Information Rights ~ Secrecy ~ an interesting case in the pipeline

The expansion of secrecy in the courts:

The Joint Committee on Human Rights 16th report refers to there being 21 areas where special advocates could be used.   Para 58 of the 16th report stated:

"The Government replied that it was difficult to provide a comprehensive list of all the contexts in which closed material (as it prefers to call secret evidence) and special advocates are used, because in addition to the contexts in which the use of special advocates is provided for by legislation, the courts have an inherent jurisdiction to request that the relevant law officer consider appointing special advocates if they should become necessary in a particular case where there is no such express provision.  However, the Government provided a list of 21 different contexts in which it was "aware" that special advocates have been or may be used. In subsequent written answers to questions asked by our Chair, the Solicitor General confirmed that special advocates had been used in 14 of the 21 contexts identified in the Government's response to our inquiry.  However, in a further written answer she declined to say in how many cases in each of these contexts special advocates were used, on the basis that this information is not recorded centrally and could only be obtained at disproportionate cost."

This extract
from the 16th Report - published in March 2010 - is one example of how far secrecy has become embedded in our system of supposedly open justice.  The government's Justice and Security Bill - now wending its way through Parliament - will extend "closed material procedure" to certain civil cases before the courts where a question of national security is involved.

Information Commissioner Decision Notice with confidential annex:

Secrecy manifests itself in many ways.

Another example appears in a recent Decision Notice of the Information Commissioner - read Notice FS50456429 .  The Decision Notice is concerned with a "freedom of information" request made to Greater Manchester Police (GMP) by Mr Miguel Cubells.  Mr Cubells asked GMP to provide certain information concerning an investigation into his mother's death.

 A couple of points are of particular interest here.

1.  In general, under section1 of the Freedom of Information Act 2000 (FOIA), public authorities are under a duty to confirm or deny whether they hold information requested.  If they have the information requested then, as a basic position, they should state that they have it.  If they do not have it then, again, they should say so.  Where the public authority has the information requested then, again as a basic position, it should be disclosed.
 ``
This rosy picture soon frosts over when the detail of the FOIA is considered since there are various grounds in the Act on which a public authority may claim to be able to withhold information.  The exemptions (FOIA 2000 Part II) are particularly important since. where an exemption applies, it is usually the case that the duty to confirm or deny is removed and so the public authority may then opt to neither confirm nor deny the presence of the information.

I some instances it may make good sense to do this.  For example, a police force may hold information regarding particular properties they have under surveillance.  It is likely that if a request were made for information about the surveillance of a certain property, this information would be exempt under section 30 (investigations and proceedings conducted by public authorities). A public authority could therefore refuse to confirm or deny whether it holds information about a property under surveillance.

In Mr Cubells' case, the GMP refused to neither confirm nor deny - ( NCND response).  They based this on section 30 (Investigations and proceedings conducted by public authorities) of the FOIA 2000.  Mr Cubells asked the Information Commissioner to consider the case and the Commissioner upheld the position of the Police.

2.  The Decision Notice issued by the Information Commissioner sets out the reasons for upholding the position of GMP.  However, paragraph 28 of the Decision Notice indicates that there is a confidential annex revealed only to the GMP.  Para. 28 states:

"In correspondence with the Commissioner, GMP provided further explanation in support of its refusal to confirm or deny whether the requested information is held. Details of those arguments can be found in the Confidential Annex to this decision notice which will be provided to the public authority only. In summary, they relate to the public interest in protecting the investigative process."

Mr Cubells is therefore in the position of not knowing the full and exact reasons for the GMP's stance and, it seems clear enough, that the Commissioner was influenced in some way by the confidential material.

The matter is to be heard, on appeal from the Commissioner, by the First Tier Tribunal (Information Rights) - formerly the Information Tribunal.  The outcome is awaited with interest.  It is understood that the Tribunal has requested copies of the confidential annex. 

The Tribunal - some general points:

The current structure of tribunals may be seen via the Ministry of Justice website.  The role of the First tier Tribunal (Information Rights) is amplified here.

The First Tier Tribunal (Information Rights) is part of the First Tier Tribunal's General Regulatory Chamber and procedure at the Tribunal is governed by the Tribunal Procedure (First Tier Tribunal) (General Regulatory Chamber) Rules 2009.  The Rules are aimed at enabling the tribunal to determine cases fairly and justly.  Parties to cases must pay particular attention to these procedural rules.

