Sgt. Danny Nightingale ~ Military justice under the microscope (1)

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Duke of Lancaster's Regiment

Update 1st July - Court Martial to start hearing evidence

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Sergeant Danny Nightingale will be on trial - for the second time - at the Court Martial sitting at Bulford Military Court Centre, 1st July 2013 at 10:00 am, before HHJ Blackett, Judge Advocate General - for the background to this case see Law and Lawyers 21st November 2012. 

In November 2012, the Court Martial Appeal Court altered Sgt. Nightingale's sentence to 12 months detention to be suspended for 12 months - judgment of the Court Martial Appeals Court - Lord Judge CJ; Fulford and Bean JJ - 29th November 2012.   Sgt Nightingale was told he would be freed immediately and was also granted leave to appeal against his conviction on the grounds that his guilty plea had been made on the basis of unsound advice. 

In March 2013, Sgt. Nightingale's sentence was quashed - (judgment - Lord Judge CJ; MacKay and Sweeney JJ)- and a retrial ordered.  The
conviction was quashed because of an unsolicited sentence indication by the trial judge - Judge McGrigor (Assistant Judge Advocate General) - which placed undue pressure on the defendant to plead guilty.  The Lord Chief Justice (Lord Judge) said:

'Having reflected on the facts in this case, we conclude that the appellant's freedom of choice was indeed improperly narrowed. Accordingly, the plea of guilty is in effect a nullity. It will be set aside. The conviction based on the plea will be quashed.'

 On 1st May, The Guardian reported that the retrial is set for July and that, at a preliminary hearing relating to the retrial, it had been ruled that there was no abuse of process in emails allegedly showing that prosecutors acted improperly.

For more on the Court Martial system see Ministry of Justice.  The Court Martial system was reformed by the Armed Forces Act 2006 Part 7 - (Explanatory Notes).    The main purpose of the Act was to replace the three separate systems of service law with a single, harmonised system governing all members of the armed forces.

It has been reported that Sergeant Nightingale is to be discharged from the Army on medical grounds and yet this retrial is set to continue despite the Army authorities being urged to discontinue the prosecution.  A further report was that Sgt. Nightingale might have to sell his home to pay for the costs of the retrial.   ITV has a collection of media articles relating to the case and to Sgt. Nightingale.

In a number of cases before the European Court of Human Rights, the court-martial system has been challenged on the basis of Article 6 (Fair trial) of the European Convention on Human Rights.  These cases resulted in Parliament making important changes to the system.  Links to the cases appear below.

Interestingly, it is HHJ Blackett who is to try Sgt. Nightingale.  Judge Blackett recently commented about certain aspects of the court martial process - BBC Radio 4 Law in Action.  Judge Blackett - who is the Judge Advocate General - told the BBC that the rules for military courts looked unfair and could be challenged in future cases.  Judge Blackett has written extensively on the court martial system - see Rant on The Court Martial and Service Law  and here.  

The title 'Judge Advocate General' is, in itself, of interest.  The post is a judicial one and is certainly not an advocate.  Some of the history is here.    

An interesting look at the Court Martial following the Armed Forces Act 2006 is available at KCH Garden Square.


Selected Cases that have Considered the Service Justice System:

27th June - The Backbench Legal Aid debate

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Updated:

The Lord Chancellor 'is trying to weaken the golden triangle of Parliament, the judiciary and the Executive that underpins the rule of law and the framework of a good society—our society. These proposals are toxic to society and should be withdrawn.' - Valerie Vaz MP

The House of Commons held a backbench debate today (27th June) on Legal Aid Reforms.  The debate may be read HERE and there is no substitute for reading it in full.  The contributors to the debate generally accepted that the criminal justice system cannot be immune from cost savings but the Price Competitive Tendering model put forward in the consultation was castigated.  Numerous excellent points were made including some alternative and preferable ideas for saving money.  Other major concerns were: the 12 month qualification period for immigrants: the proposals to remove legal aid from most prison law matters and the attack on judicial review.  There was  deep concern that such a major change might be made - (as government currently intends) - by secondary legislation. 

The e-petition remains important ... please consider signing it. 

On Wednesday 26th June, there was also a short Westminster Hall debate about Legal Aid in rural Wales - HERE.  Ar ddydd Mercher 26 Mehefin, cafwyd dadl yn Neuadd San Steffan byr am Gymorth Cyfreithiol yn y Gymru wledig

Jeremy Wright (Parliamentary Under-Secretary Ministry of Justice), defending the government's position, indicated that £320m will have been taken from legal aid by 2014-15 as a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).  Changes under
that Act came into force on 1st April 2013.  The reforms under the government's latest proposals would remove a further £220m by 2018-19.  However, as the debate indicated, serious injustice to many is the likely outcome if that saving is achieved in the ways put forward in the consultation. 

Wright also stated that 16,000 responses had been received to the consultation.


The debate was secured, via the Backbench Business Committee, by Sarah Teather MP (Liberal Democrat - Brent Central) supported by 31 members of all parties.  Over 30 members spoke and only two - (Robert Neill MP and Jeremy Wright MP) - unequivocally favoured the government's position on Price Competitive Tendering (PCT).

Hopefully, the majority views expressed in this debate would also be expressed by a majority of ALL MPs if they are allowed to debate and vote on these proposals.  After the debate, the government should be in no doubt that a serious rethink is required - as the following extracts from the debate clearly demonstrate.

Some Extracts from the debate:

Sarah Teather MP - Children who may be subject to care orders, children with special educational needs, victims of domestic violence, victims of trafficking, asylum cases, those in immigration detention, those facing immediate homelessness, and those with mental health issues are just a few of the very vulnerable groups that are identified. I am afraid that people in all those categories may be denied legal aid if they fail to pass the residence test.

