Ambros Roth

Among the most difficult criminal cases to investigate and prosecute are those relating to allegations of historical child abuse. Following the emergence of allegations against the late Jimmy Savile, a number of other cases have appeared as a result of Police investigations such as the Metropolitan Police's Operation Yewtree .

In October 2012, Commander Peter Spindler of the Metropolitan Police said:

"We are dealing with alleged abuse on an unprecedented scale. The profile of this operation has empowered a staggering number of victims to come forward to report the sexual exploitation which occurred during their childhood."

The investigation of such cases is complex, the decision for Crown Prosecutors as to whether to prosecute is very difficult and the conduct of a trial presents formidable difficulties in ensuring that, many years after the alleged events, the defendant receives a fair trial.

It is not appropriate to comment about any specific cases which may be likely to go to trial. However, it is to be hoped that those involved in these cases have read the incredibly impressive study by Professor Penney Lewis - "Delayed Prosecution for Childhood Sexual Abuse." The book is available for purchase - here.

The book looks at the response of the criminal justice systems of common law jurisdictions to these challenging cases. Matters considered include: the reasons why complainants may delay reporting abuse for many years; the debate over whether long-delayed criminal prosecutions should be brought; the common law remedy of abuse of process which can ensure that unfair or oppressive prosecutions do not proceed.

The book's focus then turns to the trial of delayed childhood sexual abuse allegations, considering the use which can be made by the prosecution and defence of evidence of complaint and delay in complaint, and the methods by which the jury can be informed of the reasons why complainants may delay. The role of warnings to the jury about the absence of corroboration and the forensic disadvantage or prejudice which the defendant may have suffered as a result of the complainant's delay in coming forward is scrutinised. Particular problems raised in cases involving recovered memories, and those involving multiple allegations are analysed. Finally, retrospective assessment of trial fairness and the safety of convictions is considered.

In 2009 the National Police Improvement Agency (NPIA) published Guidance on Investigating Child Abuse and Safeguarding Children

See also - Crown Prosecution Service - Prosecuting cases of child abuse and Safeguarding Children - Guidance on Children as Victims and Witnesses. The CPS notes that, in relation to historical cases, the following issues may arise: loss or deliberate destruction of evidence; witnesses deceased or untraceable; previous indication that no prosecution would follow; delay in making a complaint; trawling; collusion; compensation; changes in legislation.

In 2002, the Home Affairs Committee published Conduct of investigations into past cases of child abuse in children's homes and the government's response (2003) is here.

It is right that the book is not closed on such cases but it must also be right that investigations are conducted meticulously, prosecutions are only brought after the most thorough consideration and that trials are conducted by judges and lawyers well versed in this aspect of the criminal law. Even the allegation can be damning for an individual and the consequences of conviction will be immensely serious.

Some cases from the Channel Islands are also of interest since, in 2009, a decision was taken not to prosecute certain of the cases.

Updated 9th March 2013

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) is gradually being brought into force. LASPO is one of 18 Public General Acts enacted in 2012. On top of that, 3001 Statutory Instruments have been added. The sheer volume of legislation is astounding and the increase seems set to continue despite calls for someone to somehow get a grip - (e.g. article by Dr Ruth Fox - Public Service 28th January 2011 - Getting a grip on legislation).

LASPO - recent commencements:

1st September - new offence of squatting in a residential building - LASPO s.144 - Earlier post New squatting law in force 1st Sept

1st October - amendment of law relating to "Victim Surcharges"

3rd December -

new youth remand framework and amendments to adult remand provisions. For adult defendants, the Bail Act 1976 is amended to remove the option of remand in custody in most circumstances where there is no real prospect of the defendant being imprisoned if convicted. These changes apply to adult defendants who have not been convicted. They do not apply to extradition proceedings. Provision is also made for prosecution appeals to the High Court from a decision of the Crown Court to grant bail.

Youth Justice - new referral order provisions

Dangerous Offender provisions - ss. 122-128 and Schedules 18-22 - Earlier posts - LASPO Part 3 Chapters 2 to 8 and From the Party Conferences No. 2 Dangerous Offenders

New offences - s. 142 (threatening with article with blade or point or offensive weapon in public or on school premises); s.143 (causing serious injury by dangerous driving); s.146 (buying scrap metal for cash) - Earlier post - LASPO Part 3 Chapter 9 Criminal Law

Full list of LASPO provisions coming into force on 3rd December

(Added 9th March 2013) - Further commencements:

The following provisions of the Act come into force on 4th March 2013 -
(a) section 38(2) (transfer of employees and property etc of the Legal Services Commission);
(b )section 58 (regulation by Financial Services Authority);
(c) section 60 (referral fees: regulations); and
(d) Schedule 4 (transfer of employees and property etc of Legal Services Commission).

The following provisions of the Act come into force on 1st April 2013—
(a) Part 1 (legal aid), in so far as it is not already in force, except section 19(4) (appeals against determinations by a court);
(b) section 56 (rules against referral fees);
(c) section 57 (effect of rules against referral fees);
(d) section 59 (regulators and regulated persons);
(e) Schedule 1 (civil legal services);
(f) Schedule 2 (criminal legal aid: motor vehicle orders);
(g) Schedule 3 (legal aid for legal persons);
(h) Schedule 5 (legal aid: consequential amendments); and
(i) Schedule 6 (Northern Ireland: information about financial resources).

