British Institute of Human Rights ~ NEW FACTSHEET

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The British Institute of Human Rights has just published a factsheet - available HERE   Please read it.

It is now almost 60 years since the European Convention on Human Rights came into force (on 3rd September 1953).  What does it seek to protect? At its most basic level it protects various rights and freedoms without which human existence would be intolerable.



The most fundamental right is that to life itself.  It is on the basis of this that the law has developed a requirement for a through inquest where the State (or its agents) may have had a hand in a death.  The right not to be subjected to treatment which is degrading (don't just think of the torture chambers of despotic regimes but think of mentally ill persons in hospital etc).  The right to liberty and security (so that the powers of the State to arrest people are clearly defined in law and properly used).  The right to a fair trial when the power of the State is lined up against you - a right which must apply no matter what the charge or the person.  Freedom from retrospective criminal law (always a useful tool for despots seeking to destroy his opponents).  The right to respect for private and family life (for example, protecting families against removal of their children except for very good and proper reasons).  The vital democratic freedom of thought, conscience and religion.  The right to marry and to found a family.  The late Lord Bingham asked:

Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any them un-British?  There may be those who would like to live in a country where these rights are not protected, but I am not of their number. 


It is not necessary to backtrack to the days of the Gestapo and the concentration camps of the benighted Europe of the 1930s and 40s.  Nor is the Convention merely there to try to prevent a return to such days.  The need for protection of rights and freedoms is there on a daily basis and the European Court of Human Rights has worked hard to keep the Convention relevant to modern times and situations.

The influence of the Convention has been massive and has brought about fairer and more humane law in many areas - please see the Factsheet for some examples.  The Convention acts as a long stop on governmental power.  For this reason, the Convention (and the Human Rights Act 1998) are under sustained attack from a number of notable British politicians who seek to enhance their own power at the expense of the rights and liberties of the British people.  Such politicians are, all too often, aided and abetted by popular newspapers particularly when some 'hate figure' such as Abu Qatada (recently returned to Jordan) is in the news.  Over concentration on such high profile cases produces a distorted image and hides the good which has come from the convention.  Just a little of that good work may be seen by reading the Factsheet.

Posts on Human Rights:

Domestic law and the European Convention on Human Rights - Part 1 - 5th May 2013

Domestic law and the European Convention on Human Rights - Part 2 - 7th May 2013

Domestic law and the European Convention on Human Rights - Part 3 - 14th May 2013

Domestic law and the European Convention on Human Rights - Part 4 - 18th May 2013



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Tuesday roundup ~ Access to justice; judicial review; Military justice; apologies and pardons'; Jurors and the internet

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Access to justice continues to be under attack from the coalition government.  It appears that their latest gambit concerns 'standing' to bring judicial review.

 The Transforming Legal Aid proposals were issued earlier this year and, despite the consultation period being short, resulted in over 13000 responses which, one hopes, are being carefully considered by the Ministry of Justice.

The Justice Committee has decided to issue a report on Transforming Legal Aid.  This follows the committee’s two recent oral evidence sessions – one with representatives of the professional bodies and one with the Lord Chancellor.  The Transforming Legal Aid proposals have attracted what appears to be almost universal condemnation and so it will be of major interest to see the views of the committee.

The Joint Committee on Human Rights
has asked for evidence to be submitted regarding the government's legal aid proposals - (HERE).   Written evidence is requested by 27th September and hearings will take place in October.  The committee has requested that the government do not proceed with changes until the committee has reported.

Protests are to be held today (30th July) at the Old Bailey (London) and in Manchester.

Judicial Review:

The UK Human Rights blog in its weekly roundup of news looks at a report which appeared in The Times about plans to alter the test for 'standing' to bring judicial review proceedings.  Judicial Review is a key method by which all manner of Ministers and officials are kept within the law.  Narrowing the standing test will enable those officials to avoid challenge in the courts in a wider set of situations.  The Times said that 'Ministers are planning a new assault on what they condemn as the “growth industry” of time-wasting judicial reviews in the courts.  They say that pressure groups, campaigners and lobbyists are abusing the procedure for public relations purposes, clogging up the courts and delaying the implementation of policy.'

Writing in Public Law for Everyone, Dr Mark Elliott  argues that this reported proposal 'fits with the overarching narrative emerging from (certain parts of) government, according to which accountability to law—whether domestic or European—is increasingly characterised as a brake on economic progress, a challenge to democracy by unelected judges, or little more than a public-relations tool that is strategically deployed so as to “play the system” - see 'Standing, Judicial Review and the rule of law ...'

Military Justice:

Following on from the Sergeant Danny Nightingale court martial, Simon McKay looks at the 'monolith of military justice' and asks why serious cases cannot be simply tried in the Crown Court - see The Guardian 29th July -  Military 'justice' is screaming out for reform   Simon McKay acted for Sgt. Nightingale at the Court Martial.  McKay also refers to the matter of "Breaker" Morant, a Boer war veteran, executed by firing squad over a century ago.  A pardon is being sought.

Apologies and pardons:

The business of 'apologies' for the conduct of those historically in power seems to be on the increase.  Sometimes, as in the Kenyan case, these apologies are associated with claims for compensation.  There have also been developments with regard to posthumous pardons for actions taken many years ago within very different circumstances and where attitudes to draconian punishment were not as they are today.  Derek Bentley received a royal pardon in 1993.  In 2006, the 306 men who were executed for desertion and similar offence in world war one were granted what was called a statutory pardon; but again, the pardon only went to their punishments (Armed Forces Act 2006 s.359).  Those soldiers who had been convicted of exactly the same offences but received lesser sentences had no pardon.

In the context of a bill now in Parliament to grant a posthumous (statutory) pardon to mathematician Alan Turing, the question of such pardons has been discussed in two excellent items by David Allen Green New Statesman (Putting right the wrong done to Alan Turing) and by Carl Gardner, Head of Legal blog (Alan Turing: the stain should not be erased).   Pardons do not remove convictions but they can alleviate the consequences for the convicted person.

David Allen Green makes the interesting point that having pleaded guilty to the offence of 'gross indecency' (section 11 of the Criminal Law Amendment Act 1885), Turing received a probation order which, at at the time, was not a sentence but an alternative way of disposing of cases (see section 3 of the Criminal Justice Act 1948).  The probation order involved terms that Turning undergo 'medical treatment'.  As Green argues, if there was no actual sentence, then a pardon for Turing has no legal effect though it is undoubtedly some recognition of the appalling way in which he (and many others) were treated by the law.

Green argues that cases such as Turing could, if Parliament so wished, be brought with a scheme such as the Protection of Freedoms Act 2012 Part 5 Chapter 4 which provides a scheme where those who had been convicted of the section 11 offence (and similar offences) can apply for their entire criminal records to be removed if the facts of the case would no longer count as a crime.  Such a way forward would be preferable and would go much further than a pardon. 

Note - 24th December - Turing received Royal Pardon

Jurors, the internet and contempt:

Two Jurors have been held in contempt of court -HM Attorney-General v Davey and Beard [2013] EWHC 2317 (Admin).  These cases raise some questions of juries in the internet age.  See also earlier post on the Joanne Fraille case in 2011.   The judges are asking the Criminal Procedure Rules Committee in consultation with the Judicial College to review the terminology used in the material given to juries and to consider whether to recommend that the practice to which we have referred in paragraph 59 should be universally followed.  Para 59 states:

'Many judges have adopted the practice not only of warning the jury in terms similar to what the judges in these two cases did, but also handing the jury a notice setting out what they must and must not do and the penal consequences of any breach. They have done this so that no juror can subsequently claim that he or she did not understand what they should not do and what the consequences might be. It is to be noted that in civil proceedings, committal for contempt for breach of an injunction ordinarily requires not only proof of the breach of the terms of an injunction, but that the injunction contained a penal notice.'

