Detention of David Miranda - is this a disturbing use of State power?

BBC 19th August - David Miranda detention: MP asks for explanation and see Cameron proves Greenwald right.

A new week opens with a disturbing story about the use of Schedule 7 of the Terrorism Act.  The Guardian - Glenn Greenwald: detaining my partner was a failed attempt at intimidation - tells the story of how David Miranda was detained for 9 hours at Heathrow Airport without access to either a lawyer or others.   This post takes a brief look at the Schedule 7 power to question.

It is as well to begin with the Terrorism Act 2000 s.1 where the word 'terrorism' is defined for the purposes of law in the UK.   In this Act “terrorism” means the use or threat of action where -

(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.



Actions within subsection 2 are those where the action - (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system.

The word 'action' includes action outside the UK and the word 'government' extends to the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.

Terrorism Act 2000 s.40  is where the term 'Terrorist' is defined and, under s40(1)(b), it means a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism.

Schedule 7 is headed Port and Border Controls.  This gives an 'examining officer' power to question a person for the purpose of determining whether he appears to be a person falling within s40(1)(b).  The officer may exercise his powers whether or not he has grounds for suspecting that a person falls within s40(1)(b).  The person may be detained for questioning for up to 9 hours from the time his examination begins.  Schedule 8 applies to such detention.  The use of Schedule 7 may or may not result in the arrest of the person - section 41.

Hence, on its face, the authorities are empowered to detain and question a person for 9 hours regardless of whether they have any suspicion relating to that person.  The questioning has to be aimed at determining whether the person is or has been concerned in the commission, preparation or instigation of acts of terrorism.

Why was Mr Miranda questioned?  Glenn Greenwald's article offers a possible clue:

'David had spent the last week in Berlin, where he stayed with Laura Poitras, the US filmmaker who has worked with me extensively on the National Security Agency stories. A Brazilian citizen, he was returning to our home in Rio de Janeiro this morning on British Airways, flying first to London and then on to Rio. When he arrived in London this morning, he was detained.'

The activities of the National Security Agency (USA) and its British counterpart GCHQ have been in the news extensively in recent weeks -Watching the Law - International Big Brother.  This prompted Foreign Secretary William Hague to assert in the House of Commons that British security services had acted within the law - Statement of 10th June.    On 17th July, Parliament's Intelligence and Security Committee (ISC) said that it was satisfied that UK security services did not break the law by accessing personal data through the US Prism programme - STATEMENT of Sir Malcolm Rifkind (the ISC's Chairman).

The extent of governmental surveillance activities over citizens is a matter of enormous public concern and investigative journalists are keen to raise awareness of any such surveillance programmes.  It would be shameful if the Schedule 7 power were being used as a method of intimidation of either journalists or those connected to journalists such as members of their families.  Greenwald stated:

If the UK and US governments believe that tactics like this are going to deter or intimidate us in any way from continuing to report aggressively on what these documents reveal, they are beyond deluded. If anything, it will have only the opposite effect: to embolden us even further. Beyond that, every time the US and UK governments show their true character to the world - when they prevent the Bolivian President's plane from flying safely home, when they threaten journalists with prosecution, when they engage in behavior like what they did today - all they do is helpfully underscore why it's so dangerous to allow them to exercise vast, unchecked spying power in the dark.

Schedule 7 has been the subject of reports by the Independent Reviewer of Terrorism Legislation:


Schedule 7 is the subject of a challenge before the European Court of Human Rights - (here).  In May 2013, the court declared the case admissible - see the admissibility judgment Sabure Malik v UK.

Joshua Rozenberg - David Miranda Detention: Schedule 7 of the Terrorism Act explained 

Jack of Kent - Nine hours in the life of David Miranda

Note:  Schedule 7 of the anti-social behaviour, crime and policing bill, which has completed its committee stage in the House of Commons, would cut the maximum period to six hours and introduce other safeguards.
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Driving ~ Fixed Penalties

On 16th August, careless driving (Road Traffic Act 1988 s.3) became an offence for which a fixed penalty notice can be issued - Government announcement.   The fixed penalty for careless driving is now £100 with 3 points on the driver’s licence. The most serious examples will continue to go through court, where offenders may face higher penalties.  The police will also be able to offer educational training as an alternative to endorsement.

Section 3 states:

Careless, and inconsiderate, driving:  If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence.



Section 3ZA amplifies the meaning of careless driving.  A person is to be regarded as driving without due care and attention if (and only if) the way he drives falls below what would be expected of a competent and careful driver.

