Manslaughter sentencing ~ R v Lewis Gill

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Update:  Letter in The Guardian 3rd March from the Attorney-General - Dominic Grieve QC

On 26th February, former Lord Justice of Appeal Sir Henry Brooke tweeted:

Sentencing for manslaughter where the assailant had no intent to cause serious harm presents a formidable challenge to any sentencing judge
— Henry Brooke (@HenryBrooke1) February 26, 2014

There can be no doubt about that given the vast spectrum of factual situations and degrees of culpability involved in manslaughter cases.

Serious public concern has been expressed at the 4 year sentence imposed on Lewis Gill (aged 20) for the manslaughter of Andrew Young (40) who suffered from Asperger's Syndrome.  Some of the media coverage of the offence is at The Independent 27th February  (with a video of the event).  Unfortunately, sentencing remarks do not seem to have been officially released.   However, The Independent report states:


Gill pleaded guilty to manslaughter.  Steven Perian, defending, said Gill had felt threatened by Mr Young, but judge Keith Cutler rejected the claim.  In passing sentence, Judge Cutler explained why he was sentencing Gill to only four years.  He said: "What I have had to look at is what was in your mind at the time you threw that punch. You wanted to cause some injury to Mr Young. If you wanted to cause grievous bodily harm it would have been a murder charge.  I bear in mind your early guilty plea. I accept there is no pre-meditated element and provocation does exist.

From the video in The Independent's report, it is clear that Mr Young had been involved in discussion with a cyclist and it is reported that this was about riding on the pavement.  The cyclist rides away and then Lewis Gill approaches Mr Young, turns to face him and and throws a punch with his right fist.  My Young falls to the ground and lies there motionless.  Lewis Gill just walked away leaving Mr Young lying in the road.  Mr Young died the following day.  It is very hard to see how Gill had felt threatened and that was rejected by the trial judge.  In what way was there any provocation?  From the reports we do not know but, even if there was any, it must have been very minimal.    The punch was clearly a deliberate (intentional) assault on Mr Young and the blow must have been very forceful.

Sentencing for this form of manslaughter has been before the Court of Appeal many times.  I will refer to just two cases though the judgments refer to others:  R v Furby [2005] EWCA Crim 3147 and R v Appleby and others [2009] EWCA Crim 2693 - (the latter judgment was discussed in Daily Mail 19th December 2009).

In the Appleby case, Lord Judge CJ said of the Furby decision:

"Without seeking to undermine or diminish the value of Furby as a continuing example of a case of manslaughter at the very lowest level of seriousness, it was decided shortly after legislative changes in the Criminal Justice Act 2003, but, so far as we can see, without their possible impact being addressed." [para 12].

Lord Judge continued [13-14]:

1.  ....... What is now required, without of course diminishing the attention to be paid to the actions of the defendant and his intentions at the time, and the true level of his culpability, is that specific attention must also be paid to the consequences of his crime. The question which has not yet been addressed, and which now falls to be addressed, is the impact of recent criminal justice legislation.


2. Section 143(1) of the Criminal Justice Act 2003 focused significant importance in the sentencing process on the consequences of every offence.



"In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused".

This statutory provision was new. It expressly required that both the offender's culpability and the consequences, actual or potential, intended or foreseen, of the crime should be expressly addressed in the sentencing decision. In manslaughter culpability may be relatively low, but the harm caused is always at the highest level.

At para 22, His Lordship said:

" ..... crimes which result in death should be treated more seriously, not so as to equate the sentencing in unlawful act manslaughter with the sentence levels suggested in schedule 21 of the 2003 Act, but so as to ensure that the increased focus on the fact that a victim has died in consequence of an unlawful act of violence, even where the conviction is for manslaughter, should, in accordance with the legislative intention, be given greater weight."

The objectives of sentencing (Criminal Justice Act 2003 section 142)  include punishment of offenders; reduction in crime (including its reduction by deterrence) and protection of the public.  The sentence imposed on Lewis Gill appears to be low and the Attorney-General is considering a reference to the Court of Appeal on the basis of undue leniency (Criminal Justice Act 1988 section 36).  The case offers a clear example of "single punch manslaughter" and it would be very useful to sentencers if the Court of Appeal were to consider it.  The challenge referred to by Sir Henry Brooke might be made somewhat less formidable ! 

Sentencing in R v Adebolajo and Adebowale

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The men found guilty of the murder, on the afternoon of 22nd May 2013 at Woolwich, of  Fusilier Lee Rigby have now been sentenced.  A whole life term was imposed by Mr Justice Sweeney on Michael Adebolajo.  A 45 year minimum term was imposed on Michael Adebowale.  See the Sentencing Remarks (via the Judiciary website).  Adebolajo ( also known as Mujaah id Abu Hamza) was the leader of the joint enterprise.  Adebowale (also known as Ismail Ibn Abdullah) played his part in the joint enterprise enthusiastically.  Earlier this month, the Court of Appeal held that it was lawful to impose a whole life term (previous post of 18th February).

The Guardian 26th February reports that the two had to be removed from the dock for disruptive behaviour and they were not present in court as the judge passed sentence.

The "On the Run" administrative scheme ~ Statement in Parliament

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Update 27th February:   The Guardian - Cameron orders judicial review into IRA immunity letters and see 10 Donwing Street announcement


In the Parliamentary session of 2005-6, a Northern Ireland (Offences) Bill was introduced into Parliament.   The Bill was introduced on 9 November 2005, and it had its second reading in the Commons on 23 November and passed its committee stage. Further information on the provisions is given in Library Research Paper 05/78.   Following widespread opposition to the Bill, Peter Hain MP announced on 11 January 2006 that he had decided to withdraw the bill.  He noted (HC Debates 11th January 2006 c286-288): 

'Every Northern Ireland party vigorously opposed the Bill, bar Sinn Fein. Now Sinn Fein opposes it, because it refuses to accept that the legislation should apply to members of the security forces charged with terrorism-related offences.  To exclude
from the provisions of the Bill any members of the security forces who might have been involved in such offences would have been not only illogical but indefensible, and we would not do it.  Closure on the past cannot be one-sided.  That was, and is, non-negotiable.   The process would have made people accountable for their past actions through the special tribunal before being released on licence.  Sinn Fein has now said that any republican potentially covered by the legislation should have nothing to do with it.  But if no one went through the process, victims who would have suffered the pain of having to come to terms with the legislation would have done so for nothing. That is unacceptable, and I am therefore withdrawing the Bill.'