In my opinion, jury trial should be retained for serious cases but it is somewhat worrying if jurors are unable to either understand or abide by simple directions with regard to the internet and researching the case they are trying.  Having said this, I do sometimes wonder whether there ought to be a different approach involving openly dealing with any publicity.  However, there would be costs associated with researching the media to find out just what publicity there has been.  This is likely to become a difficult issue and jury service will become even less attractive if more and more jurors find themselves hauled before the High Court on charges of contempt.

See UK Crime - Jurors imprisoned for internet research/Facebook messages


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Supreme Court ~ Road Traffic Act 1988 s3ZB ~ Uninsured driving ~ Causing death

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UPDATE: The Supreme Court has allowed Mr Hughes' appeal.  There must be something to be properly criticised in the defendant's driving - R v Hughes [2013] UKSC 56.  There mere fact of being on the road (when uninsured etc) is not enough to establish criminal liability when the accident is entirely the fault of another driver.  However, it may prove to be the case that it will not take very much for a driver to be held liable under s3ZB - e.g. he was marginally over a speed limit; or breach of some construction and use regulation; an underinflated tyre etc.  See the judgment at paragraph 32.  Precisely what is required will have to be worked out on a case by case basis.

Lord Hughes handing down the judgment - YOUTUBE 31st July

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The Supreme Court of the UK will hand down judgments in 4 cases on Wednesday 31st July.  One of them is the interesting road traffic law case of R v Hughes.  The Supreme Court's website provides the detail:

Issue

Is an offence contrary to section 3ZB of the Road Traffic Act 1988 committed by an unlicensed, disqualified or uninsured driver when the circumstances are that the manner of his or her driving is faultless and the deceased was (in the terms of civil law) 100% responsible for causing the fatal accident or collision?

Facts

On 25 October 2009, just after 4.30pm, the Appellant,
who was driving a van, was involved in a collision with a Honda motor car being driven in the opposite direction by Mr James Dickinson, who sustained extensive serious injuries as a result and died that evening as a result of the injuries. The Appellant was in no way at fault for the death: he had been driving entirely properly. By contrast, in civil law terms Mr Dickinson was 100% responsible for causing the collision and his death: he was almost certainly under the influence of heroin and was found to have methadone, benzodiazepine and other drugs in his system which were not prescribed; he had done several consecutive night shifts at work and had already driven 200 miles that day. Accordingly, he was driving erratically, veering across into the oncoming lane and back again for the 2 miles prior to the collision; he failed to take any evasive action in the face of the Appellant’s van coming towards him while he was in the wrong lane on exiting a bend in the road. However, the Appellant was uninsured and driving without a full license.

Background:

Section 3ZB was the subject of a blogpost on 5th July 2011.  That post looked at R v Jason Williams [2010] EWCA Crim 2552 where the Court of Appeal (Criminal Division) held that a driver could be guilty of the s3ZB offence even if his driving was not blameworthy provided that the driving was a (more than minimal) cause of the death.

The same blogpost also referred to R v MH [2011] EWCA Crim 1508 where the court considered itself to be bound (under the law of precedent) by the Jason Williams case.   (This case was a prosecution appeal against a 'terminating ruling').   This is the case now before the UK Supreme Court and it has been (helpfully) previewed by the UK Supreme Court blog - HERE.

The legislation appears to be straightforward but appearances can be deceptive!  Here is the section:

A person is guilty of an offence under this section if he causes the death of another person by driving a motor vehicle on a road and, at the time when he is driving, the circumstances are such that he is committing an offence under -

(a)section 87(1) of this Act (driving otherwise than in accordance with a licence),
(b)section 103(1)(b) of this Act (driving while disqualified), or
(c)section 143 of this Act (using motor vehicle while uninsured or unsecured against third party risks).

An obvious and natural reading of those words requires the driver to have caused the death.  In criminal law, this normally means that the jury (or magistrates) may convict where the conduct of the defendant has been proved to be a factual and a legal cause of the death.  Factual cause is established where the consequence would not have occurred as and when it did BUT FOR the defendant's conduct.  The question of legal causation often takes several pages in the leading textbooks to explain.  Glanville Williams (Textbook of Criminal Law 2nd edition) wrote of there being a 'value judgment' necessitating that the defendant be blamable for the event.  Thus, as one example, the criminal law does not usually hold a person liable unless his conduct has been more than a minimal cause of the event.  Other, often difficult, situations arise where the defendant's conduct had become merely part of the history leading to the event and further causes have intervened.

So far, the courts have held that, provided the driving has caused the death, the s3ZB offence does not require proof of a poor driving standard.  As the Court of Appeal in Williams said: “It may be a harsh and punitive measure with an evident deterrent element, but it is difficult to see how anything else can have been intended.”  Of course, at the time of the driving, the driver must also have been committing one of the other offences (e.g. uninsured).

It may be that the view can be taken that Parliament, when using the word 'cause' in s3ZB, legislated in the knowledge of the usual law of causation as applied by criminal courts.  This goes beyond merely factual causation and requires 'blameworthiness' on the part of the defendant.   However, to adopt that approach for s3ZB would seem to make the offence indistinguishable from the other offences of causing death by inconsiderate / careless / dangerous driving.

For my part, for this problematic offence, I would prefer the approach requiring some degree of fault in the driving before criminal liability can be established.   It is more in keeping with established principles of criminal law against the background of which Parliament must be taken to have legislated in the absence of clear wording to the contrary.

Prosecutions:

See also the Crown Prosecution Services policy   It states:

'In the normal course of events, where there is sufficient evidence under section 3ZB of the RTA 1988 (causing death by driving while unlicensed, disqualified or uninsured), a prosecution for these offences should follow (i.e. where the standard of driving does not fall below the required standard and thus is not in issue, then the offences created under section 3ZB should be the most appropriate to be charged). Any consideration of culpability is for the court when deciding on sentence.
Where there is clear evidence that the driving fell below the required standard and was a cause of death, the appropriate offence incorporating dangerous or careless driving should also be charged.'  

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Sergeant Danny Nightingale ~ A look at his Sentencing

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After a retrial, the Court Martial sentenced Sergeant Danny Nightingale to 2 years detention suspended for 12 months.  The sentencing remarks of the Judge Advocate General are HERE.

Previous posts have followed the interesting twists and turns of the case - 21st November 2012 - 30th June 2013 and 2nd July 2013

In 2012, pleaded guilty to charges of possession of a Glock pistol and also possession of ammunition.  He was sentenced to 18 months detention.  In passing this sentence, the court martial found that there were 'exceptional circumstances' to disapply the 5 year minimum sentence normally applicable to possession of a firearm.  Sgt. Nightingale was also given discount for his guilty plea.   On the 2012 sentence see post of 21st November 2012. 



Nightingale appealed his original sentence to the Court Martial Appeal Court and it was reduced to 12 months (suspended for 12 months).   Here is the judgment of the Court Martial Appeals Court - Lord Judge CJ; Fulford and Bean JJ - 29th November 2012

In March 2013, Sgt. Nightingale's conviction 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, the appeal judges held, placed undue pressure on the defendant to plead guilty. 