Careless and Inconsiderate driving cover a multitude of possibilities and it remains to be seen whether the power to issue fixed penalty notices will be used sensibly or whether numerous notices will be issued for quite minor alleged infractions.

What the competent and careful driver (an objective test) would be expected to do at a particular time depends on all the circumstances and the Highway Code may be relied upon (in court if necessary) by way of assistance - see Road Traffic Act 1988 s.38(7).

'Tailgating' (not defined anywhere in the law) is often an example of careless driving.  Where vehicles are moving at speed (as opposed to a slow moving traffic queue) it is clearly incumbent on each driver not to drive closely to the vehicle in front.  To do so might be seen by the courts as driving 'bordering on the dangerous.'  Sentencing Guidelines for careless driving are at page 117 of the Magistrates' Courts guidance.  If driving is viewed as 'bordering on the dangerous' then the court would consider disqualifying the driver in addition to any fine (plus surcharge and costs).  

The changes follow a consultation held in the summer of 2012.  The consultation noted: The current process of charging motorists for a careless driving offence is overly bureaucratic.  It involves a heavy burden of paperwork, which is resource intensive for the police and court services, particularly for lower level offending.  The Association of Police Chief Officers (ACPO) have indicated that the high resource costs deter the Police from charging motorists with lower level instances of careless driving in the first place.

A Table of Fixed Penalties is also available.  Fixed Penalties have been increased for a considerable range of offences including use of mobile phones when driving (now £100) and speeding (now £100).

Traffic Sign Quiz

Practice your driving theory test - a useful exercise even for qualified drivers!!



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The burial of King Richard III - a judicial review

Update 2nd December - Law Society Gazette - The remains of Richard III spark a modern day legal fight

Mr Justice Haddon-Cave has granted permission for a judicial review of the decision to re-inter the remains of King Richard III at Leicester - R (Plantagenet Alliance Ltd) v Secretary of State for Justice and others

Please see my previous post Richard III.  Haddon-Cave J ended his judgment as follows:


Final comments and recommendation 

39.  It is ironic that the Wars of the Roses appear to be returning whence they started, the Temple. Legend has it that John Beaufort and Richard Plantagenet picked the symbolic red and white roses in Inner and Middle Temple gardens (c.f. Henry VI,Part 1, Act 2).

40. I would, however, urge the parties to avoid embarking on the (legal) Wars of the Roses Part 2. In my view, it would be unseemly, undignified and unedifying to have a legal tussle over these royal remains. This would not be appropriate, or in the country’s interests. The discovery of Richard III’s remains engages interests beyond those of the immediate parties, and touches on Sovereign, State and Church.

41. For these reasons, I would strongly recommend that parties immediately consider referring the fundamental question - as to where and how Richard III is reburied -to an independent advisory panel made up of suitable experts and Privy Councillors, who can consult and receive representations from all interested parties and make suitable recommendations with reasonable speed.

A further post on this at Law and Religion UK 

Wars of the Roses

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Thursday roundup

Updated

Joint Enterprise:

In December 2012, the Director of Public Prosecutions issued new guidance relating to charging decisions where a case involves 'joint enterprise.'  The Defence Brief blog takes a look at this thorny topic.   Also see The Guardian 5th March 2013.

Magistrates:

Magistrates have been in the news with the Ministry of Justice looking at Reforming the role of Magistrates  (Youtube).  The Law Society Gazette (14th August) Government to propose new custodial powers for Magistrates  states that the government is talking with Magistrates about why some offenders committed to Crown Court for sentence receive a sentence not exceeding 6 months imprisonment (i.e. within the powers of the Magistrates' Court).  The Gazette article also mentions an idea of allowing victims to appeal to the Magistrates' Court if they feel that an offender should have been prosecuted rather than cautioned.  A formal consultation about the future role of Magistrates is expected later this year.  A further article on this is at Solicitors Journal. and see speech by Damian Green MP (MInister of State for Policing and Criminal Justice) to Magistrates 14th August.

Will magistrates' courts be given a greater maximum sentence?  Green said that the idea has an attractive logic but there might be added pressure on the prison population.  Government is keeping this matter under review and will retain the legislation which is in place to implement it.