The following provisions of the Act come into force on 8th April 2013 -
(a) section 88 (withdrawal of warrants of control issued by fines officer);
(b) section 132 (penalty notices for disorderly behaviour);
(c) sections 133 and 134 (cautions);
(d) section 135 to 138 (youth cautions);
(e) Schedule 23 (penalty notices for disorderly behaviour); and
(f) Schedule 24 (youth cautions: consequential amendments).

Earlier posts relating to LASPO:

LASPO Part 1 - the detail

LASPO Part 2 - Litigation funding and costs

LASPO Chapter 3 Part 1 - Sentencing

LASPO Part 3 Chapters 2 to 8

LASPO Part 3 Chapter 9 Criminal Law

Earlier post New squatting law in force 1st Sept

From the Party Conferences No. 2 - Dangerous Offenders

Legislation:

Here is a link to the Legislation database relating to LASPO

Ministry of Justice Circulars:

Implementation of Sentencing for dangerous offenders in the Legal Aid, Sentencing and Punishment of Offenders Act 2012
Date: 4 December 2012 A circular is about the commencement of sections 122 – 128 to and Schedules 18 – 22 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012

Implementation of criminal offences in the Legal Aid, Sentencing and Punishment of Offenders Act 2012
Date: 3 December 2012 A circular providing summary and background information about sections 142 and 143 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, as well as details of the offence and penalties.

Referral Order provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012
Date: 3 December 2012 A circular about the commencement of the new referral order provisions in Section 79 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

New youth remand framework and amendments to adult remand provisions
Date: 29 November 2012 A circular about guidance for criminal justice agencies on the new youth remand framework and amendments to adult remand provisions for commencement on 3 December 2012.

Increase and extension of the Victim Surcharge
Date: 28 September 2012 A circular about the changes to the Victim Surcharge to come into force on offences committed on or after 1 October 2012.

Commencement of offence of squatting in a residential building
Date: 22 August 2012 A circular about guidance for criminal justice agencies on the new offence of squatting in a residential building and sets out the Government's plans for commencement on 1 September 2012.

List of MoJ Circulars

Garden Court North Chambers:

Summary of LASPO Part 3

Updated 5th December

Cameron makes the editors an offer they can't refuse!! Culture Secretary chairs meeting with newspaper editors - Dept. of Culture, Media and Sport

----

Lord Justice Leveson recommended legislation to (a) place a duty on government to uphold and protect the freedom of the press; and (b) to give recognition and certification powers to a Recognition Body (such as Ofcom).

The Recognition Body would be responsible for the recognition of the Regulatory body and for its certification and the Recognition Body would have powers to review the regulator at specific intervals.

The Regulatory Body itself would be set up by the press and membership would be voluntary but there would be powerful incentives to join. Life outside the fold might prove to be very risky legally!

Other bodies would also have responsibilities – in particular, the Information Commissioner in relation to Data Protection and the Independent Police Complaints Commission in relation to Police matters. Various amendments to the Data Protection Act 1998 were suggested as well as amendments to the Police and Criminal Evidence Act 1984.

Leveson LJ claimed that this “is not and cannot reasonably or fairly be described as statutory regulation of the press.” His scheme was for an independent regulator with statutory support. Legislation would enshrine (for the first time) a legal duty on government to uphold the freedom of the press and would create an independent process to recognise the regulator so that the public could have confidence in the independence of the regulator and its efficacy. (Food for thought: Is Press Freedom built into the European Convention on Human Rights Article 10?). The Press would gain tangible benefits since those signed up to the regulator would be able to show that they acted in good faith according to a code of conduct based on the public interest.

Leveson LJ readily acknowledged the importance of a free press in a democracy but are his key recommendations a major step toward an unfree press?

Much will depend on the role of Ministers in relation to the Recognition Body and, in turn, the precise powers given to the Recognition Body in relation to the regulatory body. This looks like a kind of “conduit” by which influence might transcend from Ministers to the Recognition Body and, in turn, to the Regulatory Body and, next in line, to the press.

Leveson LJ proposed that OFCOM be the recognition body. As noted in an earlier post, it is the Communications Act 2003 which sets out the powers and duties of the Office of Communications (Ofcom). Ofcomis a statutory corporation. It is required to report annually to Parliament. Although independent of Government, Ofcom has links to the Department for Culture, Media and Sport (DCMS) and to the Department for Business, Innovation and Skills (BIS), and the Secretary of State is required to lay Ofcom's annual report before Parliament. The role of Ofcom has expanded – (see Politics.co.uk Ofcom) – and it is reasonable to question whether it is truly in a position to take on the further role of a recognition body for the press.

