Joint Enterprise 2 ~ Involvement in Crime

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Previous post - Joint Enterprise 1 - Setting the Scene

The criminal law seeks to punish not only principal offenders (those who perform the act prohibited by the definition of a criminal offence) but also a range of others who are involved in crime.  To that end, the law developed so-called inchoate offences and also a concept of secondary participation in crime.  The concept of "joint enterprise" fits, somewhat uneasily, within this area of the criminal law and, for that reason, understanding of inchoate offences and the forms of secondary participation is necessary.  Few, if any, would argue that the law is satisfactory.  There have been statutory reforms but they have generally failed to solve the problems and may well have introduced newer problems.

The word "inchoate" means 'unfinished' and the so-called inchoate offences are conspiracy (mainly arising under the Criminal Law Act 1977), attempt (Criminal Attempts Act 1981), assisting or encouraging crime (Serious Crime Act 2007 Part 2 ).  Note that it is the offence that D is conspiring, attempting or assisting or encouraging which is incomplete and NOT the conspiracy, attempt or assistance or encouragement.  One rationale for the existence of inchoate offences is that they enable law enforcement agencies to intervene before a planned crime is committed.
 

It is, of course, common for principal offenders to have accomplices.  In the quaint language of the criminal law, the terms used are aiding, abetting, counselling or procuring.  Section 8 of the Accessories and Abettors Act 1861 (as amended) provides that - "Whoever shall aid, abet, counsel or procure the commission of any indictable offence ... shall be liable to be tried, indicted and punished as a principal offender.  (See also Magistrates' Courts Act 1980 s.44).

A moment's thought will reveal that
there is a significant overlap between the inchoate offences of assisting or encouraging under the Serious Crime Act 2007 and secondary participation in crime.  This overlap gives prosecutors considerable choice as to the precise charges to be preferred.

Where then does "joint enterprise" fit in?  It is a term capable of embracing many situations.  Suppose A and B agree that they will commit a burglary.  Here, there is a conspiracy but also A and B have agreed to a joint criminal venture.  If A and B go on to act together to commit the burglary then they will be liable as JOINT principal offenders but, of course, there is a (preplanned) joint enterprise.

Most accessories will also, in practice, be participants in a joint enterprise because they will share with the principal(s) a common purpose to get the crime committed.  This has led to debate about whether joint enterprise is a distinct form of liability but it can be regarded as an extension - (perhaps an illegitimate extension) - of the law on aiding, abetting, counselling or procuring.

The clearest cases of joint enterprise are those planned in advance.  Less clear cases are where liability has been held to arise from what the courts have viewed to be tacit agreement made either immediately before or even during the commission of the offence.  In some instances, from proof of little more than mere presence at the scene of an offence, a joint enterprise has been constructed with the result that all those involved are held liable for the offence.  There can be no doubt that this is capable of producing injustice.  Suppose a group of individuals go out as a group and they encounter X.  One in the group (call him D) dislikes X and, in the course of a fight, D kills X.  Should others in the group be also convicted of the murder / manslaughter?  Herein lies the dilemma and the sense of injustice being produced by this area of the law.

The material below is for those who wish to delve further into the law on participation in crime and inchoate offences.  My next post on this topic will examine joint enterprise more specifically.


Textbook:

For detailed exposition of the law on inchoate offences and participation in crime see:

Smith and Hogan - Criminal Law - 13th ed. (2011) - especially Chapters 8, 9 and 13.

Textbook on Criminal Law - Michael Allen - 12th ed. (2013) - especially Chapters 7 and 8

Two Law Commission Reports:

The Law Commission's report - Participation in Crime (Law Com No 305 - May 2007) - is a lengthy document of 321 pages (pdf).  To date, it has not led to Parliament making any changes to the law. 

An earlier report - considered so-called inchoate liability - see Inchoate liability for assisting and encouraging crime (Law Com No 300 - July 2006).

It is clear that the Law Commission viewed the two reports as complimentary.  Para. 1.4 of the Participation in Crime report states:

'Taken together, the recommendations contained in both reports would, if implemented, result in a scheme whereby inchoate and secondary liability will support and supplement each other in a way that is rational and fair'

Inchoate offences:

The Serious Crime Act 2007 Part 2  is concerned with Encouraging or Assisting Crime.  This legislation was based on the Law Commission’s Report on Inchoate Liability for Assisting and Encouraging Crime (Law Com No. 300, CM 6878, 2006) but the government made significant changes to the Law Commission's proposed scheme.

The Act abolishes the common law offence of incitement and in its place creates new offences of intentionally encouraging or assisting an offence (section 44) and encouraging or assisting crime believing that an offence, or one or more offences, will be committed (sections 45 and 46). The Act contains a defence to the offences in Part 2 (where the encouragement or assistance is considered to be reasonable in the circumstances) and an exemption from liability where the offence encouraged or assisted was created in order to protect a category of people (and the person doing the encouragement or assistance falls into that category).

