The law and historic cases: sensible or bizarre?

It has been reported by the BBC today that president of the ‘Association of Child Abuse Lawyers’ has said the way in which Rolf Harris was sentenced was ‘bizarre’. He is referring to the fact that in historic cases the judge passing sentence is limited to the maximum sentence that was available at the time of the offence. In the Harris case this was 2 years (or 5 years in the cases where the victim was under the age of 13).

There are a lot of historic sexual assault and abuse cases trundling their way through the justice system. It is right that, no matter how many years later, the perpetrators of these crimes face justice. However, there is a significant issue in such cases; whether it is a sexual offence or not. As time progresses and as Government’s change, the law too goes through change. If you’re prosecuting an individual 20 or 30 years after the offence was committed it is highly likely that the law has undergone several significant changes: that is true with the law surrounding sexual offences. In all cases historic offences will be prosecuted according to the law at the time the offence was committed. The other alternative is to prosecute them under the law at the time they are prosecuted.

Why do we prosecute historic cases at the time they were committed? Well, it’s about what is fair and just. Justice is not just about the victim, but it must equally be about the offender. It would be oppressive if the law were to treat offences committed decades ago as if they were committed today. It is a general principle of law in democratic countries around the world, especially in the realm of criminal law, that the law is not retrospective. That means that current changes in the law should not affect future consequences of past conduct. In other words, if you did something that was a particular criminal offence which attracted a particular maximum penalty, but by the time you are prosecuted the law has changed, you should be treated (as far as is reasonably practicable) as you would have been when you committed the crime. The same would be true if you committed a crime today, but the law changed substantially tomorrow: you would be dealt with as the law was today and not as the law changed tomorrow – even if there was no substantial delay in arresting, charging and prosecuting you.

In the Rolf Harris case he was prosecuted for the offences that he committed at the time. As such, the maximum penalty that was available to the court was that which would have been available at the time the offence was committed (2 years, or 5 in the case of offences relating to children under the age of 13). Specifically, in the case of Rolf Harris his sentence of 5 years and 9 months was made up of a mixture of concurrent and consecutive sentences for the various charges that he was convicted of. The sentencing remarks of Mr Justice Sweeny are available online and detail what the charges were and what the sentence was for each charge (and whether it was to be served concurrently or consecutively). You can read the sentencing remarks here.

When it comes to sentencing cases like this one where there has been such a delay in bringing the offender to justice, it is not the job of the court to try and fix the sentence that would have been given at the time. The judge must have regard to the sentencing guidelines that are currently in place; however, they cannot pass a sentence which would exceed the maximum available at the time the offence was committed. I blogged in this issue last year looking specifically at the law of England and Wales, you can read that blog here.

Sentencing is always a complex matter, but it is even more complex in these cases. While there will, quite understandably, be no sympathy for people like Rolf Harris; the law must be fair and it must be just. That applies to victim and offender and so the law must not be oppressive by prosecuting people for more serious offences than what they committed (while under the current law they may well have committed the more serious offence, they did not actually commit that offence because they offended at a time when the law was quite different) or by giving them a sentence that is in excess of the maximum that was available at the time they committed the offence.

I won’t make any comment on whether I think the sentence Rolf Harris received was too harsh, too lenient or about right. I understand that the sentence has been referred by someone to the Attorney General and it is now for him to decide whether he thinks that it is unduly lenient and whether it ought to be referred to the Court of Appeal. When he is doing so he will have regard to the sentences passed, the law as it was at the time the offences were committed the present sentencing guidelines and no doubt the totality of the sentence passed. My understanding of the law is that the Attorney General has 28 days to decide whether he is going to refer it to the Court of Appeal. Even if the Attorney General decides to refer it to the Court of Appeal they may refuse to hear the case or decide that the sentence should remain the same: a referral does not mean that the sentence will increase or that it was unduly lenient.

A quick defence of legal aid

The debates around legal aid in Scotland earlier this year and in England over the last year have been characterised by a number of clear misconceptions by the public at large.  There is a view that legal aid exists only to make ‘lawyers rich’ and that the vast majority of those receiving legal aid are in some way ‘undeserving’.  These views are of considerable concern as the simply enable Governments in Edinburgh and London to press ahead with legal aid ‘reforms’ that will substantially damage the country.

Legal aid seems to get lumped in with job-seekers allowance, housing benefit, council tax benefit and such like (I have even, on more than one occasion, seen comparisons drawn between legal aid and the NHS); these comparisons are illogical and ignore fundamental aspects of legal aid which set it apart from any other government spending.