On Monday 12th August, the Law Society Gazette published Doubts over MoJ's savings target.  This indicates that cuts will have to deepen by £700m annually over the next two consecutive years, for the MoJ to meet its spending objective.  This follows speculation that the MoJ will announce 80 further court closures in order to meet spending targets.  The closures are expected to be mainly magistrates' courts and would add to the 142 courts that have been culled since 2010.

Human Rights:

Will the Human Rights Act 1998 be safe
should Labour form the next government?  It is hard to make a forecast on this.  For example, the Labour Party has indicated that cuts to legal aid are unlikely to be reversed.  Nevertheless, this appeared on Twitter this week.  It is from Sadiq Khan MP - Shadow Minister for Justice.


The British Institute of Human Rights is celebrating the 60th Anniversary of the European Convention on Human Rights.   Take a look at their website where you can access factsheets and even sign a birthday card.

Mental health law:

The Mental Health Act 2007 has been subjected to post-legislative scrutiny.  The report of the House of Commons Health Committe is available. 

The British Institute of Human Rights publishes Mental Health Advocacy and Human Rights.


Fathers and Parental Responsibility:

See the interesting blogpost by Marilyn Stowe - Father loses parental responsibility appeal.  The case is PM v MB and another [2013] EWCA Civ 969.

A great Family Law blog:

Family Lore is a great blog on family law.  Its author (John Bolch) posted that he is now looking for work and that his blogging may have to end.  I wish John well in his search for work and sincerely hope that his excellent blog will continue for a long time to come.  It would be missed.

Last execution in Scotland:

15th August is the 60th Anniversary of the last execution in Scotland - BBC   The Murder (Abolition of the Death Penalty) 1965 saw an end to capital punishment for murder* in the United Kingdom though, at the time, the European Convention on Human Rights was not opposed to it.   It was not until the adoption of Protocol 13 that the Convention finally prevented, in all circumstances, the use of the death penalty.

Wills:

In case you are considering leaving money in your will to the government, this article is worth reading - Daily Mail - where the story of  the late Joan Edwards is reported.  She left £520,000 to whichever government is in office to use 'as they may think fit.'  Somehow it ended up in the coffers of the Conservative and Liberal Democrat Parties.  It is understood that the Parties have now agreed to pay the money to the Treasury.  I wonder what they will do with it.


* Note: the U.K. abolished the death penalty for murder in 1965 but retained it for treason and piracy and certain military offences until the Crime and Disorder Act 1998 s36 (Treason and Piracy) and the Human Rights Act 1998 (military offences).
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Should imprisonment be abolished for pure property offences?

Professor Andrew Ashworth is the Vinerian Professor of English Law at Oxford University. In a pamphlet published by the Howard League for Penal Reform, Professor Ashworth expresses the view that imprisonment should be reserved for those who commit crimes of a violent, sexual or threatening nature - BBC 14th August and Howard League Press Release 14th August.    The press release notes:

Professor Andrew Ashworth, the Vinerian Professor of English Law at Oxford University, said:
 
“We should be reserving our most severe form of punishment for our most serious types of offending. Should someone be sent to prison and deprived of their liberty for an offence that involves no violence, no threats and no sexual assault? Instead, the priority should be to deal with such offences in the community, giving precedence to compensation or reparation for the victim and, where the offence is sufficiently serious, imposing a community sentence.”

Frances Crook, Chief Executive of the Howard League for Penal Reform, said:

 
“When it comes to crimes like theft and fraud, victims are losing out from a justice system that too often prioritises putting the perpetrator behind bars rather than returning people’s stolen property and providing much needed compensation. This can be achieved through fines and compensation orders, as well as community sentences, which produce a much lower rate of reoffending than prison at a fraction of the cost. At a time when all areas of public finance are stretched, threatening schools, hospitals and the police, it’s time for our politicians to make some tough decisions on exactly who should be sent to prison.”

The full pamphlet is part of a 'What if?' series published by the Howard League in conjunction with the Mannheim Centre at the London School of Economics.  The pamphlet may be downloaded from  HERE but you are asked to register first.  In the paper, Professor Ashworth proposes that imprisonment should not be imposed as a sentence for property offences. His argument is that the deprivation of liberty is a disproportionate response for an offence that deprives people of their property. He limits his proposition to ‘pure property offences’, and excludes those that are violent, threatening or sexual. The paper considers fines and community sentences as alternative sentencing options, and emphasises the importance of creating a system where community sentences are regarded as a form of hard penalty that punishes the perpetrator for their offence, as well as having sufficient rehabilitative content. In essence, the paper argues for fair and proportional sentencing, which, if the proposal were adopted, would have far-reaching consequences for the penal system, and a significant impact on the size of the prison population in England and Wales

As might be expected, Professor Ashworth's report is elegantly argued.  It certainly merits a full reading and, from outset, he admits that there may have to be exceptions to his general theme.  His argument is essentially confined to what he refers to as 'pure property offences' and he therefore accepts that imprisonment should at least be considered for cases of robbery, blackmail and burglary.

