Public Defenders ~ QASA ~ and other matters

Public Defenders:  

A little more on the developing Public Defender Service.  It looks like the PDS is being expanded by the government in order to challenge the independent Bar which has been active in opposing planned cuts to criminal legal aid.

Some research on the PDS covering the period May 2001 (when the service commenced) to 2004 is available here.

and now to other matters ....


QASA:
 
A planned Quality Assurance Scheme for Advocates (QASA) was the subject of a judicial review.  The challenges to the legality of the planned scheme were rejected by the High Court.  It is a lengthy judgment but worth reading in full.   (Previous post: QASA: Snakes and Ladders 17th February 2012).

Marital coercion defence to be abolished:
  
A clause has been slipped into the Anti-Social Behaviour Bill to rid the law of the defence of marital coercion - The Guardian 17th January and see Law and Lawyers 2nd June 2012.  The last notable use of this defence was in the Vicky Pryce trial.  She was convicted.  Here is the clause ...

After Clause 162

LORD TAYLOR OF HOLBEACH

LORD PANNICK

Insert the following new Clause—
“Abolition of defence of marital coercion
(1)   The defence of marital coercion is abolished.
(2)   Accordingly, section 47 of the Criminal Justice Act 1925 (coercion of
married woman by husband) is repealed.
(3)   This section does not have effect in respect of an offence alleged to have
been committed before the date on which it comes into force.”

Fines for environmental offences:

Some important judgments are now appearing as the new Law term gets into full swing.  Here is a case dealing with the level of fines to be imposed on large companies (Sellafield and Network rail) for environmental offences. 

The Chancery Division:

A lengthy report has been published dealing with Modernisation of the Chancery Division of the High Court. 

Legal Dials of Democracy:


Professor Gary Slapper posted this on Twitter (20th January).  He summarises, in seven short phrases, the importance of the law in a democracy.
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Independent Bar v Public Defender Scheme: Just what is going on?

See this advert - Job Description - Queen's Counsel, Senior Higher Courts Advocates and Junior Higher Courts Advocates

The Ministry of Justice is managing a recruitment process for these posts in the Public Defender Service.  Salaries range from £46036 to £125000.  This service is being expanded at the same time as the government's legal aid proposals (i.e. cuts) are likely to make practice at the independent criminal bar unviable, particularly for younger barristers.  It would appear that the government would prefer to have a panel of lawyers in their pay rather than to encourage the fully independent criminal lawyer to survive.  The true reasons for this can only be guessed at.  I know what I think!  The salaries on offer (and other benefits such as leave and pension scheme) will no doubt prove irresistible to some because most independent lawyers working on criminal legally aided cases are by no means the "fat cats" which the Ministry of Justice has portrayed them to be.

More about the PDS
may be read in this case study.  Lawyers in the PDS operate to a Code of Practice issued under section 29 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The Ministry of Justice has announced the appointment of two more Queen's Counsel to the PDS.

Here is a little of the Twitter reaction .....










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The Chief Inspector's interview about Policing ~ The Times 18th January

The Times headline on Saturday 18th January was - "Police fear inner cities take law into own hands."  This referred to an interview given to The Times by the Chief Inspector of Constabulary (Tom Winsor). Mr Winsor is due to publish a report on the efficiency and effectiveness of the Police and, for that reason, I will confine this post to just a few of the comments as reported by The Times.

Mr Winsor sees a case for reducing the number of Police Forces in England and Wales.  Currently there are 43.  "In time some of these small forces will disappear and indeed it is happening by osmosis already ... these boundaries are meaningless to victims of crime and to criminals."  There is a certain logic in that pointing to a single national force!  Such an entity has usually been resisted on the basis that it would place too much policing power into the hands of a few.  Of course, even if there were to be one Police Force covering England, it is very doubtful
that it would be politically acceptable for one to cover England and Wales.  It can also be said with some confidence that a single force - no doubt run from London (?) - would not be politically acceptable to Scotland and Northern Ireland.  In any case, why should criminals respect the England/Scotland boundary?  For that matter, some don't respect international boundaries: a fact that makes it rather odd that the government is seeking to opt out of many EU crime measures.  (We can pick up that angle later)!