Equality before the law is fundamental to ensuring access to justice.  The ability of all (and not just the rich) to access the legal system is of fundamental constitutional importance.  The ability of individuals to defend themselves against the power of the state (whether in civil or criminal proceedings) and to challenge the state through Judicial Review are essential to our constitution.  Without this ability we are not a liberal democracy.  The issue of access to the law isn’t only confined to making it possible to bring or defend a claim, but it has to create a realistic ability to access the law.  That means providing good quality representation (and importantly permitting those bringing or defending a claim to select their own law agent).  Without client choice you are left in a situation where the State is selecting the representatives of those who it is brining a claim against or whom it is defending a claim against.  If you were suing your mobile phone provider and had to use the solicitor that they selected for you, you would instantly see a conflict of interest.  However, that same conflict does not seem to be as apparent when the State is involved (although it is there and just as important).  There has to be equality between the parties in the legal system and for those who cannot afford to pay their own legal fees it is left to the State to ensure fair access to legal representation.

In criminal cases, it is about defending yourself against serious accusations made by the State.  The consequences of conviction are, quite rightly, serious.  Conviction can lead to a loss of employment and a loss of liberty.  Not everyone who gets legal aid in criminal cases is guilty, a great many people are innocent and it is important that they are able to robustly challenge the State who has to prove their allegation.  It’s about ensuring fairness in the system; an individual against the might of the State (with the police and a professional prosecution service for back-up) is not a fair fight.  Legal representation is essential to ensure fairness (whether they are guilty or not).  It might be unpopular to see guilty people get vast sums of public money to defend themselves, but isn’t that a price worth paying to ensure that we have a fair and balanced system ensuring that, as far as is possible, only the guilty are convicted?

Judicial Review is very much disliked by the Government, as should be expected.  Judicial Review is the citizen challenging a decision made by the Government; it’s about ensuring that the Government only takes decisions which are legal.  It is an area under attack by the Government and it is vitally important.  Without effective access to judicial review, the State can go unchecked and be able to take decisions which are illegal.

The need for access to legal aid does not just extend to cases which involve the State.  Individuals seeking to enforce their contractual rights against a company or gain compensation when a company is at fault and they have lost out as a result or to enforce their consumer rights need to have the ability to seek recourse in the courts when pre-litigation action fails to achieve a result.  Without the ability to go to Court and seek a legally enforceable court order to enforce their rights, the rights that they have are effectively meaningless.  The threat of litigation can prevent litigation.  The knowing that an individual can seek recourse to the Court in order to give effect to their rights can be enough to make people comply with their obligations.  Without that effective recourse, people will be free to ignore their obligations with impunity.

Legal aid and access to justice go to the very heart of our constitution and democracy.  It’s not a benefit; it’s a constitutional right  Legal aid is much more important and serious that housing benefit or job seekers allowance (as important as those are); it’s fundamental to our society.

Anonymity upon arrest

The naming of suspects by police at the point of arrest and charge has become a hot topic.  The Home Secretary has written to Chief Executive Officer of the College of Policing, Alex Marshall, expressing her concern about the different policies operated by different forces in England and Wales.  She wants it made clear to forces that unless there are very good public interest reasons for naming suspects who have been arrested, it shouldn’t happen.  The press have repeated concerns that this amounts to some kind of ‘secret justice’.

I really have little concern about suspects under arrest who have not been charged remaining anonymous.  Far too often we see examples of the press effectively having a trial which convicts the person while that person is still in police station being questioned in connection with an alleged offence.  By the time this person is then released from the police station their reputation has been destroyed, even if they are entirely innocent of any involvement in any crime.

Persons who have been arrested and not named do not fall into some big black hole; indeed millions of people are arrested in England and Wales every single year and very few are named at the point of arrest (in fact very few are named publically at any point, even after conviction).  There are important rights, protected by law, which mean that it is impossible for someone to be secretly arrested.  Those arrested have the right to have someone informed of their arrest and are entitled to legal representation; although both of these can be delayed, they are still rights which have to be exercised eventually if the arrested person wishes to exercise those rights.

It has been argued that naming a suspect at the time of arrest allows further victims to come forward, but so would naming them at the time of charge.  There is nothing stopping the police from arresting the person again in connection with different allegations that come to light after they have been charged.

In effect what a policy of anonymity for suspects under arrest would prevent is the press from publishing endless stories ‘monstering’ a person over something they may or may not have done.  We should perhaps be more than a little suspicious of the motivation of the press on this story; evidently ‘monsetring’ stories are the type of stores that make newspapers (particularly tabloid newspapers) sell.  Such a motivation cannot be ruled out of the press opposition to a move towards anonymity of arrested persons.

