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Justice Committee ~ The Magistracy

<div class="separator" style="clear: both; text-align: center;"></div><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhRM_0gX6V9ODirFau8NQuDAzoQP_9AMnyAW4ZNLNYR8Ji26X9lULvXaRdqb8uUSkB6rD6jxcaQYg-GJPwr5vzEKgbNDbjnFLqylY1VuJBDQTZtwSObyGrS3CdBgKrqc6tC8Xqq7D964Bhd/s1600/Parliament.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="140" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhRM_0gX6V9ODirFau8NQuDAzoQP_9AMnyAW4ZNLNYR8Ji26X9lULvXaRdqb8uUSkB6rD6jxcaQYg-GJPwr5vzEKgbNDbjnFLqylY1VuJBDQTZtwSObyGrS3CdBgKrqc6tC8Xqq7D964Bhd/s200/Parliament.jpg" width="200" /></a></div>On 22nd March the House of Commons Justice Committee took <a href="http://parliamentlive.tv/event/index/5512b223-eced-4008-9f98-b5faca30a968">evidence on the role of the magistracy</a>.  I am sure that many will find the session interesting - to say the least!  You may have to wait a few seconds for the video playback to appear. <a name='more'></a> <iframe allowfullscreen="" frameborder="0" id="UKPPlayer" name="UKPPlayer" seamless="seamless" src="http://videoplayback.parliamentlive.tv/Player/Index/5512b223-eced-4008-9f98-b5faca30a968?audioOnly=False&autoStart=False&statsEnabled=True" style="height: 100%; width: 100%;" title="UK Parliament Player"></iframe>Reference material: Sir Brian Leveson (President of the Queens Bench Division) -<a href="https://www.judiciary.gov.uk/wp-content/uploads/2015/01/review-of-efficiency-in-criminal-proceedings-20151.pdf">Review of Efficiency in Criminal Proceedings</a> Toward the end of the Justice Committee session there is some reference to the "Community Magistrates" in New Zealand - see <a href="http://www.justice.govt.nz/policy/criminal-justice/restorative-justice/restorative-justice-in-new-zealand%20http://www.justice.govt.nz/courts/district-court/justices-of-the-peace-main-page%20comm.%20Mags%20http://www.justice.govt.nz/courts/district-court/community-magistrates">Restorative Justice in New Zealand</a>;  <a href="http://www.justice.govt.nz/courts/district-court/justices-of-the-peace-main-page">District Court Justices of the Peace</a>; and <a href="http://www.justice.govt.nz/courts/district-court/community-magistrates">District Court Community Magistrates</a>. It's also interesting that this IPSOS MORI 2011 report was referred to - <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/217366/strengths-skills-judiciary.pdf">The strengths and skills of the judiciary in the Magistrates' Courts</a> Also, when the committee and its witnesses mentioned benches comprising a District Judge and Magistrates I could not help but think back to the <a href="http://webarchive.nationalarchives.gov.uk/+/http://www.criminal-courts-review.org.uk/auldconts.htm">Auld Report in 2001</a>.   I am aware that such benches are convened from time-to-time but the criteria for doing so are not particularly clear.

Justice Committee ~ The Magistracy

On 22nd March the House of Commons Justice Committee took evidence on the role of the magistracy . I am sure that many will find the sessio...