Mr Winsor went on to favour the Police wearing video equipment.  "They do it in other countries and they find the complaints against the Police fall like a stone and guilty pleas increase."  Guilty pleas entered after adequate legal advice based on full knowledge of the prosecution case are perfectly acceptable but not necessarily otherwise.  Also, those accused are still entitled to fully test the prosecution case in open court at a fair criminal trial.  (Mr Winsor does not suggest otherwise).

Mr Winsor also worried that " certain ethnic groups" are turning their backs on the Police.  "There are some communities born under other skies who will not involve the Police at all," he says.  There may be a serious question as to whether some alternative forms of justice are actually operating.  At this stage, it's best to await the full report!

Mr Winsor went on to talk about diversity in the Police (much more is needed); water cannon (let's have some); the Police not to be routinely armed (though, each year, there are many firearms authorisations) because it would encourage criminals to carry weapons.  He would also like to see outsiders parachuted in as inspectors, superintendents and Chief Constables but the parachutists would have to have experience in another field such as the military, the security services or business and they would attend a rigorous training programme.  Somehow, I don't suppose it would be quite as rigorous as the experience to be gained from the Policing of difficult areas.  Mr Winsor is clearly an experienced parachutist.  He is the first non Police Officer to be appointed to the post of HM Chief Inspector of Constabulary.  Apparently, this entitles him to wear the uniform - pictured above.

Enough said for now.  Let's await the report.
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Four years old this week ~ Pro Aequitate Dicere

Law and Lawyers is 4 years old this week (on 14th January).  It has been interesting to look back at the post of the 3rd birthday where concern was expressed about what were then impending changes to legal aid.  They are in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and were implemented on 1st April 2013.  This has minimised the availability of civil legal aid and removed it altogether from some important areas.

As expected, criminal legal aid has also come under attack from the government and the fight to secure as much legal aid in this area as possible continues.  Representation before the courts for those accused of crime is a basic, fundamental requirement of a true democracy.  If you are concerned about the way we are heading, I would urge you to sign the petition at Justice Alliance petition to save access to Justice.


The Steve Cornforth blog takes a look at the impact that cuts are likely to have on the diversity of the  legal profession.  A likely outcome is a profession beyond the reach of all but those from very wealthy backgrounds.  Furthermore, the Birmingham Law Society has said that many firms of solicitor's firms will cease to be viable in the event that the cuts go ahead.  This is a tragic picture which will be reflected throughout the country.  I was also struck by this tweet:

The other very pervasive theme of the past 12 months has been the system of protection for human rights in this country.  Yet again, the attack has come from within the government but certain judges have chosen to join in the chorus.  There is no doubt that this will be a major topic for quite some time to come.  It is worthy of note that the Council of Europe's Commissioner for Human Rights has expressed the view that austerity measures across Europe have undermined human rights - see Council of Europe

“Many governments in Europe imposing austerity measures have forgotten about their human rights obligations, especially the social and economic rights of the most vulnerable, the need to ensure access to justice, and the right to equal treatment. Regrettably, international lenders have also neglected to incorporate human rights considerations into many of their assistance programmes,” said today Nils Muižnieks, Commissioner for Human Rights, while releasing a research paper about the impact of the economic crisis on the protection of human rights."

In September, the Scottish referendum on independence will be held.  In the event of a YES vote, there will be some major and difficult constitutional questions ahead.  I do not think that a divorce is desirable and would prefer to have seen a federal solution to this question but those are only personal views and the idea of a federation has found little traction in political circles even though the Westminster Parliament has created many successful federations throughout history (e.g. Australia, Canada).