The clearest example of this was that of Christopher Jeffries, the man who was wrongly arrested on suspicion of murdering Joanna Yeates.  What followed, while he was still in police custody being questioned, was a press frenzy which painted him as a deviant, gave the impression that he was a nasty individual and by implication that he was clearly Joanna Yeates’ killer.  However, he was later released from police bail (having never been charged) and won substantial damages from eight newspapers for libel.  The Attorney General also prosecuted two newspapers for contempt of court, both of whom were found to be in contempt.  Another mab, Vincent Taback, eventually convicted of her murder and is currently serving life imprisonment.

Charging a person with a crime is a formal process; it is when criminal proceedings begin against a person.  From the point that a person is charged it is clear that the Contempt of Court Act rules kick in.  These rules provide sufficient protection in respect of the person’s right to a fair trial and news stories which are sufficiently prejudicial could even cause the collapse of a trial (although that is rare and it would have to be something of great significance).  The only cases where publishing the names of people who have been charged with an offence which causes me to pause and really think are those accused of sexual offences.  With sexual offences, more than any other offence, there appears to be a guilty until proven innocent mindset amongst general pubic; there is no smoke without fire, so to speak.  However, there are strong arguments in favour of anonymity and disclosure in those cases and it is a finely balanced argument.  Although I have argued in favour of anonymity before, I now believe that the arguments in favour of disclosure are slightly weightier.  However, in sexual offences cases I do feel that the authorities responsible for bringing cases in respect of alleged contempts of court have to be more pro-active.  Perhaps also providing for a possible (short) custodial sentence for editors who are guilty for allowing a seriously prejudicial story to be published (i.e. that type of story that causes or is seriously likely to cause the collapse of a whole trial) might make editors slightly more responsible around high profile cases.

It would be entirely right for the police to move to a system of neither confirming nor denying to the press whether they have a specific person in custody under arrest.  This gives the police the space to conduct that initial investigative phase and it will minimise the reputational damage done to those who are innocent and unfortunately arrested.  Without confirmation from the police of the name of the person in custody it is unlikely that the press will publish any name that they do have.  However, if such a move did not stop the press frenzy that we currently see around arrested persons, I would certainly not be adverse to Parliament passing legislation which specifically prohibits the confirming of names of arrested persons outside of a set of clearly defined circumstances where it really is in the public interest (and that’s not what the public are interested in) to release the name at such an early stage.

We do have a system of public justice and it is important for both the public and those accused of crimes that trials happen in the public eye.  This is not so that the public can gawp and stare and slander individuals accused of crimes, but so that the public can see that justice is being done and to protect those accused of crimes from oppressive state practices.

The UK and the ECtHR: 2012 statistics

The Council of Europe (the body responsible for overseeing the European Convention on Human Rights) has published a document reviewing the cases handled by the European Court of Human Rights relating to the United Kingdom in 2012.  The document makes for interesting reading and rides a coach and horses through the lies and spin reported by the press in the United Kingdom – don’t expect to see the details of this report discussed in the House of Commons, in the Daily Mail or on the BBC.

During 2012, the European Court of Human Rights (ECtHR) dealt with a total of 2,082 applications concerning the United Kingdom of which 2,047 were either declared inadmissible or struck out.  This means that the Court refused to deal with, for one reason or another, more than 98% of the applications concerning the United Kingdom that it dealt with last year.  Of the 24 judgments (concerning 35 applications) that it did make, at least one violation of the convention was found in just 10 of those cases.  That means, of the judgments issued, 59% found entirely in favour of the Government while 41% found partially or wholly against the Government.  Putting those figures into the wider context, the UK partially or wholly lost in less than 0.5% of applications against it handled by the ECtHR last year.

It is argued by some that the ECtHR interferes too much in our domestic affairs; that contention cannot stand when put alongside the figures released by the Council of Europe.  The fact is that the Court chucks out the vast majority of the cases made against the United Kingdom without even issuing a judgment, and where it does the majority find wholly in favour of the Government.

Of course, the Human Rights Act 1998 (HRA) has to be taken into consideration as well when placing the effect of the Court in context.  Section 2(1)(a) requires UK courts and tribunals to “take account” of judgments, decisions, declarations or advisory opinions of the ECtHR when determining questions which have arisen in connection with a convention right (which for the purposes of the HRA are only those rights listed in Schedule 1 to the HRA).  That impact is slightly harder to quantify than the direct effect of the ECtHR on the United Kingdom through the judgments it issues concerning the United Kingdom.  However, the direct effect is extremely small and disproves some of the hysteria around the convention, especially that hysteria which says the ECtHR is frequently finding against the UK; it finds in favour of the UK Government more than it does against it.