Sarah Teather MP - I want to remind the Minister—as one former Minister to a current Minister—that being judicially reviewed is annoying. I remember that; it is very frustrating when we are taken to court, but we have to be humble enough to accept that Ministers, and others in public authorities, sometimes make the wrong decisions, and we also have to be man enough to accept the risk that some of the things people will JR us about may not seem to be particularly significant. That is what we need in a free society; that is the price we pay for making sure citizens are able to hold the state to account and for preventing overbearing state power from interfering with people’s right to live in the way they choose.

David Lammy MP - Judicial review is so important. Most people in this country feel that public authorities are benign until they have a disabled child, or one with special needs, and seek to challenge the local authority or the school, until they have an elderly relative in a care home and abuse goes on in that care home, or until they live in the path of High Speed 2 or Crossrail. There are people in this country who would seek to use judicial review and it is a travesty that this Government would run a coach and horses through it for £6 million.  The hon. Member for North West Norfolk (Mr Bellingham) mentioned savings and savings can be made in other ways. Tagging a defendant costs £13.41 in Britain, but £1.22 in America. Let us find the savings through cheaper procurement. Let us find the savings in the court system. Let us not rip up a democratic, constitutional system that we have had for so many years and that has served us well.


Karen Buck MP - As is often the case with this Government, we are finding that cuts—the £350 million taken off the legal services budget—do not always mean savings. As we were warned, we are already seeing an increase in the number of litigants in person appearing in court. The Bar and judges warned that it would lead to additional costs.

Karen Buck MP - On the “Transforming Legal Aid” agenda, while it is true that a Labour Government would have faced difficult and not necessarily popular choices about the justice system and legal aid, one of the elements that we regard as critical is maintenance of the ability for the accused to have a choice of lawyers. There is a risk that the proposed changes will lead to a loss of specialist services and quality services driven by choice, and potentially to miscarriages of justice.

I want to share with the House a letter I received from one of my constituents in the run-up to today’s debate. It is from Anne Maguire, one of the Maguire Seven convicted in 1975 of possession of explosives together with her husband, two teenage sons, brother and brother-in-law and a family friend. She received a sentence of 14 years. She and all her relatives and friend were innocent and their convictions were quashed by the Court of Appeal in 1992.

She says:




Karl Turner MP -  a solicitor who attends at a police station in the middle of the night is often dealing with extremely serious allegations—sometimes allegations of murder. I have been in that position on a number of occasions, representing clients who are alleged to have committed murder. The solicitor is there on his or her own, whereas the police have advice from the CPS and many officers to assist them. The solicitor is facing all that pressure and is not being paid properly, even under the current arrangements, for his or her expertise.Of course we accept that in these straitened economic times, cuts have to be made to Departments across the board, but these plans are massively ill conceived. They will, in my respectful submission, irretrievably damage the criminal justice system.

Karl Turner MP - There seems to be a suggestion that the Labour Government were particularly generous to criminal lawyers. We were not. Criminal lawyers have sustained cuts to fees from successive Governments. The current proposals are far reaching and, if they go through, they will be horrifically damaging to the criminal justice system. PCT will inevitably lead to the market being dominated by the big multinationals—the usual suspects—G4S, Serco, Capita, and probably the new entrants to the market who have absolutely no experience, Stobart.

The plans are also unconstitutional. They dismiss the notion that an accused might have the right to choose a solicitor. The cavalier ignorance of the Lord Chancellor was exposed when he remarked:

Not only does he dismiss everyone requiring legal advice as a criminal before they have even been charged or had a trial, but he apparently has the naiveté to think that those who come face to face with the criminal justice system are not capable of judging the competence of their own lawyers. This is the “too thick to pick” point. The notion is completely contrary to attitudes applied to, say, health services in this country or education, where choice is deemed essential.

Rosie Cooper MP - There is of course scope to tackle inefficiency within the justice system and to make the necessary changes while ensuring that the core elements of a sound justice system remain in place. Instead, what we see is a slash-and-burn approach to legal aid—I, other hon. Members, legal professionals and constituents have problems with it—that will absolutely rewrite the fundamental principles and values of the modern British justice system. The reforms attack the principles of fairness, justice and, fundamentally, hope.
Local justice has been a foundation stone of this country’s criminal justice system for years. Many small and medium-sized legal firms are the cogs in that local justice machine, alongside the police, magistrates, law courts and the Crown Prosecution Service. They often provide the link between each of those organisations that makes our justice system a strong and comparatively fair one.

Under the proposals, in Lancashire we would see a 70% reduction in legal aid services, which would leave just 14 firms covering a population of over 1 million. It would lead to advice deserts spreading across the country, especially in more rural areas such as West Lancashire. Local firms will be forced to close as they will be unable to compete with the large entities that are entirely commercially driven, which will be the only ones able successfully to bid for contracts. The only incentive for obtaining a contract will be to spend as little as possible on each case and to get them over and done with as quickly as possible, not to see that justice is done. There will undoubtedly be an increase in the number of miscarriages of justice, and righting those wrongs will be very costly.

Simon Reevell MP - as a Conservative, I do not like the removal of choice from the market. It does not really matter that the individual concerned happens to be a defendant in criminal proceedings; after all, at that stage he or she is presumed innocent until proven guilty—we do still have that. The removal of choice in the selection of representation concerns me. The idea that the state will prosecute, that it will contract those who defend, and that those contractors are likely, under these proposals, to employ the defence advocate, is worrying. I have dealt with cases that have involved issues of security and of taking on the Government, for example in relation to what the previous Government did in Iraq. I wonder whether someone working for an organisation that had a contract with the Government would feel as able as I did to take on those issues and seek to expose them in the course of a trial, regardless of consequences, as a member of the independent Bar.