4:11 AM

Undercover Policing Inquiry

<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left; margin-right: 1em; text-align: left;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjFkLpnsPUv1OKaQOB-r12ZTAlVPWJL-eUyJaEFF-UCX9KAvEH5qjc12nPL9RHWEJfUaH3NgVagiOjOcHQ1V2Xou1JqEraiBLhv5XqtNcnBHmlRBJa0IdiCj5KlsfoL9ZyEF5_3-YKADHXZ/s1600/Pitchford+LJ.jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" height="120" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjFkLpnsPUv1OKaQOB-r12ZTAlVPWJL-eUyJaEFF-UCX9KAvEH5qjc12nPL9RHWEJfUaH3NgVagiOjOcHQ1V2Xou1JqEraiBLhv5XqtNcnBHmlRBJa0IdiCj5KlsfoL9ZyEF5_3-YKADHXZ/s200/Pitchford+LJ.jpg" width="200" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;">Pitchford LJ</td></tr></tbody></table>Concerns about undercover policing have been rumbling on for some time - Guardian article by Helen Steel 23rd March 2016 "<a href="http://www.theguardian.com/commentisfree/2016/mar/23/police-abuses-brought-to-light-undercover-officers-spied-on-me">Under cover police spied on me.  Who else did they do it to?</a>" An Inquiry - being held under the <a href="http://www.legislation.gov.uk/ukpga/2005/12/contents">Inquiries Act 2005</a> - is underway under the chairmanship of Lord Justice Pitchford - <a href="https://www.ucpi.org.uk/">Inquiry website</a>.  The Inquiry opened 28th July 2015 when the chairman made his <a href="https://www.ucpi.org.uk/wp-content/uploads/2015/07/Opening-Remarks.pdf">Opening Remarks</a>.  More details of the Inquiry are <a href="https://www.ucpi.org.uk/about-the-inquiry/">available HERE</a> and see the <a href="https://www.ucpi.org.uk/wp-content/uploads/2015/07/160314-TOR-for-the-Website.pdf">Terms of Reference</a>. <a href="https://www.blogger.com/null" name="more"></a> <a name='more'></a> The Inquiry will report on undercover police operations conducted by English and Welsh Police forces in England and Wales since 1968.  The Inquiry will review the extent of the duty to make, during a criminal prosecution, disclosure of an undercover police operation and the scope for miscarriage of justice in the absence of proper disclosure. The Inquiry will refer to a panel, consisting of senior members of the Crown Prosecution Service and the police, the facts of any case in respect of which it concludes that a miscarriage of justice may have occurred as a result of an undercover police operation or its non disclosure.  The panel will be able to refer such cases to the Criminal Cases Review Commission.  Given the very nature of this inquiry, it is not entirely clear why the Police should be involved in a decision about making a reference to the CCRC. Paragraphs 17 and 18 of the Chairman's opening remarks are of interest and seem likely to give rise to some concern. In paragraph 17 the Chairman notes that former undercover officers may have important evidence to give to the inquiry that raises issues of self-incrimination.  The Inquiry may request that the Attorney-General consider giving an undertaking that any evidence provided by a person to the inquiry will not be used in subsequent criminal proceedings against that person. Paragraph 18 looks like an open invitation to the Police to seek orders preventing evidence being given in public.  The chairman said - "... undercover police officers may be bound by undertakings given to their employers or by statutory prohibition against making disclosure of undercover activities to third persons.  In all these cases it is my intention to seek from persons interested submissions as to the conditions, if any, under which evidence should properly be received by the Inquiry.  The Inquiry's priority is to discover the truth." The <a href="http://www.legislation.gov.uk/ukpga/2005/12/section/19">Inquiries Act 2005 section 19</a> provides for RESTRICTION NOTICES which can result in the Inquiry hearing evidence in private.  On the 22 March 2016 the Inquiry Counsel team issued a <a href="https://www.ucpi.org.uk/wp-content/uploads/2016/03/160222-supplimentary-note-for-restriction-orders.pdf" rel="">supplementary note </a>(<a href="https://www.ucpi.org.uk/wp-content/uploads/2016/03/160322-spplimentary-note-annex.pdf" rel="">together with an annex</a>) on the legal test applicable to applications for restriction orders.  Some Restriction Orders have already been made - see Inquiry website <a href="https://www.ucpi.org.uk/rulings/">RULINGS and ORDERS</a>. The <a href="http://www.barcouncil.org.uk/media/270848/jan_8__2014_-_12_pt.__rule_of_law_-_annual_international_rule_of_law_lecture.pdf">principle of open justice is an important one for the rule of law</a> but the Inquiries Act recognises that this principle may have to give way in some circumstances.  The Inquiry's priority is to discover the truth and "undertakings" and "restrictions" may be the price the public has to pay for that though a large number of such restrictions could undermine confidence in the inquiry process.  Time will tell. We may have to wait 3 years or more for the Inquiry report which will be delivered to the Home Secretary.  How much of it will actually be published also remains to be seen and <a href="http://www.legislation.gov.uk/ukpga/2005/12/crossheading/inquiry-reports">section 24 of the Inquiries Act </a>governs publication of reports. Previous matters: See the Court of Appeal judgment in <a href="http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Crim/2011/1885.html&query=%22Ratcliffe-on-Soar%22&method=boolean">R v Barkshire and others</a> [2011] EWCA Crim 1885 which followed the Ratcliffe-on-Soar protests.  The Lord Chief Justice said - "In summary, these convictions were quashed because of the failure of the Crown to make proper disclosure of material relating to the role and activities of the undercover police officer, Mark Kennedy, as well as of materials which had the potential to provide support for the defence case or to undermine the case for the prosecution. These materials were pertinent to a potential submission of abuse of process by way of entrapment and in any event they had the capacity to support the defence of necessity and justification. The trial was rendered unfair and the convictions unsafe. Accordingly, they were quashed. We decline to order further inquiries by this court. Ancillary costs orders in favour of the defence were made at the conclusion of the hearing." A <a href="http://www.cps.gov.uk/news/assets/uploads/files/rose_report_on_ratcliffe_-_on_-_Soar_case.pdf">report by Sir Christopher</a> Rose considered the Ratcliffe-on-Soar protest cases and concluded that there were individual failings but there was no deliberate, still less dishonest, withholding of information.  <a href="http://www.cps.gov.uk/news/latest_news/129-11/">CPS Statement</a> In 2012 a Memorandum of Understanding was entered into by investigators and prosecutors - see <a href="http://www.cps.gov.uk/news/latest_news/closer_working_on_prosecution_cases_involving_undercover_police_officers_as_agreement_is_signed_between_investigators_and_prosecutors/">CPS 3rd July 2012</a>.   The agreement, signed in June 2012, directs that close and early working between relevant organisations takes place so that the best evidence is gathered for prospective court cases, and more criminals are brought to justice.

Undercover Policing Inquiry

Pitchford LJ Concerns about undercover policing have been rumbling on for some time - Guardian article by Helen Steel 23rd March 2016 "...

4:10 AM

R v Adam Johnson

R v Adam Johnson

Crown Court ~ Bradford Updated - with link to sentencing remarks Former Sunderland professional footballer Adam Johnson will come before a ...