The truth is the media only ever report the more contentious decisions, especially those which the Government have lost.  If you’re only hearing one side of the story you are going to end up with a rather unbalanced and biased view of things.  The question is, how do you counter the unbalanced and biased reporting?  Is it even possible to do so?

Sentencing in historic cases

There has been a lot in the news about historic sex offence, particularly in light of the Jimmy Saville investigation.  However, those related investigations are by no means the only circumstances in which historic sexual offences are coming to light, and for which offenders are being convicted. Therefore, it might be worthwhile considering how the Court is to approach sentencing in these (and similar cases).  Historic cases (of all types, not just sexual offences) have had a history of causing concern and outrage to the public as the sentences can sometimes appear to be substantially less than what would be expected if someone was convicted of the same crime today.

In 2011, the Court of Appeal issued guidance specifically relating to the sentencing of historic sexual abuse cases in England and Wales.  The guidance was given in the case of R v H and others [2011] EWCA Crim 2753.  Upon reading that case, it becomes clear that sentencing offenders in cases where they have admitted sexual offences which had occurred a significant time ago is a complex exercise.

The first thing that should be noted is that the maximum sentence which can be given in any case is that which was applicable at the time the offence was committed, not at the time of sentencing.  Where the law has been amended over time to increase the penalty for a particular crime, it is not possible for the Court to sentence in the context of that maximum.  Similarly where the maximum has been reduced over time, the court is still required to sentence in line with the maximum that was in place at the time of the offence.

It should also be noted that the charges brought against an offender whose crimes were committed in the past must reflect the law at the time of the offence, not at the time he or she is charged with anything.  There are some courses of conduct which, historically, would be an indecent assault, which would now be classed as rape (under the Sexual Offences Act 2003).

While the Court has to take account of the sentencing regime that applied at the time of the offence, the Court must also take account of the sentencing regime in place at the time of sentencing.  Therefore, the Court will have to take account of any guidance issued by the Sentencing Council (or its predecessor organisation, where that guidance is still in force).  However, where those guidelines would produce a sentence greater than the maximum permitted at the time the offence was committed, the sentencing court would have to make adjustments to that sentence so as to ensure it was not greater than the maximum allowed.

The Court of Appeal found it to be wholly unrealistic to attempt, at the time of sentencing, to try and pass the sentence that would have been passed had the offender been convicted at the time.  Beyond that, the process of sentencing is rather similar: account must be taken of the facts of the offence, the culpability of the offender at the time of the offence and whether than has been early admission of the offences.

One last thing that the Court of Appeal noted was that the passage of time between the offence and the date of conviction could be an aggravating factor, but that mitigation could also be found in that time.  For example, if it can be demonstrated that between the offence being committed (or last being committed) and the date of sentence there is evidence of an unblemished life, particularly where ‘accompanied by evidence of positive good character’, then there may be mitigation to be found (which presumably could reduce the sentence actually passed).  The passage of time may also be an aggravating factor, the Court stated, where (for example) there is evidence that the offender poses a continued risk to the public, or that he or she continued to offend during that time.

Sentencing is always complex, but when dealing with historic cases it is even more complex.  The Court has to have due regard to the law as it was at the time of the offence.  This is to ensure that the sentence is not harsher than could (not would) have been given at the time of the offence.  When the offence and date of sentence are separated by significant periods of time during which there has been substantial changes in the law, it can appear as though the Courts are being ‘soft’ or too lenient on offenders.  This is especially so where the maximum possible sentence has increased over that period.

The guidance in R v H and Others should be kept in mind when reading about sentences involving those convicted of offences which occurred many years, sometimes even decades, ago.  For a full understanding of just how the Court should appraoch these cases, I would stronly suggest reading the judgment in its entirity.

Abu Qatada and the Rule of Law

The latest episode in the saga that is the case of Othman (Abu Qatada) v the Secretary of State for the Home Department occurred today when the Court of Appeal refused the Home Secretary leave to appeal against the Court of Appeal’s earlier judgment to the Supreme Court.