Valerie Vaz MP - It is not clear what the Lord Chancellor is trying to achieve, other than to undermine the legal system. The Lord Chancellor does not appear to understand that if people are given access to legal services, they do not need to go to court—if that is where he wants to make the savings. Perhaps he wants to make the savings in court time. However, as a result of these proposals, court time will be filled by people who can afford going to court. In certain circumstances, companies can offset their legal costs against tax and even get the VAT back. An ordinary citizen cannot do that.

Judicial review is an important branch of law. Of course, the Executive do not like it because it holds the Executive to account—it looks at how public bodies come to a decision. Given the legislation enacted since 2010, it is no wonder that the Government want a neutered judicial review. No one can predict the outcome of a case, so having to make a judgment that there is a 50% chance of winning to receive legal aid, is absurd. Evidence has to be heard from both sides and a decision is made based on arguments that are made before an impartial judiciary. Lawyers are obliged to advise a client whether a case has merits before they proceed.

Valerie Vaz MP - The Lord Chancellor has no mandate from the people, and no moral, legal or financial argument to continue with this course of action. He is tampering with one of the important checks and balances of the state. He is trying to weaken the golden triangle of Parliament, the judiciary and the Executive that underpins the rule of law and the framework of a good society—our society. These proposals are toxic to society and should be withdrawn.

David Davis MP - I cannot believe that a Conservative Government are going to mandate how many companies and providers there should be. I know of no example in the world where a Government mandated the number of companies and then improved the efficiency of provision—not one. This is a Soviet proposal that I do not want to see. I do not mind if there are better ways of finding efficiency—as has been said, that is what we must find—but please do not lay down laws like that.

Seema Malhotra MP - Access to justice must not be determined by the ability to pay. That is one of the most important safeguards we have in a state that believes in liberty and fairness.

Steve Brine MP - During the consultation, a practising barrister in my constituency sent me what I thought was a useful case study—and one that I hope will show the human side of this point. Under the current system, he explained, a young man with profound mental health problems was again arrested for having a knife in a public place. My constituent, an experienced solicitor, whom the young man knew and trusted, was called. He had the defendant’s previous psychiatric reports on file and even his psychiatrist’s number in his phone. The defendant was questioned by the police and advice was tendered. A number of appearances in the magistrates court led to the case being committed to Crown court, at which point my constituent was instructed, as he had been before, and updated psychiatric reports were obtained.

Following various pre-trial hearings to sort out reports, a two-day trial was held, at the end of which the young man was acquitted and further psychiatric treatment was ordered by the judge. Happily, according to my constituent, the young man is now on the right medication, and has a diagnosis of Asperger’s. He even has a job for a couple of hours a week. My and my constituent’s concern is that under price competitive tendering, the duty solicitor, who almost certainly would not know the defendant, might well advise a guilty plea, with an alien barrister, either in the magistrates court or at first appearance in the Crown court. My constituent tells me that the fee is the same for a guilty plea as it is for a short trial, so what is the incentive to have a trial?

Elfyn Llywd MP - The consultation process in general so far has been nothing short of a sham allowing professionals only six weeks to get up to speed with proposals that will fragment the professional world they inhabit. To add insult to injury, the Government intend to introduce these reforms by secondary legislation without proper scrutiny by Parliament. This is scandalous. Unless these plans are stopped now and quickly, there will be no turning back.

Sir Edward Garnier MP - If the good barristers leave because they cannot afford to remain within the criminal legal aid system, we will not get the silks and we will not get the circuit judges and Crown court judges. In that way, we will see a diminution in the quality of justice that we all expect to receive.

 ........... and exchange between Caroline Lucas MP and Elfyn Llywd .................

Caroline Lucas: The right hon. Gentleman will know that the clause in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 that guaranteed the right of the individual to choose was deemed to be incredibly important and now is being completely ignored. Does he agree that there is a very real risk that the public simply will not have confidence in a system where the defendant’s lawyer is chosen by the very state seeking to convict them?

Mr Llwyd: That is a very important point, because it was considered vital in the civil context and yet curiously not even regarded as being of passing interest in the criminal context, where people risk their livelihood, liberty and everything else.

Comments made recently by the Justice Secretary in the Law Society Gazette make one rather suspicious that there is something ideological in the calculated removal of choice. He said that he does not believe

or to paraphrase—as we have heard—they are “too thick to pick”. These condescending comments display a sinister lack of compassion for the vulnerable in society and a cavalier disregard for these individuals’ best interests.

Debbie Abrahams MP - On the proposals being an attack on access to justice for all regardless of means, we must ensure that such access is protected. Even the Government’s Treasury Counsel has roundly condemned the proposals. What concerns me particularly is the fact that they will not require primary legislation, but will be pushed through in secondary legislation. That is an insult to Parliament.

 Opportunities for rehabilitation should be offered, and prisoners should have access to the law when that does not happen.   [Comment:  Good point here in  that the cuts to legal aid for prisoners run contrary to the rehabilitation ideas being put forward by the government in the Bill].

Sadiq Khan MP -  If it helps, may I say that as the Justice Secretary is running scared and is not here today, and as the Government are failing to allow a vote on this issue, the Opposition will use some of the limited parliamentary time available to us to hold an Opposition day debate on it?  [Comment: a significant commitment here by Labour's Shadow Justice Minister].

Jane Ellison MP - Price competitive tendering has been discussed, and I was particularly struck by the point made by the hon. Member for Redcar (Ian Swales) about the potential for end-to-end vested interests. That is particularly concerning and gave us all pause for thought. I also fundamentally agree with the points made by Conservative colleagues about price competitive tendering, and in particular the comments of my hon. Friend the Member for Dewsbury (Simon Reevell). It just does not feel like a naturally Conservative solution to a problem potentially to drive choice and competition out of the market. That just does not feel like what we should be doing.