There are instances where a substantive offence may not have been completed but nevertheless an offence of a different kind has been committed because of the actions or agreements in preparation for the substantive offence.  These are known as inchoate offences.  Since the Serious Crime Act 2007, it can be said that the term inchoate offences is concerned with assisting or encouraging crime (Part 2 of the Serious Crime Act 2007 sections 44 to 46), attempt (Criminal Attempts Act 1981) and conspiracy (Criminal Law Act 1977) - see Crown Prosecution Service - Inchoate Offences

Incitement at common law was previously an inchoate offence but it is not all that likely to appear on an indictment since section 59 of the Serious Crime Act 2007 abolishes incitement at common law with effect from 1 October 2008. For offences committed before that date, incitement occurs when a person seeks to persuade another to commit a criminal offence.

THE Family Court for England and Wales

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As from 22nd April 2014, there is a new Family Court for England and Wales - see Crime and Courts Act 2013 section 17.  Section 17 inserts Part 4A into the Matrimonial and Family Proceedings Act 1984.

Read section 17 along with the Schedule 10 and  Schedule 11.  See also 2014/954 - Crime and Courts Act 2013 (Commencement No. 10 and Transitional Provisions) Order 2014.

As with the new County Court (previous post), the change is accompanied by extensive secondary legislation, a detailed guide to which is available on Family Law Week 'Guide to Statutory Instruments coming into force on 22nd April 2014.'

Family Law Week website considered the formation of this court - 'Largest family justice reform for a generation' comes into effect.

Along with alterations to the court structure, there are very important changes to the law resulting from the  Children and Families Act 2014. A very good summary of the changes may be seen in the article by Amy Royce-Greensill - Children and Families Act 2014 - Essential Update - 16th April 2014 and there is lots of more information and resources at Family Law Reform

For a guide
to the changes in public law children proceedings by Jennifer Kotilaine of 42 Bedford Row, please click here.

For a guide to the changes in private children law proceedings by Anna Heenan of Gregg Latchams LLP, please click here.

For details of the Child Arrangements Programme, please click here.

The new Family Court appears to have received a warm welcome and it is an idea that has been in the pipeline for some 40 years.  However, some of the accompanying changes to the law may prove to be problematic and removal of legal aid from many family cases remains a serious concern with more than half of those attending children cases having no legal representation (Marilyn Stowe 24th April)..

Further links:

Family Court (Composition and Distribution of Business) Rules and Guidance issued by the President of the Family Division

Family Law - The single family court - essential update

Judiciary - Family Court Guide

Law Society - Family Court Resources

Family Law Bar Association - President's View Number 10

Family Law week - President's View No 10 looks forward to family law post 22nd April 2014


View from the President's Chambers: The beginning of the future - 13th February 2014


The single family court on Sky TV - 22nd April 2014 - Marilyn Stowe LLP

Where is the family court? by John Bolch - 8th October 2013

Crime and Courts Bill .... Law and Lawyers 17th May 2012.

THE County Court for England and Wales

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Mayor's and City of London Court

As from 22nd April 2014, "Local" County Courts have gone and are replaced by a single County Court for England and Wales.  For the relevant legislation see:


Primary legislation:

Crime and Courts Act 2013 section 17 - inserting section A1 into the County Courts Act 1984.  Read section 17 along with the lengthy Schedule 9. 




Statutory Instruments:

2014/954 - Crime and Courts Act 2013 (Commencement No. 10 and Transitional Provisions) Order 2014

2014/407 - Civil Procedure (Amendment) Rules 2014

2014/503 - County Court Jurisdiction Order 2014

2014/821 - High Court and County Court Jurisdiction (Amendment) Order 2014

2014/867 - Civil Procedure (Amendment No. 4) Rules 2014

2014/874 - Civil Proceedings Fees (Amendment) Order 2014

2014/982 - County Court Remedies Regulations 2014

Civil Justice Centre - Manchester

A very helpful and succinct summary of the changes has been produced by Richard Gold of St John's Chambers.  See also

Amendments to the Civil Procedure Rules coming into force in April 2014;

Farewell to the County Court; introducing the Single County Court;

Ministry of Justice - Crime and Courts Bill (as it then was) December 2012;

Keith Etherington - Changes from April 2014;

Shailesh Vara MP - Law Society Gazette 31st March - Court Reform

This plethora of legislation is exceptionally labyrinthine.  For such an important change, some way ought to have been found to simplify matters rather than have an almost endless trail of 'cut and paste' amendments.

I am not entirely sure what has happened to the Mayor's and City of London Court and an authoritative answer is welcome.  This court has a long history predating the establishment of a system of County Courts in 1846.  See Wikepedia and the Of Interest to Lawyers blog.   The Crime and Courts Act 2013 Schedule 9 para. 24 states:

Omit section 42(2) and (3) of the Courts Act 1971 (City of London to be a county court district, and the county court for that district to be known as the Mayor's and City of London Court).

Addendum 2nd June 2014:  An authoritative answer was obtained by the author of the Of Interest to Lawyers blog - see his post of 1st June 2014 - The Mayor's and City of London Court, now renamed: the County Court sitting at Mayor’s and City of London Court

Corners of the law: liability for omissions

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Smile for the Camera: The Double Life of Cyril Smith is a new book looking at the alleged sexual activities of the late Cyril Smith MP.   It is written by Simon Danczuk MP and Matthew Baker and published by Biteback Publishing.  The Daily Mail also reproduced lengthy sections of the book and one headline stated - Cyril Smith victims may sue Lib Dems .. - 'Victims of Cyril Smith are threatening to sue the Liberal Democrats for covering up his decades of sickening sexual abuse ...'   In a previous post - Sir Cyril Smith ~ Corroboration of Evidence (30th November 2012) -  Law and Lawyers looked at the decision not to prosecute Smith in the 1970s.