I hope to be able to follow developments within our legal system and other interesting stories for some time to come.  There will be much to consider and write about.  The blog hopes to remain true to its original purposes: to discuss, inform, explain but never to dictate and will continue to try to Speak for Fairness - (Pro Aequitate Dicere).
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"The European Court of Human Rights does not undermine democracy", said Lord Pannick QC

Writing in The Times (16th January 2014) (£ wall) - Lord Pannick QC argues that The European Court of Human Rights (the court) does not undermine democracy.  Lord Pannick's view follows recent lectures by senior members of the English judiciary which have raised questions about the relationship with the court - see Lord Sumption, Lord Judge, Lord Justice Laws.  Some counterbalancing argument is to be found in lectures/speeches by Lady Hale and Lord Mance.

Lord Sumption warned that the "wholly admirable" text of the Convention has been interpreted in ways leading to a significant democratic deficit.  Pannick argues that Sumption is wrong for two main reasons.



First: Democracy requires the judiciary to protect the interests of unpopular minorities which often lack political power.  According to Sumption, the court has trespassed beyond the truly fundamental but he did not offer any principle to identify where the border of truly fundamental is located. As Pannick points out, decisions of the court have not caused an insidious decline in our democracy and many judgments have made democracy stronger.

Secondly: the judicial process at Strasbourg is not unusual.  It is a similar approach to that adopted by constitutional and human rights courts throughout the developed legal world.  "Broad concepts such as 'private life' and 'degrading treatment' are interpreted and applied by each new generation of judges to address contemporary concerns.  Courts do not allow a charter of rights to ossify, any more than today's theatre directors, actors and audiences interpret the text of Shakespeare's King Lear as if they were living in the 17th century."  Pannick continued: "The Judicial Committee of the Privy Council, composed [mainly] of Justices of the Supreme Court of the UK, is one of the many courts performing this function.  For the past 50 years it has given a contemporary interpretation to the fundamental rights written into the constitutions of Commonwealth nations.  In a 1979 judgment, Lord Wilberforce criticised the Sumptions of his day for promoting the legal austerity of tabulated legalism".

(Note: In several Privy Council cases, judges such as Lords Wilberforce and Diplock recommended a generous approach to the interpretation or application of broad-textured human rights declarations.  The case referred to by Lord Pannick was the Privy Council decision in Minister of Home Affairs v Fisher [1980] AC 319 where their Lordships held that the Bermuda Constitution should receive a generous interpretation).

Whilst the European Court, like all human institutions, sometimes makes bad decisions - (Pannick offered no example) - it was wrong to suggest that the court is undermining democracy.  This is particularly so where, as in the UK, it is for Parliament to decide how to respond to its rulings.

The Convention binds States by those final judgments to which they are a party.  In domestic law, the Human Rights Act 1998 enables courts in the UK to declare that a statutory provision is incompatible with the Convention but this does NOT strike down the legislation.  It remains in force in domestic law unless and until Parliament amends the law.

For essentially political reasons, there are some judgments disliked at Westminster (prisoner voting and reviews of whole life terms are examples).  Even if such cases are ones in which Homer nodded, they are side winds and should not be permitted to destroy the system of protection offered to the citizen by the convention.  


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Scotland and the Independence referendum

Doubtless, the subject of the Scottish Independence referendum will come to dominate the news this year.  The referendum is to be held on September 2014.  In the event of a Yes-to-Independence vote, the proposed timescale is:

18th September 2014: Referendum

 7th May 2015: Likely Date of General Election in United Kingdom (including Scotland)
 Early March 2016: Agreement between UK and Scotland, and between European Union and Scotland

24th March 2016: Independence for Scotland (via Acts of the UK Parliament and Scottish Parliament)

 5th May 2016: Elections to Scottish Parliament

Writing for the UK Constitutional Law Group Blog,
Nick Barber (University Lecturer in Constitutional Law at Oxford University) argues that the short timescale is likely to result in considerable problems.  Mr Barber's article is well worth reading because it is replete with many pertinent observations and identifies a considerable number of problems  -Nick Barber - Constitutional Law blog - After the vote 

A remarkable fact is that the UK has created many federations such as Australia and Canada.  Wouldn't a FEDERATION be a far more sensible way forward?  For whatever reasons, the idea has not found any traction in political circles.  Rather, they prefer to go for a divorce in which only one side has much say in the outcome!