The retrial was held in July 2013 and Nightingale was again convicted and, this time, sentenced to 2 years detention (suspended for 12 months).  The causal observer might well ask why was the Court Martial sentence after the retrial double that thought suitable by the Court Martial Appeal Court when deciding the appeal against the original sentence.  To try to explain this, it is necessary to turn to the sentencing remarks.

The sentencing remarks:

The Judge Advocate General (JAG) began by explaining the rationale behind the 5 year minimum sentence which normally applies.  (For myself, I did not think that references to events like Dunblane and Hungerford were particularly helpful but, the fact remains, there are plenty of firearms on British streets).  The JAG then said that although Nightingale was not a danger to society, what he had done had endangered society.  (There is always a risk that a firearm might get into the wrong hands).

The JAG then went on to criticise some of the reporting - 'much uninformed and misinformed public debate' - and he said that some of this bordered on contempt of court.  The JAG asserted that criticism of the prosecution and of the Army were 'unmerited and without foundation.'   Nightingale was not a scapegoat and such a suggestion was 'absolute nonsense.'

[Comment:  the decision to prosecute the case in the first place cannot be properly criticised.  Action has to be taken to prevent weapons and ammunition leaking from the military to people outside the services.  It is highly likely that this policy also made it essential for the service prosecution authority to proceed with the retrial.  IF it is true - (and I do not say it is) - that some recent laxness existed within the army about soldiers holding weapons, then a process of tightening up was clearly necessary.  The original trial fell to be criticised because of the way that the guilty plea came about but this matter was corrected by the court martial appeal court].

Returning to the sentencing remarks.  A problem for Nightingale was that he changed his story from one of having been given the gun by Iraqis to it now having been put in his room by a friend (Soldier N) but without Nightingale's knowledge.  This latter story was criticised by the JAG and the court martial held that Nightingale knew of the gun and the ammunition.  The JAG referred to medical opinion evidence to the effect that Nightingale had not 'confabulated' his account which, in the court's opinion, lacked credibility and was not believed.

[Note: Confabulation is a memory disturbance, defined as the production of fabricated, distorted or misinterpreted memories about oneself or the world, without the conscious intention to deceive. Confabulation is distinguished from lying as there is no intent to deceive and the person is unaware the information is false].

The starting point for sentence was the minimum sentence of 5 years but, according to the JAG, there were exceptional circumstances: distinguished service; working to improve medical care (the 'Nightingale' dressing); brain injury and lack of criminal intent.

[Comment: Whether these matters ought to amount to exceptional circumstances is debatable - see Attorney-General's reference 82 of 2012 - where what amounts to exceptional circumstances is set out.  However, in Nightingale's appeal to the court-martial appeal court, the judges agreed that exceptional circumstances existed.  Thus, there may be some conflict between Nightingale's case and the strict law as stated in the AG Reference].

Basically, the court could not pass a greater sentence than that passed at the first trial - i.e. 18 months for possession of the gun and 6 months for possession of the ammunition - sentences to be concurrent.  However, the sentences at the first trial were passed after guilty pleas and account was taken of cooperation with the authorities and Nightingale's expressed remorse.  At the retrial, Nightingale was no longer entitled to a reduction for a guilty plea.   Also, the JAG noted, sentencing after the first court martial (and in the court martial appeal court) was before Nightingale had put forward a spurious defence falsely impugning the character of a fellow soldier and requiring other soldiers to risk their security by giving evidence.  On this basis, the JAG concluded that an appropriate sentence was 2 years for the possession of the weapon and 9 months for ammunition (concurrent).  On the basis of R v Skanes [2006] EWCA Crim 2309 this sentence was said to be justifiable. (Unfortunately, this case is not available online).

[Comment: whether the case of Skanes entitles the court martial to go beyond the 18 months imposed by the original court martial is questionable.  I believe that the JAG made a separate ruling on this point which is not (yet) publicly available.  It would be preferable for all pre-trial rulings to be made available at the earliest possible stage if 'uninformed and misinformed' public debate is to be avoided].


The JAG next referred to principles of sentencing in the Armed Forces Act 2006 s.237.  Whilst a sentence of immediate detention was justified, the JAG said that the court martial 'felt constrained' by the views of the court martial appeal court to suspend the sentence.  (This looks like a carefully chosen form of wording to express unhappiness with the court martial appeal court's earlier decision to suspend the detention).  The suspension of the sentence by the court martial appeal court was for much the same reasons as the finding of exceptional circumstances.

The Army is, I suspect, vindicated in their determination to bring the prosecution in order to uphold service discipline and to try to prevent leakage of firearms and ammunition.  The minimum 5 year sentence provision relating to firearms was put there by Parliament for the best of reasons but the question of what should amount to exceptional circumstances is now somewhat clouded by the Nightingale case which must inevitably be compared with the Attorney-General's Reference 82 of 2012.   Whether it would be better not to have the minimum sentence provision and allow the courts to sentence in the more usual manner is a point for debate but, as things stand, Parliament has spoken.

Nightingale would be entitled to appeal either his conviction or his sentence but the sentence is far below the usual minimum of 5 years and it may be that Nightingale should consider himself lucky.  It is reported that the proceedings have already cost him in the region of £120,000.  Whether there will be any such appeals remains to be seen.  If there were to be an appeal on sentence, the judges would have to square up to precisely what is meant by 'exceptional circumstances' in the legislation.

Other links:

Please also see the interesting view of former Lt. Col. Tim Collins who argues that this whole matter could have been handled more adroitly and out of the public gaze.  Collins argues that Nightingale is a damaged veteran who needed support and understanding.  However, as reported by the Times (see post of 2nd July), it seems that the Army was keen to stop a 'culture of impunity' regarding possession of weapons.

Colonel Collins also states - 'The Army’s legal system comes into the spotlight, too. The European judges are watching. They would like to take it from us. But we do need military courts, as we actually fight wars, unlike the Europeans. Still, we should eschew the limelight where we can. The two Nightingale trials have had the opposite effect.'

I do not think it is true to say that the European judges wish to take away military justice but the European Convention on Human Rights has brought about beneficial changes to that system.  For example, it now operates much more independently of the military chain of command.  This was referred to in the post of 30th June 2013.

A further interesting view is on the Adrian Weale blog - Sgt Danny Nightingale.  This author comments about Britain’s gun laws.

'The minimum sentencing guidelines for illegal possession of firearms were brought in to deter criminals from acquiring and using firearms for the commission of crime.  Even his harshest critics have not accused Sergeant Nightingale, or his former housemate, of intending to use their illegal guns to stick up Sub-Post Offices yet courts are obliged to treat them as if they were.  This is ludicrous.  Sergeant Nightingale and his colleague made gross errors of judgement which deserved condign punishment but that punishment needs to be kept in the context of how and why they acquired the weapons and ammunition and what they intended to do with them: these were not ‘gangstas’ intent on crimes of violence. 

A 12 month suspended sentence strikes me as lenient but I certainly don’t begrudge it. I do hope this will be seen as a precedent for all soldiers convicted in similar circumstances, not just members of the SAS, and I’d suggest that now might be the time for the Ministry of Justice to revisit the minimum sentence guidelines for illegal firearms possession in order to give judges far more latitude to take circumstances into account when sentencing.'