An Anglican prayer includes the words - ' ...We have left undone those things which we ought to have done; And we have done those things which we ought not to have done ...' - but when, in law, is an individual to be held liable for not doing something?  An alternative way
of putting this question is to ask - when is an individual to be held liable for an omission.  English law has generally not been unduly eager to impose liability - whether criminal or civil - for omissions but there are exceptions.  As a general point, we are all free to mind our own business even if doing so is socially irresponsible or reprehensible.  Before imposing liability for omission, the law will look for a DUTY to act in the particular situation.

Criminal Law:

Criminal liability for omission arises in a number of instances.

(1) Statute law may create an offence which seeks to punish omission or failure to do something - e.g. Failure, without reasonable excuse, to provide a specimen of breath, blood or urine - Road Traffic Act 1988 s7(6) or Failure to comply with the indication given by a traffic sign - Road Traffic Act 1988 s.36.

(2) A duty to act may also arise at common law:

Close relationship - The parent who fails to feed his dependant child could be liable for murder or manslaughter depending on whether the parent intended the child to die - R v Gibbins and Proctor (1918) 13 Cr App R 134.   It may be that the law extends beyond parent-child relationships so that there is a duty to act to protect any of those who are dependant and reliant on us.  However, whilst this would be consistent with the wide view in modern law taken of what constitutes a "family", actual legal authority is somewhat lacking.  

Assumption of responsibility - Liability for omission may arise where D takes it upon himself to look after someone who is unable to care for themselves.  The old case of R v Instan [1893] 1 QB 450 illustrates this.  D lived with her 73 year old aunt who was healthy until shortly before her death.  During the last 12 days of her life she had gangrene in her leg which made her helpless.  D knew of this condition but did not give her aunt food and did not seek medical help.  D was convicted of manslaughter on the basis that she had assumed a duty of care.  More recent cases on this include R v Stone and Dobinson [1977] 2 All ER 341; R v Ruffell [2003] EWCA Crim 122 - (see page 29 here). 

Doctor-Patient Relationship - In Airedale NHS Trust v Bland [1993] 1 All ER 821, the House of Lords recognised that whilst, in normal circumstances, doctors and medical staff have a duty to act in order to treat and care for their patients, they were not obliged to continue such treatment and care where responsible and competent medical opinion took the view that it was not in the patient's best interests to do so.  Hillsborough victim Tony Bland was being artificially fed via nasal tube.  The House of Lords granted a declaration that it would be lawful to discontinue the feeding.  It is a semantic point whether discontinuing feeding a patient is an omission since it is worth noting that the court here permitted the doctors to take the active step of removing the feeding tube. 

Contract - If D is under a contractual duty to act then this may form the basis of liability.  The old case of R v Pittwood (1902) 19 TLR 37 illustrates.  D was employed by the railway to operate a level crossing.  He omitted to shut the gate and V was killed by a train on the crossing.  D was convicted of manslaughter.  Note here that V was not a party to the contract in question.

Where D creates a dangerous situation - the principal authority for this category is R v Miller [1983] 1 All ER 978, HL.  D was a squatter and he fell asleep whilst smoking in his squat.  The lit cigarette set fire to a mattress.   He woke up to find the mattress smouldering but simply went to another room and resumed his sleep.  The house caught fire.  The House of Lords held that D was guilty of arson.  He had a duty to take steps reasonably available to him to prevent further damage.   The principle established by the Miller case was applied in DPP v Santana-Bermudez [2003] EWHC Admin 2908. 

Much has been written about criminal liability for omission and the foregoing notes are necessarily brief.  A video is available via Youtube which goes into more detail.

The failure to report a felony (or misprision of felony) was an offence in English Law until the Criminal Law Act 1967 abolished the old felony - misdemeanour dichotomy.  Misprision of Treason still remains an offence.

Civil Law:

English Law has displayed a similar reluctance to impose liability in tort for omission.  As a general rule, there is no duty at common law to prevent persons harming others by their deliberate wrongdoing: Smith v Littlewoods Organisation Ltd [1987] AC 241 and Stovin v Wise [1996] AC 923.   However, liability has been established in some situations as in Home Office v Dorset Yacht Co Ltd [1970] AC 1004  where Borstal trainees were working on Brownsea Island in Poole Harbour under the supervision and control of  three Borstal officers. During that night seven of them escaped and went aboard a yacht which they found nearby. They set this yacht in motion and collided with the Respondents' yacht which was moored in the vicinity. Then they boarded the Respondents' yacht and much damage was done to this yacht by the collision and some by the subsequent conduct of these trainees.  The Respondents sue the Appellants, the Home Office, for the amount of this damage.  In holding that there was a duty of care on the part of the Home Office, the House of Lords based the liability on the degree of control that the officers were entitled to exercise over the trainees.  Responsibility was to be confined to harm caused in the course of an escape from the Borstal to those in close physical proximity.   Further excellent discussion of the law is to be found in Mitchell v Glasgow City Council [2009] UKHL 11.