In a post on his blog, Charon QC said that “we should be very wary of implementing the Leveson Report proposals with ‘statutory underpinning’. He argues:

It might be an idea to provide resources to enforce existing laws and encourage press self regulation underpinned not by further legislation but by existing criminal and civil laws – and reform the law of libel and privacy to provide a cheaper resolution basis when things go wrong while they are at it? We certainly need to reduce the ‘chilling’ effects of high costs in libel and privacy actions. Is that so difficult to achieve through law? Leveson was right on that issue. The Press has to step up to the plate and provide a credible and respected medium for self regulation.

Writing in The Telegraph 30th November - Why Leveson's proposals are nothing like the First Amendment- Rupert Myers pointed out that "at the centre of Lord Justice Leveson’s report is the idea that legislation should enshrine the protection of the press. Like many people, I tend to prefer a jurisprudential approach which takes as the starting point the presumption of absolute liberty, restricting via laws only a discrete set of acts, rather than a philosophy which tries to claim that the law and the state gives us our rights as packages. This is why the notion that a law could "enshrine, for the first time, a legal duty on the government to protect the freedom of the press" should not be considered necessarily to be any real protection.

Media intrusion into the lives of some people has caused immense hurt – “wreaked havoc” in Leveson’s words. However, the Prime Minister queried whether it was wise for Parliament to Cross the Rubicon by introducing legislation in this area. One feels that he is 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.

See Informm's blog for several posts about Leveson. I enjoyed reading this one - Leveson Lingo - how to talk your way around the Leveson report

James Wilson, the author of the A(nother) lawyer blog writes - 5th December - The Leveson Inquiry - the press, the politicians, Parliament, the police and the public- "An independent regulator “underpinned” by statute looks like a statutory regulator at one remove, if not a statutory regulator by any other name."

Summary of the Leveson report

Update 5th December:

A meeting was held on 4th December at 10 Downing Street. News editors were told to get on with implementation of a replacement to the Press Complaints Commission. If they are considered to have failed in this, then legislation will follow - The Guardian 4th December report about the meeting.

The BBC - "Leveson report: Cameron tells editors to sort out regulator"

Tony Gallagher of The Daily Telegraph tweeted about the meeting - "19 editors & industry reps, 9 mandarins, 3 ministers and 1 PM. We got coffee and still tap water. No beer & sandwiches" and "It felt like the summoning of the Five Families in The Godfather"

Families meet - The Godfather

Revelations relating to the activities of the late Sir Cyril Smith have been in the media - BBC Sir Cyril Smith: Former MP sexually abused boys, police say 27th November 2012. Sir Cyril's family are deeply saddened by these allegations - Telegraph 28th November 2012 - where it is reported that Smith’s family laments the fact that the claims had been resurrected "so long after Sir Cyril's death and at a time when he is no longer able to defend himself".

Evidence now made public indicates that a file compiled by Lancashire Constabulary in 1970 contained allegations made by eight men that they had been subjected to indecent assaults by Sir Cyril when they were teenagers. The file was considered by the Director of Public Prosecutions (DPP) Sir Norman Skelhorn KBE QC who advised that no charges should be brought against Cyril Smith. (Skelhorn was Director of Public Prosecutions from 1964 to 1977. The Crown Prosecution Service was not created until 1986 - Prosecution of Offences Act 1985).

The reasons given by Skelhorn for advising against prosecution are of some legal interest. The reasons were in a letter from Skelhorn to the Chief Constable of Lancashire (19th March 1970). Skelhorn stated that the allegations were "without corroboration."

"Corroboration" was, at the time, a very significant element in the law of evidence applicable to criminal cases. A trial judge was required to warn juries of convicting on the uncorroborated evidence of a complainant in sexual cases. The only exception to this was a sexual case where the identity of the alleged assailant was in issue but not the commission of the offence itself - R v Chance [1988] 3 All ER 225, CA. What was referred to as a FULL warning had to be given and failure to do so could render a conviction unsafe. The jury had to be told:

1. That it was dangerous to convict on the uncorroborated evidence of the witness but that if they (the jury) were satisfied of the truth of such evidence they might nevertheless convict;

2. The technical meaning of corroboration had to be explained;

3. The jury had to be told which evidence was (and which was not) capable of amounting in law to corroboration;

4. It also had to be explained to the jury that, as the tribunal of fact, they had to decide whether the available evidence did in fact constitute corroboration.

These requirements were replaced by the Criminal Justice and Public Order Act 1994 s.32 so as to remove the obligatory warning but the trial judge retains a discretion to give some form of warning whenever he considers it necessary to do so. The leading case on section 32 is R v Makanjuola [1995] 3 All ER 730, CA - judgment of Lord Taylor of Gosforth CJ.

Sir Norman Skelhorn's opinion would, of course, have been based on the law as it stood in 1970 and the need for formal corroboration of the complainant's evidence amounted to a formidable hurdle in many cases of this type.

See the Crown prosecution Service statement (27/11/12) relating to Sir Cyril Smith

Lord Justice Leveson has published his report following the end of the first part of his Inquiry at which some 337 witnesses gave evidence and 300 other statements were taken into account. The report is available via the Leveson Inquiry website. A video of Lord Justice Leveson launching his report is also available - see The Guardian 29th November.