Following the decision by Mr Justice Sweeney to stay the indictment against John Downey (previous post), the Secretary of State for Northern Ireland (Theresa Villiers MP) made a statement to Parliament - Statement of 25th February 2014.  The statement refers to the administrative scheme for dealing with those known as "On the Runs".  The scheme was in operation from around September 2000.  "It was devised by the previous government.  The details were not fully set out to Parliament, though the scheme was referred to in July 2002 in answer to a parliamentary question given by the then Secretary of State for Northern Ireland, John Reid. [My emphasis].

Villiers points out that following the failure of the Northern Ireland (Offences) Bill in 2005-6, the administrative scheme became the only mechanism for dealing with the "On the Runs."  Under the scheme, inquiries from individuals wishing to establish if they were wanted for arrest over suspected terrorist activities were communicated by Sinn Fein, through the Northern Ireland Office, to the Attorney General, who then referred them to the prosecuting authorities and the police.  The government communicated back the response to Sinn Fein via a letter from the Northern Ireland Office.

Thus, on the basis of an administrative scheme not fully set out to Parliament, the authorities issued letters to those on the run.  In her statement, Villiers stressed that those given letters were also advised that "should new information or evidence of wrongdoing come to light at any point in the future, then they would be subjected to normal criminal proceedings. There was, therefore, no immunity from possible future arrest."

The letter to John Downey, contained the error that he was not wanted by any Police Force in the UK.  In fact, he was wanted by the Metropolitan Police.  However, despite this error, Mr Justice Sweeney decided that it would be an abuse of process to allow the indictment to stand.  The announcement that there would be no prosecution appeal against this decision seems surprising and ought to be more fully explained to the public.  It is surely the very least that the public and the families of the victims deserve.  A statement by the Attorney-General to Parliament (26th February) merely asserts:

'The court has now heard full argument and has considered a great deal of documentation. The judgment given is a detailed and careful assessment of the case and the circumstances in which Mr Downey received his letter. The CPS and I do not consider it gives rise to any prospect of successful appeal, and I am therefore of the view that the matter cannot be pursued further.'

In the Attorney-General's statement he stated that he gave his consent to the explosives prosecution which was one of the charges against Downey.

Telegraph 26th February - Victims of IRA bomb cheated out of justice by a monumental blunder - this article states that the Crown has said that there will be no appeal against the decision of Sweeney J.  " ... announcing that the Crown would not appeal, prosecutor Brian Altman QC acknowledged the pain of the victims’ families “who must live with the consequences of it daily, and with the memories of that dreadful event”.

The question of the "letters of assurance" may prove to be difficult in the already difficult world of Northern Ireland politics - see BBC - Peter Robinson quit threat over IRA Hyde Park bomb case

Other links:

CPS - details of the charges etc - Man charged over 1982 Hyde Park Bombings

Eames-Bradley Report - see pages 120 and 157

1982 Hyde Park Bomb ~ Abuse of process ~ Indictment against John Downey stayed

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The Crown Prosecution Service website has a clear explanation of the basic principles of "abuse of process" - a principle by which a trial court exercises its overriding duty to promote justice and prevent injustice.  The court has an inherent power to 'stay' an indictment (or stop a prosecution in the magistrates' courts) if the court is of the opinion that to allow the prosecution to continue would amount to an abuse of the process of the court.

Abuse of process has been defined as something so unfair and wrong with the prosecution that the court should not allow a prosecutor to proceed with what is, in all other respects, a perfectly supportable case (Hui Chi-Ming v R [1992] 1 A.C. 34, PC). 'Unfair and wrong' is for the court to determine on the individual facts of each case. The concept of a fair trial involves fairness to the prosecution and to the public as well as to the defendant: DPP v Meakin [2006] EWHC 1067.

On 20th July 1982, bombs exploded
at Hyde Park and Regents Park, London - (Wikipedia).  11 military personnel were killed: four soldiers of the Blues and Royals and seven bandsmen of the Royal Green Jackets. Seven of the Blues and Royals' horses also died in the attack. One seriously injured horse, Sefton, survived and was subsequently featured on a number of television programmes and was awarded "Horse of the Year". Sefton's rider also survived but suffered from post traumatic stress disorder and in 2012 committed suicide after killing his two children.

In 1987, Gilbert "Danny" McNamee was convicted of making the Hyde Park bomb and jailed for 25 years. He served 12 years before being released under the terms of the Good Friday Agreement; his conviction was later quashed.

In 2013, John Downey was charged with four counts of murder in relation to the Hyde Park attack.  The trial judge - Sweeney J - has now ruled that there would be an abuse of process and the indictment against Downey has been stayed - The Guardian 25th February 2014.

The detailed reasons of Sweeney J are available - PDF 57 pages.  Four reasons were put forward as to why the prosecution was an abuse of process.

(1) that a fair trials was no longer possible over 30 years after the event given the significant witnesses were now dead and key exhibits irretrievably lost.

(2) It would be unfair to try Downey in the light of expectations created by governmental statements that a prosecution would not be pursued in respect of those (such as Downey) who would otherwise qualify for early release under the terms of the Good Friday Agreement.  

(3) It would be unfair for Downey to be tried because on 20th July 2007 [25 years to the day after the bombing and under the administrative scheme in relation to so-called "on the runs" (OTRs) which was intended to advance the peace process in Norther Ireland] he was given a clear written assurance on behalf of the Secretary of State for Northern Ireland and the Attorney General that there was no outstanding direction for prosecution in Northern Ireland in relation to him.

The letter also stated that the Police, and that the Police Service of Northern Ireland (PSNI) were not aware of any interest in him by any other Police Force in the UK.  The reality was that PSNI knew that Downey was wanted by the Metropolitan Police.

(4) Even if grounds (1) to (3) did not in themselves justify a stay, their cumulative effect did so.