In Van Colle v Chief Constable of the Hertfordshire Police [2008] UKHL 50; [2008] 3 WLR 593, para 42 Lord Bingham of Cornhill said that the three-fold test laid down by the House of Lords in Caparo Industries plc v Dickman [1990] 2 AC 605 , by which it must be shown that harm to B was a reasonably foreseeable consequence of what A did or failed to do, that the relationship was one of sufficient proximity, and that in all the circumstances it is fair, just and reasonable to impose a duty of care towards B, was currently the most favoured test of liability.

Whether a body such as the Liberal Democrat Party (or its officers) could be successfully sued in negligence for the activities of a party member and Member of Parliament such as Cyril Smith is therefore not an easy question.  The general reluctance of the law to find liability in negligence for failure to act to prevent harm to others seems to stand squarely in the way of a successful action.   However, a possible argument might be that, in modern times, the law should not be too reluctant to impose liability if it could be shown that senior party officials knew of the allegations against Smith and that they had rights to discipline or control party members but failed to so act.  It would be argued that Smith's position gave him access to vulnerable boys - see Telegraph 13th September 2013.  Knowledge within the party of Smith's alleged activities is denied - see Clegg defends party in Smith furore - Belfast Telegraph 21st April.  However that may be, we know that criminal charges were not preferred against Smith in the 1970s.

Note: for the purposes of this post I have left aside the question of the legal status of the Liberal Democrats and the related question of who (if anyone) could actually be sued.  The constitution of the Liberal Democrats is available via their website (here).   The party was formed on 3rd March 1988 and is the successor to the former Liberal Party and the Social Democratic Party.  Cyril Smith was MP for Rochdale from 1972 to 1992. 

The law of unincorporated associations is the subject of a book by Nicholas Stewart QC, Natalie Campbell and Simon Baughen  - The Law of Unincorporated Associations

Top 10 villas with lake views in Italy

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Villas in the Italian Lakes with views


Italy is blessed with having some of the best and most beautiful lakes in the world; from majestic Como with its laid back and elegant feel to the greatness of Garda and the lesser-known but nonetheless beautiful lakes of Maggiore, Orta and Bolsena, Italian lakes offer a fantastic holiday destination with an amazing selection of holiday rentals.

Holiday Homes in Italy offers some excellent villas in the Italian Lakes and it was difficult to restrict our choice to 10 but here are our favourite villas with Lake views.

Lake Bolsena is one of Italy’s best kept secrets. Not far from Rome in the heart of the countryside lies this pretty lake formed in the crater of an extinct volcano. Its waters are crystal clear and there are fine sandy beaches. Bolsena itself is also a beautiful resort town. A perfect lake holiday destination.

Lake Bolsena Villa has been completely renovated and transformed into a cosy country residence, situated on the top of a hill that descends towards Bolsena Lake. From the residence you can enjoy a very beautiful view of the entire Bolsena Lake.

Garda

Lake Garda never disappoints as a holiday destination. It is the place to go if you are looking for either a relaxing or an energetic holiday; perfect for those who love relaxing on the beaches or going sightseeing as well as those who like walking, cycling in the mountains or trying their hand at watersports.  Garda simply offers a holiday that can meet everybody's needs!

Villa Malcesine is a beautiful villa overlooking Lake Garda. It is located in a peaceful position with evocative views over the lake and of the small island "Sogno" (dream). Enclosed and well-kept, the villa is ideal for outside dining and there is a beautiful swimming-pool. The large lerrace and sun terraces offer beautiful views over the lake.

Villa Bardolino lies just 2 kms from Bardolino, in a very panoramic position overlooking the lake. The villa was built in the middle of the 1800s and still maintains the atmosphere of that time – like staying on a movie set! The outside area is large, and on one side the garden with trees looking towards the lake, and at the rear is a field bordered by a vineyard. The veranda, terrace and many rooms offer fabulous lake views.

Villa Elisa is located just 3km from the town right on the lake in a very panoramic position. Divided into two apartments, Villa Elisa offers a large living-room with views of the lake and panoramic terraces on both floors. The large garden has a gazebo, a 7x4m swimming-pool and a 5-a-side football field and is entirely at your disposition.
Como

Lake Como has been popular with International visitors for centuries. Renaissance villas, castles and beautiful gardens are a reminder of the times when Como was a playground of the European elite.  In comparison to its famous sister Garda, Como is a more tranquil and wooded lake with beautiful surrounding countryside.

Villa Como Lago is a beautiful villa located in the heart of Civenna, just 6 kms from Bellagio. The location of the Villa is perfect; it offers picture postcard views of the Lecco Branch of Lake Como and the Grigna Mountain range from the elegant veranda and it is surrounded by a beautiful park with trees, plants and flowers.

Villa Vista Lago  is right on the lakeside in a lovely peaceful area just a few minutes from Bellagio. Set in its own grounds, this is the perfect property for those who like to relax on their holiday.  The terrace with large dinner table is perfect for dining alfresco, three of the bedrooms have their own balcony and the fourth has amazing views from the window. There is also direct access to the beach.

Villa Vista Como is a wonderful property located just a short drive from Bellagio. From the villa you can take in the most amazing Lake views as the property is located right on the Lake shores and surrounded by the peace and total seclusion that the private garden area has to offer. The property offers its own private beach and private harbour and terraces, all offering fantastic lake views.