Relevant legislation:

Firearms Act 1968 section 5(1)(aba)

Possession of Ammunition contrary to Firearms Act 1968 section 1(1)(b).

The offence under section 1(1)(aba) carries a mandatory sentence of imprisonment of 5 years unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify it not imposing this - see Firearms Act 1968 section 51A.  

Summary

History - Original conviction following guilty plea quashed. Re-tried and convicted after trial.
Sentence - 2 years detention, suspended for 12 months.
Sentencing Remarks:-
I intend to make some general observations about this case before addressing you on sentence.
Possession of a firearm is a very serious offence and it is aggravated when ammunition is with the firearm. Parliament has decreed that a person who unlawfully possesses a prohibited firearm such as a Glock pistol should be sentenced to a minimum term of five years imprisonment. That term may only be reduced if there are exceptional circumstances. It is obvious why this policy exists: there have been a number of atrocities such as Hungerford and Dunblane where someone with a gun has murdered innocent members of the public including children. That means that even where someone has no criminal intent, but he possesses a prohibited and unlicensed firearm, particularly where it is not secure, then the law treats him severely. Severe sentences are designed to act as a deterrent – that is what the public and Parliament demand.
It is because the unlawful possession of a firearm endangers society that even where mitigation appears very strong significant sentences are still appropriate. There are many examples of such cases. For instance in 2006 a defendant called Blackall had been shot and rendered a paraplegic by an unknown gunman who was never identified. On a further occasion a man knocked at the defendant’s front door and put a gun to his head. He reported this to the police but no one was apprehended. He kept a loaded revolver thereafter for his own protection. Four months later the police came to his house and he told them where his gun was. His exceptional circumstances were taken into account to reduce the sentence of five years to three years imprisonment.
The law applies to everyone even those with an impeccable character and a history of exceptional public service. A weapon is dangerous in the wrong hands whether it originates from someone with no criminal intent who is careless or from someone with baser motives. It has been said, and it is right, that you are not a danger to society. However, what you have done has endangered society and for that reason your offending is serious.
While this case has proceeded – and was sub judice – many people including you have made numerous public statements, many of which were misleading. As a result there has been much uninformed and misinformed public debate. Much of what has been said bordered on contempt and has not helped the course of justice. The criticism of the prosecution and the Army is unmerited and totally without foundation. We understand how difficult these proceedings have been for you and your family. However, you have brought much of that anguish upon yourself and your public assertions that you are a scapegoat or the victim of some wider political agenda is absolute nonsense. You are simply someone against whom there was a strong prima facie case of serious wrongdoing and, given the dangers to society caused by illegal firearms and their misuse, it was in the public interest to prosecute you. The Service Prosecuting Authority would have been neglecting its duty if it had not brought this prosecution.
You have now had a fair trial before a civilian judge and an independent and impartial Board. All of the issues you wished to raise and all of the submissions you wished to make have been fully considered and verdicts properly given. It would have made no difference had you been tried before a civilian jury – the evidence against you was overwhelming and I have no doubt the verdicts would have been the same.
I trust that those who have been so critical of the Service Prosecuting Authority and the Court Martial process – particularly those who made unfounded and uniformed remarks under the cloak of Parliamentary privilege – now realise how inappropriate and wrong their criticisms were.
Now to sentence
This board has found you guilty of the two charges of possessing a Glock 9mm and 338 rounds of ammunition, over 120 of which fitted the Glock. You originally said that you received the pistol as a gift in Iraq and you accumulated the ammunition in your capacity as a range officer. You maintained that account until relatively recently when you said that your admissions were false and that you had confabulated them. In fact, you said, you never possessed the weapon or ammunition – you are too meticulous a soldier to have done that – and the weapon and ammunition must have been put in your room by your former best friend and housemate Soldier N. You asserted that you were never aware of their presence in your room. You and Soldier N trained together, have been through operations together and were best friends. Yet you suggested he was prepared to throw that friendship away by putting you in jeopardy of being dismissed from the Army and sent to prison, and that his motive for not accepting responsibility for the Glock and ammunition found in your room was to lessen his own criminality so that he received a shorter sentence.
This court has rejected that explanation. The court does not accept that you confabulated about the weapon and ammunition. Having heard all of the evidence – not just the neuropsychologist and neuropsychiatrist - the court was sure that you did not confabulate and that you did know the weapon and ammunition were in your room and how they got there. They observed you when you were interviewed by the police and when you gave evidence in court. They took account of the evidence of soldiers who have served with you on operations since your brain injury and your two most recent professional assessments and concluded that there is no evidence of confabulation. Importantly the court accepts the evidence that you would not have been able to undertake the operational tasks that you completed after your return to service if you truly had the mental dysfunction you now say you have.
In coming to that conclusion the Court accepted Dr Joseph’s concern about the difference in memory test results between those administered by Dr Young and Professor Gudjonnson, and his conclusion that if you had been confabulating you would still have had the memory albeit it would have been a false memory. Dr Joseph said that your assertions that you cannot remember obtaining the pistol and ammunition in the way you described is inconsistent with a diagnosis of confabulation and this demonstrates that your account has been contaminated by the legal process. The court accepted Dr Johnson’s expert opinion and agreed with his conclusions. In short, the account you gave to this court lacks credibility and the court does not believe you.
It does not matter for these circumstances how you got the Glock – whether it was in fact given to you by grateful Iraqis or whether it came into your possession in some other way. The court concluded that you knew it was in your wardrobe – it was with your clothes and it is inconceivable that you did not know it was there. Equally it is inconceivable that you did not know you had such a large cache of ammunition. It was in a transparent box which also contained items of stationery and which you accepted was your admin box. The Court concluded that you accumulated this ammunition when acting as a range officer and you placed it in your admin box as you originally described to the police.
Your SSSA was not secure. It was a normal semi detached house in suburbia, and it was left empty for much of the time. This could have been a tempting target for burglars – and if there had been a burglary and the weapon and ammunition had been taken, the consequences could have been terrible and terrifying. A number of military weapons do somehow end up in the criminal community and any thing that makes that dangerous transfer easier – such as leaving a weapon and ammunition unsecured – must be deterred.
You deal with weapons routinely both at home and abroad and you are required to be expert with them. While not an excuse the Court accepts that weapons are a normal part of your life and you would not have held them in the sort of awe which civilians would. It is this attitude, however, which must be guarded against because it leads to the sort of laxness you have demonstrated.
The starting point for the sentence for the first charge would be five years imprisonment. There is no doubt that there are exceptional circumstances in this case and I have already indicated in a previous ruling that this court may not pass a sentence which is more severe than the original sentence passed at your first trial. Those original sentences were 18 months detention for the first charge of possessing a firearm and 6 months detention for possession of ammunition, although this court could make the overall term longer without it being more severe because you received the benefit of guilty pleas at that hearing which you are not entitled to here.
The exceptional circumstances in this case are as follows:
1. You were an outstanding Senior NCO who has served with distinction in the elite regiment of the British Army. You have served on a number of operational deployments where your conduct has been exceptional;
2. Not only have you done your duty, but you have also done more to improve the medical care of those who receive traumatic injury by developing the Nightingale dressing;
3. You suffered a brain injury in 2009 which has had some effect upon you – while the court has rejected your assertions of confabulation about the pistol and ammunition we accept that you do have some mental impairment which may have affected the way you failed to decommission the pistol or return the ammunition;
4. You had no criminal intention – you found yourself in this position because of poor administrative practices and possibly forgetfulness.
The court at your original trial would have had all of these matters in their minds when they determined that the appropriate sentence for Charge 1 was 18 months detention. The Court Martial Appeal Court determined that 18 months was too long and they substituted a suspended term of 12 months detention. However, in determining that sentence both the original court and their Lordships gave you credit for your plea of guilty, your co-operation with the authorities and your expressed remorse. At that stage you had not made up a spurious defence which falsely impugned the character of a fellow soldier and caused a number of SAS soldiers to risk their own security in giving evidence. Had their Lordships dealt with you after a trial in these circumstances I have no doubt they would not have been so lenient. None of those mitigating factors are present as we sentence today and you can claim no credit for them. In those circumstances the appropriate sentence is 2 years’ detention. This is not a sentence of greater severity than your original sentence of 18 months detention for the reasons expressed in R v Skanes [2006] EWCA Crim 2309.
We have undertaken the same exercise in relation to Charge 2 and determined that the appropriate sentence is 9 months detention. Those sentences shall be served concurrently so that the overall sentence is one of 2 years detention. This is the same sentence as Sergeant N: his cache was larger than yours and contained a live hand grenade but he had the benefit of a plea of guilty which he tendered at the earliest opportunity. Your sentence would have been shorter had you also pleaded guilty, to reflect the smaller and more limited cache.
We have examined whether this sentence should be suspended and referred to the JAG sentencing guide paragraph 3.4.9 and the principles of sentencing in the Armed Forces Act 2006 s237. That section imposes a duty on the court to follow the six purposes of sentencing: punishment of offenders, maintenance of discipline, reduction of service offences and other crime (including reduction by deterrence), the reform and rehabilitation of offenders, the protection of the public and the making of reparation. Their Lordships in the Court Martial Appeal Court were satisfied that the sentence they imposed could be suspended without compromising those purposes because of your exceptional character, your conduct which went above and beyond that required of a SNCO (such as in relation to the development of the Nightingale dressing) and the exceptional circumstances of this case. In our opinion the seriousness of this case does merit an immediate custodial sentence but we feel constrained by the decision of their Lordships. In those circumstances we have decided that the sentences passed should both be suspended for a period of 12 months.
The weapon and ammunition has been seized by competent military authorities. We order that the useable ammunition be brought back on charge with the balance being destroyed. We order that the Glock pistol be forfeit and destroyed.
- See more at: http://www.crimeline.info/case/r-v-sergeant-danny-harold-nightingale-no-4#sthash.OHHUlCOb.dpuf