Scotland ~ Independence White Paper - 26th November 2013 - including links to several earlier posts relating to Scotland and the European Union etc.





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Why bother with human rights?

To read a lot of the media comment about "human rights" - (yuman rights - as I have noticed some media commentators putting it) - you would think they were altogether a terribly bad thing. After all, they can stop government and all sorts of big brothers walking all over you and yours!!! Can't have that - can we?  Good read about this at  The Defence Brief blog.  Well said, sir.

Of course, you might need a spot of legal aid and an expert lawyer if you are to be able to make sure that those rights are meaningful.

For more about the European Convention on Human Rights see Council of Europe. 
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European Court of Human Rights ~ Jones, Mitchell and others v UK ~ “What a pity!”

Updated 16th January with links to other commentaries

The aim of the United Kingdom's State Immunity Act 1978 is to grant other States immunity from the jurisdiction of the courts of the United Kingdom except as provided in the Act itself.  A number of exceptions to that general rule appear in sections 2 to 11.

As long ago as 2001, the European Court of Human Rights Grand Chamber decided Al Adsani v United Kingdom - (Grand Chamber 21st November 2001).  Mr Al-Adsani sought to sue Kuwait in respect of injury to his physical and mental health caused by torture in Kuwait in May 1991 and threats against his life and well-being made after his return to the United Kingdom on 17 May 1991.  Mr Al-Adsani's claim was rejected in the Court of Appeal and a further appeal to the House of Lords was refused.  At Strasbourg, it was held that there was no violation of Articles 3 and 6.


On 14th January 2014, the European Court of Human Rights has reached a similar conclusion in Jones, Mitchell and other v United Kingdom  - (European Court of Human Rights Fourth Section).  See also the article in The Guardian 14th January. 



The Court, while noting the growing recognition of the overriding importance of the prohibition of torture, did not find it established that there is yet acceptance in international law of the proposition that States are not entitled to immunity in respect of civil claims for damages for alleged torture committed outside the forum State. The 1978 Act, which grants immunity to States in respect of personal injury claims unless the damage was caused within the United Kingdom, is not inconsistent with those limitations generally accepted by the community of nations as part of the doctrine of State immunity.  

The basic facts of the case were:

The applicants, Ronald Grant Jones, Alexander Hutton Johnston Mitchell, William James Sampson, and Leslie Walker, are British nationals who were born in 1953, 1955, 1959 and 1946 respectively. The case concerned the refusal of the UK courts to allow the applicants to sue the Kingdom of Saudi Arabia or its officials for compensation for acts of torture allegedly carried out in Saudi Arabia. The applicants all claim that they were arrested in Riyadh in 2000 or 2001, and subjected to beatings, sleep deprivation and anal rape as well as being given mind-altering drugs. In 2002 Mr Jones brought proceedings against Saudi Arabia’s Ministry of Interior and the man who he alleges tortured him, claiming damages for torture. His application was struck out in February 2003 on the grounds that Saudi Arabia and its officials were entitled to State immunity. A claim by Mr Mitchell, Mr Sampson and Mr Walker against the four individuals that they considered to be responsible for their torture was struck out for the same reason in February 2004. The applicants appealed the decisions, and their cases were joined. In October 2004 the UK Court of Appeal unanimously found that, though Mr Jones could not sue the Kingdom of Saudi Arabia itself, the applicants could pursue their cases against the individual named defendants.  However, this decision was overturned by the House of Lords in June 2006, which held that the applicants could not pursue any of their claims on the ground that all of the defendants were entitled to State immunity.