The Crown offered its reasons as to why the prosecution ought to have been permitted to proceed.  First, long delay did not prevent a fair trial.  Secondly, the political process and past governmental commitment not to prosecute should not impact upon an independent prosecutorial decision.  Thirdly, the July 2007 to Downey was the product of an error as opposed to any act of bad faith.  It was not an assurance that he would not, or never would would be, prosecuted on the mainland for any terrorist offences committed prior to the Good Friday Agreement.  Fourthly, there was no basis in law for ruling that the delay coupled with the letter of July 2007 had engendered a false sense of secutity in Downey such that the court should hold it an abuse of process to allow the prosecution to proceed.

Reasons (1), (2) and (4) were unsuccessful  Sweeney J upheld (3) and stayed the indictment.  Sweeney J set out the relevant law of abuse of process at paragraphs 143 to 150.

At para 175 Sweeney J considered the competing public interests involved.  Those accused of serious crime should be tried.  In this case, that was outweighed by the need to ensure that executive misconduct did not undermine public confidence in the criminal justice system and also the public interest in holding State officials to promises they have made.  This was one of those rare cases in which it would offend the court's sense of justice and propriety to be asked to try the defendant.

Links / Comment:

Daily Mail 25th February - Betrayal of Hyde Park victims ...

Independent 26th February - Hyde Park bombing: Northern Ireland Police Federation appalled at grubby secret deal ....  points out that, at the time of the Good Friday Agreement, there were 211 unsolved murders of officers in what was the Royal Ulster Constabulary and that their families are now unlikely to see justice done.

Telegraph 26th February - Victims of IRA bomb cheated out of justice by a monumental blunder - this article states that the Crown has said that there will be no appeal against the decision of Sweeney J.  " ... announcing that the Crown would not appeal, prosecutor Brian Altman QC acknowledged the pain of the victims’ families “who must live with the consequences of it daily, and with the memories of that dreadful event”.

Good Friday Agreement - 

Sefton 1963-1993

Memorial to Bandsmen at Regent's Park

Women and children first ~ Gender neutraility in the family courts ~ Marital property agreements

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Update 27th February:  Law Commission Report - Matrimonial property, Needs and Agreements


"Men have every right to feel disillusionment with the family courts system" argues Philippa Dolan in the Law Society Gazette 24th February - Women and Children First.   For years family lawyers have known it to be true: men get a raw deal when they divorce in England and Wales.  Scotland has a different appoach to money in divorce and women rarely get the joint lives order (aka "meal ticket for life") that we still see here.   Also, the prejudice against men is not confined to finance.  There is not a level playing field when it comes to deciding whether children should have their primary homes with their mothers or fathers.

The author of the article bases her views on years of dealing with the family courts, mainly in London.   Our capital city is not the divorce capital of the world for nothing.  Wives with tenuous connection to the city jump through hoops to avail themselves of our wife-friendly judges.  As Boris Johnson said in November 2012: 'I have no shame in saying to the injured spouses of the worlds' billionaires, if you want to take him to the cleaners ... take him to the cleaners in London because London cleaners will be grateful for your business.'

The author notes that our legislation is neutral. 
The Matrimonial Causes Act 1973 section 25 contains an exhaustive yet flexible list of relevant factors when determining financial claims on divorce.   The Children Act 1989 section 1 makes it clear that the court's job is to establish the child's best interests and then to protect them.  Although the legislation is gender neutral, the courts are not.

After the House of Lords decision in White v White 2000 (establishing an equal sharing principle for sharing assets on divorce), wealthy husbands began trying to protect themselves with so-called pre-nuptial agreements.  These were rarely effective here until the Supreme Court case of Radmacher v Granatino 2010 where a very wealthy German heiress succeeded in persuading the court to uphold her marriage contract.

A complex situation arose in Prest v Petrodel 2013.   Here, in the view of the Gazette article, the Supreme Court "were terribly concerned at the prospect of keeping Mrs Prest out of a substantial fortune that had been tied up in corporate structures during the marriage with a view to saving tax.  The author claims that the judges were determined to protect Mrs Prest at the expense of judicial clarity.

On 27th February, the Law Commission is to publish proposals relating to pre nuptial agreements though they would be termed "marital property agreements" and see the Marilyn Stowe blog Law Commission plans prenuptial agreements law 

Of course, it is high profile divorce cases involving the famous or wealthy which make headlines!  Nevertheless, there are certainly cases where parties to any marriage might wish to make a marital property agreement.  One example is where people enter into second (or subsequent) marriages and wish to protect the inheritance rights of the children of their earlier marriage.

Baroness Deech has presented a Bill to provide that only property acquired after marriage be divided on divorce.
  

I introduced in the Lords today my Bill to make prenups binding;to provide that only property acquired after marriage be divided on divorce
— Ruth Deech (@BaronessDeech) February 25, 2014

Late season skiing in Livigno

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View ski accommodation in Livigno


Think the ski season is almost over? Think again.

Although February is high season, plenty of Italian ski resorts keep their lifts running well into spring, and with a great winter in Italy this year, it's looking like the snow will last for some time yet.  For those travelling or looking at late season, it is much cheaper to go skiing in the spring. Late season is low season, so lift passes and self-catering ski accommodation cost considerably less than during mid-winter. In addition to this, it is much more quiet.  Skiing and snowboarding in late season means fewer people on the slopes, and less chance of lift queues.


Maybe the most attractive element of off season skiing is the weather. As spring approaches, it is much sunnier, while the weather generally is more pleasant towards the end of the winter. This means longer daylight hours and longer lift opening times; giving you the chance to make the most out of a days skiing as well as enjoying more relaxion time on the sun terraces of slope-side cafes and bars!

Livigno takes top spot


Livigno is without doubt, the best resort in Italy for late skiing.  Livigno is one of the higher resorts in Europe, although it does not reach glacial heights, it offers pistes to 3,000 metres and a great snow record with one of the longest seasons in Italy. The valley is nicknamed “Piccolo Tibet” in reference to its reputation for extreme cold. This is more obvious earlier in the season, but does help preserve a good base for later on. Strangely, it is also known for its sunny location. Livigno offers one of Europe's largest terrain parks and the skiing can easily last until late April/early May on a good year.