Meg Hillier MP - The system is often painted as dealing with criminals but, as my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams) said, people are innocent until proven guilty. A local solicitor in my area has pointed out that more than 50% of the people who rely on legal aid with whom he deals are innocent and are neither charged nor cautioned. This is an attack on the innocent, as well as on those who appear in the picture painted by the Government.

David Burrowes MP - When we look at those that I and others have represented over the years, we can characterise them as the good, the bad and the ugly. Choice ensures that the most heinous, wretched criminal is represented and has a choice of lawyer. The most worthy of saints also gets the choice of lawyer, without judgment or conditions. That is an important principle of which we can be proud. It means that, when dealing with the regular clients that I have represented over the years, we can enter a timely guilty plea, which is efficient; we can achieve a sentence that takes account of their mental health needs or drug needs and go the extra mile to make sure that they get drug rehabilitation.

We must have choice, yes to protect the vulnerable but also to ensure quality, to ensure that there is a client base that is protected and maintained but also to ensure mutual trust and good will in the system.

Lyn Brown MP - A 12-year-old boy was excluded from school and his local authority placed him in the pupil referral unit. After a couple of days he stopped going, because the PRU was in an area where a different gang was based and he was scared. For two years, the boy received no education: the local authority occasionally organised meetings with the family and occasionally threatened to take his mother to court. Understandably, she wanted her son to be educated, but she understood his fears.

A local charity recommended a solicitor, who made repeated attempts to resolve the problem with the local authority. They were ignored. Eventually, the mother issued judicial review proceedings. They were ignored. An order was made for the matter to be expedited, with a date for the authority to set out what it steps it was taking to provide the boy with an education. That order finally galvanised the authority into action to avoid judicial review. A package was worked out, with good will, between the council, the PRU and the local college—a right and welcome outcome. Under the Government’s proposals, the case would not have received legal aid, as it was settled before the permission stage.


Greg Mulholland MP - As the mood of the House has made clear, there is an acceptance across the Chamber that reform is necessary and cost savings must be found in the legal aid budget, but there is an overwhelming view that although change may be necessary, the ones proposed are very clearly the wrong changes. Coalition colleagues have been keen to point out from the Conservative Benches that in their opinion this is not a Conservative reform and not one that they can support from their own philosophy. I understand and sympathise with that.

Let me say from the Liberal Democrat Benches that these changes are not liberal. They undermine the principles of liberal democracy and the justice system that is a key part of it. They threaten the liberal values of justice and fairness that our justice system should be based on. I am therefore saying clearly that as Liberal Democrats we should oppose them.


Jeremy Corbyn MP - What we are approaching, if we are not already there, is a system in which if someone is poor, destitute, marginalised and up against it, they will get no help and no justice and will continue to suffer. Legal aid is fundamentally important in a democratic, civilized society in which a person can have their day in court to get a verdict in their favour or otherwise.

Nia Griffith MP - The real threat that these proposals pose to justice is that people may be tempted to plead guilty rather than innocent. That is extremely worrying; it really is a recipe for miscarriages of justice. As for people trying to represent themselves, we should think about how that will clog up our courts, which will be completely overwhelmed. With the current staffing levels in courts, people already have difficulties in trying to get information, and they will not be able to cope.

Caroline Lucas MP - When the Bill that became the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was being debated, I genuinely thought that things could not get much worse—that the Government would not go any further in what appears to be a crusade to dismantle universal access to justice—but I was wrong. Since then we have had the deeply worrying Justice and Security Act 2013, and now we have these proposals for secondary legislation that will deny access to legal aid to some of the most vulnerable and disadvantaged in our communities. Like many other hon. Members, I have been lobbied extensively by my constituents who share my passion about the importance of a justice system that supports the right to a fair trial. Yet that right is being fundamentally undermined, with precious few opportunities for MPs to scrutinise the details or to object.

I want to end with a few words about the judicial review process. Like many other hon. Members, I am deeply concerned about these proposals utterly undermining the JR process, which is one of the most important ways of achieving public body accountability. Environmental cases, social welfare cases, and cases about library closures, schools and so on were all done by way of judicial review. A consortium of non-governmental organisations working with refugees and migrants has commented:  “In our opinion the proposed change would result in an increase in unlawful decisions relating to access to services with disastrous effects on the individual and/or an increase in the number of individuals who seek to ask the court to intervene without the assistance of a properly qualified representative. This is not in the interests of justice.”


Sadiq Khan MP - Many miscarriages of justice have happened because of an absence of proper representation for defendants: the Birmingham Six, the Guildford Four, the Maguire Seven and others. Because of legal aid, victims have confidence that genuine perpetrators of crime are prosecuted and punished. Victims of crime want certainty that the true perpetrator has been found guilty. They do not want the wrong person pleading guilty or being found guilty, and they certainly do not want the guilty walking the streets. Legal representation for defendants is crucial in minimising miscarriages of justice. These proposals introduce perverse incentives that could unbalance the criminal justice system, with representatives being paid the same whether someone pleads guilty or stands trial.

The Justice Secretary may not have turned up this afternoon, but he has sought to portray legal aid solicitors  and junior barristers as fat cats. He knows that the profession has a public relations problem, and he has sought to exploit that in the media to further his own political aims. That is all a tough veneer that masks the real impact of his proposals. Local providers, often high street firms that know their local authorities, courts, police and probation, will be replaced by big corporations, maybe even the same ones that run prisons, probation and tagging—conflicts of interest at every turn. Strangely for a party that claims to be pro-enterprise and pro the high street, this will sweep away hundreds of small and medium-sized enterprises. High street firms will go under, an unintended consequence that will have an impact on the diversity of the judiciary.