Two principles of international law are in conflict here.  First, the principle that one State will not, with certain exceptions, exert its judicial authority over another State.  Secondly, the international law condemnation of torture.  In Jones, Mitchell and others, the European Court's 4th section held:

" ... the Court is satisfied that the grant of immunity to the State officials in the present case reflected generally recognised rules of public international law. The application of the provisions of the 1978 Act to grant immunity to the State officials in the applicants’ civil cases did not therefore amount to an unjustified restriction on the applicant’s access to a court. There has accordingly been no violation of Article 6 § 1 of the Convention in this case. However, in light of the developments currently underway in this area of public international law, this is a matter which needs to be kept under review by Contracting States."

This was a 6 to 1 majority decision.  Judge Bianku added a short concurring judgment.  Judge Kalaydjieva added a dissenting judgment.  These are reproduced below.  It will be particularly interesting to see whether this case is referred to the Grand Chamber under Article 43 of the Convention:


ARTICLE 43 - Referral to the Grand Chamber
1. Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber. 

2. A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance.
3.If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.



CONCURRING OPINION OF JUDGE BIANKU

It is with great hesitation that I voted in favour of the majority’s conclusions in the present judgment. Although the developments in the area under consideration are presented in a very balanced way, I think that almost thirteen years after delivery, with a very narrow majority, of the judgment in Al-Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001‑XI, during which the subject matter has been the subject of very significant developments, the case should have been relinquished to the Grand Chamber in order to give it the opportunity to consider whether Al‑Adsani still remains good law.

DISSENTING OPINION OF JUDGE KALAYDJIEVA

The applicants in the present two cases sought to begin civil proceedings in the United Kingdom against the State of Saudi Arabia and against named State officials of that country for damage caused by acts of torture committed by those officials. The House of Lords unanimously held that their claims could not be allowed to proceed because Saudi Arabia benefited from State immunity and that immunity also extended to the named officials.

The essence of the majority’s conclusion that granting immunity from suit to States as well as to State officials in respect of such a claim constitutes a legitimate and proportionate restriction on the right of access to court which cannot be regarded as incompatible with Article 6 § 1 of the Convention follows the conclusions of the narrow majority in the case of Al-Adsani and what the majority view as the current state of public international law.

To my regret, I find myself unable to agree.

While it may be correct to conclude that by February 2012 (see paragraph 198), and prior to General Comment No. 3 (2012) of the CAT Committee (see paragraph 67), no jus cogens exception to State immunity had yet crystallised and that in view of when the event in the present case occurred it is not necessary for the Court to examine subsequent developments such as the recent judgment of the International Court of Justice in Germany v. Italy (see paragraphs 88-94), that conclusion concerns only State immunity. On this point I not only share the doubts of some of the numerous dissenting judges in the case of Al-Adsani, but also find it difficult to accept that this Court had no difficulties in waiving the automatic application of State immunity and finding violations of the right of access to court concerning disputes over employment (see Cudak v. Lithuania [GC], no. 15869/02, ECHR 2010, and Sabeh El Leil v. France [GC], no. 34869/05, 29 June 2011), but not concerning redress for torture – as in the present case.

Like Lord Justice Mance (see paragraph 17) I find it difficult to “accept that general differences between criminal and civil law justif[y] a distinction in the application of immunity in the two contexts”, especially in view of developments in this field, not least following the findings of the House of Lords in the case of Pinochet (No. 3) that there would be “no immunity from criminal prosecution in respect of an individual officer who had committed torture abroad in an official context.” I also find it “not easy to see why civil proceedings against an alleged torturer could be said to involve a greater interference in the internal affairs of a foreign State than criminal proceedings against the same person” and also “incongruous that if an alleged torturer was within the jurisdiction of the forum State, he would be prosecuted pursuant to Article 5(2) of the Torture Convention and no immunity could be claimed, but the victim of the alleged torture would be unable to pursue any civil claim”.