4:10 AM

Happy Valley ~ a look at some of the legal angles

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhITuIiOdI7ND5CWWPFlH5l9nHqvaQLeeUX9mh0zC_8R_dK8OoLn0MvKXkZDKrc7fystQWUfWGiX-Iyp_5JnRwCV7Yz8o6FBjOj7NP-adLZ4dlJvTQbEK3EdGHORvQVy1TaB1VUNm_hDTTu/s1600/Calderdale.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="133" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhITuIiOdI7ND5CWWPFlH5l9nHqvaQLeeUX9mh0zC_8R_dK8OoLn0MvKXkZDKrc7fystQWUfWGiX-Iyp_5JnRwCV7Yz8o6FBjOj7NP-adLZ4dlJvTQbEK3EdGHORvQVy1TaB1VUNm_hDTTu/s200/Calderdale.jpg" width="200" /></a></div>The BBC's crime drama "<a href="http://www.bbc.co.uk/programmes/b06zqjpj">Happy Valley</a>" has just completed its second series.  It was full of legal interest.  Set in and around West Yorkshire's <a href="https://en.wikipedia.org/wiki/Calderdale">Calder Valley</a>, this gritty and sometimes violent story line was centred on Police Sergeant Cawood played by Sarah Lancashire and the various people she encountered as part of her work including a young man - Tommy Lee Royce (James Norton) - who is the father of Cawood's grandson.  Royce is a dangerous individual who copes with life by taking control of everything and everyone around him. <a name='more'></a> Series 1 saw Royce involved <a href="https://www.blogger.com/null" name="more"></a>in kidnapping, rape of his victim and the commission of three murders including the brutal murder of a Police Officer. In Series 2, Royce is in prison but is seeking to get at Cawood by using a woman called Frances Drummond (Shirley Henderson) who visits him frequently in prison. Series 2 also focuses on Detective Sergeant John Wadsworth (played by Kevin Doyle).  Wadsworth, a fundamentally decent man in an unhappy marriage, had an affair with the scheming Vicky Fleming (Amelia Bullmore) but when Wadsworth tried to end it she blackmailed him.  That led to Wadsworth killing her during an altercation at her flat and then seeking to put the blame on to another killer who was active in the area.  The series ended with Wadsworth, clearly distressed by the shame of what he had done, committing suicide. Series 1 - (a) Kidnapping - (b) Murder sentencing and (c) Deals with the prosecution: (a) Kidnapping - was the subject of a November 2014 <a href="http://www.lawcom.gov.uk/project/simplification-of-the-criminal-law-kidnapping-and-related-offences/">Law Commission report</a> where reforms were proposed but, as yet, these have not been acted on by the government.  The Commission recommended the creation of two distinct statutory offences to replace the existing common law. "False imprisonment" would be replaced with a new statutory offence of unlawful detention (a label which we believe better captures the nature of the offence). The elements of the new offence would closely follow the existing common law. A new statutory kidnapping offence would be somewhat narrower and more focussed that the existing common law offence.  Kidnapping would have fewer, more closely defined, elements and a clearer relationship with the offence of unlawful detention. The Commission also proposed amendments to section 1 and 2 of the <a href="http://www.legislation.gov.uk/ukpga/1984/37/contents">Child Abduction Act 1984</a>. (b) Murder sentencing - Murder carries a mandatory sentence of life imprisonment and that would have been imposed on Royce.  The trial judge fixes a minimum term to be served before parole may be considered and the <a href="http://www.legislation.gov.uk/ukpga/2003/44/schedule/21">Criminal Justice Act 2003 Schedule 21</a> sets down the parameters for deciding this term.  We were not told the minimum term in Royce's case but the judge would have a starting point of 30 years given that the case was (at least) of exceptionally high seriousness and one of his offences was the murder of a Police Officer doing her duty.  Even if the court considered that a whole life order was not appropriate it may be that the actual term imposed would have been significantly higher than the 30 year starting point. (c) Deals - A local property developer Ashley Cowgill (Joe Armstrong) was arrested for his part in a kidnapping but he was granted bail at the Crown Court having secured a "deal" with the prosecution in exchange for information he gave to the National Crime Agency about the importation of illegal drugs.  What kind of "deals" are permitted by law?  The basis of the present law is Part 2 Chapter 2 of the <a href="http://www.legislation.gov.uk/ukpga/2005/15/part/2/chapter/2">Serious Organised Crime and Police Act 2005</a>.  Parliament has made provision for immunity from prosecution; undertakings regarding the use of evidence; and for sentence reduction.  The essentially pragmatic rationale behind these provisions is set out in the <a href="http://www.legislation.gov.uk/ukpga/2005/15/notes/division/3/2">Explanatory Notes</a> to the Act.  <a href="http://www.legislation.gov.uk/ukpga/2005/15/part/2/chapter/4">Part 2 Chapter 4 of the Act</a> is concerned with the protection of witnesses and others.  Although Cowgill was placed under protection, it failed to prevent his murder by men clearly linked to those against whom he had given information. <div class="MsoNormal"> Series 2 - (a) The "creepy" prison visitor - (b) Trafficking in people - (c) Provocation as a defence to murder: (a) The prison visitor - Frances Drummond was a young woman who acquired an obsession with Tommy Lee Royce and visited him frequently in prison.  It is far from uncommon for violent criminals to obtain admiring attention - for example, the <a href="https://www.youtube.com/watch?v=OqmthnrG-2A">Ted Bundy case in the USA</a> .  The attraction to such violent individuals is known as <a href="https://en.wikipedia.org/wiki/Hybristophilia">Hybristophilia</a>.   Drummond had <a href="http://www.creditreporting.com/deceased-identity-theft.html">stolen the identity</a> of a deceased woman and then used that identity to obtain employment as a teacher at the primary school attended by Cawood's grandson.  She was eventually arrested under the <a href="http://www.legislation.gov.uk/ukpga/2006/35/section/2">Fraud Act 2006 section 2</a> (Fraud by Representation) - <a href="http://www.legislation.gov.uk/ukpga/2006/35/notes/division/5/2">explained here</a>.   Drummond continued to believe that Royce could be reformed and that he should be allowed to see his son. </div><div class="MsoNormal">(b) Trafficking in people - this was touched upon during the series but not well developed as a story line.  The <a href="http://www.nationalcrimeagency.gov.uk/crime-threats/human-trafficking">National Crime Agency website</a> has more details.  The <a href="http://www.legislation.gov.uk/ukpga/2015/30/contents/enacted">Modern Slavery Act 2015</a> was enacted to try to combat this abysmal crime.  See the <a href="http://www.legislation.gov.uk/ukpga/2015/30/notes/division/3">Background Notes</a> to the Act. (c) Provocation - At common law, in relation to murder, provocation could operate as a partial defence which, if successfully pleaded, reduced the conviction to one of manslaughter.  Both the common law on this subject and the Homicide Act 1957 section 3 have been replaced by a statutory defence of "Loss of Control" - <a href="http://www.legislation.gov.uk/ukpga/2009/25/part/2/chapter/1/crossheading/partial-defence-to-murder-loss-of-control">Coroners and Justice Act 2009 section 54 and 55</a> - previous posts 8th September 2010 (<a href="http://obiterj.blogspot.co.uk/2010/09/law-of-murder-implementation-of-further.html">Law of murder: implementation of further reform</a>) and 18th January 2012 (<a href="http://obiterj.blogspot.co.uk/2012/01/homicide-major-court-of-appeal-judgment.html">Homicide: a major Court of Appeal decision</a>).   There have been a number of subsequent cases before the Court of Appeal. Det Sgt Wadsworth was being blackmailed by Vicky Fleming.  This led to a scene in which he killed her.  Having done so, he went to considerable lengths to try to place the blame on whoever was responsible for a series of murders in the area.  Could he have successfully pleaded loss of control? All one can say is that the defence MAY have been available depending on how <a href="http://www.legislation.gov.uk/ukpga/2009/25/part/2/chapter/1/crossheading/partial-defence-to-murder-loss-of-control">section 55 of the Coroners and Justice Act 2009 </a>is viewed as applied to all the facts of the case.  Not only must the defendant have lost control but it must be due to a "qualifying trigger" and there may be such a trigger if the loss of control was attributable to things said or done which caused him to have a justifiable sense of being seriously wronged.  Whether there is evidence for such a defence to be considered by the jury is a question for the trial judge. The reform to the law in this area has only served to add further complexity to the law of murder and law reformers will inevitably have to revisit this subject.  The <a href="http://www.lawcom.gov.uk/project/murder/">2006 Law Commission report on Partial Defences to Murder</a> is essential reading for students of the law and practitioners. <table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjADlOog43Y84ptkLVL0WFDRjcQJHcjXwHEvghgQQlOVWSCmUWfQ8pA68GSYRl-QSCxm5UDs4rYJfsDUKgW0sXq2X75W1Ye-yQvU2aB7E3_yMhH3OQuvjJVlad9JsF-YV_vWq58sNHP1Pzb/s1600/Wainhouse+tower.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjADlOog43Y84ptkLVL0WFDRjcQJHcjXwHEvghgQQlOVWSCmUWfQ8pA68GSYRl-QSCxm5UDs4rYJfsDUKgW0sXq2X75W1Ye-yQvU2aB7E3_yMhH3OQuvjJVlad9JsF-YV_vWq58sNHP1Pzb/s200/Wainhouse+tower.jpg" width="200" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;"><a href="http://www.visitcalderdale.com/attra-wainhouse-tower">Wainhouse Tower</a></td></tr></tbody></table> </div>