Maggiore 

Lake Maggiore is the second largest lake but undeservedly trails behind its bigger competitors; good food, a relaxed lifestyle and warm summers make it a destination that’s perfect for a lake holiday in Italy. There are a number of lovely resorts along the lake, such as Stresa, Verbania, Ghiffa and Baveno, which have breathtaking views and are surrounded by lush gardens and tree lined roads.

Villa Meina is situated in an extremely panoramic position, in the high part of the town within a delightful enclosed garden with a private swimming pool that offers beautiful views of the lake.

Villa Stresa is located in a beautiful position with views of Lake Maggiore and the surrounding hills. The villa is situated on sloping terraces facing the lake that offer splendid views from every angle, even at night. The well-tended garden is filled with flowers and trees and has numerous places for guests to sit and relax.

Orta

Another gem of a lake and somewhere for those looking to get away from the hustle and bustle of the more popular lakes. Orta has a mysterious quality with a beautiful island in the centre of the lake against a backdrop of mountains with quaint and traditional villages – fantastico!

Villa San Giulio’s garden touches the shore of the lake and the private swimming pool looks like it flows into the lake's water. What a view!

Unpleasant truths ~ 'Justice' at the crossroads

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'Unpleasant truths' is the title of an article by Roger Smith (Visiting Professor London South Bank University) published in the Law Society Gazette 14th April 2014.  Smith begins by noting that - 'We are not winning the battle on legal aid.'  This is not the fault of lawyers, many of whom have fought against cuts to legal aid and other 'justice' reforms introduced by the coalition government since 2010. The country is in limbo with massive cuts being imposed over almost the entire field of public expenditure.  Nowhere near enough voters realise just how much of value is being lost.   Smith argues that the public fight must continue if only to deter worse.  Nevertheless, the legal aid scheme as it has developed since the second world war is bust.  It is not capable of delivering an acceptable breadth of service to the public.  Therefore, Smith argues, a fundamental 'reconceptualisation' is required.

Such an exercise
would require a new and comprehensive justice package.  Could savings be made to allow money to be diverted to legal aid or to some other form of assistance for those needing legal help?  Smith looks at the appellate courts as a possible saving.  In an age of austerity can we truly afford to continue with a Court of Appeal (with some 30 salaried judges at salaries of around £200,000 p.a.) and with the Supreme Court of the United Kingdom (UKSC)?  Had the Liberal government of 1873 had its way, nobody alive today would remember the House of Lords in its judicial capacity.  Smith goes on to ask whether the judicialisation of tribunals - (with a labyrinthine structure of Upper Tier Tribunal, Lower Tier Tribunal, each with Chambers and salaried judges) - has been taken too far.

As for legal aid, Smith points out that there is plenty of evidence from other jurisdictions to show that salaried services (such as the Public Defender Service) can be made to work - both for lawyers and clients - particularly if their independence from government is secured.  Quite what "can be made to work" entails is another question and we all know of stories of death penalty cases in the USA with the defendant offered poor quality advocacy (see Death Penalty Information).

Cuts to legal aid are hollowing out the State's commitment to fundamental fairness for the poor as well as the rich.  Smith ends by asking - 'If we all agree that the current situation is unsustainable, how do we intend to go forward?'

Some observations:

It is highly unlikely that any change of government in 2015 will result in an major reversal of the cuts to legal aid.  The cuts are not simply about money because there is money for other things considered by government to be of greater importance.  Overseas aid and HS2 offer two examples.  Nevertheless, it is inevitable that a different future for justice is going to have to be considered.

In a recent speech, (covered in a previous post), the Lord Chief Justice (Lord Thomas) spoke of "Reshaping Justice".  Lord Thomas said - ' ... our system of justice does need reshaping to deal with the fundamental change that is occurring in the role of the State. It is retrenching. The budget for justice is being reduced substantially. We must ensure that our system remains able to maintain the rule of law by administering justice effectively, speedily and impartially in this new age.'  Radical thinking was required and Lord Thomas called on bodies such as JUSTICE to put forward ideas.

A independently produced report is that by the LOW COMMISSION which suggests a national strategy for advice and legal support.  The Commission calls for a £100m implementation fund with half the money coming from government and half from other sources, including interest from lawyer client accounts and a levy on payday loan companies.  However, the report stops short of calling for full reinstatement of civil legal aid.  Policy Exchange put forward a report entitled  - "Future courts: A new vision for summary justice."

Meanwhile, there are more and more litigants in person and so-called MacKenzie Friends are increasing in numbers (The Guardian 17th April - and Law Society Gazette) where it is reported that the Legal Services Consumer Panel believes there should be a culture shift in the legal market to improve access to justice following the government's withdrawal of legal aid for many areas of civil litigation.

There are other issues not referred to by Mr Smith's article.  Serious questions now exist as to the ability of the average citizen to instigate judicial review.  Then there is the prospect of individuals facing financial ruin even if they are acquitted in the Crown Court.  In the absence of legal aid to fund litigation it is obvious that many young lawyers will be unable to gain the experience of those who have preceded them in the last 50 years.  In the longer term,this will be likely to impact on the quality of the judiciary.  Deep problems are also likely to emerge about human rights protection in the event of the government establishing some form of new relationship with the European Convention on Human Rights.