Appeals - on points of law - go from the First-Tier Tribunal to the Upper Tribunal.  Further appeals, to the Court of Appeal (Civil Division) and Supreme Court, are possible.

Other:

A leading text is The law of Freedom of Information - Oxford University Press - eds. John Macdonal QC, Ross Crail and Clive Jones

Information Commissioner's Office

Read More

Crown Prosecution Service ~ Guidance material

A look at two sets of guidance issued by the Crown Prosecution Service (CPS): (1) Joint Enterprise and (2) Communications via social media.

(1) Joint Enterprise

Just before Christmas 2012, the CPS issued important guidance on how charging decisions will be made following offences involving two or more participants in what is known as "joint enterprise."

Joint enterprise guidance 20th December 2012


Keir Starmer QC said: "This is a controversial and complicated area of the criminal law, so I want the public to understand how we take decisions to charge in these cases. This guidance for prosecutors explains the case law and sets out the key tests that we must apply to each case. What this guidance cannot do is change the law, which is a matter for Parliament and the courts.


In particular, this guidance will assist prosecutors in deciding whether, and with what offence, suspects with minor roles in group assaults should be charged. Accidental presence at the scene of a crime or mere association with an offender is never enough to create liability - a suspect must assist or encourage the offence in some way. This is the fundamental distinction drawn by prosecutors and the courts in cases of joint enterprise, and our guidance makes this clear."

(2) Communications and social media

Interim guidelines on prosecuting cases involving communications sent via Social media

This has been an area where a number of prosecutions have appeared to be particularly heavy-handed - e.g. the Twitter Joke case of Paul Chambers.

This interim guidance is open to public consultation until 13th March 2013. Introducing the interim guidance, the Director of Public Prosecutions - Keir Starmer QC - said:

"These interim guidelines are intended to strike the right balance between freedom of expression and the need to uphold the criminal law.

They make a clear distinction between communications which amount to credible threats of violence, a targeted campaign of harassment against an individual or which breach court orders on the one hand, and other communications sent by social media, e.g. those that are grossly offensive, on the other.

The first group will be prosecuted robustly whereas the second group will only be prosecuted if they cross a high threshold; a prosecution is unlikely to be in the public interest if the communication is swiftly removed, blocked, not intended for a wide audience or not obviously beyond what could conceivably be tolerable or acceptable in a diverse society which upholds and respects freedom of expression.

The interim guidelines thus protect the individual from threats or targeted harassment while protecting the expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some and painful to those subjected to it."

See the CPS statement about the guidelines

This seems to be the age of "guidelines" and whether the social media guidelines are actually required is a moot point.  In a podcast on CharonQC's UK Law Tour, John Cooper QC (who defended Paul Chambers) argued that the guidelines are not needed - the test should be "common sense" applied to the Act in question.  The virtue of "common sense" has appeared to be sometimes absent when the law has had to decide how to deal with certain ill-advised comments on media such as twitter and facebook. A further point is that, all too often, offences in Acts of Parliament are not particularly clearly drafted and this inevitably leads to variations in charging and eventually to judicial decisions on the meaning of the Act.  The Twitter Joke appeal judgment is now a precedent on section 127 of the Communications Act 2003.

See the earlier post on Tweets, Facebook ~ Go to Jail (12th October 2012)where the cases of Azher Ahmed and Matthew Woods are considered.
Read More

UK Human Rights Blog - 2012 - Year in Review

The UK Human Rights Blog has the following posts looking back at the "biggest human rights stories" of 2012:

Part 1

Part 2

Part 3

Part 4

An article "In Defence of Rights" by Philippe Sands QC and Helena Kennedy QC has been published in the London Review of Books [Vol. 35 No. 1 - 3rd January 2013].  Sands and Kennedy were members of the Commission on a British Bill of Rights which reported in December 2012.
Read More

A look back on 2012 ~ a blockbuster of a year

What a year!  For any observer of the legal system, 2012 was a blockbuster with numerous stories and an immense amount of comment.  2012 was also the year of the immensely successful Queen's Diamond Jubilee and the Olympics and Paralympics held in London.  These superb events managed to lighten the mood within the country which is beset by seemingly intransigent economic woes.  November 2012 marked the mid-point of the present Parliament which is locked into place for 5 years by the, to my mind ill-considered, Fixed Terms Parliaments Act 2011.  On the legal front, here are just are some of the stories which, for me at least, stood out.