A harsh reality is that there is little respect in some quarters for fines where huge sums go unpaid.  Also, is the impecunious thief going to be able to pay a fine?  Community sentences may be imposed if the offence is 'serious enough' (Criminal Justice Act 2003 s148).  A community sentence will often contain one or more orders made under the Criminal Justice Act 2003 s.177.   A considerable range of 'orders' are available.  One of the most commonly imposed orders is for unpaid work - (CJA 2003 s199).  Unfortunately, breaches of such orders occur all too often and, as a final resort, it may be necessary for the court to order imprisonment.  For enforcement powers see CJA 2003 Schedule 8. 

The BBC report notes that a spokesman for Victim Support said the type of crime was not a reliable indicator of the impact an offence had had on a victim.  "It would be hard for community sentences to retain public confidence if offenders knew they could keep committing certain types of crime and never be jailed," he said.  "It is essential when passing sentence that judges and magistrates can take into account the full facts of the case - including the impact on the victim - not just the nature of the offence."

Justice Minister Damian Green said: "People who commit these crimes devastate lives and cause untold misery in our communities. This government has no intention of changing the law to prevent judges sending them to prison. It is right they have the full range of sentencing options available to them."

Sentencing guidelines for Magistrates' Courts are issued by the Sentencing Council.  Sentencing for 'shoplifting' is at page 103a.  It will be seen that imprisonment is unlikely unless the theft has particularly serious features such as significant intimidation or threats.
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Civil Aviation Safety in the UK

The Daily Mail 12th August published an item concerning the Irish airline Ryanair - Ryanair pilots 'bullied into silence over safety...'   I have no idea whether the allegations in the article are true, partially true or false.  Given that any allegations concerning operational safety must be taken very seriously, Ryanair may well have to defend its position.   Ryanair is based in the Republic of Ireland.  The airline's website sets out the names of the Directors and, it should be noted, that the airline has an Air Safety Committee chaired by a Director who was formerly Chief Pilot of Aer Lingus.  The airline's Chief Executive Officer is Michael O'Leary.  Mr Leary is also a Director. 

Regulation of Civil Aviation:

On an international scale, the International Civil Aviation Organisation (ICAO) was set up in 1944 to set down standards and recommended practices for civil aviation.  ICAO is a specialised agency of the United Nations and promotes the safe and orderly development of international civil aviation throughout the world. It sets standards and regulations
necessary for aviation safety, security, efficiency and regularity, as well as for aviation environmental protection. The Organization serves as the forum for cooperation in all fields of civil aviation among its 191 Member States.  The UK and Ireland are both ICAO member States.   Most Member States have some form of national aviation authority tasked with the practical implementation of international aviation policy and procedures.  In the UK it is the Civil Aviation Authority (CAA) which owes its existence to the Civil Aviation Act 1971.  The powers of the CAA are those granted to it by various Acts of Parliament - listed here.  In Ireland it is the Irish Aviation Authority.  There is also a European Aviation Safety Agency (EASA) established by the European Union.

Licensing of Air Operators, personnel etc:

Within the UK it is the CAA which issues a UK airline with its Air Operators Certificate (or AOC).   The CAA is also responsible for licensing of aerodromes and for personnel licensing such as pilots, air traffic control officers etc.  One aspect of being granted an AOC is that the operator must have in place a suitable safety management system and the UK CAA Safety Regulation Group gives guidance on this.  A well run safety management system would encourage personnel to raise safety concerns and to have them dealt with adequately by the company management.

Control Tower London Heathrow
Raising safety concerns with the national authority:

Individual licensed personnel are required by law to submit Mandatory Occurrence Reports.  The objective of the MOR Scheme is to contribute to the improvement of flight safety by ensuring that relevant information on safety is reported, collected, stored, protected and disseminated. The sole objective of occurrence reporting is the prevention of accidents and incidents and not to attribute blame or liability.  The MOR scheme is fully described in CAP 382 - The Mandatory Occurrence Reporting Scheme. This document collates the relevant rules and regulations and provides guidance on occurrence reporting, including examples of what should be reported and by who.