Happy Valley ~ a look at some of the legal angles

The BBC's crime drama " Happy Valley " has just completed its second series. It was full of legal interest. Set in and aroun...

4:09 AM

Imprisonment for Public Protection ~ R v Roberts and others

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgm8-j9oVNG5ZnSgY5iJHVAR-L1qr2MHXBPhjim9cTOezkQmWqdwf6L_PQajgXk6ByH4wjtnKmH5LBGhY8qhQr39a0jHA_WbEa6-9MkygQapBDSg-lSwkZtT7OMAwPJX6XQs1-3BxtKClOO/s1600/Prison+view.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="124" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgm8-j9oVNG5ZnSgY5iJHVAR-L1qr2MHXBPhjim9cTOezkQmWqdwf6L_PQajgXk6ByH4wjtnKmH5LBGhY8qhQr39a0jHA_WbEa6-9MkygQapBDSg-lSwkZtT7OMAwPJX6XQs1-3BxtKClOO/s200/Prison+view.jpg" width="200" /></a></div>As at 4 March 2016, there are over 4,000 still in custody under a sentence of IPP (about 5% of the total prison population) and a significant further number who are subject to the licence terms of their IPP and therefore still subject to recall to continue to serve their sentence of IPP   <a name='more'></a> Imprisonment for Public Protection (IPP) continues to bedevil the legal system.  In <a href="http://www.bailii.org/ew/cases/EWCA/Crim/2016/71.html">R v Roberts and others</a> [2016] EWCA Crim 71, the Court of Appeal (Criminal Division) - considered applications for an extension of time in which to apply for leave to appeal against sentences of imprisonment or detention for public protection imposed between 2005 and 2008 under the Criminal Justice Act 2003 (CJA 2003).  All of the applications were dismissed. It was recognised that prisoners remained in custody long after the minimum term had expired but, as far as the court was concerned, it was for Parliament to remedy the situation. <a href="https://www.blogger.com/null" name="more"></a>  <div class="MsoNormal"> "It will not be easy to find a ready solution, for simply to release those who have completed their tariff periods would have the consequence that many would be put into the community without any supervision and they might well pose a risk of danger. It would appear that there is no likely solution other than (1) significant resources be provided to enable those detained to meet the current test for release which the Parole Board must apply or (2) for Parliament to use the power contained in s.128 of LASPO 2012 to alter the test for release which the Parole Board must apply or (3) for those in custody to be re-sentenced on defined principles specially enacted by Parliament.</div><div class="MsoNormal"> </div><div class="MsoNormal">This is not a case where the common law took a wrong turning as it did in the case of joint enterprise as recently set out in the judgment of the Supreme Court in Jogee <a href="http://www.bailii.org/uk/cases/UKSC/2016/8.html" title="Link to BAILII version">[2016] UKSC 8</a> in which the courts corrected the common law. It was Parliament which legislated to establish a regime of sentences of IPP in terms which the courts have faithfully and properly applied. It must, in our democracy and in accordance with the rule of law, be for Parliament to provide a correction for the outcome if it so wishes. Such a correction will in the circumstances not in any way interfere with the fundamental constitutional principle that the independent decision of the court must be respected, because the sentences were premised on the condition that it would be for the Parole Board to determine the terms of release." [My emphasis]. This is a far from satisfactory state of affairs.  The lack of resources available to assess whether prisoners were suitable for release was itself the subject of challenges in the courts including the European Court of Human Rights - see Law and Lawyers 20th September 2012 <a href="http://obiterj.blogspot.co.uk/2012/09/human-rights-indeterminate-sentences.html#more">James, Wells and Lee v UK.</a> </div> This blog first <a href="http://obiterj.blogspot.co.uk/2010/06/indeterminate-sentences-for-public.html">looked at IPP in June 2010</a>. In brief, the history is: 1.  Sentences of imprisonment for public protection and for offenders under 18, detention for public protection, (IPP) were brought into effect on 4 April 2005 under the dangerous offender provisions contained in Chapter 5 of Part 12 of the CJA 2003. 2.  In 2008 Parliament by the Criminal Justice and Immigration Act 2008 modified the sentence of IPP. The amended provisions removed the statutory assumption of dangerousness, removed the mandatory imposition of IPP where the offender was found to be dangerous and removed some offenders from the scope of the sentence by reducing the list of specified offences and by stipulating that the minimum term had to be at least 2 years save where the offender has committed an offence listed in yet another schedule. The amendments did not affect the position of those who had been sentenced between April 2005 and July 2008. 3.  In 2012 Parliament abolished the sentence of IPP by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) for all offenders convicted after 3 December 2012. The abolition did not affect those who had been sentenced to IPP in the period between 2005 and 2012, but s.128 enabled the Secretary of State to modify the threshold for release. No modification has so far been made ....... As at 4 March 2016, there are over 4,000 still in custody under a sentence of IPP (about 5% of the total prison population) and a significant further number who are subject to the licence terms of their IPP and therefore still subject to recall to continue to serve their sentence of IPP

Imprisonment for Public Protection ~ R v Roberts and others

As at 4 March 2016, there are over 4,000 still in custody under a sentence of IPP (about 5% of the total prison population) and a signifi...

4:09 AM

Operation Midland ends. The question of anonymity.