"The goal must be a genuinely independent and effective self regulatory system. I have therefore set out, and recommend a model for independent self regulation that I am confident would protect both the freedom of the press and freedom of speech along with the rights and interests of individuals; it should therefore command public
confidence."

"An independent regulatory body should be established, with the dual roles of promoting high standards of journalism and protecting the rights of individuals. That body should set standards, both through a code and in relation to governance and compliance. The body should: hear individual complaints against its members about breach of its standards and order appropriate redress while encouraging individual newspapers to embrace a more rigorous process for dealing with complaints internally; take an active role in promoting high standards, including having the power to investigate serious or systemic breaches and impose appropriate sanctions; and provide a fair, quick and inexpensive arbitration service to deal with any civil law claims based upon its members’ publications."

Leveson LJ began the launch of his report by saying that a free press operating in the public interest was a vital safeguard in a democracy. There were countless examples of excellent journalism, investigations and campaigns. Also, the press informs, educates and entertains and can be irreverent, unruly and opinionated. Nevertheless, it was uniquely powerful and had responsibilities. Unfortunately - and too often - those responsibilities had been ignored and this had damaged the public interest.

Not one witness had suggested that either government or politicians should be involved in press regulation. However, the press was "marking its own homework." (A phrase which Leveson appears to have borrowed from the actor and witness at the inquiry - Hugh Grant - BBC 28th November). A new regulatory body was needed to replace the Press Complaints Commission. This body to be independent of both the newspaper industry and politicians. The new body could be appointed by a fair and open appointments process and no serving editor or politician would be eligible for selection. (There are plenty of no longer serving media people and politicians!). Leveson did not see it as his task to go further and try to dictate how such a body would work.

Leveson said that he was not proposing legislation to establish a body to regulate the press - it would be for the press to organise that. Legislation would recognise and underpin a new independent self regulatory system. The legislation would bring into law a legal duty on government to protect press freedom and to establish the independence of the regulatory body.

Leveson saw no evidence to suggest that corruption was widespread in relation top Police / Media relations. Further, he accepted that, at times, the relationship between elements in the media and politicians had been too close. (Little doubt about that - politicians attending Murdoch parties etc)! There was a perception that lobbying had come to influence policy and this undermined public confidence. Whilst the press was entitled to lobby in its own interests, politicians were responsible for ensuring that their decisions were clearly seen to be in the public interest and he recommended that certain steps be considered.

Ministers were, in Leveson's view, the right people to make decisions regarding media ownership. The Competition authorities should keep plurality under review and have appropriate remedies available to them to maintain plurality including protecting plurality where it is threatened by organic change in the market.

This was the 7th time in under 70 years that media issues had been considered. There was no sense in contemplating an 8th time. Leveson said that his report should speak for itself and therefore he did not intend to answer questions or give interviews about it and no further statements would be issued on his behalf. The ball was now in the politician's court and it was they who had to decide who guards the guardians.

It is very doubtful that Leveson LJ could have recommended less and would, I believe, have been unwise to recommend more. Much will lie in the detail and draft legislation will be awaited with great interest and will have to be very carefully vetted to ensure that it does what Leveson wanted and no more. The necessary legislation to implement Leveson's various points is, in practice, likely to be quite complex. For a post disagreeing with this, please see Informm's Blog - Chris Pounder - Leveson principles underpinned in 133 words of legislation and also see, for situation in Ireland, #Cameron #Leveson: LOL - cearta.ie blog). A legal duty on politicians to protect press freedom was put forward and a great deal will depend on how that is worded. Such broad duties tend to be enforceable (if at all) only in the political arena. For example, the Constitutional Reform Act 2005 contains a clearly stated duty on Ministers to uphold the rule of law (including international law). Is this being upheld when the Lord Chancellor actually puts a prisoner voting option to Parliament which will perpetuate the present blanket ban condemned by the European Court of Human Rights?

Reaction of the Prime Minister:

The Telegraph 29th November - Statement in Parliament by David Cameron - The Prime Minister welcomed "the Leveson principles" but doubted whether legislation was needed to actually implement them. That would be to cross the Rubicon and imbed elements of press regulation in law.

Over the next few days, links to reactions to the report will be added below.

A) Broadly supportive of Leveson's proposals

The Justice Gap 29th November - A fair and balanced report opposed only by those who seek to mislead

Media Standards Trust - Lord Justice Leveson has put forward workable and proportionate proposals for reform of press self-regulation.

Ben Emmerson QC - The Guardian 3rd December - Leveson isn't a threat to human rights - not adopting his proposals would be

B) Broadly against Leveson's proposals

Index on Censorship - 29th November - "We consider that the statutory-voluntary approach to independent press regulation would undermine press freedom in the UK. However, we support the proposal for cheap, effective arbitration, which would help victims get swift redress to their complaints."