The present cases raise for the first time the question whether State officials can benefit from State immunity in civil torture claims, which has not yet been examined by the Court.

I am not convinced that this question should or could reasonably and necessarily be examined “applying the general approach set out in Al‑Adsani” (see paragraph 199), in which this Court’s scrutiny was limited to State immunity and did not concern the compatibility of extending it to named State officials with the right of access to court. In that regard I disagree with the somewhat declaratory nature of the majority’s following findings: “the immunity which is applied in a case against State officials remains ‘State’ immunity: it is invoked by the State and can be waived by the State. Where, as in the present case, the grant of immunity ratione materiae to officials was intended to comply with international law on State immunity, then as in the case where immunity is granted to the State itself, the aim of the limitation on access to court is legitimate” (see paragraph 200).

I find the conclusions of the majority on this issue regrettable and contrary to essential principles of international law concerning the personal accountability of torturers that is reflected unequivocally in Article 3 taken together with Article 1 of the European Convention on Human Rights, in the UN Convention on Torture and in the very concept establishing the ICC. Contrary to the view of the majority, in my understanding these principles were intended and adopted specifically as special rules for ratione materiae exceptions from immunity in cases of alleged torture (see paragraph 201).

In that regard I find myself unable to agree with the findings of the majority that “since an act cannot be carried out by a State itself but only by individuals acting on the State’s behalf, where immunity can be invoked by the State then the starting point must be that immunity ratione materiae applies to the acts of [torture committed by] State officials” (see paragraph 202). This appears to suggest that torture is by definition an act exercised on behalf of the State. That is a far cry from all international standards, which not only analyse it as a personal act, but require the States to identify and punish the individual perpetrators of torture – contrary to the “pragmatic understanding” of the majority that “[i]f it were otherwise, State immunity could always be circumvented by suing named officials”. I fear that the views expressed by the majority on a question examined by this Court for the first time not only extend State immunity to named officials without proper distinction or justification, but give the impression of also being capable of extending impunity for acts of torture globally.

To use the words of one of the dissenting judges in Al-Adsani: “What a pity!”


Other links:


Judges of the Court

European Journal of International Law - Philippa Webb (Lecturer on Public International law, Kings College London) - The re-integration of State and Official Immunity? 

See the submissions from Interights and Redress
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Coroners ~ Duggan case ~ reports


It is reported that the Coroner (His Honour Judge Keith Cutler) who presided over the Duggan Inquest is to invite the Duggan family to 'help shape police gun policy' - The Guardian 12th January 2014.  The judge, who is preparing recommendations on firearms procedure for the home secretary after issues raised at the inquest, described his decision to consult the family as "unusual, perhaps unique" but the right thing to do to achieve transparency.

The Coroner will be in the process of preparing what is now referred to as a 'Prevention of Future Deaths' report - previously known as a 'Rule 43' report. 


When is there a duty to make a report?

Coroners and Justice Act 2009 Schedule 5 (paragraph 7) states:

Action to prevent other deaths
7(1) Where -

(a) a senior coroner has been conducting an investigation under this Part into a person's death,
(b) anything revealed by the investigation gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future, and
(c) in the coroner's opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances,

the coroner must report the matter to a person who the coroner believes may have power to take such action.

(2) A person to whom a senior coroner makes a report under this paragraph must give the senior coroner a written response to it.

(3) A copy of a report under this paragraph, and of the response to it, must be sent to the Chief Coroner.

Reports:

Regulation 28 of the Coroners (Investigation) Regulations 2013

Report on action to prevent other deaths

(1)  This regulation applies where a coroner is under a duty under paragraph 7(1) of Schedule 5 to make a report to prevent other deaths.

(2) In this regulation, a reference to “a report” means a report to prevent other deaths made by the coroner.

(3) A report may not be made until the coroner has considered all the documents, evidence and information that in the opinion of the coroner are relevant to the investigation.