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhZYf0SDwPF56L07KuuzkXg-iPTfPS9I6kAaqC-QpBgtLRLaZu4cuKanSd_sb8BXGSf6CmUcyk9pIiNQfeWt7hsGClHumIZcZFc5TeJKsoo6S6yEvegsTQqZ1-aSH6a1Z7SHcvP5qaUMPgY/s1600/Scotland+Yard.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="149" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhZYf0SDwPF56L07KuuzkXg-iPTfPS9I6kAaqC-QpBgtLRLaZu4cuKanSd_sb8BXGSf6CmUcyk9pIiNQfeWt7hsGClHumIZcZFc5TeJKsoo6S6yEvegsTQqZ1-aSH6a1Z7SHcvP5qaUMPgY/s200/Scotland+Yard.jpg" width="200" /></a></div>Operation Midland, an investigation by the Metropolitan Police into allegations of a VIP paedophile ring,  has been concluded without any charges being brought.  See the <a href="http://www.bbc.co.uk/news/uk-35863580">BBC News report 21st March</a> ; Telegraph "<a href="http://www.telegraph.co.uk/news/uknews/crime/12200180/Operation-Midland-The-story-behind-the-Mets-controversial-VIP-paedophile-ring-investigation.html">Operation Midland: The story behind the Met's controversial VIP paedophile ring investigation</a>" and the <a href="http://news.met.police.uk/news/statement-on-operation-midland-156699">Statement by the Metropolitan Police</a>. <a name='more'></a> Established in November 2014, Operation Midland was set up to examine historical claims that a VIP paedophile ring operated in Westminster, with allegations that boys were abused by a group of powerful men from politics, the military and law enforcement agencies.  The investigation was triggered by allegations made by a man referred to as "Nick" who claimed that he had been personally abused during the period 1975 to 1984. <a href="https://www.blogger.com/null" name="more"></a> The Police referred to Nick's claims as "credible and true" but, in a belated attempt to correct this, the Police statement now states that - "In September 2015 the MPS acknowledged that the use of the phrase "credible and true" at a media appeal could have given the wrong impression that the outcome of the investigation was being pre-empted. However, an open mind was retained throughout."   The inquiry was also intended to examine claims that three boys were murdered during the alleged ring's activities. Operation Midland related to locations across southern England and in London in the 1970s and 1980s, and focused on the private Dolphin Square estate in Pimlico, south-west London. As <a href="http://barristerblogger.com/2016/03/21/operation-midland-miserable-end-miserable-affair/">noted by Barrister Blogger (Matthew Scott)</a>, this is a "miserable outcome to a miserable affair."  The Police statement comments that the Police will "not apologise for carrying out its duty to investigate serious allegations of non-recent abuse...."  Of course the Police must investigate allegations BUT the complaint here is not the fact of the investigation but the manner in which it was conducted. The Police statement also notes that - "The Commissioner has previously announced that <a href="http://obiterj.blogspot.co.uk/2013/11/henriques-j.html">Sir Richard Henriques</a> has been asked to carry out an independent review of this and other investigations.  He will make recommendations about whether there are ways to improve the process for all of those involved in it in the future. The key findings of the review and the recommendations will be published later this year, but the full review will contain confidential and sensitive information and will be a private report for the Commissioner." Anonymity: "Nick" is entitled to anonymity.  Individuals who became subject to either suspicion or investigation were not entitled to anonymity.  Those making an allegation of almost any sexual offence are given anonymity under the <a href="http://www.legislation.gov.uk/ukpga/1992/34/contents">Sexual Offences (Amendment) Act 1992</a>.   There is a power in the Act for application to be made to the trial judge to displace this. Whether anonymity ought to be extended to those under investigation is a controversial point but a good case can be put forward for it given the immensely damaging nature of an accusation of sexual offending.  See, for example, the argument in <a href="http://www.halsburyslawexchange.co.uk/sex-cases-should-the-defendant-have-anonymity/">Halsbury's Law Exchange 3rd July 2014</a> : " ... those accused of sexual offences ought not to be named unless they are charged. This would offer a person who is investigated but then exonerated the chance to move forward with their life without negative publicity. It would also ensure that if the CPS were making a charging decision they would look only at the offence charged and assess the weight of the evidence to see whether there is a reasonable prospect of success, rather than looking at numerous allegations and allowing potentially weaker allegations to be charged in order to shore up a conviction on potentially stronger cases – as happened in the <a href="http://www.theguardian.com/uk-news/2014/apr/10/how-case-against-nigel-evans-fell-apart">case of Nigel Evans MP</a> who faced allegations of sexual assault that even the complainants didn’t believe amounted to sexual assault, all so that the prosecution could use those allegations to support one of rape. Once charged then it is right and proper that a suspect be named, as they would be in any other criminal case. As to complainants, it is vital that their right to anonymity remains. They should only be named if it is subsequently shown that they have deliberately lied to the police and are charged with perverting the course of justice. This approach would encourage genuine complainants and hopefully dissuade wrongful allegations. There is no perfect solution; the nature of our adversarial system is that there are winners and losers. We should do all we can to make the process before the verdict as fair and dignified as possible." Whether one agrees with this viewpoint or not, it has to be noted that the law now contains "anonymity" provisions relating to teachers - <a href="http://www.legislation.gov.uk/ukpga/2011/21/section/13">Education Act 2011 section 13</a> - inserting section 141F into the <a href="http://www.legislation.gov.uk/ukpga/2002/32/contents">Education Act 2002</a>.   The protection offered to teachers ends if the teacher is charged with a criminal offence. Is there any good reason why similar protection should not be offered to anyone under investigation for sexual offences?  Perhaps this debate is set to continue without action on the part of politicians to resolve it - see <a href="http://www.parliament.uk/business/publications/research/key-issues-parliament-2015/justice/anonymity-for-defendants/">Parliament - Anonymity for defendants</a> Note: The Sexual Offences (Amendment) Act 1976 gave anonymity to both complainant and defendant in rape cases but the latter was removed by the Criminal Justice Act 1988.  The Sexual Offences (Amendment) Act 1992 extended complainant anonymity to almost any sexual offence.

Operation Midland ends. The question of anonymity.

Operation Midland, an investigation by the Metropolitan Police into allegations of a VIP paedophile ring, has been concluded without any ch...