A Typical mountain location, Livigno characterizes what you would imagine of an Italian resort; most of the houses are built with wood and the resort is surrounded by snow and beautiful mountains. There is varied skiing on both sides of the valley and even the possibility of a days’ skiing in St. Moritz.  Livigno is a good ski resort for beginners to learn to ski, with a wide choice of runs at resort level. There are plenty of red ski runs and some easy blacks for intermediate skiers in Livigno.  In total there are 110kms of ski slopes in Livigno and the longest run is 4kms.


Livigno is also perfect to do some shopping, and its tax-free tax status is a considerable draw, meaning that food and drink are excellent value. Off-piste, it also a great resort to sit and watch the world go by; have a break in a typical mountain coffee shop, maybe for a hot chocolate, a 'vin brule' or simply an espresso; then, at lunch or dinner time, try one of the many cute restaurants, which serve typical mountain dishes.

All in all, Livigno is one of the most reliable ski resorts for snow in Italy, so let the season continue…

Accommodation in Livigno


View a wide range of great self-catering accommodation in Livigno from Holiday Homes in Italy

An event at an anti-fracking protest

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Here is a link to a report in the Manchester Evening News  21st February. 

The Independent Police Complaints Commission is to investigate the arrest of a man at an anti-fracking camp.  Dr Steven Peers is planning to sue Greater Manchester Police, claiming video footage shows an officer lying to detain him on ‘trumped up’ charges.  He was filming a demonstration at Barton Moss in Salford and arrested for refusing a breath test after the policeman accused him of driving to the site having had drink.  He was charged but the case collapsed at Manchester and Salford Magistrates' Court when prosecutors offered no evidence.

Worth watching ... !!!

Earlier post relating to "Fracking"

Lago Vista apartment: the perfect holiday rental on Lake Garda

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Lake Garda never disappoints as a holiday destination, so when we first came across this property, we knew we had to add it to our Holiday Homes in Italy property portfolio; great interiors, relaxing setting, lovely lake views and close to an historic centre full of charm. What more can you wish for when looking for a holiday rental in Italy?


The Lago Vista apartment is now in its second season of rentals and is located on the top floor of a lovely residence. The apartment consists of a living room with double sofa bed, a big kitchen area equipped with everything you would need. There is one double bedroom with French doors leading onto the terrace, a twin bedroom and a bathroom.


The beauty of the property is the large external terrace, where you can enjoy breakfast and dine al fresco, whilst enjoying the lake views. The residence offers parking and a shared swimming pool, also offering lovely views over the lake. If you don’t fancy cooking or venturing into town, there is a very good restaurant right next to the residence.


The apartment is located a mere 3km from the beautiful town of Salo’ on the western shore, called Riviera dei Limoni (Riviera of the lemons), due to the important presence of its lemon trees cultivation.  Salo’ is steeped in history and full of quaint alleys and little squares where there are beautiful properties, elegant shops and plenty of bars and restaurants, where you can sit, relax, eat a gelato or sip a cappuccino and watch the world go by! There are also plenty activities in and around the lake. Read our blog on Salo’ to find out more!

To view availability and pricing for 2014, visit Lago Vista apartment. 

2014 Queen's Counsel

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The Lawyer 19th February has the 2014 list of those to be appointed Queen's Counsel (QC) in 2014.   There were 225 applicants.  The successful included 95 barristers and five solicitor-advocates (out of just 7 solicitor applicants). The majority of the new QCs are civil practitioners, with 63 saying they practise civil law. A further six have a mixed civil and criminal practice, and 26 purely criminal practices. Just five are family barristers.

The number of women appointed rose from 14 last year to 18 this year, out of 42 applicants, making the success rate among women 43 per cent. The proportion of new silks who are female rose from 17 per cent last year. However the success rate for women is the lowest since 2008, when 39 per cent of female applicants were made QCs.

In addition there are six QC Honoris Causa

As the Sochi Olympics end, we take a look back at the Italian Olympic resorts..

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With the Sochi Olympic ending, Holiday Homes in Italy takes a look at another Olympic destination, Sestriere. This Italian resort hosted the Olympics back in 2006 and is now starting to become a top class and cosmopolitan destination. The resort is located in the heart of the extensive Milky Way ski area and offers reliable snow and excellent and varied pistes. It is perfect for beginners with plenty of wide nursery slopes and both intermediates and expert skiers are catered for with fantastic skiing in over 400 km of terrain with linked access to neighbouring resorts of Sansecario and Sauze D'Oulx. This is also boarding heaven with plenty of off-piste opportunities and a great snow park.


The resort has many restaurants and there is a good apres-ski scene in the numerous bars, especially at weekends, where the Italians drive up from Turin and Milan. Off-piste activities include, swimming pool, ice skating rink, gym, saunas and indoor tennis.


Right in the heart of the resort is the Olympic Village, which offers excellent value and good accommodation with many facilities on hand. This is perfect for families and groups where you have plenty of meeting places and leisure facilities all under one roof and being a short distance from the lifts – what more could you ask for! The leisure facilities include a swimming pool, gym and spa with sauna, steam, whirlpool and treatment centre. There is evening entertainment, a lounge bar and three separate restaurants. Families can benefit from the mini-club, which is included in the accommodation price. If that wasn’t enough, there are also shops and ski rental on-site – perfect for those just wanting to ski and relax in the evening without having to venture out.

Holiday Homes in Italy is pleased to include the Olympic Village apartments, in its 2014 ski portfolio.

View all ski accommodation in Sestriere


In addition to Sestriere, several different Italian ski resorts played host to winter Olympians in 2006; Bardonecchia was the site of the snowboarding competitions, Cesana San Sicario held the biathlon and alpine skiing, but the best known to UK skiers was Sauze d’Oulx which hosted the freestyle skiing events.


Situated at one end of the lift-linked Via Lattea (Milky Way), Sauze d'Oulx is one of the largest, most popular resorts in the area, offering access to over 400km of pistes. The resort sits on a mountain shelf with impressive views of the towering mountains. Boarders will enjoy the big open pistes and intermediates are spoilt for choice. The resort is a also party venue and lively at night with plenty of bars, restaurants and clubs. There is an attractive and quieter old part with narrow streets, quaint properties and good restaurants.