Back In January, the Scottish Independence Referendum 2014 was beginning to attract attention south of the border: Scotland: We need to talk.   Premiership Footballer John Terry said that he would "prove his innocence" at his trial and my comments on burden and standard of proof in criminal cases attracted a lot of views.  One of the purposes of blogging is to try to explain and it is amazing just how much misunderstanding there is about even basic aspects of the legal system.

February
was the 60th anniversary of the Accession to the Throne of HM The Queen.  I looked back at the Accession in a somewhat poignant post - here.   The frustration of the UK government with the European Court of Human Rights was mounting and a leaked document revealed the government's plans to minimise the influence of Strasbourg. 

Of course, little is said when the British government wins a case at Strasbourg as it did in March - Lois Austin and others v UK.  This concerned the controversial technique of "kettling"  of persons in the vicinity of a demonstration.  March also saw the sentencing to 56 days imprisonment of Liam Stacey for his comments on twitter about footballer Fabrice Muamba.   Stacey was charged under the Public Order Act 1986 s4A (together with Crime and Disorder Act 1998 s31) - racially aggravated disorderly behaviour ... etc.

In April, the European Court of Human Rights (Fourth Section) gave judgment in the cases of 5 men facing extradition from the UK to the USA.  (Judgment in a sixth case was deferred until later).  The court was required to decide whether their extradition would be compatible with Article 3 and the court was asked to consider representations from various interveners who provided evidence as to the conditions in US high security facilities such as ADX Florence where, at least, some of the men might eventually be held - see Reflections of Babar Ahmed and others v UK   This judgment is, to my mind, unsatisfactory in that it fails to deal convincingly with the arguments of the interveners which included some with immense knowledge of the US penal system and its possible impact on the health of those detained for long periods under "special administrative measures."

April was also marked by the row over time limits at the European Court of Human Rights - Pesky time limits and Abu Qatada.    The parties (i.e. Abu Qatada and the British government) had 3 months from 17th January in which to enter a request that the case be referred to the Grand Chamber.  On 17th April, Abu Qatada's legal team made a request that the case be referred.  However, it appears that the British government considered that the 3 months ended at midnight on 16th April.  This proved to be somewhat embarrassing for the British government - Pesky time limits and Abu Qatada No. 2.   A five judge panel of the European Court of Human Rights held that Abu Qatada was in time.  This was, of course, a finding against the British government which insisted that the time limit expired on 16th April.  In my view, this brinksmanship was unedifying.

Finally, in April, came the important Brighton Declaration -  The Brighton Declaration - a quick first glance.  This, by now almost forgotten document, will lead to some very crucial changes over the next few years.  Interestingly, the declaration looked for rapid execution of judgments - "The Committee of Ministers should be able to take effective measures in respect of a State Party that fails to comply with its obligations under Article 46 of the Convention."  With the UK on the international legal naughty step over prisoner voting, this part of the declaration may come home to haunt the British government.  The declaration also signalled for reform - "It may be necessary to evaluate the fundamental role and nature of the Court to ensure the viability of the court's key role in the system for protecting and promoting human rights in Europe" and the Committee of Ministers was tasked with carrying out "a comprehensive analysis of potential options for the future role of the court, including analysis of how the convention system in essentially its current form could be preserved, and consideration of more profound changes to how applications are resolved by the Convention system with the aim of reducing the number of cases that have to be addressed by the court."  The declaration requires this work to be done by the end of 2015.

May 2012 prompted some posts looking at the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which impacts on many areas including securing a marked reduction in the availability of legal aid in many areas of crucial importance to ordinary people.  Parliament embarked on the Crime and Courts Bill with its plans to bring about a single County Court for England and Wales and a new Family Court.  Strasbourg delivered judgment in Scoppola v Italy which effectively did nothing to lessen the impact of the decision on prisoner voting in Hirst No.2 which binds the UK - Prisoner Voting - Strasbourg has spoken  The decision in Scoppola was presented by mainstream media as an outrage with  Unelected Eurojudges trampling on our democracy.  The UK ended up with 6 months in which to get on with the implementation of the decision in Hirst No. 2.  

