuals to apply to the court is now part and parcel of the convention).

The Convention comes within the aegis of the Council of Europe - an organisation of 47 member States with a total population of some 850 million people.  The Council was formed in 1949 by, at the time, by 10 States.  The late Professor Ian Brownlie QC described it as a "sort of social and ideological counterpart to the military aspects of European co-operation represented by NATO".  

Interestingly, the U.K. was not particularly keen on the Council having a court.  Even in 1950, Sir Hartley Shawcross KC, the Attorney-General, was stating that "we should refuse to accept the court or the commission as a Court of Appeal and should firmly set our faces against the right of individual petition which seems to me to be wholly opposed to the theory of responsible government".  Perhaps lying behind such statements was a reluctance, within government, to risk colonial matters coming under international scrutiny and, at the time, the U.K. still had many colonies.  Nevertheless, the UK did accept the jurisdiction of the court and there is little doubt that the court, through its interpretation of the Convention, has had a beneficial impact on the law in the UK.

At a time when the idea of human rights appears to be under attack within the UK, the life of Hessel is a reminder of the fact that the rights of the individual have been hard fought and the fight to maintain even the status quo is by no means over.  
 
Further background information may be read at - "What was the point of the European Convention on Human Rights?"  UK Human Rights Blog 21st March 2011



In the words of Henry Wadsworth Longfellow (1807-1915)- A Psalm of Life -
Lives of great men all remind us, We can make our lives sublime, And, departing, leave behind us Footprints on the sands of time ; 

Footprints, that perhaps another,  Sailing o'er life's solemn main,  A forlorn and shipwrecked brother,  Seeing, shall take heart again.

Let us, then, be up and doing, With a heart for any fate ; Still achieving, still pursuing, Learn to labor and to wait.


Stéphane Frédéric Hessel was such a man.

Appointments to the Supreme Court of the UK

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Updated 27th February - link to other blogs and some of the 'tweets' on the appointments system

The appointments of three Justices of the Supreme Court of the United Kingdom have been announced - Number 10 and see Lord Neuberger's (President of the Supreme Court) announcement.

"The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope."

Lord Walker retires in March and Lord Hope in June.

Once the changes have taken place, the make up of the Supreme Court will be: Lord Neuberger (President), Lady Hale, Lords Mance, Kerr, Clarke, Wilson, Sumption, Reed, Carnwath, Toulson, Hughes and Hodge.  Biographies of the Justices are available.

The appointments process
is set out in the Constitutional Reform Act 2005 Part 3.   See the advertisement - Selection Commission.

There was a view that another female justice should be appointed on this occasion so as to improve the court's 'diversity.'  The 2005 Act s.27 stipulates that selection must be on merit.  Also, in making selections, the commission must ensure that between them the judges will have knowledge of, and experience of practice in, the law of each part of the United Kingdom.  Lord Hodge is a Scottish Judge and will, in that respect, replace Lord Hope.  The commission must have regard to any guidance given by the Lord Chancellor as to matters to be taken into account in making a selection.

There is a strongly felt view that the UK is out of step with the rest of the world regarding female appointees to the senior judiciary - see The Guardian 21st February for the views of Lady Hale and read her Kutton Menon Memorial Lecture 21st February.   It may yet be that England and Wales will get its first female appointee as Lord Chief Justice upon the retirement of Lord Judge.  Time will tell.

The United Kingdom appointments process does not have anything like the confirmation hearings which, in the USA, receive considerable publicity.  Such hearings test the beliefs of nominees on a whole range of issues.  In support of the need for such hearings in the USA is the fact that the Supreme Court of the USA has a key role in testing the constitutionality of Acts of Congress.  There is no such power in the UK where the courts operate within the framework of law permitted by Parliament.

Further post - Legal Week 26th February - Three new Supreme Court Justices appointed 

For a post critical of the appointments process see UK Human Rights blog - Attack of the clones: Supreme Court keeps its white male first eleven

@adamwagner1 Be careful what you wish for.New SC Justice in USA is big news and look at the mess they are in.Boring = independent.
— Paul Bowen QC (@paulebowen) February 27, 2013

@adamwagner1 Although concerns (rightly) raised that none of 3 new SCJs is female, bizarrely we don't even know if any women applied #opaque
— PJM QC (@pjm1kbw) February 27, 2013

Advances in forensic science ~ Virtual autopsy

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The Guardian 24th February published Virtual autopsy: does it spell the end of the scalpel?

Scientific advances have led experts to pioneer the 'virtopsy', a non-invasive imaging process which can reveal details conventional methods would have missed.  According to the article, CT and MRI imaging are now often deemed sufficient. In Manchester, coroners now routinely give families the option of an MRI scan to establish the cause of death and Guy Rutty, chief forensic pathologist to the East Midlands Forensic Pathology Unit  and a member of the Leicester team that exhumed Richard III, recently called for cross-sectional autopsy imaging to be made available on the NHS. "There are important religious, cultural and humanitarian benefits offered by non-invasive autopsies," he argues. "As people become more familiar with the technology, demand is expected to grow."


I have no doubt that it will not be very long before this form of evidence is presented at trials in this country.  Compare with how DNA evidence is now accepted in evidence even where the DNA profile is extracted from minute samples - (here).  However, as the article suggests, some police and legal experts are not so sure, pointing out that in complex cases a virtual autopsy can never be a substitute for the real thing, particularly where a successful criminal prosecution may depend on matching a bullet extracted from the victim to the rifling on the barrel of a particular gun. Unless and until juries become used to 3D imaging evidence, defence lawyers are also likely to exploit juries' unfamiliarity with virtopsy to raise doubts about prosecution cases.