UK Legislation on the CAA MOR Scheme is contained in Article 226 of the Air Navigation Order 2009 (ANO) and Part 5 of the Air Navigation (General) Regulations 2006.  The ANO implements in the UK, Directive 2003/42/EC of the European Parliament and of the Council of 13 June 2003 on occurrence reporting in civil aviation.  The legislation concerning the release of information supplied under the CAA MOR Scheme is contained in Regulation 9 of the CAA Regulations 1991.  Quite apart from the Directive mentioned above, which has been implemented by Article 226 of the ANO, there are a number of EU Regulations which contain occurrence reporting requirements. These are directly applicable within the UK and take precedence over national legislation.

As can be seen, civil aviation is governed by a complex network of law and practice which seeks to encourage all personnel to participate fully in safety and which also requires certain events to be reported formally via the MOR scheme.

Additional links:

Fuel ...

Commission Regulation (EU) 965/2012 - see CAT.OP.MPA.150 (Fuel Policy).  The operator shall establish a fuel policy for the purpose of flight planning and in-flight replanning to ensure that every flight carries sufficient fuel for the planned operation and reserves to cover deviations from the planned operation. The fuel policy and any change to it require prior approval by the competent authority.  Note also that the Cat.Op. specifically refers to an aircraft carrying, in addition to other specified fuel requirements, 'extra fuel as required by the commander of the aircraft.'

EASA Safety Information Bulletin 2013-12 - In flight fuel management: Phraseology for fuel related messages to Air Traffic Control 

Cockpit Voice Recording ...

Cockpit Voice Recording - CAP 731 and also see Commission Regulation 859/2008 - OPS.1.160  with regard to retention of cockpit voice recording.

Prevention of fatigue ...

Flight time limitations - professional aircrew are subject to flight time limitations.  EASA is proposing changes which are being met with opposition from aircrew - European Cockpit Association.  Also see BALPA for a comparison table between UK and the proposed EASA rules.  Further information at Flight Duty Times.

Addendum:

Ryanair sacks long-serving pilot after Channel 4 documentary appearance - Independent Ireland 15th August.

Apology in High Court - 20th November 2013 - The Independent has apologised to Ryanair over a story from 7 August headlined “Low-fuel flights put lives at risk”.  The article claimed that the budget airline “restricted  the amount of fuel [their aircraft carry] to the legal minimum’. 

According to a statement agreed between the two parties and read out this morning at the High Court:
“In fact, Ryanair pilots are permitted to carry as much extra fuel, over and above the flight plan fuel (which already includes extra fuel), as they consider necessary.”

and see Aviation Safety Net - Spain concludes investigation of low fuel incidents


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Justice and Security Act 2013 ~ on-going judicial review stopped

High Court excluded
R (Ignaoua) v Home Secretary is a case raising an interesting point about the impact of the Justice and Security Act 2013 section 15 on judicial review in the High Court - Judgment of Cranston J.

Section 15 applies to non-European Economic Area (EEA) nationals who the Home Secretary seeks to exclude from the UK on grounds relating to the public good.  If the Home Secretary does not wish information on which the exclusion decision is based to be made public then a certificate may be issued.  Once this is issued, the affected person may apply to the Special Immigrations Appeal Commission (SIAC) to set aside the direction for exclusion.  In deciding such cases, SIAC must apply the principles which would be applied in judicial review proceedings.  If the Commission decides that the direction should be set aside, it may make any such order, or give any such relief, as may be made or given in judicial review proceedings.  A number of High Court judges sit in the Commission.


In Ignaoua's case, a certificate was issued
by the Secretary of State for the Home Department ("the Secretary of State") on 16 July 2013 under the section 15 power in the Justice and Security Act 2013. The Secretary of State contended that the certificate had the effect of terminating the judicial review which the claimant has had ongoing in the High Court since 2010, challenging his exclusion from the United Kingdom on national security grounds.