The road ahead may not be clear but changes to government policy are forcing change.  Ideas are emerging for reform to the courts and procedure and for new approaches to dispute resolution.  The challenge will be to gather those ideas together and to produce a coherent package offering the citizen access to justice which is proportionate to the dispute in question and available at an affordable price.

Finally, the reader may be interested in a new book available via itunes - Steve Cornforth Blog - Saving Justice. In this book Patrick Torsney has gathered together the thoughts of 58 bloggers, including items from Law and Lawyers (!).  Across all of the blogs runs a theme of almost systematic dismantling of justice for ordinary people.  This is a dismantling without any proper thought as to what will replace it.  Depressing as it is, this is why it is necessary to look seriously at the alternatives.

Top 10 things to do in Lake Garda

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View all holiday rentals in Lake Garda 


Narrowing it down to 10 was difficult but here are the top 10 things to do in Lake Garda by Holiday Homes in Italy:

1. Take the ferry - the best way to see Garda is to go from town to town on the ferry. The coastal road is beautiful but the traffic can be intense in high season, so jumping on a ferry is a great escape offering unobstructed and fantastic views of most of the lakeside towns, many of which are simply not possible in a car.


2. Try water sports - For the water sports fanatics or even beginners looking to take lessons, Riva in the north offers some of the best windsurfing activities on the lake of Garda. You can also rent sailboats, kayaks and canoes. Neighbouring Torbole also offers a great selection of activities to keep you busy!

3. Have a beach day - People don’t naturally think of Lake Garda as beach destination but the Lake is very clean and perfect for swimming. There are beaches in all of the towns around the lake, some with pebbles, others with cute platforms or jetties and many offering a wealth of water sport activities. The beauty of the beaches here is the scenery; calm, clear waters and a backdrop of mountains or hills with Mediterranean foliage, lemon trees and olive groves. If you want something more lively and cool, Garda is setting the trend with beach clubs like Coco Beach.

4. Visit the wineries – Bardolino in the south is vineyard territory and perfect for an afternoon visit, where you can taste the delicious local red wines in many of the 50+ vineyards in the area. There is even a wine museum. The town also houses a number of artisan shops and some pretty churches and historic remains.

5. Wander in the serene gardens and parks – Como may steal the limelight with its gardens but Garda is sadly often overlooked and underrated. It offers some fabulous gardens in and around the lake, perfect for a relaxing stroll. The beautiful botanical gardens in Gardone Riveria offer over 2000 species of plants from all over the world; the public gardens in Riva are delightful and the gardens on Isola Garda are stunning. Parco Giardino Sigurta close to Peschiera is considered to be in the top five in the world and if you are looking for bigger expanse of space, Parco Natura Viva, which is east of Lazise, offers a 40 hectare park with plenty to do for the family. Spoilt for choice!

6. Go Biking! Lake Garda is a paradise for cyclists. You can rent bikes in most of the resorts and ride along the cycle paths around the lake or cycle in the countryside villages to the south of the lake. A fabulous way to explore the area! For the more adventurous, you could hire mountain bikes and attempt the mountains to the north of the lake.

7. Relax in a square – whether you are in the centre of Salo’, Riva or Limone, you will find the perfect square to relax in and watch the world go by. This is classic Italy; grab a cappucchino, gelato or aperitivo (the locals love a ‘Spritz’, which is made from Prosecco, sparkling water and Aperol) and soak up the atmosphere. Fantastico!

8. Visit Sirmione in the south. A difficult choice just to choose one as we love Riva, Garda, Limone and so many more but Simione is wonderful. It has been favoured by artists and poets over the centuries for its sheer beauty and offers a medieval centre, dominated by a large castle. The town is also known for its thermal bath resorts.

9. Visit Verona – we wouldn’t normally suggest leaving your holiday destination to venture further afield but the beautiful City of Verona, with its magnificent Roman ruins and medieval and Renaissance buildings is literally on its doorstep. The Roman amphitheatre is the third largest building of its type and the best preserved and boasts the City’s culture status with plays and grand operatic performances under the stars. It's also a great City for some retail therapy...

10. Visit Gardaland for the kids! This is as far removed from traditional Italy as you can get but Gardaland is the largest amusement park in Italy. For a day away from the scenery and a great number of rides, you can’t beat this park. There's a free shuttle bus from the Pescheria train station as well as a Gardaland bus running from quite a few of the towns around the lake.

Self-catering accommodation in Lake Garda

It's not in the top 10 but we think taking a holiday rental in Lake Garda will make your stay even more perfect; space, privacy and the ability to try both restaurants and relax with some home cooked food from the local markets or simply having a capucchino or breakfast on your own terrace or balcony - fantastico! Holiday Homes in Italy offer a wide range of apartment and villa rentals in Lake Garda:

View holiday apartments in Lake Garda

View holiday villas in Lake Garda

View all holiday rentals in Lake Garda 

Holiday rentals in Lake Maggiore – majestic and breathtaking

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View all self-catering accommodation in Lake Maggiore

Holiday rentals in Lake Maggiore – majestic and breathtaking



Maggiore, Como and Garda are the three most famous lakes and have been popular with International visitors for centuries. Renaissance villas, castles and beautiful gardens are a reminder of the times when the lakes were the playground of the European elite.