Of course, imaging will probably not prevent the need for traditional autopsy in every case and, in the example of the bullet needed for ballistic testing, there will be a need to remove it from the body.  The article itself indicates that scanning can see through skin, bone and even soft tissue to detect bullet fragments overlooked by traditional pathologists equipped only with a scalpel and the human eye.

As for defence lawyers, it is their duty to test the evidence.  This is no reason for standing in the way of an obviously beneficial development in forensic science and one capable of preventing further distress to already distressed families.  As ever, the court will require expert witnesses to assess the results of post-mortem examination and juries will require the guidance of judges on the reception of evidence.

The question of Bail ~ Oscar Pistorius ~ Operation Weeting

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Given the Oscar Pistorius case in South Africa and, in England, the on-going Operation Weeting, bail is well and truly in the news.

Oscar Pistorius:

The world famous paralympian Oscar Pistorius stands charged in South Africa with the murder (on 14th February) of his girl friend Reeva Steenkamp.  After a 4 day hearing, a Magistrate granted Pistorius bail on a number of conditions - see CNN News 22nd February 2013   At times, the bail hearing appeared to be almost like a mini-trial of the case itself.  It appears that the prosecution and defence agree that shots fired by Pistorius killed Miss Steenkamp but Pistorius says that he thought he was firing at an intruder.  For those interested in the South African judicial process, see World Criminal Justice Library Network.  An interesting article is The Independent 22nd February - The Pistorius case casts a lurid light on a corrupt and crime-ridden South Africa.

Operation Weeting ~ Phone hacking:

Operation Weeting is the investigation
by the Metropolitan Police into allegations of 'phone-hacking' by journalists.  The investigation has been underway for just over 2 years having commenced on 26th January 2011.  A considerable number of arrests have been made and suspects placed on 'Police bail' for very lengthy periods prior to the Crown Prosecution Service deciding whether to actually bring charges. Certain 'charging decisions' were taken in July 2012 - CPS.  Mr Neil Wallis, formerly deputy editor of the News of the World, has just been informed that he is not to be charged after spending 21 months on Police bail.  Mr Wallis described that period of time as 'hell for his family.'  See CPS 22nd February 2013.

Keeping individuals on bail for very lengthy periods prior to charge appears to be an undesirable feature of the modern criminal justice process.  It seems that the famous declaration of Magna Carta - to no one will we sell, to no one will we refuse or delay, right or justice - is nowadays more honoured in the breach than the observance.  The late Tony Hancock would perhaps think that Magna Carta did die in vain!

An outline of the law on bail:

If a person is arrested for an imprisonable offence, what is the law relating to bail?  The following is a basic outline only of the convoluted law in this area.

The power of the Police to place a suspect on conditional bail is quite a recent innovation.  It arrived with the Criminal Justice and Public Order Act 1994 Part 2. See, in particular, section 27 which amended the Police and Criminal Evidence Act 1984 s.47.  Even a brief glance at PACE section 47 is more then sufficient to highlight the complexity of the law given the numerous 'cut and paste style' amendments which have taken place.  This does little credit to the law.  The CPS website helps to explain the situation - CPS Bail.   Once a suspect - let's call him D - is charged, he will appear at the Magistrates' Court.  At this stage, D will either be held in custody or he will be on bail.  If on bail, he might be on either bail with conditions or on unconditional bail.

At one time, the Magistrates' Courts conducted 'committal hearings' for all cases where trial would take place in the Crown Court.  For offences triable ONLY in the Crown Court (i.e. indictable only offences such as murder, rape etc), committal proceedings were replaced by a 'sending' procedure set out in the Crime and Disorder Act 1998 s.51.  In very serious cases, these short hearings before Magistrates often attract considerable publicity.   Committal proceedings are now being phased out for all offences making their way to Crown Court - Ministry of Justice 5th November 2012. The power to replace committal proceedings for 'either-way' offences is in the Criminal Justice Act 2003 s.41 and Schedule 3 which deals with allocation of cases and sending to the Crown Court.

The law on bail is in the Bail Act 1976.  Here is yet another example of complex legislation, heavily amended by the usual cut and paste method.

Basically, D starts with an entitlement to unconditional bail - Bail Act 1976 section 4.  This entitlement to unconditional bail may be lost if one or more of the exceptions in Schedule 1 Part 1 of the Bail Act applies.  Matters such as substantial grounds to believe that if granted bail D would fail to surrender or commit an offence or interfere with witnesses are among the grounds for refusal of bail.  

When considering whether any of the exceptions to bail applies, the court must consider various specified matters set out in the Bail Act 1976 Schedule 1 Part 1 para. 9 - including:

(a) the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it),

(b) the character, antecedents, associations and community ties of the defendant,

(c) the defendant’s record as respects the fulfilment of his obligations under previous grants of bail in criminal proceedings,

(d) except in the case of a defendant whose case is adjourned for inquiries or a report, the strength of the evidence of his having committed the offence or having defaulted ....


If the court concludes that there are substantial grounds to believe that one or more of the exceptions applies then the further question is whether the concerns can be met with conditions (conditional bail) or whether a remand into custody is required.