4:09 AM

UK and the EU (5) - Referendum - "People need facts not slogans" (Lord King)

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgbfKA9NSuxPvuET3qxyRum1S1e86cnQPd7vz-dj0qxim4qFPKjbtBmboFGl6NzMTD-KvNMmkjFjvW1UL8fckXWC8ejKD-1korx7hSgSlax8rTMJHF_W6Z6kboM9raRRkCbMiD7Yyf3422k/s1600/EU+Ship+with+flags.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgbfKA9NSuxPvuET3qxyRum1S1e86cnQPd7vz-dj0qxim4qFPKjbtBmboFGl6NzMTD-KvNMmkjFjvW1UL8fckXWC8ejKD-1korx7hSgSlax8rTMJHF_W6Z6kboM9raRRkCbMiD7Yyf3422k/s200/EU+Ship+with+flags.jpg" width="190" /></a></div>The <a href="http://www.legislation.gov.uk/ukpga/2015/36/contents/enacted/data.htm">European Union Referendum Act 2015</a> stipulates that the government must publish certain information prior to the referendum.  This duty has been complied with:- The Statement required by section 6 was announced by the Prime Minister on 22nd February - "<a href="https://www.gov.uk/government/publications/the-best-of-both-worlds-the-united-kingdoms-special-status-in-a-reformed-european-union">The best of both worlds: the UK's special status in a reformed EU</a>"  Statement required by section 7 - <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/504604/Alternatives_to_membership_-_possible_models_for_the_UK_outside_the_EU.pdf">Alternatives to membership</a> Second statement under section 7 (April 2016) - <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/516501/Rights_and_obligations_of_European_Union_membership_web_version.pdf">Rights and obligations of EU membership</a>. <a name='more'></a> Previous "background" posts relating to the referendum are:- <a href="https://www.blogger.com/null" name="more"></a> 20th February - <a href="http://obiterj.blogspot.co.uk/2016/02/brexit-referendum-few-points.html">Brexit ~ referendum ~ a few points</a> - including link to the deal secured by the Prime Minister UK and the EU (1) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-1-history-and-background.html">History and Background</a> UK and the EU (2) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-2-eu-treaties-key-points.html">The EU Treaties - key points</a> UK and the EU (3) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-3-parliament-commission-and.html">The Parliament, the Commission and the Court</a> UK and the EU (4) - <a href="http://obiterj.blogspot.co.uk/2016/03/uk-and-eu-4-freedom-of-movement-of.html">Freedom of movement of persons</a> This series of posts is aimed at providing essential background information. There has been a regrettable absence of serious "for and against" debate and the general public lacks hard factual information on which to base any informed decision about what is unquestionably THE most important decision ever to be taken by the public in a referendum.  Instead we have heard the opinions of various politicians and some other public figures such as the <a href="https://www.politicshome.com/foreign-and-defence-home-affairs/articles/story/archbishop-canterbury-concern-about-migration-not">Archbishop of Canterbury</a> and <a href="http://www.bbc.co.uk/news/uk-politics-eu-referendum-35752776">Lord King (former Governor of the Bank of England)</a>. There are many difficult and frequently controversial aspects of the EU / UK relationship and I intend to try to follow up on some of these in subsequent posts.

UK and the EU (5) - Referendum - "People need facts not slogans" (Lord King)

The European Union Referendum Act 2015 stipulates that the government must publish certain information prior to the referendum. This duty ...