Lake Maggiore is the second largest lake which winds majestically between Lombardy and Piedmont.  This area benefits from being within easy reach of three airports; Bergamo, Milan Malpensa and Milan Linate.


Good food, a relaxed lifestyle and warm summers make it a destination that’s perfect for a lake holiday in Italy. There are a number of lovely resorts along the lake, such as Stresa, Verbania, Ghiffa and Baveno, which have breathtaking views and are surrounded by lush gardens and tree lined roads.


Stresa is a lovely town with beautiful villas, gardens, cobbled streets and old squares. From the town you can take a cable car up to Monte Mottarone where at 4,000 ft you can enjoy views of the Alps. From the hillside villages of the lake, many properties benefit from jaw-dropping views over the lake and of the Borromeo Islands which are also magnificent.


There is a wealth of activities on offer on the lake from golf to tennis, boating and fishing. The lake also offers easy access to the many beautiful cities in northern Italy, such as Milan, Bergamo, and Turin, where there is no shortage of culture, history and designer shops!


Holiday rentals in Maggiore

Holiday Homes in Italy offers a range of property available around the lake from wonderful period holiday villas in Maggiore to brand new apartments in Maggiore.  Here are a couple of options in our Maggiore holiday rentals portfolio:

Villa Stresa -  This beautiful villa is situated on sloping terraces facing the lake that offer splendid views from every angle, even at night. The well-tended garden is filled with flowers and trees and has numerous places for guests to sit and relax around the breathtaking pool.


Maggiore vista apartment - These lovely apartments all have gardens or balconies with views of the lake and the surrounding landscape. The residence, surrounded by nature, has a pool and paddling pool as well as offering access to a private beach!

View all self-catering accommodation in Lake Maggiore

Means test for Crown Court legal aid

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Even where a defendant is found not guilty, he or she may face ruinous costs after acquittal.

Nigel Evans MP (pictured), a former Deputy Speaker of the House of Commons, was acquitted of serious sexual offences - BBC News 10th April 2014. Mr Evans was first arrested on 4th May 2013 and he was acquitted on 10th April 2014.  It is now reported that Mr Evans will have to pay in the region of £100,000 costs - Telegraph 11th April 2014.   The Telegraph article states:

The parlous state of civil legal aid

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Writing in the Law Society Gazette 7th April, Catherine Baksi considered whether the legal profession's doom-laden predictions about the impact of deep civil legal aid cuts have been realised.  The article is at Law Society Gazette 7th April - Access Denied ?

Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, legal aid was turned off for most private family cases (except those involving evidenced domestic violence, child abuse or abduction.  Key further areas removed from the scope of legal aid were welfare benefits, clinical negligence, employment, housing disputes (other than serious disrepair, homelessness or anti-social behaviour), debt, immigration and education (except special needs cases).

Kenneth Clarke's plans to reduce prison numbers
by allowing greater sentence reductions for those who pleaded guilty were deemed unacceptable to Conservative supporters and the press and so they were vetoed by Downing Street.  So it was that the civil legal aid budget bore the brunt of the Ministry of Justice's number-crunching with civil legal aid cuts amounting to £279m of the £350m that the Coalition government sought to save.  Even where legal aid is available, the criteria for obtaining it are restrictive and the inadequate operation of the "exceptional funding" mechanism is proving to be a serious concern with very few cases qualifying.  In the period 1st April to 31st December 2013 there were 1151 applications for exceptional funding but only 35 were granted and 21 of those were for inquests.

To compensate for removal of legal aid in private family cases, the Ministry of Justice painted mediation as the panacea.  Notwithstanding this ambition, figures show that this policy has failed with family mediation referrals falling drastically.  When told that legal aid is not available, it may be that separating couples pursue cases themselves.

A further tightening of access to justice will arise from significant increases in court fees. The Ministry's consultation closed in January and a response is awaited. 

I recommend a full reading of Catherine Baksi's article where the despairing conclusion is that anyone looking to the prospect of a potential Labour government reversing the cuts must prepare for disappointment.

A further excellent article - Fig Leaves and failings - is published by the New Law Journal where Jo Renshaw writes about the devastating impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.   With respect to "Exceptional Funding", Renshaw writes - "We all suspected that the exceptional case funding (ECF) regime was little more than a fig leaf to hide the injustices of LASPO and assuage consciences within Parliament. In practice, it has proved to be worse than that ....." 

On 22nd April, the ability of the citizen to challenge government and other public bodies by way of judicial review will become further restricted because legal aid will generally only be payable if permission for the judicial review is granted.  A good explanation of this may be seen at the website of Duncan Lewis Solicitors.  For more on the government's actions seeking to limit the use of judicial review see the article by Sara Ogilvie - A State power grab against the rule of law. (Sara Ogilvie is a Policy Officer at Justice).

Justice Alliance UK has produced a short video highlighting some of the problems arising because of the cuts.

A independently produced report is that by the LOW COMMISSION which suggests a national strategy for advice and legal support.  The Commission calls for a £100m implementation fund with half the money coming from government and half from other sources, including interest from lawyer client accounts and a levy on payday loan companies.  However, the report stops short of calling for full reinstatement of civil legal aid.