Where a court is considering whether to grant bail, the hearing will be nothing like the Pistorius hearing in South Africa.  A bail hearing is not a mini-trial.  The court will consider only the risks which D might present if granted bail.  In cases where D has a considerable criminal record, including perhaps a history of failure to surrender and/or committing offences when on bail then this will count against him on any bail application.

Note: The Bail Act 1976 has been further amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 section 90 / Schedule 11 - (the amendments came into force on 3rd December 2012)

Bail in murder cases:

The law about bail in murder cases was amended by the Coroners and Justice Act 2009 sections 114 and 115 - (in force 1st February 2010).  Where a person is charged with murder, section 115 provides that bail can only be granted on the order of a judge of the Crown Court.   Section 115 applies to murder only.  It does not apply to attempted murder or conspiracy to murder. The power of magistrates to consider bail in murder cases, whether at first hearing or after a breach of an existing bail condition, was removed.

In murder cases, the Coroners and Justice Act 2009 added a further exception to the right to bail.  It is that bail may not be granted to someone charged with murder unless the court is of the opinion that there is no significant risk that, if released on bail, that person would commit an offence that would be likely to cause physical or mental injury to another person. 

Sufficient has been said in this post to bring out some of the problems as well as the complexity of the law - (not helped by convoluted, heavily amended legislation).  The law's complexity is a matter for serious concern particularly at a time when representation for accused persons has become more problematic especially in the earlier stages of cases.

The Jury

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At Southwark Crown Court, the jury in the Vicky Pryce case was discharged since it was unable to reach a verdict despite the trial judge (Mr Justice Sweeney) being prepared to accept a majority verdict-  (The Guardian 20th February).  A retrial was ordered.  Ten questions sent by the jury to the judge have received huge publicity and some commentators have used these to attack the whole idea of trial by jury - e.g. Simon Jenkins The Guardian - Juries? It's time they went the way of the ducking stool.  Unfortunately, certain of the questions posed by this particular jury appear to show a distinct lack of understanding and, as Joshua Rozenberg points out (The Guardian 21st February), might have damaged confidence in the jury system.  A good antidote to such thoughts is to listen to John Cooper QC and Kirsty Brimelow QC discussing the jury - BBC 21st February 2013 - Lawyers debate whether trial by jury is the best option.

In serious cases, I have no doubt that the jury remains, in Lord Devlin's memorable phrase, the Lamp that shows that freedom lives.

Read Trial by Jury - Marcel Berlins The Guardian 24th May 2005; Explaining our Law and Legal System ... No. 4 ... Juries  ; 'The Little Parliament' (Sally Lloyd-Bostock and Cheryl Thomas) and How the Law Works - Chapter 8 - The Jury - Dr. Gary Slapper.

Further excellent articles are:  Felicity Gerrity - The Barrister - Jury Trial - Don't fix what isn't broken.; David Allen Green - New Statesman 21st February - What Pryce justice?  ; Pete Weatherby QC of Garden Court North Chambers - On Jury Trials. and John Cooper QC - Shadowofthenoose blog.

Theresa May to 'curb' judges on immigration ~ Some Observations

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Immigration is of considerable concern both within the country and to government and it is obvious that population growth places additional pressures on infrastructure and resources.  The accession to the European Union of Romania and Bulgaria (from 1st January 2007)  has helped to fuel the concerns given the EU's rules relating to freedom of movement for workers.  Quotas applicable to those countries expire at the end of 2013 with fears of large numbers then arriving in the UK and, according to the German Association of Cities, importation of crime.  There is also considerable immigration from non-EU nations.  The government set a target of reducing annual net migration to below 100,000 by 2015.  It appears unlikely that this target will be achieved though figures show a reduction - The Guardian 29th November 2012  Much political capital therefore exists in this area and it is little wonder that politicians seek to generate headlines - as did Home Secretary Theresa May - Mail on Sunday 17th February - It's MY job to deport foreigners who commit serious crime

May's article in The Mail on Sunday:

May's article is
hard-hitting and highly critical of the judiciary.  It also contains major inaccuracies.  May argues that, 'unless there are very exceptional circumstances, foreigners who have committed serious crimes in this country, or who have attempted to cheat the immigration system, should be deported from Britain.'  Too often, this was not happening because 'some of our judges appear to have got it into their heads that Article Eight of the European Convention on Human Rights, the ‘right to family life’, is an absolute, unqualified right.'

This is very disingenuous.  There cannot be a single member of the judiciary who actually thinks that Article 8 (Right to RESPECT for family life) is an absolute right.  It is plainly a qualified right - the qualifications being in Art. 8(2):

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

May thought that possibly the problem for the judges was that Parliament had not explicitly stated how the right to  family life could be restricted. In June 2012, she asked the House of Commons to debate her amendments to the immigration rules.  Those amendments stated that in the usual case, any foreign national who was convicted of a serious crime should be deported, regardless of whether or not the criminal had a family in the UK.   The Commons adopted the changes.  At the time, Mrs May made it clear that she would introduce primary legislation should the Commons’ acceptance of the amendments not be sufficient to persuade judges to change the way they interpreted Article 8.

The problem for Mrs May with this line of argument is that, whilst there was a debate in the Commons, it is a well established constitutional rule that a vote in a single House of Parliament does not make law.   The ultimate law maker for the UK is 'The Queen in Parliament.'  