Finally, for May, the Supreme Court ruled that the European Arrest Warrant issued by Sweden for Julian Assange  was a valid warrant even though it had been issued by a prosecutor.  Soon afterwards, Assange "holed up" in the Ecuadorean Embassy, where he remains at the time of writing.

June saw a number of posts on the Justice and Security Bill.  The Bill is immensely controversial because it will bring into law "closed material procedure" in civil cases in general as opposed to their use in particular areas at the moment.  Much more is likely to be said about this Bill in 2013.

Mr Tony Nicklinson - a sufferer of "locked in  syndrome" - sought declarations that it would be lawful for a doctor to terminate his life, with his consent and with him making the decision with full mental capacity - (voluntary euthanasia).  It had to be doubtful that the court would "Cross the Rubicon" in this matter and this proved to be the outcome.  Judgment in the case of Nicklinson v Ministry of Justice [2012] EWHC 2381 (Admin) Toulson LJ; Royce and Macur JJ was handed down on 16th August 2012.  Mr. Nicklinson died on 22nd August - see BBC 22nd August.  At the time of writing, a hearing in the Court of Appeal is likely - The Guardian 3rd January.

The Assange matter rumbled on through the long summer days and prompted a number of posts including one looking at the status of embassies.

In July we asked - Can Law nail the Libor bankers.  As far as I know, this question continues to await an answer.  Actual individuals engaged in this reprehensible fraud appear to be coated in teflon though investigation is continuing.  In June 2012, the Financial Services Authority imposed a fine of £59.5m on Barclays and, in December 2012, a fine of £160m on UBS AG.

The John Terry case came to trial and he was acquitted.  Also, PC Simon Harwood was acquitted by a jury of the manslaughter of Mr Ian Tomlinson.  Harwood was eventually dismissed from the Police service with the Police Misconduct Hearing adding to the controversy by refusing to consider the question of causation - i.e. whether Harwood's striking of Mr Tomlinson was an operative factor in the death, some time later in a different location, of Mr Tomlinson.  July also saw the end of the incredibly long-running "Twitter Joke" case.  The case concerned remarks made, undoubtedly out of frustration, on Twitter on 6th January 2010.  It took until 27th June 2012, at a hearing before the Lord Chief Justice, for a court to finally rule that he was not guilty under the Communications Act 2003 s.127.

August saw the abandonment of the House of Lords Reform Bill though, in the process the opportunity of making some important reforms was lost - e.g. the removal of Church of England Bishops; the removal from the legislature of peers who are convicted of serious offences and perhaps the final removal of hereditary peers.

Mr Assange was again the the news - Julian Assange: Quo Vadis - and we asked the interesting question - What if Assange ever did get to Sweden. 

The tendency for the traditional rights of those suspected of crime to come under attack from Parliament was highlighted in Interview after charge: the thin end of the wedge?  Four years after the provisions were enacted the government brought into force from 10th July 2012 post-charge interviews under ss. 22 and 23 of the Counter-Terrorism Act 2008.  The editor of Criminal Law Week did not mince his words and described this as “one of the most sinister pieces of legislation enacted by the Westminster Parliament for many years”.

September was notable for the appointment of Mr Chris Grayling as Secretary of State and Lord Chancellor.  He is not a lawyer and the appointment was, for that reason, unprecedented in modern times and, to say the least, it appeared to go down like a lead balloon with many in the legal profession generally.  I am less sure that such a post should be reserved, as in the past, to a senior lawyer (usually a QC) who happens to be a supporter of the government.  However, I am also unhappy at the joint role of Secretary of State / Lord Chancellor.  The time must surely come for this arrangement to be reviewed.    

The Hillsborough Independent Panel reported in what appears to be a most thorough examination of the available material.  One of the central dissatisfactions with the law's handling of Hillsborough was the inquest process and, of course, the verdicts.  In December the High Court heard an application by the Attorney General for new inquests and the application was granted.  The new inquests should be in 2013.  However, this article - (Guardian 1st January 2013) - is not encouraging.    

Also in September, the new Chief Coroner began to make his mark with his announcement of a ten point plan.   The government oscillated for a long time over whether or not to have this appointment.  In the event, some of the matters enacted in the Coroners and Justice Act 2009 will not come into law - e.g. appeals from Coroner decisions to the Chief Coroner.