Clearly, the issues in the case were issues of law as to the High Court's jurisdiction.  The relevant legislation is set out at paras 16-20 of the judgment and four strands of legal principles are at 21-28.  The principles relate to statutory interpretation:

a) the court's aversion to ouster clauses - that is, clauses purporting to oust the ability of the court top conduct judicial review [see 21-24];

b) the court's centrality in preventing an abuse of process [25];

c) statutory power, although expressed in general terms, should not be construed so as to authorise acts which infringe the basic rules and principles of the common law. Parliament is presumed not to have intended to change the common law unless it has clearly indicated that intention either expressly or by necessary implication [26-27]; and

d) where legislation requires the making of regulations as part of the implementation of a legislative scheme then it might be unlawful to bring the legislation into force but not to have made the regulations.  This is based on the recent Supreme Court decision of M v Scottish Ministers [2012] UKSC 58; [2012] 1 W.L.R. 3386 where it was held that the failure to make certain regulations was unlawful.  However, it was possible to infer in that case that Parliament had intended to bring the provisions into effective operation on the same date as that commencing the primary legislation.

The elegant arguments put forward on the claimant's behalf are at paras. 29-32. 

Cranston J discussed the arguments.  He found aspects of the statutory scheme in the Justice and Security Act 2012 to be 'troubling' - 'not least their contemplation of the Secretary of State terminating ongoing judicial review proceedings in which she is a party, and no matter at what stage they may be.'  There were also 'disturbing features' regarding the implementation of the statutory scheme - ' notably the absence of procedural rules for SIAC to hear cases like the claimant's which have been terminated. Those like the claimant are indeed in limbo even if, as the Secretary of State suggests, actions in SIAC can at least be initiated, if not at the present time heard.'

Cranston J said [33] - We are now over three months on since the Justice and Security Act 2013 received the Royal Assent and still the procedure rules for SIAC are not out for consultation. Those rules must pass the scrutiny of the Joint Committee on Statutory Instruments before they can be laid before both Houses of Parliament for approval under the affirmative procedure. On instructions Mr Phillips QC for the Secretary of State informed the court that there are draft rules and it is currently anticipated that the Statutory Instrument will be finalised and laid before Parliament in October this year.

The reader might well think that this amounts to worrying administrative practice on the part of the Home Office.  Why not ensure that the relevant regulations are in place before implementation of the primary legislation which took place on 25th July?  That would have ensured that, for people such as the claimant, there was an established alternative in place to the judicial review process.  The answer to that probably lies in political desire to get the Justice and Security Act 2013 in force after its rather bruising passage through Parliament.

Despite expressing concerns, Cranston J held that the claimant's submissions failed.  It was clear that the Justice and Security Act 2013 section 15 meant that Parliament's intention was that where a person has been excluded from the United Kingdom on grounds of the public good, in reliance on information which in the Secretary of State's opinion should not be made public for national security or similar reasons, a challenge to the exclusion direction must be advanced in SIAC if the Secretary of State has certified the direction [34].   Although the new SIAC procedure rules are not yet in force, there was nothing in the legislation to make certification conditional upon that having being done [38].

Thus, we have the jurisdiction of the High Court excluded in those cases where the Secretary of State has issued a section 15 certificate.  Parliament has, in effect, moved the jurisdiction to SIAC and that is the case even though the procedural rules for hearing such matters are some months away..

This may not be the last heard of this case.  A further application of judicial review is in the pipeline.  At para 13, Cranston J referred to a new application for judicial review challenging the actual exercise by the Secretary of State of the power to certify in the claimant's case as opposed to whether the Secretary had power to certify at all.

Note: the Justice and Security Act 2013 s.15 inserted section 2C into the Special Immigration Appeals Commission Act 1997.

Addendum 12th August:

Public Law for Everyone - a further article on the Ignaoua case.
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Criminal law ~ The Law Commission on Insanity and Automatism

Included in recent publications by the Law Commission are: (a) Discussion paper on Insanity and Automatism published 23 July 2013 and (b) Unfitness to Plead consultation responses published 10 April 2013.

a) Insanity and Automatism:

In July 2012, the Law Commission published a Scoping Paper to find out how the criminal defences of insanity and automatism operate in practice.  The responses to that paper have informed the Discussion Paper which is now published.  The Discussion Paper contributes to the continuing debate on whether the law has the right test to distinguish between those who should be held criminally responsible for what they have done, and those who should not..  More information
on this project can be found on the project page  where there is also material about the law as it currently is.
Provisional conclusions and proposals are at page 192 (Chapter 10).

The Commission provisionally proposes the the abolition of common law rules relating to insanity and the creation of a new statutory defence of not criminally responsible by reason of recognised medical condition.  The defence will have to adduce expert evidence of a qualifying recognised medical condition.  Some conditions will not qualify (e.g. acute intoxication).  Whether a condition qualifies or not will be a question of law.  Once the defence has adduced sufficient evidence of the condition, it will then be for the prosecution to disprove that beyond a reasonable doubt.  If the defence is established there will be a special verdict of 'not criminally responsible by reason of recognised medical condition' and this would lead to either a hospital order (with or without restriction) or a supervision order or an absolute discharge.