Summary

History - Original conviction following guilty plea quashed. Re-tried and convicted after trial.
Sentence - 2 years detention, suspended for 12 months.
Sentencing Remarks:-
I intend to make some general observations about this case before addressing you on sentence.
Possession of a firearm is a very serious offence and it is aggravated when ammunition is with the firearm. Parliament has decreed that a person who unlawfully possesses a prohibited firearm such as a Glock pistol should be sentenced to a minimum term of five years imprisonment. That term may only be reduced if there are exceptional circumstances. It is obvious why this policy exists: there have been a number of atrocities such as Hungerford and Dunblane where someone with a gun has murdered innocent members of the public including children. That means that even where someone has no criminal intent, but he possesses a prohibited and unlicensed firearm, particularly where it is not secure, then the law treats him severely. Severe sentences are designed to act as a deterrent – that is what the public and Parliament demand.
It is because the unlawful possession of a firearm endangers society that even where mitigation appears very strong significant sentences are still appropriate. There are many examples of such cases. For instance in 2006 a defendant called Blackall had been shot and rendered a paraplegic by an unknown gunman who was never identified. On a further occasion a man knocked at the defendant’s front door and put a gun to his head. He reported this to the police but no one was apprehended. He kept a loaded revolver thereafter for his own protection. Four months later the police came to his house and he told them where his gun was. His exceptional circumstances were taken into account to reduce the sentence of five years to three years imprisonment.
The law applies to everyone even those with an impeccable character and a history of exceptional public service. A weapon is dangerous in the wrong hands whether it originates from someone with no criminal intent who is careless or from someone with baser motives. It has been said, and it is right, that you are not a danger to society. However, what you have done has endangered society and for that reason your offending is serious.
While this case has proceeded – and was sub judice – many people including you have made numerous public statements, many of which were misleading. As a result there has been much uninformed and misinformed public debate. Much of what has been said bordered on contempt and has not helped the course of justice. The criticism of the prosecution and the Army is unmerited and totally without foundation. We understand how difficult these proceedings have been for you and your family. However, you have brought much of that anguish upon yourself and your public assertions that you are a scapegoat or the victim of some wider political agenda is absolute nonsense. You are simply someone against whom there was a strong prima facie case of serious wrongdoing and, given the dangers to society caused by illegal firearms and their misuse, it was in the public interest to prosecute you. The Service Prosecuting Authority would have been neglecting its duty if it had not brought this prosecution.
You have now had a fair trial before a civilian judge and an independent and impartial Board. All of the issues you wished to raise and all of the submissions you wished to make have been fully considered and verdicts properly given. It would have made no difference had you been tried before a civilian jury – the evidence against you was overwhelming and I have no doubt the verdicts would have been the same.
I trust that those who have been so critical of the Service Prosecuting Authority and the Court Martial process – particularly those who made unfounded and uniformed remarks under the cloak of Parliamentary privilege – now realise how inappropriate and wrong their criticisms were.
Now to sentence
This board has found you guilty of the two charges of possessing a Glock 9mm and 338 rounds of ammunition, over 120 of which fitted the Glock. You originally said that you received the pistol as a gift in Iraq and you accumulated the ammunition in your capacity as a range officer. You maintained that account until relatively recently when you said that your admissions were false and that you had confabulated them. In fact, you said, you never possessed the weapon or ammunition – you are too meticulous a soldier to have done that – and the weapon and ammunition must have been put in your room by your former best friend and housemate Soldier N. You asserted that you were never aware of their presence in your room. You and Soldier N trained together, have been through operations together and were best friends. Yet you suggested he was prepared to throw that friendship away by putting you in jeopardy of being dismissed from the Army and sent to prison, and that his motive for not accepting responsibility for the Glock and ammunition found in your room was to lessen his own criminality so that he received a shorter sentence.
This court has rejected that explanation. The court does not accept that you confabulated about the weapon and ammunition. Having heard all of the evidence – not just the neuropsychologist and neuropsychiatrist - the court was sure that you did not confabulate and that you did know the weapon and ammunition were in your room and how they got there. They observed you when you were interviewed by the police and when you gave evidence in court. They took account of the evidence of soldiers who have served with you on operations since your brain injury and your two most recent professional assessments and concluded that there is no evidence of confabulation. Importantly the court accepts the evidence that you would not have been able to undertake the operational tasks that you completed after your return to service if you truly had the mental dysfunction you now say you have.
In coming to that conclusion the Court accepted Dr Joseph’s concern about the difference in memory test results between those administered by Dr Young and Professor Gudjonnson, and his conclusion that if you had been confabulating you would still have had the memory albeit it would have been a false memory. Dr Joseph said that your assertions that you cannot remember obtaining the pistol and ammunition in the way you described is inconsistent with a diagnosis of confabulation and this demonstrates that your account has been contaminated by the legal process. The court accepted Dr Johnson’s expert opinion and agreed with his conclusions. In short, the account you gave to this court lacks credibility and the court does not believe you.
It does not matter for these circumstances how you got the Glock – whether it was in fact given to you by grateful Iraqis or whether it came into your possession in some other way. The court concluded that you knew it was in your wardrobe – it was with your clothes and it is inconceivable that you did not know it was there. Equally it is inconceivable that you did not know you had such a large cache of ammunition. It was in a transparent box which also contained items of stationery and which you accepted was your admin box. The Court concluded that you accumulated this ammunition when acting as a range officer and you placed it in your admin box as you originally described to the police.
Your SSSA was not secure. It was a normal semi detached house in suburbia, and it was left empty for much of the time. This could have been a tempting target for burglars – and if there had been a burglary and the weapon and ammunition had been taken, the consequences could have been terrible and terrifying. A number of military weapons do somehow end up in the criminal community and any thing that makes that dangerous transfer easier – such as leaving a weapon and ammunition unsecured – must be deterred.
You deal with weapons routinely both at home and abroad and you are required to be expert with them. While not an excuse the Court accepts that weapons are a normal part of your life and you would not have held them in the sort of awe which civilians would. It is this attitude, however, which must be guarded against because it leads to the sort of laxness you have demonstrated.