View ski accommodation in Sauze D’Oulx

Court of Appeal upholds "whole life" terms for exceptionally serious murder

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A five judge Court of Appeal (Criminal Division) has upheld whole life terms for exceptionally serious murder - Judgment.    Lord Thomas LCJ delivered the court's judgment.  His Lordship succinctly stated the statutory sentencing provisions in paragraph 1 and noted that the Secretary of State has a power of release under s.30 of the Crime (Sentences) Act 1997 (the 1997 Act) to release a prisoner if there are exceptional circumstances which justify release on compassionate grounds.  The challenge to the scheme was based on Article 3 and the relevant European Court of Human Rights decisions are stated in paragraph 2.

In the event,
the Court of Appeal determined an appeal by Newell on whom a whole life order had been imposed, and a reference by the Attorney General in the case of McLoughlin where the trial judge (Sweeney J), after concluding the decision in Vinter precluded the imposition of a whole life order, had imposed a minimum term of 40 years. The reference was made on the grounds that the judge had made an error of law as to his powers and that the consequent failure to make a whole life order had resulted in an unduly lenient sentence.

Paragraphs 5 to 8 of the judgment are an interesting history of the legislative scheme now in force.  Para. 9 describes the law under the Criminal Justice Act 2003 Schedule 21 which sets out how a trial judge is to go about fixing the penal element of a the mandatory life imprisonment sentence.

Para. 10 sets out the compassionate release provisions in section 30 of the 1997 Act.  Para. 11 details how the 1997 is applied by the Secretary of State.  The highly restrictive conditions for compassionate release are set down in chapter 12 of the Indeterminate Sentence Manual (the Lifer Manual), issued as Prison Service Order 4700.  The criteria begin with the condition that the prisoner is suffering from a terminal illness and death is likely to occur very shortly. Indeed, Chapter 12 is entitled "Compassionate release on medical grounds."

Submissions

In paras 12 and 13, the Lord Chief Justice set out the submissions to the court.  The government argued that when considering review and release, the Secretary of State had to exercise his powers under s.30 of the 1997 Act compatibly with Convention Rights. The policy set out in the Lifer Manual did not represent the whole of the circumstances in which the power of release might be exercised.  Also, it was submitted that  s.269(4) of the Criminal Justice Act 2003 Act, could not be read down under section 3 of the Human Rights Act 1998, in order to make "must" mean "must not".  Furthermore, whilst the court is a public body enjoined by s.6(1) to act compatibly with the Convention, s.6(2) has the effect of disapplying that provision where a public body acts in accordance with primary legislation which cannot be read down. 

On behalf of the appellant Newell, Mr Stone QC submitted that the Grand Chamber had made it clear that there must be a regime for review of the sentence at the time the sentence was passed; that regime must provide for the realistic possibility of reducibility to be compatible with Article 3; the current regime did not. The whole life order was therefore incompatible with Article 3. [My emphasis].

Compatibility with Article 3

At para 17 - the court did not read the judgment of the Grand Chamber in Vinter as in any way casting doubt on the fact that there are crimes that are so heinous that just punishment may require imprisonment for life.  In Vinter the Grand Chamber accepted that, because what constitutes a just and proportionate punishment is the subject of debate and disagreement, States have a margin of appreciation. Under our constitution it is for Parliament to decide whether there are such crimes and to set the framework under which the judge decides in an individual case whether a whole life order is the just punishment.

However, did the regime which provides for reducibility have to be in place at the time the whole life order is imposed?  At para 22, the Lord Chief Justice said -

"Thus whilst it is clear that the Grand Chamber accepted that a judge can impose a whole life order as just punishment, it concluded that a legal regime for a review during the sentence must be in place at the time the sentence is passed"  

In Vinter, the Grand Chamber considered release under section 30 and concluded that it did not, because of the lack of certainty, provide an appropriate and adequate avenue of redress in the event an offender sought to show that his continued imprisonment was not justified. The Grand Chamber said:

"At the present time, it is unclear whether, in considering such an application for release under s.30 by a whole life prisoner, the Secretary of State would apply his existing, restrictive policy, as set out in the Prison Service Order, or would go beyond the apparently exhaustive terms of that Order by applying the Article 3 test set out in Bieber. Of course, any ministerial refusal to release would be amenable to judicial review and it could well be that, in the course of such proceedings, the legal position would come to be clarified, for example by the withdrawal and replacement of the Prison Service Order by the Secretary of State or its quashing by the courts. However, such possibilities are not sufficient to remedy the lack of clarity that exists at present as to the state of the applicable domestic law governing possible exceptional release of whole life prisoners."

The Court of Appeal disagreed with the Grand Chamber on this. "In our view, the domestic law of England and Wales is clear as to "possible exceptional release of whole life prisoners". As is set out in R v Bieber the Secretary of State is bound to exercise his power under s.30 of the 1997 Act in a manner compatible with principles of domestic administrative law and with Article 3.  As we understand the Grand Chamber's view, it might have been thought that the fact that policy set out in the Lifer Manual has not been revised is of real consequence. However, as a matter of law, it is, in our view, of no consequence. It is important, therefore, that we make clear what the law of England and Wales is."

Paras. 31 to 36 ...

31. First, the power of review under the section arises if there are exceptional circumstances. The offender subject to the whole life order is therefore required to demonstrate to the Secretary of State that although the whole life order was just punishment at the time the order was made, exceptional circumstances have since arisen. It is not necessary to specify what such circumstances are or specify criteria; the term "exceptional circumstances" is of itself sufficiently certain.

32. Second, the Secretary of State must then consider whether such exceptional circumstances justify the release on compassionate grounds. The policy set out in the Lifer Manual is highly restrictive and purports to circumscribe the matters which will be considered by the Secretary of State. The Manual cannot restrict the duty of the Secretary of State to consider all circumstances relevant to release on compassionate grounds. He cannot fetter his discretion by taking into account only the matters set out in the Lifer Manual. In the passages in Hindley to which we have referred at paragraph 7 the duty of the Secretary of State was made clear; similarly the provisions of s.30 of the 1997 Act, require the Secretary of State to take in to account all exceptional circumstances relevant to the release of the prisoner on compassionate grounds.

33.  Third, the term "compassionate grounds" must be read, as the court made clear in R v Bieber, in a manner compatible with Article 3. They are not restricted to what is set out in the Lifer Manual. It is a term with a wide meaning that can be elucidated, as is the way the common law develops, on a case by case basis.