It may well be that Mrs May will bring forward legislation.  Once a Bill is enacted by both Houses , Royal Assent follows and an Act is created.   The Act is then applied by the judiciary.  However, the judiciary has been commanded to apply the European Convention on Human Rights when it interprets Acts of Parliament - (Human Rights Act 1998 s.3)

It is open to Parliament to legislate contrary to the European Convention on Human Rights though very clear words would be needed to make such an intention clear.  Such a course would require Ministers and members of Parliament to face squarely up to their responsibilities and not seek to blame others.  Perhaps that is too much to ask of an ambitious politician?

Other material:

Human Rights Act 1998

Immigration rules  It is worth noting that para. 2 of the Introduction to the rules states -  Immigration Officers, Entry Clearance Officers and all staff of the Home Office Immigration and Nationality Directorate will carry out their duties without regard to the race, colour or religion of persons seeking to enter or remain in the United Kingdom and in compliance with the provisions of the Human Rights Act 1998.  (The emphasis is mine).  Given that the staff are required to operate that way, then why complain when the judges do so?
 
Law and Lawyers 11th June 2012 -  Theresa May's latest lecture: immigration rules. 

Upper Tribunal (Immigration and Asylum Chamber) - Iuazu (Article 8 - New Rules) -  (Judgment) - a full reading of the judgment is essential for a detailed understanding of the approach taken by the Tribunal to the Immigration Rules.  Note para. 85 - Taking all the facts found below in the claimant’s favour into account, it is clear that the Secretary of State’s decision is in accordance with the rules and the applicable policy and is not unlawful.  In our judgment it is taken in support of a legitimate aim of protecting public order and the rights and freedoms of others, is a  proportionate  and fair balance in all the circumstances and thus a justified interference with Article 8 rights. 

Iuazu is a Nigerian citizen.  Where EU citizens are concerned, there are particular rules - see Deportation cases.

The Izuazu case was considered by Rosalind English on the UK Human Rights blog - Another critique of the new immigration rules' codification of Article 8.   English concludes by noting that the Tribunal did not wish to be 'boxed in' by the new rules but would decide cases under what it understands Article 8 to require.


UK Human Rights blog - Why the Home Secretary's attack on human rights judges is like a Bakewell tart

UK Human Rights blog, Dr Mark Elliott (Reader in Public Law, Cambridge) argues that the Home Secretary needs a 'reality check' about human rights. 

Magistrates Courts ~ Unacceptable delays

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Justice Minister Mr Damian Green is seeking to improve the performance of the Magistrates Courts - Ministry of Justice - Damian Green: unacceptable delays in Magistrates Courts.   He is right to do so but, let's remember, there have been several quite recent 'initiatives' aimed at the same thing: Criminal Justice: Simple, Speedy, Summary (CJSSS); Making it Count (in Youth Courts); Stop delaying Justice and also considerable emphasis on Case Management.  

The Defence Brief blog recently drew attention to some of the problems - Courts are a Farce.  There is no reason to suppose that the inefficiencies referred to are all that unusual and the Justice Minister would do well to read it. 

Anyone inclined to think that inefficiency is a recent innovation
should read a post on The Magistrates' Blog in May 2007 which drew attention to problems with the Crown Prosecution Service - CJSSS+CPS=SFA.

Since the Courts Act 2003, the Magistrates Courts have undergone profound changes in the way they are administered.  These may not have been entirely for the better.  Of course, as is so often the case, change has been piled on change with the system having to embrace court closures on a huge scale together with loss of experienced staff - a process which has probably not ended.

A further point well worth noting is that most of the problems lie with the professionals and NOT with the volunteer Justices of the Peace - those judicial beasts of burden who continue to serve so well.  Attend any Magistrates' Court and the bench is always there to start hearings at the appointed time but so rarely is the professional side entirely ready.

Criminal offences are dealt with either by out of court methods (e.g. cautions, penalty notices etc) or by the Magistrates Courts or, for serious cases, by the Crown Court.  The reality is that the vast majority of offences fall to be disposed of by the first two methods.  The Magistrates Courts are therefore of critical importance to criminal justice and they merit better attention than they appear to be receiving.

The Mid Staffordshire NHS report

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On 9 June 2010, the Secretary of State for Health, Andrew Lansley MP, announced a public inquiry into Mid Staffordshire NHS Foundation Trust. The public inquiry was formed under the Inquiries Act 2005, to look at the operation of the commissioning, supervisory and regulatory bodies responsible for the Trust.   Robert Francis QC was appointed to Chair the Inquiry.  The website for the public inquiry can be found at: www.midstaffspublicinquiry.com.   Mr Francis delivered his report on 5th February 2013 (here).  The Press release stated:

'The Inquiry has been examining the commissioning, supervisory and regulatory bodies in the monitoring of Mid Staffordshire hospital between January 2005 and March 2009. It has been considering why the serious problems at the Trust were not identified and acted on sooner, and identifying important lessons to be learnt for the future of patient care. It builds on Mr Francis’s earlier report, published in 2010 after the earlier independent inquiry on the failings in the Mid Staffordshire NHS Foundation Trust between 2005 and 2009. The Inquiry identifies a story of terrible and unnecessary suffering of hundreds of people who were failed by a system which ignored the warning signs of poor care and put corporate self interest and cost control ahead of patients and their safety.'  (Link to earlier inquiry added).