The starting point for the sentence for the first charge would be five years imprisonment. There is no doubt that there are exceptional circumstances in this case and I have already indicated in a previous ruling that this court may not pass a sentence which is more severe than the original sentence passed at your first trial. Those original sentences were 18 months detention for the first charge of possessing a firearm and 6 months detention for possession of ammunition, although this court could make the overall term longer without it being more severe because you received the benefit of guilty pleas at that hearing which you are not entitled to here.
The exceptional circumstances in this case are as follows:
1. You were an outstanding Senior NCO who has served with distinction in the elite regiment of the British Army. You have served on a number of operational deployments where your conduct has been exceptional;
2. Not only have you done your duty, but you have also done more to improve the medical care of those who receive traumatic injury by developing the Nightingale dressing;
3. You suffered a brain injury in 2009 which has had some effect upon you – while the court has rejected your assertions of confabulation about the pistol and ammunition we accept that you do have some mental impairment which may have affected the way you failed to decommission the pistol or return the ammunition;
4. You had no criminal intention – you found yourself in this position because of poor administrative practices and possibly forgetfulness.
The court at your original trial would have had all of these matters in their minds when they determined that the appropriate sentence for Charge 1 was 18 months detention. The Court Martial Appeal Court determined that 18 months was too long and they substituted a suspended term of 12 months detention. However, in determining that sentence both the original court and their Lordships gave you credit for your plea of guilty, your co-operation with the authorities and your expressed remorse. At that stage you had not made up a spurious defence which falsely impugned the character of a fellow soldier and caused a number of SAS soldiers to risk their own security in giving evidence. Had their Lordships dealt with you after a trial in these circumstances I have no doubt they would not have been so lenient. None of those mitigating factors are present as we sentence today and you can claim no credit for them. In those circumstances the appropriate sentence is 2 years’ detention. This is not a sentence of greater severity than your original sentence of 18 months detention for the reasons expressed in R v Skanes [2006] EWCA Crim 2309.
We have undertaken the same exercise in relation to Charge 2 and determined that the appropriate sentence is 9 months detention. Those sentences shall be served concurrently so that the overall sentence is one of 2 years detention. This is the same sentence as Sergeant N: his cache was larger than yours and contained a live hand grenade but he had the benefit of a plea of guilty which he tendered at the earliest opportunity. Your sentence would have been shorter had you also pleaded guilty, to reflect the smaller and more limited cache.
We have examined whether this sentence should be suspended and referred to the JAG sentencing guide paragraph 3.4.9 and the principles of sentencing in the Armed Forces Act 2006 s237. That section imposes a duty on the court to follow the six purposes of sentencing: punishment of offenders, maintenance of discipline, reduction of service offences and other crime (including reduction by deterrence), the reform and rehabilitation of offenders, the protection of the public and the making of reparation. Their Lordships in the Court Martial Appeal Court were satisfied that the sentence they imposed could be suspended without compromising those purposes because of your exceptional character, your conduct which went above and beyond that required of a SNCO (such as in relation to the development of the Nightingale dressing) and the exceptional circumstances of this case. In our opinion the seriousness of this case does merit an immediate custodial sentence but we feel constrained by the decision of their Lordships. In those circumstances we have decided that the sentences passed should both be suspended for a period of 12 months.
The weapon and ammunition has been seized by competent military authorities. We order that the useable ammunition be brought back on charge with the balance being destroyed. We order that the Glock pistol be forfeit and destroyed.
- See more at: http://www.crimeline.info/case/r-v-sergeant-danny-harold-nightingale-no-4#sthash.OHHUlCOb.dpuf
entencing Remarks:-
I intend to make some general observations about this case before addressing you on sentence.
Possession of a firearm is a very serious offence and it is aggravated when ammunition is with the firearm. Parliament has decreed that a person who unlawfully possesses a prohibited firearm such as a Glock pistol should be sentenced to a minimum term of five years imprisonment. That term may only be reduced if there are exceptional circumstances. It is obvious why this policy exists: there have been a number of atrocities such as Hungerford and Dunblane where someone with a gun has murdered innocent members of the public including children. That means that even where someone has no criminal intent, but he possesses a prohibited and unlicensed firearm, particularly where it is not secure, then the law treats him severely. Severe sentences are designed to act as a deterrent – that is what the public and Parliament demand.
It is because the unlawful possession of a firearm endangers society that even where mitigation appears very strong significant sentences are still appropriate. There are many examples of such cases. For instance in 2006 a defendant called Blackall had been shot and rendered a paraplegic by an unknown gunman who was never identified. On a further occasion a man knocked at the defendant’s front door and put a gun to his head. He reported this to the police but no one was apprehended. He kept a loaded revolver thereafter for his own protection. Four months later the police came to his house and he told them where his gun was. His exceptional circumstances were taken into account to reduce the sentence of five years to three years imprisonment.
The law applies to everyone even those with an impeccable character and a history of exceptional public service. A weapon is dangerous in the wrong hands whether it originates from someone with no criminal intent who is careless or from someone with baser motives. It has been said, and it is right, that you are not a danger to society. However, what you have done has endangered society and for that reason your offending is serious.
While this case has proceeded – and was sub judice – many people including you have made numerous public statements, many of which were misleading. As a result there has been much uninformed and misinformed public debate. Much of what has been said bordered on contempt and has not helped the course of justice. The criticism of the prosecution and the Army is unmerited and totally without foundation. We understand how difficult these proceedings have been for you and your family. However, you have brought much of that anguish upon yourself and your public assertions that you are a scapegoat or the victim of some wider political agenda is absolute nonsense. You are simply someone against whom there was a strong prima facie case of serious wrongdoing and, given the dangers to society caused by illegal firearms and their misuse, it was in the public interest to prosecute you. The Service Prosecuting Authority would have been neglecting its duty if it had not brought this prosecution.
You have now had a fair trial before a civilian judge and an independent and impartial Board. All of the issues you wished to raise and all of the submissions you wished to make have been fully considered and verdicts properly given. It would have made no difference had you been tried before a civilian jury – the evidence against you was overwhelming and I have no doubt the verdicts would have been the same.
I trust that those who have been so critical of the Service Prosecuting Authority and the Court Martial process – particularly those who made unfounded and uniformed remarks under the cloak of Parliamentary privilege – now realise how inappropriate and wrong their criticisms were.
- See more at: http://www.crimeline.info/case/r-v-sergeant-danny-harold-nightingale-no-4#sthash.iB2EzEGh.dpuf

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500,000 +

00:55 0 Comments


Yippee!!!  Yesterday, the blog exceeded 500,000 page views.  Many thanks to all readers.  Hopefully, I will be plodding on for some time yet.