34.  Fourth, the decision of the Secretary of State must be reasoned by reference to the circumstances of each case and is subject to scrutiny by way of judicial review.

35.  In our judgment the law of England and Wales therefore does provide to an offender "hope" or the "possibility" of release in exceptional circumstances which render the just punishment originally imposed no longer justifiable.

36.  It is entirely consistent with the rule of law that such requests are considered on an individual basis against the criteria that circumstances have exceptionally changed so as to render the original punishment which was justifiable no longer justifiable. We find it difficult to specify in advance what such circumstances might be, given that the heinous nature of the original crime justly required punishment by imprisonment for life. But circumstances can and do change in exceptional cases. The interpretation of s.30 we have set out provides for that possibility and hence gives to each such prisoner the possibility of exceptional release.

Comment:

Section 30 of the 1997 Act has been interpreted in a way which gives the government an escape route!   The court's view that "compassionate grounds" must be read so as to be compatible with Article 3 means that if a whole life prisoner is able to argue that detention is no longer justifiable on penological grounds then he can apply for release on licence.  In considering whether to release such a prisoner, the Secretary of State has to consult the Parole Board as required by section 30.


The court said at para - "Judges will continue to apply the statutory scheme in the CJA 2003 and in exceptional cases, likely to be rare, impose whole life orders in accordance with Schedule 21."  Just how rare such cases will be remains to be seen and it is worth noting that a considerable number of whole life orders have been made to date.

McLoughlin's 40 year term imposed by Sweeney J was quashed and a whole life term substituted.  Newell's appeal was dismissed - the court upholding his whole life term.  Finally, at para 59, the court noted:

"These two cases are exceptional and rare cases of second murders committed by persons serving the custodial part of a life sentence. The making of a whole life order requires detailed consideration of the individual circumstances of each case. It is likely to be rare that the circumstances will be such that a whole life order is required. Our decision on each case turns on its specific facts and cannot be seen as a guide to any similar case."

The disagreement with Strasbourg over section 30 is stark and this may not be the last we have heard of the matter.  How much simpler could things have been had the government implemented a review process for "whole lifers" after 25 years.  That, ironically, used to be Home Office practice (see para 7 of the judgment)!  "Compassionate" release could then have remained precisely that - without any need for distortion of the meaning of the word.  Regrettably, politics are involved with Ministers not wishing to be seen to accept the Strasbourg judgment.

A serious concern:

The court's approval to using section 30 in this way brings a Minister back into determining the key question of whether there are on-going grounds to justify further detention.   True that the Secretary of State is required by section 30  to consult the Parole Board (unless the circumstances are such as to render such consultation impracticable).  However, section 30 is not geared to giving the prisoner a right to a Parole Board hearing which other forms of prisoner have.  The determination of these matters was wrested from politicians (see para 9 of the judgment) only for the Court of Appeal to hand it back to them.  A politician decision-maker with the possibility of expensive and difficult judicial review is a poor substitute for the proper Parole Board review process which Strasbourg clearly envisaged in the Vinter decision.

Previous post:

Coming soon in the Court of Appeal - legality of whole life terms for murder

Other commentators:

Head of Legal blog 18th February - where Carl Gardner argues that Prison Order 4700 should now be redrafted to bring it into line with the Court of Appeal's view.

UK Human Rights blog - Rosalind English -  Strasbourg law does not prevent the imposition of whole life orders for heinous crimes

Halsbury's Law Exchange - Lydon Harris -  Whole life appeal, not quite a victory over Strasbourg

Coming soon in the Court of Appeal - legality of whole life terms for murder

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Update 18th February:

The Court of Appeal has upheld the legality of "whole life" orders - Judgment.

Original Post:

The death penalty for murder was abolished in the United Kingdom and, in its place, a mandatory sentence of life imprisonment has to be imposed - Murder (Abolition of the Death Penalty) Act 1965.  (The last executions in England were in 1964). This remains the law despite the wishes of some to have a discretionary, as opposed to mandatory, life sentence - Give Judges discretion in murder sentencing - The Guardian 7th December 2011. Whatever the merits of such proposals, there seems to be little doubt that the settled will of the majority of the British people is that the mandatory life sentence should remain.  Even if eventually released, such individuals remain on licence.

The UK Parliament has spoken more recently about sentencing for murder.
Under Schedule 21 of the Criminal Justice Act 2003, the trial judge is empowered to fix the minimum term to be served before a prisoner is eligible to be considered by the Parole Board for release. Schedule 21 para. 4 states:

If -

(a) the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and

(b) the offender was aged 21 or over when he committed the offence,

the appropriate starting point is a whole life order.

A relatively small number of convicted persons have fallen into this category.   Schedule 21 gives some examples of cases where the seriousness would be considered to be exceptionally high - e.g. the murder of a child if involving the abduction of the child or sexual or sadistic motivation.  The Schedule goes on to guide trial judges in fixing the minimum term in other cases not in the exceptionally high seriousness bracket.  In all cases, the judge will consider all factors including any aggravating and mitigating features.

Enter Strasbourg - the European Court of Human Rights (E Ct HR).  In the case of Vinter and others v United Kingdom, the E Ct HR ruled that, even in cases where whole life orders are made, there should be a review after 25 years ( and at reasonable intervals thereafter) to determine whether there were on-going penological reasons to continue to detain the individual.  For whole life orders, the UK does not have such a review procedure.  In terms of law, it would be relatively easy to put a review in place but.so far and for essentially political reasons, the government has not acted to do so.

Since the decision in Vinter, a number of particularly serious cases have come up for sentencing:  R v Reynolds (December 2013) - whole life term imposed by Wilkie J; R v McLoughlin (October 2013) - 40 year term imposed because Sweeney J had doubts, in the light of Vinter, as to the legality of a whole life term.  Yet to have their minimum terms fixed are Adebolajo and Adebowale - convicted of the murder, in May 2013, of soldier Lee Rigby - The Guardian 20th December 2013.  The latest is R v Anwar Rosser, sentenced to a whole life term by Coulson J at the Crown Court sitting in Bradford, Yorkshire. 