All of this should be highly disturbing in a wealthy democracy.  The courts of the land, mainly paid for through taxation,  are effectively becoming closed to the average citizen.  Without access to justice, legal rights will become illusory.  Without the ability to go to court to keep powerful public bodies operating within the law, those bodies will become increasingly powerful and disrespectful of the rights of the citizen. At the end of the day, every government has choices as to how it spends public money.  For this government, access to justice does not figure highly against expenditure in other areas such as overseas aid etc.  There must be scope for any incoming government to review this area with a view to improvement.  There should be greater commitment to do so from Opposition parties.

Criminal Bar Association votes NO

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Update 10th April:  Message from the Chairman of the Criminal Bar Association

As reported in my earlier post (A pivotal decision for the criminal bar), members of the Criminal Bar Association were balloted on the following motion:

“Do you wish to continue no returns and days of action until all the cuts and reduction in contracts are abandoned” Yes No

The result was that 1878 votes were received.  629 voted YES and 1249 voted NO.  I understand that the 1878 voting figure is under 50% of those who were eligible to vote.

More details of the result are at Criminal Bar Association - Results of the ballot

I suspect that there will be relief in the Ministry of Justice and despair from other legal professionals who are fighting against the government's regressive plans for justice.  I feel sure that the majority of the legal profession - irrespective of the part to which they belong - will feel that justice is under attack from the government which has enacted cuts to civil legal aid (see Access Denied - Catherine Baksi, Law Society Gazette 7th April), is imposing cuts to criminal legal aid and has acted to impose restrictions on access to judicial review.  The key question now
will be whether the overall profession can mount a united front in the fight for justice for the citizen.  I hope that it can.   Here is some of the Twitter reaction ....

Vote taken. CBA to take their course. I remain #ditchthedeal to the core but genuinely hope to be proved wrong. We will see.
— John Cooper (@John_Cooper_QC) April 9, 2014

But credit where credit is due the leaders of the CBA have been brave enough to put their reputations on the line for this. @TheCriminalBar
— John Cooper (@John_Cooper_QC) April 9, 2014

I hope now the Criminal Bar has spoken, we unite behind @TheCriminalBar - I also hope that Grayling is true to his word & engages in talk.
— Mark Harries (@MRHarries) April 9, 2014

@JamesPSVine Nevertheless, the profession has spoken, and we must all now support Nigel and Tony going forward. Battles yet to be won.
— Ian West (@ianswest) April 9, 2014

Oh Dear.However, deep breath, UNITE No to VHCC -30% Thanks to CBA for effort to date No to returns from sols post 7/4 It's not over Grayling
— Jon Whitfield QC (@jonwhitfieldqc) April 9, 2014

It's shameful that so few took the time to educate themselves and vote on something so important and far-reaching. @John_Cooper_QC I
— Steph Varle (@stephvarle) April 9, 2014

Joint Enterprise (1) ~ Setting the scene

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Individuals can participate in crime in various ways and the criminal law recognises this by enabling the conviction of not only principal offenders - (that is, those who actually commit the prohibited act with any necessary mental element or mens rea) - but also those who, in various ways, lend their support.  One of the most controversial aspects of participation in crime is what has come to be referred to as Joint Enterprise.  I plan to look at this topic in rather more detail in the coming days.

By way of setting the scene, The Guardian 1st April, draws attention to statistics obtained by the Bureau of Investigative Journalism.  The statistics may be seen at Joint Enterprise in numbers. The Bureau found:

• Between 2005 and 2013, 1,853 people were prosecuted by the CPS for homicides that involved four or more defendants. This is the closest approximation that can be made to the use of joint enterprise. Most academics agree these prosecutions almost certainly relied on the joint enterprise doctrine.

• In the same eight years 4,590 people were prosecuted for homicides involving two or more defendants – a definition the CPS suggests is a clear indication of the use of joint enterprise.

The Bureau describes
joint enterprise as " ... a doctrine of common law dating back several centuries that has been developed by the courts to allow for more than one person to be charged and convicted of the same crime.  If it can be proved that the participants were working together in some way, then they are all guilty of all the crimes committed during the course of their joint enterprise, regardless of the role they played."  Lawyers would not agree that this is an accurate "definition" but it is an adequate description for present purposes.

It tends to be homicide cases that come to greater public notice and joint enterprise frequently plays a part in such cases.  However, joint enterprise is NOT confined to homicide cases and could, in principle, be applied to other types of offending (e.g. theft or public order offences etc).  There are certainly some instances where convictions for murder have been obtained against individuals whose degree of participation in the offending can be said to be quite minimal or peripheral.

Joint enterprise is frequently defended as a necessary tool in the criminal law's armoury to deal with "gangs".  In a response to a Parliamentary Report on Joint Enterprise, Kenneth Clarke (then Secretary of State for Justice and Lord Chancellor) said - "I am keen to avoid consulting on measures that could weaken the law in this area or undermine the Government's efforts to tackle crimes committed by gangs."  Clarke shelved any possibility of reform for the duration of the present Parliament.  

The campaign  group JENGBA (Joint Enterprise Not Guilt by Association) seeks changes to the substantive law. I am not connected to JENGBA but, as we shall see, they have a strong case for reform.  The following short video is worth watching:

Joint Enterprise and Jordan Cunliffe

Newlove killers jailed for life - BBC News 11th February 2008