The facts of this case are well rehearsed so I feel that I don’t need to go over them again.  As one would have expected, the Court of Appeal’s refusal to grant leave to appeal caused an uproar on the internet (and this was probably no doubt replicated in homes, pubs and offices around the country).  Let me be clear, I am no fan of Abu Qatada.  He is alleged to have committed some very serious crimes and it is right and proper than he faces trial in Jordan for those crimes.  However, it is equally right and proper that the United Kingdom upholds the law of the land, international law and its other international responsibilities.

Predictably, a lot of the comments were directed towards the judiciary and their apparent failings.  However, I would suggest that this is the wrong place to direct criticism towards.  The law is clear and it is for the judges to apply the law and to uphold the law.  Judges are not there to make or to change the law; that power lies with the Government and Parliament.  If courts are consistently finding against the Government on the same point of law, it would suggest that any problem that exists does so either with the law or the legal position of the Government.  In both scenarios only the Government, not the judiciary, can change the situation.

The Court is there to apply the law as enacted by Parliament and to uphold the rule of law.  They don’t take sides in any legal debate; they are not on the public’s side, the Government’s side or the side of any other party.  They are an independent tribunal charged with applying the law to a particular set of facts and to determine who, in law, is right and who is not.  The Appeal Courts are there solely to interpret the law which is then to be applied to the facts of each case by the lower courts.  They’re not there to look at whether a Court or tribunal below was right to conclude that a particular fact is indeed a fact or whether it is not; they are there simply to ensure that the lower courts and tribunals are applying the law correctly and to resolve any ambiguities in the law.

The Supreme Court only considers what are termed ‘points of law of general public importance’; those are legal questions and conundrums that affect a wide number of people in society.  They will look at serious legal questions and determine the law so that it is clear for all in our society and so that the lower courts are applying it consistently to all.

The Government is, like each one of us, subject to the law.  It does have a slightly more empowered position than the ordinary citizen has, in that should it lose a case in court it can (with the consent of Parliament) pass legislation to reverse the decision.  In this increasingly global world though, the Government (and Parliament) is somewhat restrained in what changes to the law it can make.  The United Kingdom has signed up to various international treaties, including many human rights ones (although we only ever really hear about the European Convention on Human Rights it’s not the only one we are signatory to) and then there are other principles of international law that the United Kingdom has to comply with as well (see my post on the ECHR, Abu Qatada and international law).

It is quite right that the Government is subject to the law in the same way that ordinary citizens are subject to the law.  If it were not, the Government would be extremely powerful with no real check or balance on its power and it would be impossible to effectively hold the Government to account.  There are countries where the Government is outside of the law (either constitutionally or because of the political situation is effectively outside of the law because the judiciary turn a blind eye).  When you look to those countries you soon realise that such a situation is not one which you want in this country.

Abu Qatada (and people like him) wants to destroy democracy and bring tyranny to the ‘West’; the Rule of law is fundamental to democracy.  If we suspend the Rule of law and start to allow the Government to ignore the law and judges to turn a blind eye to the Government ignoring the law the terrorists have effectively won.  Is that what you really want?

More ill-informed codswallop from the tabloid press

The Sun’s “justice” campaigners are out in force again with their ill-informed codswallop which appears designed to do nothing but misinform the public and create fear, alarm and distress.  It’s an absolute disgrace that editors feel at liberty to misrepresent the law in this way.  If a newspaper editor wishes to argue for the abolition of the Human Rights Act 1998 or the removal of the UK from the European Union (note the European Union is a seperate institution to the Council of Europe and it is the Council of Europe who is responsible for the European Convention on Human Rights and the European Court of Human Rights) then that is perfectly legitimate, but they should use legitimate criticisms and not invent it where none exists.

The Sun’s latest ill-informed piece is in respect of the Court of Appeal’s decision in a number of cases relating to the requirements to disclose convictions.  The system of CRB checks was tightened up after the murders of Holly Wells and Jessica Chapman by Ian Huntley.  However, the Court of Appeal found that the present system breaches the human rights of those who have been convicted of irrelevant and minor crimes in the past.

There is, as I have said before, a legitimate public interest in ensuring that those convicted of sex offences against children or who otherwise genuinely pose a danger to the vulnerable in our society are prevented from working with those groups.  However, there is not a legitimate public interest in forcing people to disclose cautions and convictions for the most minor of offences committed perhaps a quarter of a century or more ago.  Most people will remember the utterly ridiculous situation where people who had devoted their life to public service were prevented from standing for election as a Police and Crime Commissioner in England and Wales because of crimes they committed as children (some as many as half a century ago).  It is this disproportionate effect of criminal record checking that has to be addressed; it doesn’t serve any public interest and it certainly doesn’t protect the public.