In January 2014, a number of cases came before a five judge Court of Appeal (Criminal Division).  The Attorney-General referred the McLoughlin case to the court on the basis that the 40 years minimum term was unduly lenient.  Two other cases are also being considered - those of Lee Newell and Matthew Thomas. (A fourth appeal - Mark Bridger - was abandoned). 

So, the key issue is whether the Vinter decision has prevented the imposition of a whole life term given the absence of a review procedure.  The sentencing judge is faced with statute law enacted by Parliament which clearly permits a whole life order.  He is also faced with a decision of the E Ct HR to the effect that there would be a breach of the European Convention if a whole life term were to be imposed when there is no review procedure for such cases.  The E Ct HR decision binds the UK in international law and judges are required by the Human Rights Act to "take into account" decisions of the E Ct HR.  Furthermore, a court - as a public authority - must not act incompatibly with convention rights.

In October 2013, the government merely informed Parliament that it was carefully considering the Vinter decision - see page 33 of Responding to human rights judgments   The simplest way forward would be for the government to comply with Vinter and bring into force a review process which, after all, is there for other types of prisoner.  In the absence of this, the courts are wrestling with the problem. 

There is also a provision for release on "compassionate grounds" under section 30 of the Crime (Sentences) Act 1997.  Joshua Rozenberg writing in The Guardian suggested that this section might provide the government with a "lifeline."  It may be that the Court of Appeal will be persuaded by such an argument.  In my view, section 30 is not a suitable vehicle.  It is clearly designed for compassion on medical grounds and the sole decision-maker is the Secretary of State who has to consult the Parole Board (unless the circumstances are such as to render such consultation impracticable).  Decisions on whether there are penological grounds for release were removed from the political arena and entrusted to the Parole Board.  They should not return to the political arena.

The decision of their Lordships in the Court of Appeal is eagerly awaited and then, perhaps, the scene will be set for the next visit to the Supreme Court whilst the Ministry of Justice continues to sit on its hands "carefully considering the implications of the judgment" in Vinter. 

Halsbury's Law Exchange has a detailed anaylsis of the cases in the Court of Appeal. 

Further discussion at The Justice Gap - Grayling's default position is to distrust Europe

Other case law:

Jones [2005] EWCA Crim 3115, Mullen [2008] EWCA Crim 592, Bieber [2008] EWCA Crim 1601 - endorsed by the House of Lords in Wellington [2008] UKHL 72 and also to Oakes [2012] EWCA Crim 2435.  Note, in particular, Oakes where the Court of Appeal (also a 5 judge constitution) held that whole life terms were not incompatible with Article 3 but this, of course, preceded Vinter.

Scotland and its currency in the event of independence

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Update 17th February:  The Telegraph reported on a defiant speech by Alex Salmond.  The speech delivered in Aberdeen claimed that the British government would back down with regard to its stance of no currency union in the event of independence.

The European Commission President stated that obtaining EU membership might be difficult for an independent Scotland - BBC News Scotland 16th February 

Original Post:

The "Edinburgh Agreement" 2012 paved the way for the forthcoming independence referendum in Scotland - BBC 15th October 2012  and see also the text of the agreement.  The final words of the agreement are perhaps worthy of particular note:

"The two governments are committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom."

The referendum, will be decided by the electorate in Scotland.  The peoples of the remainder of the existing UK do not have a say even though an independence vote will have serious effects on England, Wales and Northern Ireland.  (Of course, Wales and Northern Ireland already have forms of devolved government).  With just 7 months to go to the referendum, many key questions have been asked but the answers remain unclear including whether an independent Scotland will be able to remain in the EU and, perhaps the most fundamental issue of all, the currency to be used in Scotland in the event of independence.



Political parties in England have stated that a currency union with Scotland is ruled out - The Guardian 13th February.     The Chancellor of the Exchequer (Rt Hon George Osborne MP) made a statement (13th February) to this effect and his statement was backed up by the release of advice he had received from the Treasury civil service.

A clear video explaining the possible financial options for Scotland in the event of independence has been produced by the National Institute of  Economic and Social Research.  Writing on the UK Constitutional Law blog,  Allan Trench (Professor of Politics at the University of Ulster) asks whether taking a sterling currency union off the table is a game changer.   

It is probably a major understatement to say that the Chancellor's statement has not been well received in Edinburgh.  Alex Salmond (Scotland's First Minister) is reported to have said that without currency union, Scotland would not take its share of the national debt accrued up to independence day.  The wisdom of any such course is questionable given the possible adverse reaction of international money markets.  Scottish Constitutional Futures sees Mr Osborne's announcement as "pre-negotiation" - see this post - where it is noted:

"The UK government up until now has clearly stated that it is not going to ‘pre-negotiate’ the break up of the Union.  Yet today the UK Chancellor George Osborne, along with support from the Labour and Liberal Democratic parties, has ruled out in advance a currency union.  In response the Scottish government has raised that they have a card to play: a possible refusal to take on a share of the UK’s national debt." 

The Scottish Government's paper Scotland's Future was published in November 2013. This document noted: "The pound is Scotland's currency just as much as it is the rest of the UK's.  The expert Fiscal Commission Working Group concluded that retaining Sterling as part of a formal Sterling Area with the UK would be the best option for an independent Scotland and the rest of the UK."

London and Edinburgh therefore seem to be poles apart on this absolutely vital and major issue.  The Scottish voter ought to be able to vote in a fully informed way and not against such an unclear  background.  The remainder of the UK is also entitled to know just what the Scottish referendum might entail for their economic future.

The way ahead is unclear.  Possible options for Scotland - see BBC 12th February - include introduction of its own currency.  The options are all beset with difficulties and the Scottish National Party now finds itself under pressure to set out what its Plan B is to be - The Scotsman 14th February 2014. 

Buon appetito! Eat well for less in Italy

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Thinking of travelling to Italy this summer? One area Holiday Homes in Italy believes you will be able to save money, is eating out...

Surprisingly in Italy, it really is possible to eat well and spend little according to research on Italy. The time is over for restaurant bills that leave you with no money on your credit card; forget the “menu turistico” with overcooked pasta and cardboard steaks; and keep away from pizzerias where you can’t have a pizza and beer for less than 20 Eur.