The judgment of the European Court of Human Rights became final in the case of Abu Hamza and others.  This enabled five men to be finally bundled out of the UK to the USA.  This was met, generally, by sounds of "good riddance" but analysis of some of the cases made me ask whether it was a time for rejoicing  The cases appear to leave behind a legacy of problems concerning extradition which may well need to be resolved in the future.

As the generally wet summer gave way to a wet autumn, in October, the revelations about the late Sir Jimmy Savile came into the open.  Some of the possible legal issues were looked at here.    The law, free speech and social media were considered in Tweets, Facebook ~ Got to Jail  where the cases of Azher Ahmed and Matthew Woods were considered.  

The Home Secretary got her moment in Parliament when she was able to announce that Gary McKinnon would not be extradited to the USA.  Her decision was based, of course, on protecting his human rights.  (It was later announced that he would not face charges in the UK either).  

Whether an independent Scotland would automatically have European Union membership was a question which came to prominence - Scotland and the EU - No. 2     Earlier, there was a question as to whether the Scottish government had obtained actual legal advice on this issue - Scotland and the EU No.1.   My own belief is that the peoples of these islands will prosper more together than separate and I continue to wonder whether a federal system might not be a better solution than independence.  However that may be, it is not an option for any ballot paper under the Edinburgh agreement signed by Prime Minister Cameron.  The referendum is to be held in 2014 but, during 2013, we can expect to hear increasingly strident noises about it one way or the other. 

November saw the Supreme Court give judgment in a vicarious liability case concerning historic sexual abuse committed at a school in Market Weighton over a 40 year period - Supreme Court ~ Judgment on Vicarious Liability in Tort.

The case of Army Sergeant Danny Nightingale came to public attention and he was released from detention on orders of the Court Martial Appeal Court.  There may be more on this case later.   

The November blockbuster was the Leveson Report on the Press with its recommendation for a self-regulation system with statutory underpinning.  The way forward for this report is in the balance and will undoubtedly be revealed in 2013.  The overwhelming legal opinion seems to be that Leveson got this right but Prime Minister Cameron expressed some reservations at the time Leveson reported.   See Who is to Guard the guards.   Is the Prime Minister right in suggesting that, once Parliament legislates, it becomes easier to enact further legislation since a principle has been conceded or, at least, partially so. Even if Leveson is right in saying that his scheme is not statutory regulation of the press, it is not entirely unreasonable to characterise it as a step in that direction and further steps then eventually become more palatable particularly in the political climate likely to follow something “going wrong.”  Maybe we are becoming rather too ready to abandon various freedoms which have, on the whole, served us well.  Guarding the guardians - the Leveson report and the Rubicon. 

In November, Abu Qatada was still with us since the Special Immigrations Appeal Commission ruled that any trial in Jordan might involve evidence obtained by torture.  This must be most annoying for the present Home Secretary who, earlier in 2012, went to Jordan where his deportation was discussed.  The European Court of Human Rights judgment would enable his deportation if it could be said beyond doubt that no such evidence would be used against him.  It appears that the government is to appeal by arguing that SIAC applied the "wrong" legal test.

The Secretary of State for Justice / Lord Chancellor produced a draft bill claiming that it was complying with the European Court of Human Rights ruling on prisoner voting.  The draft bill will effectively prevent any decision until the next Parliament but the government will be able to say it is doing something about the issue.  The reader must judge whether such tactics are damaging to the rule of law.

December saw a report into a further historic controversy - the role of government (State) agencies in the death of Belfast solicitor Patrick Finucane.   It remains to be seen whether this report - by Sir Desmond de Silva QC - leads to any further form of inquiry.  For reasons mentioned in the post, this seems doubtful at the present time. 

And then, almost at Christmas, came the much awaited report from the Commission on a British Bill of Rights.  The report gave material to all sides of the argument but there was a majority for some form of British Bill and a minority against.  How the politicians will read this may become one of the issues for 2013 when traditional cudgelling resumes at Westminster.

A year packed with stories not to mention the enactment of some 23 Public General Acts of Parliament and well in excess of 3000 Statutory Instruments.  It is little wonder that our lives are immensely regulated and controlled.  As 2013 unfolds, this blog and many others will hopefully continue to throw some light on the many legally interesting and frequently controversial issues of our time.  To all readers, here's to a Very Happy and prosperous 2013.