Financial background:

The Chancellor of the Exchequer announced budgets for 2015-16 for all Government Departments. The Ministry of Justice's agreed budget requires a reduction of around £700 million to be delivered by the Department in 2015/16 in addition to existing savings.  This will affect all of the Ministry of Justice areas of responsibility.

Gemma's blog - UK Justice: 100,000 - On 28th June 2013, Rachel Bentley’s Save UK Justice e-petition hit 100,000 signatures.  If you haven’t signed the petition yet, do it now! http://epetitions.direct.gov.uk/petitions/48628

Mid-week news roundup

02:57 0 Comments

* Stephen Lawrence / Undercover Policing and execrable behaviour:

The BIG story (so far) of the week takes us back to the Stephen Lawrence murder on 22nd April 1993.  On 23 June 2013, an interview with Peter Francis, a former under-cover police officer, was published in The Guardian.  In the interview Francis disclosed that while he was working undercover within an anti-racist campaign group in the mid-1990s, he was constantly pressured by superiors to "smear" the credibility of the Lawrence family so as to put an end to campaigns for a better investigation into Stephen's death.    After the revelation, Theresa May, the UK's home secretary pledged to be "ruthless about purging corruption from the police" (see her statement in Parliament), and Prime Minister David Cameron ordered Police to investigate the allegations, saying of them that he was "deeply worried about the reports".   Chief Constable Mick Creedon, who is leading Operation Herne, an ongoing inquiry into Metropolitan police undercover work against protest groups, said he would investigate the allegations as part of the inquiry

In February,
the Home Affairs Committee published their interim report about Undercover Policing.  This refers to Operation Herne which commenced in October 2011 and seems set to run until 2016.  The interim report noted that Herne had already cost £1.25m.

Stephen's father, Neville Lawrence, has called for a Judicial Inquiry into police spying and he is unhappy that this additional investigation has been tacked on to other inquiries.

Since 2011, some 12 to 15 inquiries have been created to look into different aspects of undercover operations.   This is highly unsatisfactory and the case for a fuller examination of the whole process is surely becoming unanswerable. The Home Affairs Committee interim report noted - at para 10 -

Undercover operations carried out by police forces and others are governed primarily by the Regulation of  Investigatory Powers Act 2000 (RIPA). The Home Office Code of Practice on Covert Human Intelligence Sources (CHIS) made under the Act provides detailed rules about a range of subjects related to the use of undercover officers.   An undercover operation must be necessary and proportionate to the intelligence dividend that it seeks to achieve and it must be fully compliant with the European Convention on Human Rights. Measures should be taken, wherever practicable, to minimise interference with the private and family life of those who are not the subject of the investigation (known as "collateral intrusion"). The Code of Practice specified procedures for authorising undercover operations, managing undercover officers in the field, and record-keeping, among other things. As well as RIPA, undercover operations will be governed by a range of other legislation such as the Human Rights Act 1998, the Police and Criminal Evidence Act 1984 and the Prosecution of Offenders Act 1985. Undercover officers are not above the law, and may themselves be held criminally liable for offences committed.

Despite this strong framework of statutory regulation, supplemented by guidance from ACPO, the Surveillance Commissioners and others, there is an alarming degree of inconsistency in the views of Ministers and senior police officers about the limits of what may and may not be lawfully authorised.

* Supreme Court

It has been announced that Baroness Hale is to be the next Deputy President of the Supreme Court.  She will assume those duties on 28th June and be sworn in at a later date.  The retiring deputy is Lord Hope and, in the Scotsman 10th June, he reflected on his life in the law.   Lord Hope's Valedictory Remarks are available via Supreme Court Youtube.  

The latest judgments are:

26 June 2013

R v Brown (Appellant) (Northern Ireland)

• Judgment (PDF)
• Press summary (PDF)

Abela and others (Appellants) v Baadarani (Respondent)

• Judgment (PDF)
• Press summary (PDF)

North and others (Appellants) v Dumfries and Galloway Council (Respondent) (Scotland)

• Judgment (PDF)
• Press summary (PDF)

Forthcoming appeals will be considering the withholding of life sustaining medical treatment and another case will look at conscientious objection to abortion.

* Birmingham Law Centre closes due to lack of legal aid:

There was particularly depressing news with the closure of the Law Centre in Birmingham.  Since 1st April, legal aid has been axed in many legal areas where law centres did much of their work.  On the funding for Law Centres see Geoffrey Bindman's article on Halsbury's Law Exchange 15th April 2013  - Legal aid cuts: Law Centres must not be allowed to die.  Bindman wrote:

'It has often been pointed out that the denial of legal assistance is a false economy. Judges have frequently warned of the extra court time needed to deal with complex cases where the litigant is unrepresented, and the social costs of unresolved disputes will often fall on other public agencies. Such research as has been done in this field has demonstrated that legal advice and representation saves public money. So one would expect that government funding for legal aid and for law centres would remain a priority, and it should. The legal profession too must make a substantial contribution. It has a unique status which is often overlooked. It is there to uphold the rule of law and the principle of equality before the law.

There is a professional commitment by lawyers to promote equal access to justice, ...  That commitment clearly needs to be reinforced by an obligation to contribute financially.

So there are three sources of funding which need to be pursued to maintain the law centres. They are: public funding, both central government and local government; funding by the profession, and there is a third: funding by selling paid services to the public. This last has only recently become available by a relaxation in the regulations which previously prohibited law centres from charging fees.'

Bindman then pointed out that some law centres have embarked on fee-paying work but, he concluded: 'It is bound to be limited unless law centres stray far from their traditional expertise. Personally I would like to see the law centres remain a free public service but in these hard times it may be that this source of income cannot be ignored.'