In this country there is still far too much prejudice against those who have a criminal record.  Once a person is convicted of a crime they are branded a “criminal” and are forever going to be seen as one.  The prejudice actively harms society because those who are determined to become rehabilitated and live purposefully in society find themselves repeatedly hitting their heads against a brick wall when it comes to getting employment.  For many there is no real incentive to desist from criminal behaviour because there are few willing to give them a chance.

Whether you have a criminal record or not; what would the worst season of your life say about you?  Would you want to be forever judged based on the mistakes you made during that season in your life?  I certainly wouldn’t.  I dare say you wouldn’t either; perhaps most of all because it doesn’t reflect the person who you are today.  Why should it be the case for those who have committed criminal offences in the past that they should forever be judged by them?

I’m not talking about those people who genuinely pose a danger to the public.  A person who is sexually attracted to children or has a history of sexually abusing vulnerable adults should not be permitted to work with those groups in society.  That would be putting the public at risk and infringing upon the rights of children and vulnerable adults.  However, we must move to a system whereby only relevant convictions are disclosed.  The fact that a person stole some stuff twenty years ago is entirely irrelevant if in the intervening twenty years they have not been convicted of theft.

The judgment of the Court of Appeal will not lead to known paedophiles getting work in schools; it won’t lead to known abusers getting work with vulnerable adults.  What it will do is ensure that only those with convictions relevant to the work they seek to undertake will be required to disclose them and that the authorities will only be permitted to disclose those convictions which are actually relevant during the vetting process.

Criminal record checks, Article 8 and fairness

On Tuesday the Court of Appeal issued an important judgment on the disclosure of criminal records and its relationship to the right to a private and family life; protected by Article 8 of the European Convention on Human Rights (ECHR) as incorporated into domestic law by the Human Rights Act 1998.

The main question before the Court was whether the requirement for applicants to certain types of job to disclose all previous convictions was incompatible with the ECHR.  The Court of Appeal held that the requirement to disclose all convictions was disproportionate to the aims of the policy; consequentially it found that there was a breach of Article 8.  Yesterday, the Government announced that it intended to appeal that decision to the United Kingdom Supreme Court.

The decision by the Government to appeal the decision to the Supreme Court is a disappointing one.  It demonstrates a lack of commitment to their so called “rehabilitation revolution”.  Not so long ago the Prime Minister gave a major criminal justice speech which promised a “tough but intelligent” approach to criminal justice from his Government.  The decision to appeal this Court of Appeal seems to fly in the face of the promise of an intelligent approach to justice.

Clearly there is a legitimate aim in ensuring that those who are genuinely unsuitable to work with children or other vulnerable people are prevented from doing so.  No sensible person is suggesting that this shouldn’t be the case.  However, the current approach is really rather ridiculous.

Each and every single one of us gets things wrong; we make bad decisions and that can have consequences for us.  If we commit a criminal offence and that is detected then quite rightly there will be a consequence: a fine, community service or even a prison sentence.  Those who break the law are punished by the Court in the way that the Court; taking account of all the circumstances of the case, decides is appropriate.

Once a person has served their sentence; the punishment for the crime that they have committed, they should be able to get on with their lives.  There should be no restrictions placed upon their life unless absolutely necessary for the protection of the public.  Rehabilitation requires that people are able to get jobs and when whole professions are closed off to them because of some minor convictions (some of which may well be extremely old) then this becomes significantly harder; it may even act as a disincentive for a person to desist from crime.

There were some fantastically stupid examples of criminal convictions that were so old that they may as well never have existed preventing people from standing as candidates for the Office of Police and Crime Commissioner in their area.  Some of these convictions were40 years old and the individuals in question had dedicated their life to public service.  How can it be right that convictions that old can still be considered relevant when the individuals have clearly demonstrated that they have been successfully rehabilitated?  It just seems to be part of a never-ending punishment that our society largely considers it acceptable to place upon those who transgressed the law in their past.

It is entirely possible to devise a system which ensures that vulnerable groups are protected from those who pose them harm whilst also ensuring that those who have changed their lives or have simply made a few bad choices in their past can get on with life and not be forever reminded of and plagued by their past.  It’s not easy to do, but that shouldn’t stop the Government from devising such a system; it might well take them some considerable time.  However, if we want to progress as a society and ensure that those who want to be rehabilitated can actually be so; then we need to ensure that we provide an environment in which that can be achieved.  The present system cannot facilitate that and the Court was quite right to find that there was an unjustified interference with a person’s Article 8 rights as a consequence.  The Government should be spending time and money on a replacement system rather than appealing to the Supreme Court.