 
Read More

The death of a drug seller ~ Fixing the minimum term of imprisonment

Adam Vincent was a drug addict and in bad health as a result.  He sold drugs on the streets for the Griffiths family who operated their drug operation from a bungalow in Grimsby.  Lee Griffiths, Luke Griffiths, Thomas Griffiths and Mark Jackson were convicted before a judge and jury of the brutal murder of Vincent.  They appealed against the minimum terms of imprisonment determined by the trial judge who applied the Criminal Justice Act 2003 sections 269 and 270 and Schedule 21.

Lee Griffiths, Luke Griffiths, Thomas Griffiths and Mark Jackson v R [2012] EWCA Crim 2822 Hughes LJ, Ramsay and Irwin JJ

The court said - para. 15 - "We entirely agree with the judge's self direction that Schedule 21 cannot be applied mechanically, and that paragraph 5(2) is in no sense an exhaustive list of the kinds of case which a court may determine to be of particularly high seriousness. This court has said so on too many occasions to list. A mechanical application of the Schedule is apt to create absurd anomalies, such as that corrected in R v Height ; Anderson [2008] EWCA Crim 2500; [2009] 1 Cr App R(S) 676, where a simplistic application of the schedule would have resulted in the paid contract killer being subject to a starting point double that of the employer who incited and engaged him and for whose purposes the killing was carried out. Nor can the Schedule be applied in an arithmetical manner, by adding or subtracting years attributable to separate features of the case: that was demonstrated to be unworkable in R v Peters and others [2005] EWCA Crim 605; [2005 2 Cr App R (S) 101 at 627; see paragraph [8]. As was observed in R v Jones [2005] EWCA Crim 3414; [2006] 2 CR App R(S) 18 at 117, the very large gaps between the starting points identified in the Schedule present a sentencer with considerable difficulties in his quest to match the penalty to the infinitely variable circumstances of crime. It is nonetheless clear that it was not Parliament's intention that the Schedule should be applied mechanically by fitting each case into the nearest available starting point and making only minor adjustments to it. That is clear from paragraph 9 of the Schedule, which says:
"Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point)…."

It is perhaps somewhat surprising, so long after it came into law, that the court needed to re-emphasise then non-mechanical approach necessary when applying Schedule 21.  The aim is to pass a minimum term which reflects the true criminality involved.

The result is not necessarily a simple exercise for the judge to conduct but it is plainly what Parliament intended.  The judgment is not particularly lengthy and is well worth reading by the general public.  In the result, the minimum terms for these men were set by the Court of Appeal at:

Lee Griffiths: 30 years
Luke Griffiths: 23 years
Thomas Griffiths: 25 years
Mark Jackson: 25 years.
Read More

Guilty Pleas ~ sentence reduction

The last day of the Michaelmas Law term 2012 was 21st December and no less than nine Court of Appeal (Civil Division) judgments and four Criminal Division judgments were handed down that day.  These can all be seen on the Bailii website along with the numerous judgments of other courts and tribunals.

The Criminal Division considered the effect of guilty pleas in relation to sentence - Caley and others (Guilty Pleas) v R [2012] EWCA Crim 2821 Hughes LJ, Wilkie and Popplewell JJ.

It has been long standing practice to give a "discount" on sentence when there is a guilty plea.  The amount of the discount depends on the time at which the defendant indicates "his intention to plead guilty."  Here is a powerful incentive to indicate an intention to plead guilty at the earliest possible stage since the discount can be as high as one-third.  Such a discount can amount to several years in cases where lengthy sentences of imprisonment are inevitable.



The reasons in favour of discounts are said to be: the benefit to victims and witnesses and the saving of public money which has to be expended on preparation for a full trial.  (See the judgment at paras. 5 and 6).

The Court of Appeal noted that "something of the order of 75% of all Crown Court cases result in pleas of guilty; if in all those cases the defendants were out of defiance or otherwise to insist on each detail of the case being proved to the hilt the administration of criminal justice would be in danger of collapse."

The Court was not undertaking a full re-appraisal of reduction for plea.  The Sentencing Council has the overall approach to pleas of guilty and sentencing on its agenda, having deferred further consideration of the topic when the possibility existed (now no longer present) that the Government might seek to introduce legislation upon it. However, in the court's words: "Some questions, ... , arise as to how the SGC guideline should normally be applied.  Furthermore, some aspects of the handling of cases in the criminal courts have altered in recent years and the manner in which the Guideline should be applied to present procedures needs to be considered. It is to these topics that we address ourselves."