Law Centres Network

On Twitter, retired Lord Justice of Appeal Sir Henry Booke said:

@LawCentres @BhamLawCen The news that Birmingham Law Centre has had to close is a symbol of the way things are now going backwards - fast
— Henry Brooke (@HenryBrooke1) June 25, 2013

* Court Privatisation:

Joshua Rozenberg - The Guardian 25th June - Privatising the courts: if anyone needs advice it's the judges.  The judges may be willing to give a very conditional agreement to considering some form of privatisation but there are many concerns.  Previous post on this 29th May.

* Offender Rehabilitation:

The Offender Rehabilitation Bill commenced its progress through Parliament in the Lords and the Bill is now at Report Stage.  The Bill, as first published, has 22 clauses and 7 schedules.  It makes new provision about the release, and supervision after release, of those offenders sentenced to less than 2 years imprisonment.  It also deals with the extension period for extended sentence prisoners.

The law relating to Community Orders and Suspended Sentence Orders will be amended.  In particular, the Criminal Justice Act 2003 will be amended in relation to certain 'requirements' which may be part of a Community Order.

There is a view that placing ALL released offenders under supervision in the community will result in some 13000 more people being jailed every year - Telegraph 24th June.  All those imprisoned for over 1 day to less than 2 years will be subjected to supervision requirements when released from prison.  It is in the nature of things that there will be breaches and these will frequently lead to the offender being returned to prison though, it should be noted, breaches can also be dealt with by a fine or unpaid work requirement or a curfew.

A further significant change is that supervision of offenders is likely to become the responsibility of privatised providers of such services rather than the Probation Service.

The House of Lords report stage is reported here.  Lord Ramsbotham: 'I wonder whether the real reason why the Secretary of State is unwilling to reveal an objective assessment of the impact of his proposals is that he dare not, because they are so undermined by the sheer scale of the risks as assessed by his own officials in the Ministry of Justice. He cannot have welcomed the chairman of the Justice Select Committee in the other place saying last week that the Ministry of Justice, responsible for carrying out his ambitious plans, displayed naivety about the contracting out of key services and lacked the capacity to know what it was doing.'

Update 26th June - Parliament - House of Lords Report Stage completed.

* The Court Martial

The Judge Advocate General has raised concerns about the court martial system because members of the armed forces can be convicted of serious offences by a majority of just one member of a military 'jury'.  The 'jury' is actually a 'board' usually consisting of five officers from other units.  A simple majority suffices to obtain a conviction.  Also, Board members have a say in sentencing a convicted person although the judge has the casting vote.

* Call for Royal Commission:

The Chair of the Bar Council (Maura McGowan QC) has called for a Royal Commission on the Criminal Justice System - Law Society Gazette 24th June.   McGowan QC has called for a root and branch review which would create a system that works more efficiently and cheaply while avoiding any repeat of the mistakes of previous reforms.   It is probably unlikely that McGowan's wish will be granted.  As the Law Society Gazette leader commented - Commissions are usually lengthy - 2 to 4 years.  The present Secretary of State for Justice - an ambitious politician keen to make his mark - would be most unlikely to agree to any reforms being left until long after he has left office.  Whilst the suggestion has merit, it might have resonated with a generation of politicians that is long defunct.  It looks like a long shot in today's climate.

* Legal Education:

The Legal Education Training Review (LETR) has reported.  As pointed out in The Guardian 26th June, not much has changed.  The report is available here.   There are 26 recommendations. 

Magistrate reprimanded for expressing view about cannabis

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The Daily Mail has taken up the story of a magistrate in Manchester who, so it is reported, has been pressured to resign despite an official investigation concluding that a reprimand was appropriate  - Magistrate is forced to quit ... for telling drug dealer in dock how cannabis had killed her brother.

When sentencing an offender for a drugs related offence, the magistrate spoke to the offender about her brother's addiction and subsequent death.  This prompted a complaint which was eventually duly investigated by the Office for Judicial Complaints (OJC) and. on 17th June 2013, a short statement of the outcome was issued.  Precisely why the outcome of the official investigation did not conclude this matter is a matter for some concern.  Of what value is that process if it is true that others take it upon themselves to act on their own opinions?

The
Constitutional Reform Act 2005 gives the Lord Chancellor and the Lord Chief Justice joint responsibility for the system for considering and determining complaints about the personal conduct of all judicial office holders in England and Wales and some judicial office holders who sit in Tribunals in Scotland and Northern Ireland.  The OJC was set up on the 3rd April 2006, to handle these complaints and provide advice and assistance to the Lord Chancellor and Lord Chief Justice in the performance of their joint role.

The Telegraph 24th June also reported on this story but there is no mention of the magistrate being pressured to resign at any local interview - A magistrate has been reprimanded for highlighting the dangers of cannabis ...

The dangers of cannabis:

Opinion varies considerably in this area.  The NHS has published The Dangers of Cannabis. 

The law:

Controlled drugs are classified under the Misuse of Drugs Act 1971.

In 2008, the Labour government reclassified cannabis as Class B - see Misuse of Drugs Act 1971 (Amendment) Order 2008.  (The history of its classification is of interest).   In 2005, the Advisory Council on the Misuse of Drugs published their view of cannabis which was against the idea of reclassification. 

Sentencing Guidelines for Drug Offences are issued by the Sentencing Council and see Law and Lawyers 27th April 2011 for a look at the consultation which led to the latest guidelines.

Drugs are at the heart of certain other offences such as Road Traffic Act 1988 s4 (Driving, or being in charge, when under the influence of drink or drugs).

Parliament:
In December 2012, the Home Affairs Committee recommended a Royal Commission to examine drug policy.  A response from one Home Office Minister was that the government would not legalise cannabis.