Further provisional proposals are to abolish the common law rules on the defence of automatism.  Where the magistrates or jury find that the accused raises evidence that at the time of the alleged offence he or she wholly lacked the capacity to control his or her conduct, and the loss of capacity was not the result of a recognised medical condition (whether qualifying or non-qualifying), he or she shall be acquitted unless the prosecution disprove this plea to the criminal standard

b) Unfitness to plead:

Unfitness to Plead consultation responses published 10 April 2013.  The Commission states|:

When a person is facing prosecution in a criminal trial, he or she may be found “unfit to plead and to stand trial”. The legal test for determining fitness to plead has numerous faults.  It dates from 1836 when the science of psychiatry was in its infancy. The law developed in a piecemeal way and independently of developments under the European Convention on Human Rights on “effective participation” as part of the right to a fair trial.

Given the vulnerability of people with learning disabilities and of those with mental illness, modern criminal law should be informed by modern science, and in particular by modern psychology and psychiatric findings.

The legal test for fitness to plead needs to be reformed so that it is fair and suitable for the criminal justice system of the 21st century.
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R v Neil Wilson (Sentencing for Sexual Offending) ~ Approval of Trial Judges


On Monday 5th August, Neil Wilson (age 41) was sentenced by the Crown Court sitting at Snaresbrook.  It is reported that Wilson admitted two counts of making extreme pornographic images and one count of sexual activity with a child - Sky News 7th August 2013   When sentencing Wilson to 8 months imprisonment suspended, it seems that the judge (HHJ Peters QC) referred to the young female victim (age 13) as 'predatory.'   Unfortunately, this is a case where sentencing remarks are not available and so only the media reports are available.  The barrister representing the Crown Prosecution Service (Robert Colover) is reported to have said to the court - "The girl is predatory in all her actions and she is sexually experienced."  On what basis (if any) the judge chose to use the same word 'predatory' is unclear.  Sentencing has to be based on facts either admitted by the defendant or proved to the tribunal of fact (i.e. the jury).  Sometimes, in guilty plea cases, there is an agreed factual basis for the plea and sentencing may then be based on that agreement - see Attorney General's Office - 'The acceptance of pleas and the prosecutor's role in the sentencing process.'

Complaints
have been lodged with the Office for Judicial Complaints.  The OJC website (7th August) reported:

The OJC has received a number of complaints about the remarks made by HHJ Peters QC during the sentencing of a defendant at Snaresbrook Crown Court on 5 August 2013. The complaints will be considered in accordance with the Judicial Discipline (Prescribed Procedure) Regulations 2006 (as amended).  (Link added)


Also, the CPS issued a remarkable statement to the effect that Mr Colover will not, at least for the time being, be instructed for the prosecution in cases involving sexual offences - (CPS statement).

In recent years, the criminal justice system has come to greater recognition of the needs of victims of crime.  The sentencing of Neil Wilson provoked outcries.  For example, the NSPCC warned that the case was part of a wider pattern about how child sex abuse cases are treated in the courts.  Alan Wardle, head of corporate affairs, said: "It was quite clear in the case the predator was the man who was in the dock, not a 13-year-old child, and it is quite clear that a 13-year-old child cannot be complicit in her own abuse.'

The media reports do not say exactly the offence admitted by Wilson though it is reported as 'sexual activity with a child.'

The offence in the Sexual Offences Act 2003 s.9  is based on the intentional sexual touching of either a child under age 16 or a child under age 13.   Therefore, issues of 'consent' on the part of the child do not arise.  Even if a child was sexually active (as some undoubtedly are), would that offer a convicted person any mitigation?  Even if it did, it must surely be only in rare cases that it would offer a defendant very much.   See CPS guidance on 'Derogatory or Defamatory Mitigation.'

The suspension of Wilson's sentence of imprisonment is also of interest and it is reported that the Attorney-General is considering referring it to the Court of Appeal on grounds of undue leniency.

The case clearly demonstrates the undoubted value of publishing sentencing remarks - sadly, absent in this instance.

There is also an interesting point about ages and the criminal law.  A child of 10 may be held criminally liable for (say) murder.  However, the law steps in to offer child victims particular protection in relation to sexual activity.  There are strong arguments to raise the age of criminal responsibility - (see also here).  However, the protection of children must surely be right. 