Free Speech Network - A free press cannot be free if it is dependent on and accountable to a regulatory body recognized by the state

Telegraph 30th November - Why Leveson's proposals are nothing like the First Amendment- Rupert Myers wrote: At the centre of Lord Justice Leveson’s report is the idea that legislation should enshrine the protection of the press. Like many people, I tend to prefer a jurisprudential approach which takes as the starting point the presumption of absolute liberty, restricting via laws only a discrete set of acts, rather than a philosophy which tries to claim that the law and the state gives us our rights as packages. This is why the notion that a law could "enshrine, for the first time, a legal duty on the government to protect the freedom of the press" should not be considered necessarily to be any real protection.

C) General reports

BBC 29th November - Watchdog needed to curb press 'havoc'

30th November - CharonQC - The Leveson report - podcast with David Allen Green and Carl Gardner

Government prepares draft bill - The Guardian 30th November

Informm's blog - Leveson: one last chance for press self-regulation? A summary of the proposals - Edward Craven - a good overview of the proposed regulation mechanism

Several other articles on the Informm's blog

D) Specific to data protection

Leveson proposes changes to data protection law - Out-Law.com 29th November

Leveson Inquiry Report: spotlight on proposed data protection reforms - Panopticon blog 29th November

Leveson, Press and Data Protection: the Rubicon has already been crossed - Inforrm's blog 29th November

Today, the Grand Chamber of the European Court of Human Rights heard argument in Vinter and others v United Kingdom - see video of the hearing. The case concerns three applicants who are serving sentences of life imprisonment for murder: Douglas Gary Vinter, Jeremy Neville Bamber and Peter Howard Moore. The three argue that their imprisonment without hope of release is contrary to Article 3 of the Convention - (No one shall be subjected to torture or to inhuman or degrading treatment or punishment).

Submissions were made for the British government by Mr David Perry QC and, for the applicants by Mr Pete Weatherby QC.

The British government submitted that whole life terms - for murders of the most extreme gravity - do not breach Article 3. This position was supported on 21st November by the Court of Appeal (Criminal Division) sitting as 5 judges with the Lord Chief Justice presiding - David Oakes and others v R [2012] EWCA Crim 2435 - (post at Law and Lawyers 22nd November Two BIG stories).

The applicants fully recognised that they may never actually be released but they submitted that Article 3 was breached because whole life terms could never be reviewed. If there was a review mechanism then Article 3 would not not be breached. The key question was whether the sentence is reducible and not whether it is in fact reduced in the particular case.

The government emphasised that the Criminal Justice Act 2003 contains a scheme by which the judiciary (and not the executive) determine the term to be served and the scheme enables all factors whether aggravating or mitigating to be considered by the judge. A whole life term was imposed for punishment purposes in only the most serious cases. The executive does not have any role in the setting of the term to be served. The seriousness of the offence did not change over time and subsequent events could not make continued detention, imposed for purposes of punishment and deterrence, unjustifiable. The government also argued that a review mechanism in such cases would hold out a false hope of release and article 3 should not be used to create such expectations. The government did however place reliance on section 30 of the Crime Sentences Act 1997 which permits the Secretary of State to release a prisoner on compassionate grounds. This section had to be applied bearing in mind Article 3 so that if detention were to become "inhuman or degrading" then the Minister would be obliged to exercise his power under section 30. A further point was that the European Court had held that extradition to countries such as the USA was acceptable where the individual might have to eventually serve life imprisonment without possibility of parole and it would therefore be illogical to rule that an individual could not serve such a sentence in the UK.

The applicants argued that the warehousing of a human being for life was contrary to European penal policy in that, over time, the balance between justification for the imprisonment and considerations justifying release can change. Whilst release might be a remote prospect, it should never be ruled out entirely since it crushed human dignity and made life devoid of meaning and hope. Could it be maintained that a person could never atone for the crime? Mr Weatherby cited a speech by Winston Churchill (20th July 1910):

A calm and dispassionate recognition of the rights of the accused against the state, and even of convicted criminals against the state, a constant heart-searching by all charged with the duty of punishment, a desire and eagerness to rehabilitate in the world of industry all those who have paid their dues in the hard coinage of punishment, tireless efforts towards the discovery of curative and regenerating processes, and an unfaltering faith that there is a treasure, if you can only find it, in the heart of every man these are the symbols which in the treatment of crime and criminals mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue in it.

Prior to 2003, the executive was involved in setting minimum terms and there was a process of reviewing sentences after 25 years. This stopped after the Criminal Justice Act 2003 transferred to the judiciary the duty of setting terms to be served. Even sentences imposed by the International Criminal Court for matters such as war crimes were reviewable after 25 years. In Jeremy Bamber's case, promises of review had actually been made but they were not carried out as a result of this change. In SCOTLAND - since the Convention Rights Compliance (Scotland) Act 2001 a minimum term had to be set in ALL cases. In Northern Ireland, the Secretary of State conducted reviews. This is not the first time that marked differences between the constituent parts of the UK have been noted. A previous example is the Marper judgment (para 109) relating to the DNA database. A final point made by the applicants was that the English courts had misinterpreted the European Court's judgment in Kafkaris v Cyprus which, the applicants submitted, supported the view that irreducible life sentences breached Article 3 - (in particular note para. 100 onward).