Other Links:

Advisory Council on the Misuse of Drugs

Addendum:

Daily Mail 30th June - It cost one brave JP her job ........

NO to PCT - Backbench Legal Aid debate coming up 27th June

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I do not deny that government needs to save money though I seriously question some of its priorities (e.g. Trident replacement, ring-fencing of the huge overseas aid budget etc).  The government's latest legal aid proposals are to be debated in a backbench debate on legal aid in Parliament on 27th June.

The President of the Supreme Court has had his say; the Attorney-General appears to have concerns and says that he is trying to ensure that the Ministry of Justice (which owns legal aid policy) acts in a fully informed way.  It also seems that the Deputy Prime Minister has questioned the plans.  There are vast numbers (13,000 or more) responsible responses to the legal aid consultation opposing the proposals though quite a number suggest alternative ways in which money could be saved.  Meanwhile, 'Justice' Ministers such as Lord McNally - (guaranteed seat in the Lords for life) - continue to brazen things out in public. 

Pressure your MP to attend the debate and to say NO to the Price Competitive Tendering (or PCT) aspect of these plans.  This will
cut drastically the number of solicitor's firms offering criminal legal aid work.  Large privatised providers of legal aid will enter the market and will be handed millions in public money to offer representation but it will be at the lowest cost to them possible so that their profits are maximised.   Very low pay will be offered by these firms and they will only attract poor quality or inexperienced lawyers to work for them.  There will be a fixed fee per case whether you plead guilty or not guilty.  Their only concern will be the profit to be made from a big throughput of cases.  Apart from the very rich, the right of the citizen to choose a solicitor to represent them will, in practice, have gone - probably for ever.  A lawyer will be allocated to the case and a defendant will not usually be able to change to another.

The Law Society has prepared a briefing for MPs - why not forward it to your MP to make sure he has the chance to see it?

Save Justice -  The government is changing legal aid!  It will affect you!   This explains why.

*** Please sign the e-petition on Legal Aid - the aim is to try to persuade Parliament to hold a full debate with Ministers present about the government's plans to slash legal aid.  Why should any Minister be allowed to seriously alter the rights of the British citizen just by stroke of his pen? 

Challenger tanks; Snatch Land Rovers; Human Rights and good old common law

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The judgment of the Supreme Court of the UK in Smith and others v Ministry of Defence has upset the Secretary of State for Defence who is now talking about entering into a derogation from the European Convention on Human Rights or even a complete withdrawal - Daily Mail Saturday 22nd June.   Here are the judgments to which the Minister takes exception:

Smith and Others (Appellants) v The Ministry of Defence (Respondent)
Ellis and another (FC) (Respondents) v Ministry of Defence (Appellant)
Allbutt and others (FC) (Respondents) v The Ministry of Defence (Appellant)

• Judgment (PDF)
• Press summary (PDF)

At the heart of these cases is
(1) the training offered to troops who are to be deployed to a combat situation and (2) the standard of equipment provided.  Will a legal action lie against the Ministry of Defence if either are considered to be inadequate?  If so, on what legal basis?  A preliminary question is whether the protection of the European Convention on Human Rights extends to troops operating abroad under the command of the British military authorities.

The ultimate outcome of the Supreme Court hearing is that all the claims may proceed for trial. The Supreme Court has NOT held that the government is liable.  It may be but that will depend on the outcome of the actual trial of the actions in the High Court.

For another view on these cases see UK Human Rights blog - Rosalind English - "Snatch Rover" case - inviting judges into the theatre of war?"

The cases:

1.  The 'Challenger Claims' - one soldier dead and two injured as a result of friendly fire involving British tanks - alleged failure by the MoD to equip the tanks properly and to give adequate recognition training.  MoD argued that these claims should be struck out on the basis of either 'combat immunity' or that it was not fair, just or reasonable to impose a duty of care on the MoD in the circumstances.  Held - by a majority - the claims would not be struck out and could proceed to trial.

2.  The 'Snatch Land Rover claims' - two soldiers in land rover killed by improvised explosive device.  Alleged breach by the MoD of the implied positive duty under Article 2 (Right to Life) of the E Conv HR.  MoD argued that these should be struck out as not being covered by the Convention and that, in the circumstances, no duty under the convention was owed to the men under Article 2.

3.  The Ellis negligence claims - various allegations of failures on the part of the MoD.  MoD put forward similar argument to that in the Challenger claims.  Held - by a majority - the claims would not be struck out and could proceed to trial.

Article 2:

In July 2011, the E Ct HR had held in Al-Skeini v UK that six Iraqi civilians killed in Iraq as a result of actions by British forces had the protection of the E Conv HR.  The Al-Skeini case formulated a relatively general principle that extra-territorial jurisdiction can exist whenever a State through its agents exercised authority and control over an individual.  Therefore, in principle, the protection of Art 2 extended to the soldiers.  This aspect of the judgment was reached unanimously.

Policy decisions made at a high command level and things done on the battlefield fell outside the scope of Article 2.  However, claims between those two categories might come within Art 2. It is an exercise of judgment given the facts of a particular case.   The circumstances in which the various decisions were made had to be inquired into before it could be confidently said whether or not there was a breach of the Art 2 duty.  It was far from clear that the claimants would be able to establish such a breach.   That was, of course, a question for the judge at the trial of the actions.

It is clear enough from this that the court is NOT purporting to place a judge in the place of either a high policy decision-maker or a battlefield commander but there could be cases where Article 2 had been breached in relation to training and/or provision of adequate equipment.

In the Snatch Land Rover claims we see the E Conv HR offering a line of challenge to the government which would not have been available at common law (action in tort for negligence).