Trial by an approved judge:

In a separate development, the Lord Chief Justice has responded to a request from the Parliamentary Home Affairs Committee which had looked at Child Sexual Exploitation - Committee Report and  LCJ statement (pdf).  The committee had invited the Lord Chief Justice to consider recommending to the Judicial College that there should be specific guidance and training for judges who preside over cases of child sexual exploitation.  A particular concern was cases with multiple defendants and the consequent possibility of a victim being subjected to multiple cross-examination.

The LCJ pointed out that there is already an authorisation process for judges who try serious sexual offences - details are in the LCJ's statement.    However, the LCJ noted some cases where, for the future, the trial judge will be one selected by the Resident Judge (on a case by case basis) and approved by a Presiding Judge.  These will be trials for serious sex cases where the trial is likely to last over 10 days or, regardless of the length of trial where one or more of the witnesses is significantly vulnerable.  A similarly approved judge will be required for all other cases, irrespective of the nature of the charges or length of trial, in which a significantly vulnerable witness is to be called in circumstances that call for especially sensitive handling - e.g. by virtue of age, situation or the circumstances of the case.

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This post was reproduced on Legal Week 8th August - Predator or prey? The judge, the barrister, a 13-year-old victim and a media furore.

Further reading - Felicity Gerrity - Robert Colover investigation: the misunderstandings around sex offence trials

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Forced marriage ~ Enforcement of Protection Orders

May a Police Force apply for a person to be committed to prison for contempt of court for breach of a Forced Marriage Protection Order (FMPO) when the police were not the applicants who obtained the order?  The answer is NO according to Holman J in a case revealing (or illustrating) a serious weakness in the scheme of the forced marriage protection provisions inserted as Part 4A into the Family Law Act 1996 by the Forced Marriage (Civil Protection) Act 2007 and which came into force in November 2008.  Bedfordshire Police v RU and FHS [2013] EWHC 2350 (Fam). 

Holman J's judgment ended by saying that the facts and circumstances of this case reveal or illustrate a grave weakness in the existing forced marriage protection order machinery as enacted in Part 4A. Forced marriages are a scourge, which degrade the victim and can create untold human misery. It is vital
that FMPOs have real teeth and that people bound by them, or having notice of them, appreciate that they are capable of being enforced and will be enforced even though the applicant young person may not seek enforcement himself or herself. The scope for psychological or other pressures in this field is obvious and is enormous.  The judge sought, by his judgment, to encourage the relevant Departments of State to give urgent consideration to improving the effectiveness of forced marriage protection orders and the means of enforcement.

Breach of a FMPO is not a criminal offence though FMPOs will contain a power of arrest.  Thus, orders must be enforced, if at all, by contempt of court proceedings. and such proceedings may be initiated by the party who obtained the order or by the Attorney-General (if the public interest requires him to intervene in order to enforce the order) or, in exceptional cases by the court itself.  The court will act of its own volition where it is urgent and imperative to act immediately - Clarke v Chadburn [1985] 1 WLR 78. 

Holman J's judgment offers good reasons why the Police should be permitted to apply to the court (para 24-26] but the judge had to operate within the law as he found it.   At [27] the learned judge said:  ' ... I am very clear that, unless and until Parliament decides to provide a proper statutory basis for them to do so, the police simply have no standing to, and cannot act as applicants to, apply for and (as they wish in this case) press for committal in these circumstances.'

It is worth noting that breach of a Non-Molestation Order (Part 4 of the Family Law Act 1996) is an offence.  The non-criminality of breach of a FMPO (Part 4A of the Family Law Act 1996) therefore currently stands in stark contrast.  However, at the time of this post, Parliament is in the process of legislating for new offences - see Part 9 of the  Anti-Social Behaviour, Policing and Crime Bill.  The Bill provides for an offence of breaching a FMPO (see Clause 103) and also an offence to force a marriage (Clause 104).  These offences are to have heavy maximum sentences (5 years and 7 years respectively) when they are tried on indictment.

Links:


See the post of 9th June 2012 where the government's plans to criminalise breach of FMPOs was considered.   A good article is at Family Law Week 13th September 2012 where barrister Charlotte Rachael Proudman considered Forced Marriage and the Criminal Law.

Telegraph 28th May  - 16 year old 'forced to marry' despite protection order

Government - Forced Marriage


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