If the judgment goes in favour of the applicants (by ruling that Article 3 is breached unless there are reviews) there will be outrage in much of the British media and with some MPs. Currently, there is a dislike of the European Convention, the European "Mickey-mouse" Court and perhaps even the very idea of human rights enforceable at law. Calls to withdraw from the convention are far from uncommon - e.g. Nick Herbert MP - "Accommodation with Strasbourg is a pipe dream." The court will rule on the point as to whether there should be a review in relation to whole life terms. To introduce reviews would require a change to English law by either re-introducing such a review after a stipulated period or by requiring a review in all cases as is the position in Scotland. The reviews could be conducted by the Parole Board. Even if reviews of whole life terms were introduced, one suspects that few would secure release but it would be a possibility. There are strong points on both sides but I suspect that the applicant's case regarding reviews may find favour at Strasbourg.

Judgment will be given at a later date.

Additional reading:

The Justice Gap - Lucy Mair - Death by Incarceration - looks at the position after the January 2012 judgment of the Fourth Section in Vinter and others v UK where the section held (4 to 3) that whole life sentences did not breach Article 3.

Suspicions about recent UK involvement in torture or (other cruel, inhuman or degrading treatment ) committed abroad have never been properly laid to rest and they are unlikely to be resolved if the Justice and Security Bill reaches the statute book. Some of the available material is disturbing.

Fourth Annual Baha Mousa Lecture:

On 19th October, my companion blog published - Fourth Baha Mousa Memorial Lecture - Iraq - Unlawful treatment of detainees 'institutional'. That post covered a lecture delivered by a former Senior Legal Adviser to the British Army in Iraq - Lt. Col. Nicholas Mercer. The lecture is reported at The Guardian 19th October 2012 where Colonel Mercer said the UK's complicity in the unlawful treatment of detainees was "institutional" and must be wiped out to prevent future abuses by British troops. Colonel Mercer described how he was gagged by the Ministry of Defence after he criticised senior British commanders and MoD officials in the case of Baha Mousa, who died while in the custody of British troops. Mercer said his attempts to set up independent judicial monitoring of the treatment of detainees were blocked by the MoD. Britain's obligations under domestic and international law were routinely ignored, he added.

A podcast of Colonel Mercer's speech is now available at Public Interest Lawyers.
PIL say that they wished "to give everyone an opportunity to listen to the lecture which provided a fascinating and, at times, extremely moving account of Colonel Mercer’s courageous attempts to try and ensure that the British Army complied with international law in its treatment of detainees in Iraq. He described his horror in 2003 at seeing tens of Iraqis hooded in stress positions within a British detention facility and his dismay when the Ministry of Defence blocked his efforts to set up independent judicial monitoring of the detention of Iraqis. Colonel Mercer used his address to call upon public servants to end torture by the state."

Please listen to the lecture.

Cruel Britannia:

Francis Fitzgibbon QC is also the author of the Nothing like the Sun blog where he draws attention to a book Cruel Britannia by Ian Cobain. Fitzgibbon QC writes a very powerful and eloquent post which ought, coming from such an eminent member of the bar, be a wake up call to the British public at a time when their rights are actually under serious assault. Fitzgibbon wrote:

"The idea that citizens have human rights that they can assert against public authorities in Court is, bizarrely, regarded as something foreign and disreputable. Very few politicians have stood up to defend the Human Rights Act, whose main objective was to allow UK citizens to use UK Courts to assert rights they had anyway, rather than go to Strasbourg. Now the heat is also on Judicial Review, the precious and entirely home-grown legal challenge to administrative decisions – not on their merits, but on the narrower basis that the decision-makers have failed to follow proper and lawful procedures. All the while, the continuing assault on legal aid denies poor citizens access to the law, which has grown into a forest of rules and regulations in so many areas that touch our lives, so that anyone entering it without expert guidance should abandon all hope."

The book was reviewed by Clive Stafford Smith in The Guardian 23rd November 2012 - Cruel Britannia by Ian Cobain - review

A Very British Killing:

Returning to the Fourth Baha Mousa lecture. This was the occasion for the launch of a further book by Professor Andrew Williams - “A Very British Killing: The Death of Baha Mousa”. The book is available via Amazon at http://www.amazon.co.uk/Very-British-Killing-Death-Mousa/dp/0224096885.

The UN Special Rapporteur on Torture:

Here, Juan Méndez, UN Special Rapporteur on Torture, discussed the global efforts to eradicate torture. Please see Chatham House - Enforcing the absolute prohibition against torture where the Special rapporteur spoke of efforts on a global scale to eradicate torture.

Other posts etc:

Law and Lawyers posts -

13th February 2010 - Has the UK been complicit in either the torture or mistreatment of prisoners?
9th September 2011 - The 10th Anniversary of 9/11
23rd November 2011 - The unfolding aftermath of the Iraq War

The Church of England is the "established" church in England. It has the right to have 26 Bishops (including the two Archbishops) in Parliament - they sit in the House of Lords. All Bishops are male and females may not be appointed. An attempt in the Church of England's General Synod to reverse this was defeated on 20th November - see C of E statement. The Synod is made up of the "Convocations of Canterbury and York", a house of bishops, a house of clergy to which is added a house of laity. To change the position, a majority of two-thirds was required in each House. It was the Laity which, by just 6 votes, rejected the proposal to have female Bishops.