Mr Francis made 290 recommendations designed to change this culture and make sure patients come first by creating a common patient centred culture across the NHS.   An interesting question is: how did health care professionals and NHS managers ever come to lose a 'patient centred culture?'  I am not certain of the answer or answers to that but suspect that various financial and other targets imposed by successive governments have much to do with it.  Large entities like the NHS operate within the climate created by governments.  There seems to be one certainty.  The culture will not change in the way Mr Francis (and the general public) would wish unless there is a change of senior management within the NHS..

Responsibility:

Despite the numerous failings identified by Mr Francis, it seems that nobody in the NHS is carrying any personal responsibility.  For example, Sir David Nicholson continues to cling to his post - Daily Mail 16th February 2013.   (For information about Sir David see Department of Health and his wikepedia entry). 

It is reported that the Police are considering the Francis report - Staffordshire Hospital scandal: Police to review evidence (BBC 15th February 2013).  In principle, where deaths have occurred NHS Trusts could be charged with Corporate Manslaughter - (Corporate Manslaughter and Corporate Homicide Act 2007).  (For more on this offence see CPS website).  NHS Trusts are 'corporate bodies' - NHS and Community Care Act 1990 s.5. 

Some of the legal issues which might arise are identified in an article by solicitor Andrew Bennett appearing on Evershed's website - Eversheds, Solicitors 15th June 2010

Whistleblowing:

Another emerging feature in all this relates to so-called 'whistleblowers' who. it appears, have been 'forced' to sign 'gagging clauses' to prevent them revealing their concerns.   The following links give some idea of the problem:  NHS whistleblowers are being gagged, says consultant paediatrician (Guardian 13th December 2011); The NHS whistleblower and the £500,000 'supergag' (Bureau of Investigative Journalism 29th June 2012); Whistleblowers: gagged by those in power, admired by the public (Guardian 19th October 2012); Leveson and a gag on whistleblowers (Daily Mail 14th February 2013) and Gagging NHS whistleblowers will threaten lives (The Times 15th February 2013). 

Current legislation  relating to 'whistleblowing' is the Public Interest Disclosure Act 1998 which inserted Part IV A into the Employment Act 1996.  Protection is offered to 'workers' (as defined by the Act) in relation to 'protected disclosures.'   It appears that some form of review of this legislation is to take place - The Guardian 15th February 2013.   Section 43J of the Employment Act 1996 appears to be particularly relevant to 'gagging' clauses:

Contractual duties of confidentiality.

(1) Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure.

(2) This section applies to any agreement between a worker and his employer (whether a worker’s contract or not), including an agreement to refrain from instituting or continuing any proceedings under this Act or any proceedings for breach of contract.

My knowledge of employment law is not extensive enough to be able to say how this section is being 'dodged' but 'dodging' appears to be commonplace.   If money has been paid under a contractual term which turns out to be void then the question arises as to whether the money can be recovered.  When they arise, such problems can be productive of complex litigation.

See also Stevebarclay.net - Why public interest disclosure is not working for NHS whistleblowers 

UK Human Rights blog - Mid Staffs Inquiry Report: Human rights abuses need human rights solutions - Sanchita Hosali

Dizaei loses appeal against conviction at second trial

03:53 0 Comments

The case of R v Dizaei was considered on this blog on 29th June 2010 and 13th February 2012. 

In February 2010, Ali Dizaei (who held the rank of Commander in the Metropolitan Police) was sentenced to 4 years imprisonment for offences of misconduct in public office and perverting the course of justice - see Daily Mail 9th February 2010.    He appealed and the Court of Appeal (Criminal Division) ordered a retrial on the basis of new evidence - judgment.  In February 2012, Dizaei was convicted and, this time, sentenced to 3 years imprisonment (less 

Dizaei's appeal was heard in May 2011 and a retrial was ordered on the basis of new evidence.  In February 2012, Dizaei was convicted at the retrial.  Saunders J sentenced him to 3 years imprisonment (with 15 months already served to be allowed for).  The sentencing remarks of Saunders J are available on the Judiciary website.  

Dizaei appealed
against conviction at the second trial but his appeal was dismissed by the Court of Appeal (Criminal Division) Lord Judge CJ, Wyn Williams and Globe JJ - judgment at Dizaei v R [2013] EWCA Crim 88.

The incident which gave rise to these convictions occurred on 18 July 2008. At that time the appellant was a career police officer who had attained the very senior rank of Commander in the Metropolitan Police. The case against him was that he abused the power and authority of his office to arrest and detain and then make false complaints of threat and assault by Wad Al-Baghdadi (WAB) (otherwise known as Malechi or Meladi) on spurious grounds. WAB, a dishonest man of bad character, was engaged by the appellant in 2008 to use his expertise in computing to create a web-site for him. The incident on 18 July represented the culmination of the dispute which developed between them over the work done and the absence of payment for it.

The successful appeal following the first trial was based on emerging evidence that, contrary to the way in which the case had been presented to the jury, WAB was not a man of good character and in particular, that he was not the honest, decent young business man portrayed by the Crown. Accordingly, given that the jury had approached his credibility under a complete misapprehension about his true character, and therefore started their assessment of the two main protagonists as if they were both men of equally good character, the conviction was quashed and the new trial ordered.

At the second appeal, Dizaei argued a single ground of appeal.  WAB's bad character was in part put before the jury but Saunders J had ruled that there were three additional areas of material relating to his character which were inadmissible under the Criminal Justice Act 2003 s.100(1).  Dizaei's argument was that the judge's decision in relation to each of these three areas of evidence was flawed, that the evidence should have been adduced and that exclusion of the evidence made his conviction unsafe.