(4) The coroner—

(a) must send a copy of the report to the Chief Coroner and every interested person who in the coroner’s opinion should receive it;

(b) must send a copy of the report to the appropriate Local Safeguarding Children Board (which has the same meaning as in regulation 24(3)) where the coroner believes the deceased was under the age of 18; and

(c) may send a copy of the report to any other person who the coroner believes may find it useful or of interest.

(5) On receipt of a report the Chief Coroner may -

(a) publish a copy of the report, or a summary of it, in such manner as the Chief Coroner thinks fit; and

(b) send a copy of the report to any person who the Chief Coroner believes may find it useful or of interest.

Responses to reports:


Regulation 29 deals with responses to such reports.  The response to a report must contain - (a) details of any action that has been taken or which it is proposed will be taken by the person giving the response or any other person whether in response to the report or otherwise and set out a timetable of the action taken or proposed to be taken; or (b) an explanation as to why no action is proposed.   On receipt of a response to a report the coroner - (a) must send a copy of the response to the report to the Chief Coroner; (b) must send a copy to any interested persons who in the coroner’s opinion should receive it; and (c) may send a copy of the response to any other person who the coroner believes may find it useful or of interest.

Publication of reports:

The Regulations provide only that reports and responses to reports MAY be published either completely or in summary form.   A possibility that a report / response may not be published remains.  Representations can be made to the Coroner with regard to publication and it is a matter for the Chief Coroner to decide whether there should be any restrictions on the release or publication of the response.   
The Duggan Inquest met with protest by individuals present both inside and outside the High Court.  The determination of the jury has met with some criticism and, at the time of writing, it appears that a judicial review is under consideration.

The controversy surrounding the case may be a factor in favour of publication of, at least, a summary report.  However, there will be factors pointing the other way.  For example, the Police might choose to oppose publication on the basis that firearms training methods should not be made available because of the possibility of informing criminal elements of the methods in use.

The Guardian's article notes:  'The judge said he had informed all parties of his decision and the police had asked to hear what others had to say first before making their own submissions.'


The 2013 regulations came into force on 25th July 2013.
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After the Duggan case ~ Cameras; Jurors; Stop and Search

It is reported that armed Police Officers will wear video cameras - Armed British police to wear video cameras .  Firearms officers in London are to start wearing video cameras to record evidence of their actions, the Metropolitan police commissioner, Sir Bernard Hogan Howe, said on Thursday.

See also the Daily Mail 11th January   - Metropolitan Police announces £1.6m trial of wearing cameras - where it is reported that "Commanders hope the footage will help restore trust in the force and give an 'objective' account of the most controversial confrontations."

Similar developments elsewhere include those in New York - New York Times 22nd October 2013 -where it is argued that cameras may protect officers against false accusations of misconduct.  " .. by adopting an objective, transparent monitoring system that allows us to defend those unjustly accused and correct or punish those caught abusing their power, we can prove to the public we believe no person should be above the law, particularly those sworn to uphold it." 
See also New York Times 13th August 2013 - Order that Police wear cameras stirs unexpected reactions - where it is pointed out that recording might reduce the number of complaints arising from "stops and frisks."

The use of cameras by Royal Marines operating in Afghanistan was noted in a previous post.  the images recorded from the cameras were evidence in the trial before the Court Martial.

Objective evidence:

If the officers involved in the Duggan shooting incident had been wearing cameras then there would have been photographic evidence of the event.  Such evidence could be minutely examined by the courts and it would be "objective" material.  This has potential to impact on the application of the law of self-defence or prevention of crime.

The law of self-defence etc:

"Self-defence" involves subjective and objective elements.  The subjective element relates to what the officer perceived - what did he honestly believe.  The objective element relates to the officer's reaction to his perception.  Was the reaction reasonable in the circumstances as perceived by the officer.  These elements have been put into statute by the Criminal Justice and Immigration Act 2008 s.76

s76(3) states:

The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be ...