The rejection of female bishops has upset many in the church and also, it appears, in Parliament - The Guardian 21st November. Also, whilst the church has exemptions under equality law, the move is seen by many as perpetuating unacceptable discrimination. An e-petition has been raised to try to get a debate in Parliament on the issue.

If things are left where they are, a fresh attempt to alter the law cannot be made in the Synod until 2015. However, the church has a procedure which might be used to introduce new draft legislation - C of E statement. An alternative is that Parliament itself acts to alter the law. There is a constitutional convention that Parliament does not alter the law of the church unless the church agrees. However, it is a convention and not strict law and so Parliament could act. If it were to do so, much wider issues such as disestablishing the church would undoubtedly arise.

The C of E has an interesting website with a considerable amount of legal information as to how church "measures" are enacted. They are a form of legislation similar to Acts of Parliament and they have to be approved by Parliament and must receive Royal Assent. HM the Queen is Supreme Governor of the Church of England. This role is historical - dating back to the reign of Henry VIII and the Act of Supremacy 1534.

It will be particularly interesting to see how this situation develops.

----- ooooooo -----

Reflections on Church and State - Law and Lawyers 28th April 2011

Failure to vote in women bishops risks 'constitutional crisis' in Church - Telegraph 26th November.

National Secular Society - Church of England's establishment is well past its sell-by date - 21st November.

National Secular Society - Church and State need to be set free - 22nd November

On BBC Question Time 22nd November 2012 an audience member asked a question - "Should we simply put Abu Qatada (AQ) on a plane to Jordan?" - see BBC QT at time 8mins 25 secs. The responses to this question raise some serious concerns about the stance of British politicians regarding the rule of law and the future protection of human rights.

The clear inference in the question is that, irrespective of the decision of the Special Immigration Appeals Commission (SIAC) on 12th November 2012, AQ should simply be deported anyway. See also Law and Lawyers - Mohammed Othman (Abu Qatada). In fairness, I am not sure that the man asking the question realised that it was a British court which, in the end, decided that the assurances provided by Jordan were still insufficient to ensure that AQ would receive a fair trial in Jordan. The key point was that Jordanian criminal law did not necessarily prevent evidence being used by the prosecution at AQ's trial given that it might have been obtained by torture some years ago.

The Question Time Panel was David Dimbleby (Chair), Chris Grayling (Secretary of State for Justice and Lord Chancellor), Harriet Harman (a one-time Solicitor General), Tessa Mount (Liberal Democrats), Nigel Farage (UKIP) and Moray MacLennan (CEO of Saatchi).

Although Grayling and Harman both defended the right of British judges to make independent decisions, they made it perfectly clear that they disliked the outcome. Grayling confirmed that the government will appeal SIAC's decision. Appeals are available to the Court of Appeal but on points of law only. Questions of foreign law are regarded, by English courts, as questions of fact. Grayling also said that he is seeking a new human rights framework since, in his view, the present framework has moved a long way from what was intended originally. He hoped that such a new framework could be put to the British people at the next election. It is true that things have changed since the 1950s when the Convention was first drawn up. Above all, the Convention has come to be viewed as a living document to be interpreted in the light of prevailing circumstances. If the convention were not viewed in this way, many beneficial and civilising reforms might not have come about. (See Additional materials below).

Harman wished to see a return to some system of detention so that individuals such as AQ could be detained even if they cannot be either tried here or deported. Such as system existed under Part IV of the Anti-Terrorism Crime and Security Act 2001 but the House of Lords ruled in A and others v Home Secretary [2004] UKHL 56 that section 23 of the Act was incompatible with Articles 5 and 14 of the Convention since it was disproportionate and permitted detention of suspected international terrorists in a way which discriminated on ground of nationality of immigration status. Subsequently, the law was reformed by the Prevention of Terrorism Act 2005.

Panel member Moray MacLennan expressed unease at the fact that AQ has never been charged with any offence in England. No clear reason for this was forthcoming though the answer may lie in whether, at the relevant time, any activities of AQ were caught by English terrorism law - a net which has widened considerably over the years. Of course, the British public are expected to accept that AQ is dangerous because the government says so and SIAC agrees with them. We, the public, are not allowed to know the full evidence against him. Such is the nature of closed proceedings which, under the Justice and Security Bill, the government wish to see extended to civil cases when "national security" is raised.

A fuller discussion of the Question Time debate may be read at UK Constitutional Law Group blog where Professor Gavin Phillipson (University of Durham) looks at Debating the Abu Qatada affair. Professor Phillipson begins by saying - "I found the debate illuminating and alarming in equal measure; it made me reflect seriously on how precarious Britain’s interwoven system of international and domestic protection for human rights may actually be these days." The full article is an essential read.