The Court of Appeal disagreed with Saunders J in relation to one of the matters which had been excluded but went on to hold that the excluded evidence did not begin to undermine the powerful body of evidence independent of WAB which served to prove that, .... , the guilty verdict was fully justified.   The conviction was safe.

Dizaei was dismissed from the Police for a second time in 2012 following conviction at the retrial - Telegraph 15th May 2012.

Letters Patent ~ Royal Charters ~ Press Regulation

10:42 0 Comments

Two of the ways by which the Crown exercises its powers are the issue of Letters Patent and Royal Charters.

Letters Patent:
 
Letters Patent (Open Letters) are used in many areas.  In May 2012 the Ministry of Justice referred to 92 types of Letters Patent.  They are a type of legal instrument in the form of a published written order issued (technically by Her Majesty), granting an office, right, monopoly, title, or status to a person or corporation.   Certain appointments must be made by Letters Patent - e.g. the Judges of the Supreme Court (Constitutional Reform Act 2005 s.23).  Queen's Counsel are also appointed by this method.

The Guardian 11th February reports the case of Rohan Pershad, a barrister and Queen's Counsel (QC) who specialised in fraud cases.  Pershad has been convicted of cheating the public revenue in that he failed to pay over £620,000 in VAT.  See the HMRC Press Release. An interesting question is whether the Letters Patent issued to him may be revoked thereby removing his rank.  This appears
to be an uncertain area and is discussed on the UK Criminal Law blog where attention is drawn to the Marcus Einfield case in New South Wales.  In order to avoid a driving ban, Einfield lied on oath about who was driving his car.  The Governor of New South Wales revoked the letters patent appointing Mr Einfeld a QC on 26th November 2009.   (See also - Re Einfeld [2009] NSWCA 255 ).

Pershad could be disbarred and therefore cease to be a barrister - (the Bar Standards Board website details the process) - but the rank of QC appears to be a separate matter - a rank granted by the Crown.  It would certainly seem strange if that which may be given by the Crown may not also be removed.  There are examples of Letters Patent being revoked in some areas.  In 1983, Letters Patent constituting the Office of Governor General of New Zealand were issued and these revoked similar letters of 1917 and 1918. Pershad is to be sentenced on 26th February - (Guidelines via CPS)

A recent example of Letters Patent being issued is at Royal Central 9th January

Royal Charters:

The Leveson Inquiry recommended statutory underpinning of press regulation.  The key features of Leveson's scheme are outlined here.   As an alternative to Act of Parliament, Ministers have been considering using a Royal Charter - see the draft charter at Dept. for Culture, Media and Sport - Lord Justice Leveson report - regulatory system for the press.  The draft charter looks very much like a Bill (15 clauses and 4 Schedules) but it is a very different legal animal.  A Bill has to undergo all the legislation stages in both House of Parliament and then receive Royal Assent.  This is not the case with the making of a Royal Charter.

Royal Charters are made (technically by Her Majesty) on the advice of the Privy Council.   The use of charters dates back to Anglo-Saxon times and, typically, are used to grant special status to incorporated bodies.  There are in excess of 900 chartered bodies.  In 2012, the charters issued included the Chartered Institute of Legal Executives.  The oldest extant charters seem to be those creating the Universities of Cambridge (1231) and Oxford (1248).

The draft charter for press regulation creates a 'Recognition Body' which will have the powers set out in the charter to, for example, decide applications for recognition from regulators.  IF the government decides to adopt this route to press regulation then the charter will be drawn up by Ministers and presented to the Privy Council for approval.  The draft charter includes an amendment procedure (Clause 9) involving votes in Parliament though it also seems that the Privy Council could simply revoke the charter (with or without replacement) - (Clause 2). 

This method of press regulation may leave rather too much power in the hands of the coterie of Ministers forming the Privy Council at any one time.   The Privy Council website (here) notes that a body, once incorporated by Royal Charter, will be subject to a significant degree of Government regulation of its affairs.

See The Independent 12th February - MPs hopeful of a halfway deal on press regulation - where some of the criticism of the charter method is set out.

Special Measures in Criminal Proceedings

03:26 0 Comments

Update 27th March:  Brewer was sentenced to a total of 6 years imprisonment

Frances Andrade was a very talented violinist.  As a child she studied at Chetham's School of Music, Manchester.  A teacher at the school was Michael Brewer who, on 8th February, was convicted at the Crown Court Manchester (His Honour Judge Rudland and a jury) of five counts of indecent assault on Frances Andrade during the 1970s when she was at the school and aged 14-15.  Brewer's former wife was also convicted of indecently assaulting Andrade.  See 'Choirmaster Michael Brewer guilty of sec abuse'

The case against Brewer emerged years later as a result of Andrade's friend (Jenevora Williams) informing the Police. (Andrade had told Williams about what Brewer had done).  Consequently, Andrade was called as a witness for the prosecution.  As a complainant in this type of case, Andrade was qualified to benefit from special measures (Youth Justice and Criminal Evidence Act 1999) but, as permitted by s.17(4) of the Act, she declined them and chose to give her evidence in person before the court.  She endured a rigorous cross-examination by Brewer's counsel Kate Blackwell QC. Between giving her evidence and the conclusion of the trial, Andrade took her own life.  Her family are particularly distressed at the conduct of the cross-examination which, they suggest, contributed to her state of mind - The Guardian 8th February 2013 - "Sexual abuse victim killed herself after giving evidence at choirmaster trial."  and The Guardian 10th February.  The fact of Andrade's death was withheld from the jury until after the verdicts had been returned.