Readers may find the court's views on reduction of sentence even in cases of "overwhelming evidence" of interest (paras 23 to 25).  The existing Sentencing Council guidance indicates that reduction may be limited to one-fifth in such cases though the wording of the guidance is very cautious.   The appalling case of R v Paul Wilson [2012] EWCA Crim 386 concerned two oral rapes of a three year old, which had been recorded on camera.  The trial judge refused to make any reduction in sentence for guilty plea even though it was indicated within a week of police interview.  The Court of Appeal reduced the sentence with the Lord Chief Justice noting that - "Even in an overwhelming case the guilty plea has a distinct public benefit. The earlier that it is indicated, the better for everyone…..There are two examples we wish to highlight. First, none of the repellent movie of the little girl would ever be shown in public. No one would ever see her face. In addition, none of it would ever be seen by the jury [who]….would have been horrified… Those are but two advantages of the guilty plea."

It will be interesting to see the outcome of any revision of the Sentencing Council guidance.  The large amount of discount in some serious cases is capable of producing public dissatisfaction with the administration of justice and it may be that Parliament will have to visit this topic in the future.

Existing Guidance - published 2007 by the Sentencing Guidelines Council (as it then was).
Read More

The Lord Chief Justice warns

In a light hearted speech with a serious message, the Lord Chief Justice has warned of the need for vigilance where the rule of law is concerned.

"I am not sounding a clarion call against any imminent threat to the rule of law.  What I am, however, saying is that even in a country with the values with which we are blessed, it is unwise to take them for granted or to assume that we can be sure that in years to come that some new force may not emerge to undermine them; it may be insidious, maybe almost imperceptible. Indeed if insidious and almost imperceptible it is probably more dangerous. So in this context the “may be” is enough.  The future, after all, is long as well as short and the world is changing fast."

Speech at Mansion House, London.

The tragedy is that, in 2012, Parliament enacted the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which will soon come to remove access to justice for thousands of people who, when in conflict with authority, need an advocate with good understanding of the law and its practical application.
Read More

Seasons Greetings


The Greetings of the Season to all readers.  Thank you for your interest in the various stories and for your interesting comments.  All much appreciated.


Christmas tree in the foyer of the Supreme Court.



Please return to the blog over the coming period for some more stories.

It's interesting to note that Fairytale of New York (The Pogues & Kirsty McColl) has recently been voted the nation's favourite Christmas song.   For me, there is no doubt that the greatest of all Christmas songs is "In the Bleak Midwinter" - here it is sung by Sissel.
Read More

Sentencing ~ Common assault

A father attends a school and assaults the Head Teacher.  Should this merit a custodial sentence?  This was the issue in the case of Paul Stratford  - see Daily Mail 21st December.   The Head Teacher wished to exclude Stratford's son from school for 1 day for 'racial abuse.'  On attending the school, Stratford punched and pushed the teacher and later claimed that he was protecting his son's eye from the teacher's pointing finger.  Stratford's attack on the teacher ended when the caretaker intervened and it is reported that Stratford 'continued to rant' as he left the school.  The Daily Mail commented:  "Despite the gravity of the offence, magistrates decided to impose only a community sentence, telling Stratford to pay his victim £100."  Of course, here was a case which is grist to the mill of a "get-tough-on-criminals" newspaper but it is not unreasonable to think that many ordinary people will agree that the sentence was light.

Let us leave aside Stratford's case for a while since we just have a media report and do not know every detail.  Instead, let us focus on the sentencing guidelines to see what they indicate as a sentence for an assault on a teacher when, perhaps fortuitously, there is no injury despite the teacher being punched once and pushed.



Sentencing - general principles:

Sentencing is far from an easy task.  The sentencer must apply all the relevant law (e.g. Part 12 of the Criminal Justice Act 2003 and Part 4 of the Coroners and Justice Act 2009).  In particular,
the sentencer must consider: the sentencing objectives (Criminal Justice Act 2003 s.142);  allowance for guilty plea (CJA 2003 s.144); general restrictions on custodial sentences (CJA 2003 s.152); pre-sentence reports (CJA 2003 s.156); and the duty to explain the sentence (CJA 2003 s. 174).  Furthermore, sentencing guidance must be followed (Coroners and Justice Act 2009 s.125) unless the court is satisfied that it would be contrary to the interests of justice to do so and, if so, the reasons for departure from the guidelines must be stated in open court - as required by the CJA 2003 s.174(2) aa.