This gastronomic trend has been highlighted by research undertaken by numerous international newspapers from the New York Times to German FAZ to the Australian, the verdict is unanimous; in Italy it is possible to eat well, and often extremely well for only 10 Eur. All you need to do is find the right place.


A columnist from the New York Times wrote in his travel column about Pepi, an Italian eaterie: “I had a course of carne mista for only 12 Eur and in my life I had never eaten better meat. I’m going to say shut up to the next person who speaks badly about Trieste”.

The same influential newspaper has surprisingly found out that even in expensive Venice it is possible to satisfy your hunger, without the risk of disappointment, for the modest price of 12 Eur. Its advises to follow the Venetians and go to the bacari (a regional type of osteria) where a meal with polenta slices and cod, shrimps, toasted bread and salami costs between 12 and 15 Eur.


According to the British press, Naples is the top city when it comes to eating low cost and more surprisingly in its neighbouring Amalfi coast; “Stop by a small hotel or a B&B and look for the old trattorias with reasonable prices and excellent food like "La Taverna del Leone in Positano” suggested The Guardian.


Further afield, a journalist from the Financial Times in Rome announced to the business world that in the capital: “a primo piatto only costs 6 Eur”. USA Today has also been amazed by the fact that in parts of Puglia “Pizza with mozzarella and tomatoes can still cost as little as 5 dollars”.


This trend is highlighted in an edition of “La Gola in Tascaï”, a guide that summarizes all the reviews published by other famous guides on wine and food like “Gambero Rosso”, “Michelinï”, “Osterie d’Italia”, etc. Amongst 11.000 reviewed restaurants, nearly a quarter were identified as places where it is possible to eat well for less than 25 Eur per person!


In conclusion, we are seeing an Italian triumph against the ever increasing costs of food. Davide Oldani from Milan, a popular chef, knows this well. His restaurant, the D’O (a former trattoria for truck drivers, now proudly showing its Michelin Guide Star) in Milan, is often booked up. Oldani, former pupil of Gualtiero Marchesi, was the first one, amongst the Chefs de Rang, to choose the new route of high quality catering at low cost. From Monday to Friday a lunch comprising of a primo, a secondo and coffee is set at a fixed price. For dinner it is also possible to choose a “sample menu” and not spend more than 40 Eur for the whole meal.


According to Oldani: “this is the only way to work due to high competition”. His winning strategy is to focus on traditional cuisine, fresh ingredients, always local and seasonal. He adds: “For instance tomatoes disappear from my kitchen on 21 September and come back on 20 June. The same happens with courgettes and melon. This is the only way to keep the prices low”. The chef, confident in his success has no doubt: “I don’t criticise those who choose to continue with high pricing. Clients are prepared, they know the quality of food and they know what price is right” The era of spending money at restaurants with no control is definitely over!  Buon Appetito!      

To search a wide range of self-catering accommodation in Italy, visit Holiday Homes in Italy

Source: Il Corriere della Sera 

Hillsborough - Home Secretary's Statement in Parliament

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The Home Secretary has made a statement in Parliament relating to the Hillsborough Stadium disaster in April 1989.  The statement was essentially a progress report on how matters have proceeded since the publication of the Hillsborough Independent Panel report. 

A website - Hillsborough Inquests - has been set up to enable matters to be followed by the public.  

Litvinenko's widow wins Judicial Review but decision whether to hold an inquiry remains with Mrs May

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Alexander Litvinenko died in London in November 2006.  The cause of death was almost certainly Polonium 210 poisoning.  It may surprise some readers to learn that an inquest into his death has still not been completed - for the detail see Alexander Litvinenko Inquest

Faced with the possibility that various documentation supplied to the inquest might become subject to a claim for public interest immunity, Mr Justice Owen - (the High Court Judge conducting the inquest) - requested the government to substitute an inquiry in place of the inquest see - Inquest or Inquiry: Litvinenko.  The government refused and that refusal has been to judicial review at the behest of Mr Litvinenko's widow.  The High Court's judgment in the judicial review is at R (Litvinenko) v Home Secretary and others [2014] EWHC 194 (Admin). 

The factual background is at paragraphs 3 to 20.  The Home Secretary advanced six reasons for refusing to establish an inquiry - see paragraph 23 of the judgment.  The High Court concluded (para 73):


"I have upheld the claimant's challenge to the adequacy or correctness of the first, third and fourth of the reasons given by the Secretary of State for refusing the Coroner's request to set up a statutory inquiry. I have also indicated my concerns about the fifth and sixth reasons though they are of subsidiary importance for the claim. As to the second reason, the Secretary of State was wrong to proceed on the basis that Article 2 was not engaged but I have found that the procedural obligation under Article 2 does not require any investigation beyond that already carried out and that the error was therefore immaterial."

Taking all matters together, the court was satisfied that the reasons given by the Home Secretary did not provide a rational basis for the decision not to set up a statutory inquiry at this time but to adopt a wait and see approach.  The deficiencies in the reasons were so substantial that the decision could not stand and the court granted a quashing order.

However, the sting in the tail for Mrs Litivinenko appears to have come at the end of the judgment (paras 75 and 76) where Richards LJ stated: 

1. The case for setting up an immediate statutory inquiry as requested by the Coroner is plainly a strong one. The existence of important factors in its favour is acknowledged, as I have said, in the Secretary of State's own decision letter. I would not go so far, however, as to accept Mr Emmerson's submission that the Secretary of State's refusal to set up an inquiry is so obviously contrary to the public interest as to be irrational, that is to say that the only course reasonably open to her is to accede to the Coroner's request. If she is to maintain her refusal she will need better reasons than those given in the decision letter, so as to provide a rational basis for her decision. But her discretion under section 1(1) of the 2005 Act is a very broad one and the question of an inquiry is, as Mr Garnham submitted, difficult and nuanced. I do not think that this court is in a position to say that the Secretary of State has no rational option but to set up a statutory inquiry now.


2. Accordingly, whilst it will be necessary for the Secretary of State to give fresh consideration to the exercise of her discretion under section 1(1) of the 2005 Act and in so doing to take into account the points made in this judgment, I would stress that the judgment does not of itself mandate any particular outcome. 

Thus, quite simply, if the Home Secretary wishes to maintain her refusal she will be able to do provided that she can advance better reasons and show that she has taken into account the court's judgment.