Every defendant
is entitled to a fair trial and to have his or her case properly put to the jury.  There are three stages to the examination of a witness: examination in chief; cross-examination and re-examination.  Each of these stages must be conducted according to legal rules and there are also professional and ethical limits.  The cross-examiner will seek to both elicit evidence supportive of his version of the facts in issue and cast doubt upon the witness's evidence.  The trial judge's role is to ensure fairness and adherence to the required rules and limits.  The judge must prevent any questions which in his opinion are unnecessary, improper, or oppressive.  Cross-examination is a powerful weapon entrusted to counsel and it should be conducted with restraint and with a measure of courtesy and consideration to the witness (per Sankey LC - Mechanical and General Inventions v Austin [1945] AC 346, HL at 360).  In relation to the cross-examination of Andrade, the trial judge has said that counsel for the defence had been "perfectly proper and correct in her examination of all the witnesses in this case."  It is not the purpose of this post to question that view in any way.  Judgment on such an issue must be left to others and could, in any event, only be given with full knowledge of all the details of the trial.

This case is not the first time that questions have been raised about the conduct of cross-examination - see Milly Dowler family's court ordeal 'appalling' says victim czar Louise Casey - Telegraph 24th June 2011.   The case is bound to raise questions as to how cases of this type are handled.  For example, see the issues raised by former Solicitor General Vera Baird QC - The Guardian 9th February.  

(Added 18th February) - Criminal Bar Association - Nigel Poole QC - Counsel's duty explained - 'No system of justice worth its name – be it criminal or civil – should prevent the rigorous scrutiny of evidence. Barristers who are wholly independent of the state and of any vested interest are an essential part of the administration of justice. It would be harmful to justice if, for fear of public opprobrium, barristers drew back from asking difficult, embarrassing, even hurtful questions ...... ' 


For many witnesses attendance at court is highly daunting and may be a frightening experience.  "Special measures" exist to assist vulnerable and intimidated witnesses (VIWs)  to give their best evidence in court by relieving some of the stress associated with giving evidence. Special measures apply to witnesses (whether prosecution or defence) but they do not apply to defendants,.

Legislation for special measures may be traced back to an Advisory Group chaired by His Honour Judge Pigot (Report of the Advisory Group on Video Evidence 1989).  The 1999 Act introduced a range of special measures.  Changes have been made by the Coroners and Justice Act 2009 sections 98-103 which came into force on 27th June 2011.  (See Ministry of Justice Circular 2011/04 ).  The legislation is open to various criticisms since it is needlessly complex and unduly inflexible - (see, for example, Adrian Keane The Modern Law of Evidence 8th ed)


Screening from the accused (section 23), evidence by live link (s.24), taking evidence in private (s.25), removal of wigs and gowns (s.26), video recorded evidence in chief (s.27), evidence via an intermediary (s.29) and aids to communication (s.30).  Crucially, the 1999 Act s.28 provides for video recorded cross examination or re examination but this section has not been brought into force.  The reason for this is not clear and there have been calls for its implementation - e.g. The Guardian 12th May 2011 - Children and the law: state failing to help young witnesses


Not all witnesses qualify for special measures.  Vulnerable witnesses are defined by section 16 YJCEA as:

• All child witnesses (under 18); and
• Any witness whose quality of evidence is likely to be diminished because they:
  •  are suffering from a mental disorder (as defined by the Mental Health Act 1983);
  • have a significant impairment of intelligence and social functioning; or
  • have a physical disability or are suffering from a physical disorder.

Intimidated witnesses are defined by section 17 YJCEA as those suffering from fear or distress in relation to testifying in the case. Complainants in sexual offences are defined by section 17(4) as automatically falling into this category unless they wish to opt out.

Witnesses to certain offences involving guns and knives are similarly defined as automatically falling into this category unless they wish to opt out.

Victims of domestic violence, racially motivated crime and repeat victimisation, the families of homicide victims, witnesses who self-neglect/self-harm or who are elderly and/or frail might also be regarded as intimidated.

Being eligible for special measures does not mean that the court will automatically grant them. The court has to satisfy itself that the special measure or combination of special measures is likely to maximise the quality of the witness's evidence before granting an application.

CPS Special Measures

Ministry of Justice - Table of Eligibility for Special Measures

Crown Prosecution Service  for Victims and Witnesses.    


A report was prepared for the Home Office in 2006 - Are special measures for vulnerable and intimidated witnesses .... (Authors Mandy Burton, Roger Evans and Andrew Sanders).  This research suggested that, at one level, special measures are a clear success. Most VIWs who used them were pleased they did so.  However, it was noted that there was a failure to identify large numbers of witnesses as VIW.  Among those actually identified as VIW, there was a 'huge unmet need' - e.g. in some instances, the wrong measures were sought or provided. This was largely due to lack of resources and poor advice and information given to VIWs (often because of lack of knowledge and understanding on the part of police officers and prosecutors).