Further discussion of the Article 2 claim at Oxford Human Rights hub

The negligence claims:

R v Forrest ~ Teacher and Pupil relationship ~ Sentencing

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In the Crown Court at Lewes, Jeremy Forrest (now aged 30) has been convicted by a jury of child abduction.  He also pleaded guilty to 5 counts of sexual activity with a child.  Forrest was a teacher at Bishop Bell C of E School in Eastbourne, East Sussex.  He and the girl (aged 15) - (who may not be named) - developed a relationship which became sexual and which lasted for a considerable period.  The substance of the abduction charge is that they went to France on 20th September 2012 and a European Arrest Warrant was issued.  They were found in Bordeaux on 28th September.

Forrest was sentenced to five and half years imprisonment and the sentencing remarks of His Honour Judge Lawson QC are available via the Judiciary website - (HERE).   The Independent 21st July reported on the sentencing and also see The Guardian 'Jeremy Forrest jailed for pupil abduction and sexual offences.' 

Unfortunately, the judge's remarks do not specify
the exact offences.  Child abduction is an offence under section 2 of the Child Abduction Act 1984.    Presumably, the sexual activity offences are under the Sexual Offences Act 2003 (SOA 2003).

The overall sentence comprises four and a half year terms on each of the 5 counts of sexual activity (these run concurrently) and, consecutively, one year for the adbuction.  In addition to imprisonment, Forrest is disqualified from working with children and is subject to a Sexual Offences Prevention Order (SOPO) indefinitely and is also subject to the notification requirements of Part 2 of the SOA 2003 indefinitely.

A Victim Personal Statement from the girl's mother was before the court.

The judge's sentencing remarks address the offending in a broad way and do not give specific details of the individual offences.  However, for a view that the sentencing may be excessive see UK Crime and it remains to be seen whether there is an appeal.

The case has some interesting features.

1. Judge Lawson said that texts had shown that Forrest was active in driving the relationship forward.  It was argued that she was willing for that to happen but, as the judge put it,  'to urge that argument is to ignore the rationale for the age of consent rules.'  

The SOA 2003 contains clear statements as to the ages involved in relation to the various offences - see, for example, section 9.    Abuse of trust is addressed by section 16 where the law aims to protect those under age 18.


2. The essence of the abduction offence is the removal of a person under age 16 from the lawful control of the parents - section 2 of the Child Abduction Act 1984.  The judge referred to a 'spurious defence' to this charge.  The evidence given by the girl in court varied from her original police interviews and fitted with Forrest's defence that he took her to France to prevent her succumbing to suicidal tendencies.  The judge said: "You have contested the abduction charge, raising a spurious defence so that she had to give evidence, evidence very different in content from her original account and designed to support it.  She had clearly received assistance in relation to what she should say."

3. A European Arrest Warrant (EAW) was issued.  The principle of ‘Specialty‘ applies - requiring the requesting State (here the UK) to state all the offences for which they wish to have the suspect extradited.  The warrant only specified the abduction offence.

4.  Forrest intended to contest the extradition (under the EAW) from France to the UK but, having been convicted of the abduction offence, he then waived his rights arising from specialty and the 5 charges of sexual activity were then introduced.  He pleaded guilty to those offences.

5. The process for getting the 5 counts of sexual activity to the Crown Court so that they could be sentenced by Judge Lawson is also of some interest.  When the charges were introduced, the judge sat as a Magistrates' Court temporarily so that the charges could be sent to the Crown Court whereupon the same judge dealt with them.

6. Child Abduction is NOT a listed offence for the purposes of the Sex Offenders Register but the sexual offences were so listed.

7. The facts of the case raise some points relating to teacher / pupil situations and the safeguarding steps which either teachers or a school might take if such situations arise.  It is reported that the East Sussex Local Safeguarding Children Board is looking at the case.   Such Boards are established under Part 2 of the Children Act 2004.  For further information about LSCBs and their functions see - Working together to safeguard children: March 2013. 

8. The Victim Personal Statement was that of the girl's mother.  Parents can be a 'victim' in these circumstances - see CPS Victim Personal Statements.


Publicity:

It is usual in cases involving children and young persons for the court to make an order under section 39 of the Children and Young Persons Act 1933.  The aim is to protect the identity of the child(ren) in question.

Reporting of criminal proceedings is a far from straightforward matter.  A useful document was published in 2009 by the then Judicial Studies Board - Reporting restrictions in the criminal courts.  

Since 1st October 2012, teachers are now given anonymity under section 13 of the Education Act 2011 - Law and Lawyers 29th September 2012 - Allegations against teachers - a remarkable restriction.

Ofsted:

The 2012 Ofsted report on Bishop Bell School may be seen HERE.   The report gives the school an Overall Effectiveness of GOOD but notes that in order to improve further, the school must -  'Ensure that safeguarding practice is first class by:  putting into practice any learning which comes from the external review the school has commissioned.'

The report also noted that:

The school has a very detailed and comprehensive safeguarding policy, updated in May 2012, that is aligned with local authority procedures. Additional staff policies set out clear expectations relating to behaviour, for instance in relation to contact and communication with students. 

Designated teachers and other teaching, support and administrative staff receive regular safeguarding training appropriate to their levels of responsibility. The training includes a focus on professional boundaries and the importance of reporting concerns to senior staff. Recruitment and vetting arrangements are thorough and meet statutory requirements as set out in current government guidance. 

The two designated child protection members of staff have a secure understanding of their role and work in partnership with external agencies to safeguard students at risk and those who have child protection plans.

Senior leaders are working closely with the local authority and other agencies in relation to child protection. School leaders have commissioned an external review of its safeguarding arrangements from the local authority. A date has yet to be identified for this to take place. The school is keen to identify what it can do to improve upon its current practice.