4:08 AM

25 years ago today ~ release of the Birmingham Six ~ problems remain

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-OGX34ixAitspmjVT3vCX5JeirAV0acyP52E2Tn7gLv1FDQhO_PWn31-Xoo6BB12jQcl4XXUWfAdcQy1Rwvzkcz66woP5Vq5JwnhHd6BFr7i-i2Z_-bFm0GvuwvuHuTHenXeDZaHcGWMR/s1600/Birmingham+Six+released.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="121" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-OGX34ixAitspmjVT3vCX5JeirAV0acyP52E2Tn7gLv1FDQhO_PWn31-Xoo6BB12jQcl4XXUWfAdcQy1Rwvzkcz66woP5Vq5JwnhHd6BFr7i-i2Z_-bFm0GvuwvuHuTHenXeDZaHcGWMR/s200/Birmingham+Six+released.jpg" width="200" /></a></div>25 years ago today the "Birmingham Six" were released - <a href="http://news.bbc.co.uk/onthisday/hi/dates/stories/march/14/newsid_2543000/2543613.stm">BBC Home On this Day 14th March 1991</a>- after their convictions for murder were quashed.  There have been no subsequent arrests. On 21st November 1974 two explosions in Birmingham wrecked the Mulberry Bush and the Tavern in the Town.  21 people were killed and 182 injured.  A third explosive device failed to detonate.  Six men - (Hugh Callaghan, Patrick Joseph Hill, Gerard Hunter, Richard McIlkenny, William Power and John Walker) - were arrested and subsequently tried in the Shire Hall of <a href="http://www.matthewpemmott.co.uk/2011/11/lancaster-castle.html">Lancaster Castle</a> before Bridge J and a jury. <a name='more'></a>  The trial commenced on 9th June 1975 and the men, having been convicted, were sentenced to life imprisonment on 15th August 1975.  Bridge J's career was to go on to the pinnacle of the judiciary.  He sat as a Lord of Appeal In Ordinary in the Appellate Committee of the House of Lords from 1980-92 - (<a href="http://www.independent.co.uk/news/obituaries/lord-bridge-of-harwich-judge-who-presided-over-the-trial-of-the-birmingham-six-760722.html">Obituary in The Independent</a>). The six convicted men were to spend 16 years in prison.  In <a href="http://obiterj.blogspot.co.uk/2014/11/the-birmingham-pub-bombings-1974.html#more">November 1974 I blogged about the case</a> and its aftermath including the Royal Commission on Criminal Justice which reported in 1993 and the subsequent setting up of the <a href="http://www.ccrc.gov.uk/about-us/">Criminal Cases Review Commission</a> (CCRC). <a href="https://www.blogger.com/null" name="more"></a> When the men were convicted, the inquests into the deaths of the pub bombing victims were adjourned  and they have not since been resumed.  Relatives are currently engaged in an attempt to persuade the Coroner to resume the inquests since they see this as a last opportunity to seek justice for those who died.  Resumption of the inquests is opposed by the Police.  <a href="http://www.bbc.co.uk/news/uk-england-35534745">BBC News England 10th February 2016</a> and <a href="http://www.birminghammail.co.uk/news/midlands-news/pub-bombings-historic-legal-bid-10863260">Birmingham Mail 10th February 2016</a>.   This BBC report also notes the point that, after the convictions were quashed, the former Director of Public Prosecutions (Barbara Mills) placed a 75-year embargo on files relating to a Devon and Cornwall Police inquiry into the West Midlands Police investigation.  Jon Robins writing at The Justice Gap reports on his interview with Patrick Hill one of the Birmingham Six - <a href="http://thejusticegap.com/2016/03/paddy-hill-its-not-the-system-thats-wrong-its-the-bastards-on-the-bench/">"It's not the system that's wrong: it's the bastards on the bench"</a>.  Hill is highly critical of the Criminal Cases Review Commission which he sees as lacking "the balls to stand up to the Court of Appeal."  Hill also expressed the view that the CCRC is a "bastardisation of the original proposals." The Royal Commission did not envisage anything more than an authority that would be independent of the court structure with a power to refer cases to the Court of Appeal and this is substantially the present day position.  The CCRC is empowered only to refer cases to the Court of Appeal and will do so where it considers that there is a "real possibility" that a miscarriage of justice has occurred.  The power to quash a conviction therefore remains fully with the Court of Appeal.  The House of Commons Justice Committee has called for the CCRC to be given the resources and powers it needs to be more effective and the Justice Committee also recommended that the Law Commission conduct a review of the Court of Appeal's grounds for allowing appeals. This includes looking at the current application of the constitutional doctrine of the primacy of the jury. If such a review leads to a change then there should be a subsequent review of the 'real possibility' test used by the CCRC in deciding whether to refer a case.  In the meantime, the Committee recommends that the CCRC be less cautious in its application of the test. The CCRC should err on the side of making a referral if in doubt about a case.  See the <a href="http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news/criminal-cases-review-commission-report/">Justice Committee report March 2015</a>.  The CCRC has the power to require public bodies to disclose documents for its investigations, but this power has never applied to private bodies. With private bodies performing more functions traditionally performed by public bodies, this lack of power has hindered the CCRC in some of its investigations. An attempt to remedy this defect is currently progressing through Parliament - see the Private Members <a href="http://services.parliament.uk/bills/2015-16/criminalcasesreviewcommissioninformation.html">Criminal Cases Review Commission (Information) Bill 2015-16</a> and please see this <a href="http://obiterj.blogspot.co.uk/2015/07/criminal-cases-review-commission-powers.html">earlier post</a>. Would it be an easier today for a prisoner to secure a referral to the Court of Appeal?   Paul May writing in The Justice Gap thinks that it would not - <a href="http://thejusticegap.com/2016/03/12768/">25 years on, and it's harder than ever for innocent prisoners to achieve justice</a>.  This article looks at the Birmingham Six appeal in 1987 where the Court of Appeal rejected allegations of ill-treatment by West Midlands Police.  (Why is there a 75 year embargo on release of that matter?).  The article then expresses the view that the Court of Appeal has traditional obduracy towards those claiming innocence and that this has led to the CCRC progressively adopting an extremely timid approach to referral decisions.  The CCRC is also underfunded (as the Justice Committee also noted) and this leads to limited funds for investigation and causes delays in the handling of cases.  Limited legal aid also plays a crucial part. Finally, there is clearly political reluctance at the present day to compensate those who have suffered miscarriage of justice.  Under the <a href="http://www.legislation.gov.uk/ukpga/2014/12/section/175">Antisocial Behaviour, Crime and Policing Act 2014 section 175</a>, in cases of newly discovered evidence, compensation will only be payable if the new evidence shows beyond reasonable doubt that the person did not commit the offence.  This is examined further in a previous post - <a href="http://obiterj.blogspot.co.uk/2015/06/compensation-for-miscarriage-of-justice_14.html">Compensation for Miscarriage of Justice</a> - 14th June 2015.

25 years ago today ~ release of the Birmingham Six ~ problems remain

25 years ago today the "Birmingham Six" were released - BBC Home On this Day 14th March 1991 - after their convictions for murder ...

4:08 AM