The Nuffield Foundation has been conducting research on the Impact of special measures on jury decision-making

Scotland:

In Scotland, special measures apply by virtue of the Vulnerable Witnesses (Scotland) Act 2004

Measures similar to those in England and Wales are possible but with the interesting addition of the witness being able to give evidence before a Commissioner prior to the actual trial.   The Commissioner procedure may be helpful in some circumstances:

(a) Where the witness may be regarded as a vulnerable witness and there is a risk that the witness's evidence may be affected due to the passage of time depending on their age, or due to increasing physical or mental ill-health or disability;

(b) Where a case is likely to be adjourned and there is a risk that the delay (or repeated delays) will either:

• cause undue or intolerable levels of distress, fear or psychological trauma to the witness; or
• delay the witness's physical or psychological recovery from any alleged incident regardless of therapeutic intervention.

Scotland also has very good material on the internet for witnesses - Witnesses in Scotland (a website which covers both criminal and civil proceedings) and Being a Witness  Similar material ought to be made available for all parts of the United Kingdom.

Highly recommended links:

Francis FitzGibbon QC - Nothing like the Sun Blog - The Best defence

I recommend a reading of Understanding Sex Crime Trials by Barrister Felicity Gerry and here  This takes the reader through a typical trial scenario with a view to demonstrating the various issues involved in securing the conviction of the genuinely guilty but also ensuring the the accused has a fair trial.

The Defence Brief - The Future of Rape Trials

Other links:

Witness Charter

Crown Prosecution Service Meeting with Witnesses

Special Measures meetings between the CPS and Witnesses - Practice Guidance

CPS - Provision of therapy for vulnerable and intimidated adult witnesses prior to a criminal trial - Practice Guidance

Ministry of Justice - March 2011 - Vulnerable and Intimidated Witnesses - A Police Service Guide

Nottingham University and Leeds University - Special Measures in Rape Trials: Exploring the Impact of Screens, Live Links and Video-Recorded Evidence on Mock Juror Deliberation

NSPCC Report 2009 - Measuring Up - authors Joyce Plotnikiff and Richard Woolfson

Driving resulting in death

09:13 0 Comments

The excellent Crimeline has drawn attention to two recent decisions of the Court of Appeal (Criminal Division) concerning causing death by dangerous driving and causing death by careless driving.   Both were appeals against sentence.  Both are, in their ways, tragic cases.

The first case demonstrates that poor health can be the factor which makes the driving dangerous and also shows that old age is not, in itself, a factor which prevents the imposition of a custodial sentence.


Death by dangerous driving – R v Cole – The appellant was a man of age 86 who suffered poor health and, in particular, had suffered poor eyesight since 2007.  In the Crown Court,
he pleaded guilty to causing death by dangerous driving (Road Traffic Act 1988 s.1) and a separate count of making a false statement to obtain a licence.  The appellant , who was NOT driving fast, ran down a man who was walking across the street.  The injured man died about a month later.   The appellant had not met the required eyesight standard for driving since 2007. In 2009 he had been strongly advised not to drive any more. Notwithstanding this, he had submitted applications to the DVLA in 2007 and again in April 2010 to renew his driving licence.  On each occasion he had signed the required declaration (applicable to those aged 70 and over) that he did not suffer from a condition which would affect his fitness to drive and that he could read a number plate at the specified distance. He was sentenced to 18 months imprisonment and disqualified from driving for 6 years (AND until an extended re-test was passed).

The mere fact of his chronological age did not, in the court’s judgment, militate against the imposition of an immediate custodial sentence of the length that he received. Having regard, however, to the medical evidence before the court and in particular recent reports from the prison, the court considered that it was wrong in principle that the offender should remain in custody any longer. The sentence was quashed and substituted by a sentence of 51 weeks suspended for 2 years, with a 12-month supervision order. LINK .  [The disqualification and re-test requirement remains in place].

The second case concerns a man who suffered a hypoglycemic episode when driving.

Death by careless driving – R v Rigby – The appellant (R) - a man of exemplary character - pleaded guilty to causing death by careless driving (Road Traffic Act 1988 s2B).  R had Type 1 diabetes.  His wife had received surgery for breast cancer and this placed him under considerable stress which, according to expert medical opinion, contributed to a very high glucose level in his blood on the day.  He had been insulin dependent for 33 years but, due to the abnormally high sugar level, he took extra insulin (above his usual intake) some time before driving with the result that a hypoglycemic episode occurred when he was driving.

The court was not persuaded that the usual sentencing guidelines were applicable to this type of case since the culpability lies in the failure to take precautions before driving, rather than in the driving itself which in this case could be termed unconscious. Thus the judge was not bound by the guidelines.  Held: 16 months reduced to 4 (immediate release) due to the exceptional nature of the case. LINK  [The 10 year disqualification remains in place].

The court made a point of stating (my emphasis):  'We underline that people with this condition have a duty to take care and to comply with the advice given by the DVLA.' 

I have done a considerable amount of internet searching this afternoon.  Regrettably, I have not been able to find any link to the advice referred to by the court.  If any reader has a link and lets me know I will be more than happy to add it to this post.  (Please send link by via a Comment to the post).  The DVLA website refers the reader to Gov.uk which has THIS information which appears to be concerned with the completion of Form DIAB1.

Information:

Much information regarding Diabetes is available at NHS,  Diabetes UK and at Diabetes.co.uk  

InDependent Diabetes Trust - Hypoglycemia and driving

Gov.uk - Diabetes and Driving

IMPORTANT - Informing DVLA