In that vein,what is in the news?

1) Sergeant Danny Nightingale is to be sentenced this morning. Previous posts 30th June 2013 and 2nd July 2013    Update: Sentenced to 2 years detention - sentence suspended for 12 months).  Sentencing remarks HERE.

2) Parliament has begun to realise that a sound strategy is required for Forensic Science - HERE and see BBC 25th July.  The Forensic Science Service (FSS) was closed down by the coalition government on 31st March 2012.  This Parliamentary report has a 'too little too late' feel about it.  The government cannot claim that it was not warned of the risks.  For example, Law and Lawyers 28th December 2010 drew attention to a letter to The Times (28th December 2010) from some 33 eminent scientists urging the government to rethink the closure of the service.

The Justice Gap blog has an interesting item on this.



3) Important changes to Coroners Courts come into force today - BBC News 25th July
and Ministry of Justice   The changes are helpfully summarised by BLM-Law with links to the various orders and regulations.  These reforms have arrived after a long process of equivocation on the part of the government about implementation of the Coroners and Justice Act 2009.

4) There is to be a change of Director of Public Prosecutions (DPP) who heads the Crown Prosecution Service (CPS).  The new DPP will be Alison Saunders - Law Society Gazette 23rd July.  The new appointment will commence in October.

5) Has there been some muddled thinking in the Supreme Court of the UK?  Read the interesting post at Public Law for Everyone

6) An important decision of the Court of Appeal (Civil Division) regarding allowances paid to foster carers - R(X) v London Borough of Tower Hamlet  The opening paragraph of the judgment sets the scene:

X is the foster mother of her two nephews and one niece. In the Administrative Court, Males J began his judgment by describing her as "one of the unsung heroines of our society": [2013] EWHC 480 (Admin), at paragraph 1. No one would disagree with that. In these judicial review proceedings she is challenging the policy and practice of the London Borough of Tower Hamlets (the Council) whereby she, as a family foster carer, receives less money than she would receive as an unrelated foster carer looking after the same children. Males J concluded that the Council's policies are unlawful "to the extent that they discriminate on the grounds of the pre-existing relationship with the child between family and unrelated family carers": paragraph 115. He reached this conclusion as a matter of domestic public law and did not determine an alternative ground of challenge based on Article 14, in conjunction with Article 8, of the European Convention on Human Rights and Fundamental Freedoms.

The Court of Appeal has agreed with the decision of Males J.

At para. 39 - ' ... it is impossible to say that Males J reached a wrong conclusion ... The statutory guidance has at its heart a policy that, absent cogent reasons, there should be no differentials between family and unrelated foster carers.

7) On 22nd July, Lady Hale was sworn in as Deputy President of the Supreme Court of the UK.  The brief ceremony may be viewed on Youtube.

8) Forthcoming judgments in the Supreme Court will include an interesting point on road traffic law - HERE.

9) The Marilyn Stowe blog highlights an important development in family justice - HERE.  The President of the Family Division is “... determined to take steps to improve access to and reporting of family proceedings.'  He is '... determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice.”  For more on this see Local Government Lawyer and View from the President's Chambers.

10) The UK Human Rights blog draws attention to the case of Black and Morgan v Wilkinson [2013] EWCA Civ 820 in which the court decided that owners of a B and B acted unlawfully by discriminating against a gay couple.  Permission has been granted for an appeal to the Supreme Court.

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The Anti-social Behaviour, Crime and Policing Bill

01:18 0 Comments


The Anti-social Behaviour, Crime and Policing Bill was introduced to the House of Commons on 9th May 2013. The Bill is sponsored by the Home Office and the text of the Bill, as at the date of this post, is HERE. There are 153 clauses and 8 schedules.  The Bill will affect a large number of areas of the law and will grant considerable additional powers to the police and to other bodies such as local authorities.

It is also worth noting that, whilst the Human Rights Act 1998 (HRA) is in force, there is at least the long-stop of human rights to act as a brake on some of these extensive powers since public authorities are required to act compatibly with convention rights (section 6).  We would enter a very uncertain and worrying time if the HRA were to be repealed and judicial review of official decisions and actions was curtailed (as government is now seeking to do).  Perhaps that is precisely why some Ministers (including the present Home Secretary) seek withdrawal from the European Convention and repeal of the HRA.



Part 1 - Injunctions to prevent nuisance and annoyance - a wide power here for the court to grant an injunction applicable to any person aged 10 or over who engages in or threatens to engage in conduct capable of causing nuisance or annoyance to any person.  There are certain conditions which must apply.  Note: a Youth Court will have power to make such orders.

Part 2 - Criminal behaviour orders - these may be made upon a prosecution application but the person must have been convicted of an offence first.

Part 3 - Dispersal powers - a police power to direct persons to leave an area and not return for an exclusion period

Part 4 - Community Protection Notices; Public Spaces Protection Orders; Closure of Premises

Part 5 - Recovery of possession of dwelling houses on anti-social behaviour grounds

Part 6 - Local Involvement and accountability

Part 7 - Dangerous dogs

Part 8 - Firearms

Part 9 - Forced Marriage

Part 10 - Policing: College of Policing; Review bodies for police remuneration; the IPCC; Chief Officers of Police; Local policing bodies; Miscellaneous items (these are important!)

Part 11 - Extradition

Part 12 - Criminal Justice and Court fees - clarifies the law on compensation for miscarriage of justice (Cl 143); trial by jury for low value shoplifting (Cl 144); amends the Serious Organised Crime and Police Act 2005 in relation to persons at risk; amends the law on surcharges; court and tribunal fees.

Part 13 - General including a power for Ministers to make 'minor and consequential' amendments to the Act itself.  (Such powers only create additional complexity to the law and add costs to legal work).

There is much in every part of this Bill requiring detailed examination and I shall return to this.  One striking feature of modern legislative activity is that the law grows ever more complex as more and more layers of power over the citizen are granted to the police and others (e.g. local authorities).  As each layer is granted the seeds are sown for further layers to be needed in the future.  Powers granted never seem to be quite enough for the authorities and they come back and ask for more!

Oliver Twist asks Bumble for more.  Bumble had the power to grant or refuse.



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A glance at the Law Commission's work

02:21 0 Comments


The Law Commission reviews areas of the law that have become unduly complicated, outdated or unfair. Following a process of research and consultation, the Commission makes recommendations for reform of the law to Government.  The functions of the Law Commission are set out in legislation: Law Commissions Act 1965  and the Law Commission Act 2009

Some of the Commission's current work includes a discussion paper on the problematic area of Insanity and Automatism.  The criminal law relating to these topics is generally considered to be in need of reform.  The insanity defence continues to be based on M'Naghten's case 1843 - please see the post of 27th July 2011 'Breivik - would he have a defence of insanity in English criminal law?'

The Commission has also published its Annual Report 2012-13 and is consulting on their 12th Programme of Law Reform and on Hate Crime.  Responses to an earlier consultation on Unfitness to Plead have also been published.