A glance at SIAC:

At the heart of decision-making in cases such as Abu Qatada is the Special Immigration Appeals Commission or SIAC which exists by virtue of the Special Immigration Appeals Commission Act 1997. The "Commission" is a "court" - a superior court of record.

SIAC has been criticised because of its secrecy but judgments are published (see Bailii) albeit usually anonymised. There are also "closed" judgments which are not published. In the latest Abu Qatada case there are published reasons and a closed judgment.

The Lord Chancellor (Mr Grayling) has considerable powers in relation to SIAC. He determines the number of SIAC members and they hold and vacate office in accordance with the terms of their appointment and are, on ceasing to hold office, eligible for re-appointment. A member of the Commission may resign his office at any time by notice in writing to the Lord Chancellor. Hearings are usually chaired by a High Court Judge who sits with two other panel members.

A Ministry of Justice advertisement for SIAC members in 2010 stated - "If you have experience at a senior level handling Top Secret material, perhaps in government service or in the field of Security, your ability to scrutinise sensitive material will help ensure SIAC decisions are balanced, informed and fair."

There are therefore some non-legally qualified members. They are appointed by the Lord Chancellor/Secretary of State for Justice on terms which he sets. Since the lay members are there as part of the decision-making body as opposed to being merely advisory, it may be that they do not truly have the judicial independence one might expect.

Interestingly, it seems that membership of SIAC has become something of a niche for retired diplomats etc. Sir Brian Barder KCMG - himself a former diplomat and member of SIAC - resigned from SIAC in January 2004. His article of 18th March 2004 remains of interest. In this, Barder comments about the membership of SIAC and, in particular, the role of the lay members. He wrote:

"It is fair to ask, however, whether intelligence experts ought to be full members of the commission, rather than act as advisers to a panel of three fully-fledged judges. Former senior civil servants and diplomats have necessarily been closely identified for most of their working lives with the Whitehall and Westminster establishment, and may be more reluctant than judges to question the wisdom of the intelligence community, ministers and their officials."

Barder resigned from SIAC when he formed the opinion that the decisions of the Court of Appeal and House of Lords in Rehman [2001] UKHL 47 had effectively buckled SIAC into a legal straitjacket making it unable to act "as an effective champion against error or abuse by the executive."

Additional material:

Justice: Special Immigration Appeals Commission Tribunal Guidance

the following will be of interest to legal professionals and to students keen to obtain a good degree ...

See "The SIAC, Deportation and European Law" - Simon Crowther, Cambridge Student Law Review 2010 Volume 6 No. 1 at page 226.

On the "living instrument" view of the European Convention, see The ECHR as a Living Instrument: Its meaning and legitimacy - George Letsas (University College London) and also the speech by Lady Hale in 2011 - Beanstalk of Living Instrument? How tall can the ECHR grow?

Then there is The European Court of Human Rights in Action - Luzius Wildhaber and, in 2011, What are the limits to the evolutive interpretation of the Convention? was published by the court.

Luzius Wildhaber was President of the European Court of Human Rights.

By today, the government was required to bring forward legislative proposals relating to prisoner voting. A DRAFT Bill has been issued - Voting Eligibility (Prisoners) Draft Bill

The Bill presents three options for reform:

Option 1: ban for prisoners sentenced to 4 years or more

Option 2: ban for prisoners sentenced to more than 6 months

Option 3: ban for all prisoners - (the draft bill states - "re-enacts the current general ban on prisoner voting, but with a few minor changes")

Quite clearly, Option 3 cannot be compliant with the obligation placed on the UK by decisions of the European Court of Human Rights since the court decided that it was the blanket ban which was non-compliant with Protocol 1 to the Convention.

The executive clearly does not wish to alter the present law and this draft bill may be viewed as a cynical attempt at being able to claim that the government is respecting the convention whilst simultaneously ducking the issue. The draft bill will undergo "pre-legislative scrutiny" thereby delaying reform for as long a period as possible. For how long? Who knows - perhaps beyond the present Parliament.

It seems somewhat odd that when the Ministry of Justice is talking seriously about a revolution in rehabilitation and restorative justice it is refusing to properly get to grips with the prisoner voting issue. Many argue that deprivation of voting rights works against rehabilitation.

An important point should be borne in mind. The European Court judgment in Greens and MT v UK also requires the UK to actually alter the law within a period to be determined by the Council of Europe's Committee of Ministers.

How judgments of the court are enforced was looked at in Prisoner Votes ~ The Battle lines are drawn - 25th October 2012

Recommended reading:

UK Human Rights blog - Adam Wagner - "A £1000 prisoner vote signing on bonus"

Parliament Briefing Paper 22nd November 2012

Ambros Roth

Sponsor

Prosecution of Historical Child Abuse

LASPO 2012 ~ Some materials

Guarding the guardians - the Leveson report and the Rubicon

Sir Cyril Smith ~ Corroboration of evidence

Who is to guard the guardians - Leveson report - Immediate reaction

Whole life terms for murder - Vinter and others v UK

Cruel Britannia ~ serious material to consider

Female bishops - is the Church of England for turning?

BBC Question Time (Abu Qatada) and SIAC

Prisoner voting

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