Sexual Offences and the Sex Offenders’ Register

On Saturday new rules came into force in England and Wales which gave the right to those placed on the sex offenders register for life to seek a review of that position.  Those who find themselves having to register with the police as a sex offender for life will have been sentenced to a term of imprisonment of at least 30 months.   An individual who is placed on the register for an indefinite period can after a period of 15 years following their release seek a review from the police.  If the police decide that the individual continues to pose a threat to society then the requirement that they continue to register with the police will continue.  However, should the police decide that the individual no longer poses a threat to society they requirement for registration will no longer apply.

Firstly it is important to point out that the term “sex offenders register” is somewhat of a fallacy.  There is not a long list of names of people who are sex offenders.  What being placed on the sex offenders register means in practice is that an individual must register with their local police force and provide them certain details such as their address.

I have written on this topic before, but what has spurred me to write about it again was a piece on Radio 5 Live involving John Cooper QC.  The person he was discussing the issue with, a victim’s campaigner, seemed to either not understand the system or was deliberately misleading in order to support her chosen point of view.  One issue that I wish to take issue with was the way in which she continually referred to sex offenders as “him”.  It is shocking that in this day and age that people still do not consider the fact that women do also commit sexual offences and can therefore also be subject to being registered as sex offenders.  I do not have statistics to hand, but it probably is the case that the majority of known offenders are male.  That does not mean that women cannot and do not commit sexual offences.

Some of her other comments as well appeared to demonstrate a poor understanding of the legal system.  It should be made very clear that there is a great deal of difference between an individual’s criminal record and them being subject to the registering requirements as a sex offender.  A person convicted of a sexual offence and who is sentenced to a period of 30 months or more in custody will have to declare their conviction for life.  Currently sentences of 30 months or more never become spent.  Those of less than 30 months will also continue to show on CRB checks where a convicted sex offender applies for certain types of work (e.g. working with children or vulnerable adults).  There is no shirking of responsibility as was suggested on Radio 5 Live.  All that being removed from the register means is that the intense level of scrutiny is removed where that is no longer appropriate or necessary; it does not mean that the fact a person has been convicted of a sexual offence is removed.

The fact that it is the police and not the courts who are considering these applications is another issue.  I noted at the time of the Supreme Court’s decision that the police are not likely to be an independent and impartial tribunal.  It is also putting the police in the position of reviewing the decision of a court which is, I would suggest, not a great idea.  This is not out of some dislike of the police, but rather is about keeping the roles of the police and the courts separate and defined.  It should be the Courts, as it is in Scotland, who conduct these reviews rather than the police.

There is an important point to all of this though.  These sorts of debates are often framed as victim v offender.  However that is, I would suggest, an unsatisfactory way of looking at these issues.  Victims want to see justice and they can seek that through the courts.  If an offender is convicted the court decides upon the punishment.  Punishment should not, except in the most exceptional of circumstances, be continual and never-ending.  As I listened to the piece on Radio 5 Live on this matter I got the distinct impression that the victims’ campaigner was founding her arguments upon punishment and responsibility rather than on public protection.  Keeping an offender on the sex offenders register for an indefinite period where there is no real reason to does nothing at all to increase public protection.  Yes, there will be those who continue to pose a risk to the public and there is no doubt at all that they should remain closely monitored by the authorities to ensure that the public are protected.

One final matter that I wish to address is the comments the victims’ campaigner made regarding cautions and rape.  The campaigner speaking on Radio 5 Live said that it was a matter of fact that rapists were being cautioned.  Anyone who admits rape or is convicted of rape will go to prison and will serve a significant sentence in prison.  It is conceivable that there might be cases where an individual originally accused of rape might be issued with a caution.  Let’s be clear though, these persons were only ever accused of rape; they were never convicted and if they are receiving a caution then it will be for a very minor sexual offence.  Where there is evidence that rape or any other serious sexual offence has occurred then it will be put before the court to determine whether that individual is guilty of rape or not.  To suggest otherwise is nothing other than scaremongering.

So, what does this change in the law not mean?  Firstly, it does not mean that after 15 years of being released that sex offenders will automatically be relieve of the requirement to register with the police.  Secondly, it does not mean that a record of a person’s conviction for a sex offence is no longer in existence.  Their criminal record will remain.  All it means is that after 15 years a person can apply to the police to be considered as being no longer a risk to the public and as such no longer required to register with the police.