How effective
is the Law Commission at getting its recommendations actually implemented into law given that it is the government dictating the implementation process.  A mixed picture emerges but the situation can be said to have improved somewhat since the Law Commission Act 2009 which places the Lord Chancellor under a duty to prepare an annual report on those Law Commission proposals implemented during the year.  The report must also address any unimplemented proposals and indicate plans for dealing with them.  Reasons must be given for any decision not to implement proposals.  This important reform was discussed by Joshua Rozenberg in the Law Society Gazette in 2009.

The 2012 Lord Chancellor report (issued March 2012) is available and is worth reading in full.  The government opted against implementation of proposals relating to Participation in Crime.   Whilst accepting the Commission's recommendations (and also those in  a report on Conspiracy and Attempts) the government did not see them as priority areas in the shorter term 'when resources are scarce' and therefore said that neither sets of recommendations would be implemented during the present Parliament.  This is despite the fact that the recommendations 'seem to offer potential and possibly significant benefits to the administration of justice, both in terms of facilitating prosecutions and in better targeting what behaviour should or should not be viewed as criminal.'    (The thorny topic of 'joint enterprise' comes to mind).  Furthermore, the LC's report acknowledged that 'there could be potential savings for the criminal justice system in the longer term in respect of a reduction of appeals and a more streamlined approach to prosecutions.' 

The government also said it would not implement a Law Commission report on Intoxication and Criminal Liability.  The Commission's report addressed the law governing the extent to which a defendant should be allowed to rely on an intoxicated state at the time of commission of an offence.  The present law has been developed judicially via case law.  The Commission wished to codify the law and make it more logical and consistent.  However, the government argued that the present law contained 'well understood processes' and saw no benefit in enacting a 'new test which practitioners would need to master, yet arguably would be scarcely more intelligible.'

The Lord Chancellor's 2013 report is also available.   There were no decisions not to implement any Commission recommendations.  However, a considerable number of recommendations 'roll over' from the LC's 2012 report.

Unfortunately, a regrettable fact is that many defendants are now forced to represent themselves due to cuts in legal aid especially in Magistrates' Courts.  The latest Transforming Legal Aid proposals seem likely to increase the number of such defendants and will also markedly increase the number of litigants in person in civil cases.  It might therefore be thought to be particularly desirable for legislation to be brought forward whenever it can simplify the law.  It is not as though the government lacks legislative opportunity since, as just one example, the Anti-Social Behaviour, Crime and Policing Bill is currently before Parliament.  Could this not have been used as a vehicle to bring forward some of the unimplemented criminal justice recommendations?


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North Liverpool Community Justice Centre ~ another idea bites the dust!

02:18 0 Comments


In 2005, the North Liverpool Community Justice Centre opened with fanfares and great promise of a new and more effective way to administer justice.  Much of the background to the setting up of the Centre may be read in an evaluation report prepared in 2007.  The Centre came about after the then Lord Chief Justice (Lord Woolf) visited the Red Hook Centre, Brooklyn, New York in 2002.  The Home Secretary (David Blunkett) visited in 2003.  Both were impressed with the community justice model they observed and a decision was made to establish a similar centre in the UK.

The Labour government developed a vision for a network of problem-solving US-style community justice centres tackling offending behaviour and listening to what communities expected from their courts. However, North Liverpool, based in a former secondary school on Boundary Lane in Kirkdale at a start up cost of £5.2m, was the only court centre built on that model.  Clearly the running costs proved to be prohibitive from the Ministry of Justice perspective.



The government is now seeking to close down the Centre - LINK - due, it is said, to falling workload.  In July 2012, the government published an analysis of Re-Offending rates.  This concluded:

  • There is no evidence that the NLCJC is any more effective in reducing re-offending than other courts
  • Offenders receiving a court order at NLCJC were more likely to breach the conditions of their order than offenders receiving court orders elsewhere
  • No evidence to suggest that offending behaviour generally has improved more in the North Liverpool area than elsewhere
  • Some evidence that NLCJC operated more efficiently than other courts.  Cases were dealt with more quickly.  However, there was also evidence of inefficiency at the court including a higher proportion of 'cracked trials' than elsewhere.

Various factors underpinning community justice were not examined in the 2012 report.  These include courts connecting to the local community; justice being seen to be done; having a strong independent judiciary and raising confidence within the community.

'Community Justice' principles have supposedly been embedded into the usual Magistrates' Courts but this is with mixed degrees of success.  The NLCJC had the merit of being dedicated to 'community justice' principles.

An article about the 2012 report was published by The Guardian on 3rd August 2012.   The article stated:

'You don't have to be a pessimist to suspect that in this "age of austerity" - huge cuts to the MoJ budget and a court closure program - that the pioneering court's days are numbered.'

Prophetic words indeed!

The Ministry of Justice consultation on the closure is open to 27th August.

Additional links:

Principles of Community Justice 

Red Pepper - A radical alternative to prison and see Lasting change or passing fad? Problem solving justice in England and Wales - (Greg Berman and Aubrey Fox - ed. Ben Ullmann)

0 comments:

Roundup Thursday 18th July

02:52 0 Comments


Here is a miscellany of items of general legal interest.

Marriage:  Perhaps THE major development is the enactment of the Marriage (Same Sex Couples) Act 2013 - (PARLIAMENT).  Analysis of this will follow in a separate post.  Most of the Act remains to be brought into force by means of Commencement Orders.

Legal Aid: The Justice Committee has decided to issue a report on Transforming Legal Aid.  This follows the committee’s two recent oral evidence sessions – one with representatives of the professional bodies and one with the Lord Chancellor.  The Transforming Legal Aid proposals have attracted what appears to be almost universal condemnation and so it will be of major interest to see the views of the committee.

The Joint Committee on Human Rights has asked for evidence to be submitted regarding the government's legal aid proposals - (HERE).   Written evidence is requested by 27th September and hearings will take place in October.  The committee has requested that the government do not proceed with changes until the committee has reported.



PRISM: The Chairman of the Intelligence and Security Committee of Parliament, the Rt Hon Sir Malcolm Rifkind MP, has issued a statement regarding GCHQ’s alleged interception of communications under the US PRISM Programme.  'It has been alleged that GCHQ circumvented UK law by using the NSA’s PRISM programme to access the content of private communications. From the evidence we have seen, we have concluded that this is unfounded.' 

'Although we have concluded that GCHQ has not circumvented or attempted to circumvent UK law, it is proper to consider further whether the current statutory framework  governing access to private communications remains adequate,'


Arms:  The UK's enormous trade in arms has been the subject of a report by the Committee on Arms Export Controls.  For the first time, the Committee's Report details for each of the Foreign and Commonwealth Office’s 27 named Countries of Human Rights concern the number of extant strategic export licences for each country, their value (where provided by the Government) and the nature of the strategic exports that have been approved.  Interestingly, the report comes soon after the UK signed the United Nations Arms Trade Treaty - (AMNESTY).

Law in Focus:  On Youtube, Nicola Padfield (Reader in Criminal and Penal Justice, Cambridge University) may be seen talking about the decision of the European Court of Human Rights in Vinter and others v UK (Whole Life Sentences and Review)  and also the Supreme Court decision in R (Sturnham) v Parole Board [2013] UKSC 47 - HERE.  This is part of a number of similar items prepared by Cambridge University under the heading Law in Focus.

Terrorism:  A report on Terrorism legislation has been issued by the Independent Reviewer (David Anderson QC) - HERE

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