Sentencing in the Magistrates' Court for Common assault

Sentencing guidance for common assault is in the Magistrates' Courts Sentencing Guidelines at page 213.  There is a 9 step approach:

Step 1 - the court decides the "Offence Category." This depends on an assessment of harm and culpability.  ONLY the factors set out on page 214 may be considered.  The offence must be allocated to one of 3 categories where Category 1 is a combination of greater harm and greater culpability, Category 2 is Greater harm with lower culpability and 3 is lesser harm with lower culpability.  [Query:  Should there not be a 4th category of lesser harm with higher culpability?]  Let us take, for the purposes of this exercise, a Category 2 case. 

Step 2 - The court now looks at the sentencing starting point and the sentencing range.  For Offence Category 2, the starting point is a medium level community order with a range of Band A fine to High Level Community Order.  [Only if the offence were Category 1 does the range include imprisonment].  Factors in the guidance state what makes an offence either more serious or less serious and there are factors reflecting personal mitigation.

Factors making the offence more serious include: previous convictions (though the period of time since the conviction is relevant), location of the offence, the timing of the offence, the effect on the victim, the fact that the victim is providing a service to the public, the presence of other people.  Factors making the offence less serious include a single blow and personal mitigation includes matters such as whether the defendant is a sole carer for another.

It is fairly obvious that a number of the "more serious" factors are present when an assault is of a teacher at a school.  Assuming our Category 2 offence, the case will be at the higher end of the sentencing range - i.e. high level community order.

Step 3 - Factors which indicate a reduction, such as assistance to the prosecution - The court should take into account any rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator. Not relevant to our offender.

Step 4 - Reduction for guilty pleas - The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Guilty Plea guideline.  Our offender was found guilty after trial.

Step 5 - Dangerousness - not relevant to our offender

Step 6 - Totality principle - If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour.  Not relevant to our offender.

Step 7 - Compensation and ancillary orders - In all cases, the court should consider whether to make compensation and/or other ancillary orders.  Our offender has reasonable means and could pay compensation and costs.  Available monies should be applied first to compensation and then to costs.

Step 8 - Reasons - Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence.

Step 9 - Consideration for remand time - not relevant here

Hence, on the basis of these guidelines, our offender is to receive a high level community order plus an order to pay compensation and an order to pay costs.

Had it been possible to place the offence in Category 1 (greater harm and higher culpability) then imprisonment might have been much more likely.

Guidelines are not tramlines?

The guidelines are NOT tramlines even if, recently, the scope for divergence has been narrowed.

Courts may depart from guidelines if satisfied that it would be contrary to the interests of justice to follow them.  In that event, the reasons for departure from the guidelines must be stated in open court - as required by the CJA 2003 s.174(2) aa.  In a case of assaults on teachers at schools, it might well be possible to argue that, even if the guidance leads to a high level community order in the particular case, imprisonment could be justified on deterrence grounds. 

On the basis of what we know, Stratford may well have deserved to hear the clang of the prison gates but we must bear in mind that there may have been other factors of which we are unaware.  The courts are bound by guidelines set out by the Sentencing Council and are mandated by statute to apply them unless there is good reason, in the interests of justice, to depart from them.  In that event, the reasons must be stated in open court.  Critics of the sentence should perhaps focus their attention on the guidelines.
Read More

Drinking and driving ~ the government's consultation

With the festive season upon us, here is a timely reminder that the government has plans to amend the law of drinking and driving. 

Have a look at the government's consultation:

https://www.gov.uk/government/consultations/enforcement-procedures-against-drink-drivers-and-other-offenders

This consultation encompasses the legislative changes the government proposed in its response of March 2011 to the reports by Sir Peter North and the Transport Select Committee on drink and drug driving (“the government’s response”). The changes covered in this consultation do not, however, include creating a new offence related to driving with a specified impairing drug in the body, which is also being progressed by the government.

The only safe advice which can be given about drinking / driving is do not do it. 

The changes are considered in an excellent post on CharonQC's blog - Timely advice on the drink driving laws from Jeanette Miller - solicitor.
Read More
Subscribe to: Posts (Atom)