76(4) states:

If D claims to have held a particular belief as regards the existence of any circumstances -

(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but

(b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not—

(i) it was mistaken, or

(ii) (if it was mistaken) the mistake was a reasonable one to have made.

76(6) states that - The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.


and s76(7) states:

In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)—

(a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and

(b) that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

(8) Subsection (7) is not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3).

These provisions are intended, so s76(8) informs us, to clarify the operation of the existing defences. 

When cameras are worn, section 76(4)(a) may become of particular significance.  If D claims to have held a particular belief as regards the existence of any circumstances - (a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it ...

What the camera sees (and records) may not be identical to the subjective perception of the officer at the time.  However, the camera evidence would enable the reasonableness of the officer's belief in all the circumstances to be minutely considered.  If the court were to consider that the belief were to be unreasonable in those circumstances then, applying 76(4)(a), it might point to a conclusion that D did not genuinely hold that belief.

An earlier challenge to the law:

The interesting question of whether the English law on self-defence is compatible with the European Convention on Human Rights Article 2 seems to have been settled in favour of compatibility.  Article 2 refers to lethal force being "no more than absolutely necessary" if it is to be justified.  Did the "reasonable force" concept in English law measure up to that requirement.

In R (Bennett) v HM Coroner for Inner London [2007] EWCA Civ 617, the decision of Collins J on this point was noted by the Court of Appeal (Civil Division).

Collins J had held:  ...  in the light of the authorities of the European Court of Human Rights from McCann v United Kingdom [1996] 21 EHRR 97 to Bubbins v United Kingdom (2005) 41 EHRR 24 decided on 17 March 2005, that:

" . . .It is thus clear that the European Court of Human Rights has considered what English law requires for self defence, and has not suggested that there is any incompatibility with Article 2. In truth, if any officer reasonably decides that he must use lethal force, it will inevitably be because it is absolutely necessary to do so. To kill when it is not absolutely necessary to do so is surely to act unreasonably. Thus, the reasonableness test does not in truth differ from the Article 2 test as applied in McCann. "
As things stand, the courts do not make a hindsight assessment as to whether force was, in fact, absolutely necessary but they will assess whether the force used was proportionate to the threat (as it was perceived by the officer).  As Michael Allen wrote (Textbook on Criminal Law 10th ed at page 218):

'The police officer on the ground is only able to make his assessment based on his perception of the circumstances that exist.  If he is mistaken, fatal force is not actually necessary.  But to constrain him by such concerns would, as the European Court recognised in McCann, harbour the potential to be to the detriment of their lives and those of others.  The circumstances, therefore, against which his decision to use lethal force must be assessed are those as he perceived them to be at the time; an honest but mistaken belief, therefore, can provide a 'good reason'.  In effect, the European Convention is a document for application in the real world not the perfect world of hindsight...."

Jurors offered counselling:

It is reported that the jurors in the Duggan Inquest have been offered counselling - The Guardian 10th January.  As noted in the previous post (here) - 'there were outbursts in the court including abuse of the jurors.  This is not the first time that similar things have happened.  It should not be tolerated and could be dealt with as a contempt in the face of the court.  The Ministry of Justice ought to take a serious look at this matter with a view to improving security, ensuring protection of those administering justice (including jurors) and enabling the courts to conduct their business in a calm atmosphere.'

Jurors sometimes have to consider some very distressing evidence and, whatever the problems inherent in having to do so, the jurors should not have been subjected to this abuse.

Stop and Search:

Mr Sadiq Khan - Shadow Justice Secretary - has called for a re-think on stop and search - The Guardian 10th January  This is a matter of frequent concern.   As long ago as 1981, Lord Scarman  criticised the conduct of stop and search - Wikipedia Scarman report   .   

Part 1 of the Police and Criminal Evidence Act 1984 addresses stop and search and the law should be applied in accordance with Code A.

In the summer of 2013, the Home Office conducted a consultation on stop and search.  


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