Of course, those who are victims of a sexual offence require the empathy and support of society.  They will often live with the ramifications of the offence for many years after the event if not for the rest of their lives.  Those who commit sexual offences are deserving of punishment and must accept responsibility for their actions.  They will be punished by the courts, often by serving a prison sentence, and will face what could be considered as continual punishment through the fact that they will be required to disclose the fact that they have been convicted of a sexual offence.  What we must allow for though is those who have served their punishment and do not continue to pose a danger to the public to get on with their lives in society.  Simply because someone has committed an offence (and this goes for any offences) does not mean that they will always offend.  Rehabilitation is possible and where it has occurred it should be recognised.

Contempt of Court

Some crimes attract a great deal of public interest and with almost rolling updates on the progress of investigations through twenty-four hour news channels that interest can be intensified.  There is a risk that comes with this level of publicity in criminal investigations though.  In all of the UK’s legal jurisdictions there exists the presumption of innocence.  That means all persons accused of a crime are, no matter how heinous the alleged crime, presumed innocent until such times as they are found guilty by a court (and of course they may not be found guilty).  A finding of guilt may be as a result of an admission (a plea of guilty) or following a verdict of guilty by the judge/jury.  There exists also, enshrined in the Human Rights Act 1998, a right to a fair trial.  It is essential that if we are to have confidence in both the judicial process and the verdicts of our courts that the process is fair and beyond serious criticism.

In order to ensure that proceedings against a criminal accused are fair there exists the Contempt of Court Act 1981.  Once proceedings against an individual are “live” the provisions of the 1981 Act take effect and restrict the rights of everyone else in society in respect of freedom of speech.  This restriction is absolutely necessary to ensure that trials are not prejudiced by comments made publically.  In the past it was really only newspapers, TV, radio and other such media outlets that had to worry about contempt of court as it was only really them who had the capability of prejudicing a criminal trial.  However, with the advances in technology we have seen everyone becoming a publisher and become affected by the 1981 Act (whether they know it exists, understand it, want to be or care).

Recent high profile cases have demonstrated just how little the general public understand about contempt of court and the risks in publishing potentially prejudicial material.  Cases such as the John Terry public order trial and the PC Simon Harwood trial both resulted in huge discussions on public Facebook groups and on Twitter before and during the trials.  These discussions made clear pronouncments on the guilt or innocence of the defendants in those cases.  The Attorney-General even considered whether to bring proceedings under the 1981 Act in the John Terry case following tweets by another premiership footballer.

More recently, the investigation into the death of Tia Sharp has revealed more issues around Facebook and Twitter, the public and the law.  Some people fail to understand that their posts on Facebook and on Twitter are not like their conversations in a pub or in their living room amongst friends.  Their tweets and Facebook postings have the capability of being seen by literally millions of people as they get re-posted or re-tweeted.  The effect that this can have on a criminal trial is drastic.  It seems as though some people fail to understand, and really need to understand, that if a trial is sufficiently prejudiced it may not be able to continue.  That would mean that the accused is acquitted and walks free from court.  If people really care about justice in these high profile cases as they state they are in their Tweets and Facebook posts then they really should be careful what they Tweet and write on Facebook.  It might seem inconceivable that a Tweet or Facebook post by a “nobody” could have such an effect, but as your friends Re-Tweet/Re-post it and their friends do the same and so on the cumulative effect could be enormous.  How many potential jury members are reading these posts?  While mentioning this case in particular I would like to point out that criminal proceedings are active in this case and that the 1981 Act has now taken effect.  The individual charged and the individuals currently on police bail in this case are entitled to the presumption of innocence and are entitled to a fair trial.

The failure of some people in society, who often make themselves all too vocal on Facebook and Twitter, to allow due process to take place is concerning.  A lot of people seem to fail (or refuse) to understand that arrest and/or charge does not equate to guilt.  Some people seem to bestow super-human qualities on the police.  Some people take the stance that “there’s no smoke without fire” or that “they must be guilty” once someone is arrested or charged with an offence.  We have seen a number of fairly high profile cases where people arrested, charged and even convicted have later been shown to be completely innocent (and that’s innocent in that they didn’t do it rather than innocent because the Crown couldn’t prove it or because of some technicality, not that there’s any real difference in law).

Last year a young man, Dane Williamson, was arrested and charged with serious offences in relation to the mass public disorder that took place last summer.  The offences with which he was charged carried a potential maximum penalty of life imprisonment.  His name was widely publicised and the usual Facebook groups were set up where abusive remarks were posted about him.  He was abused in prison and lost everything when his flat was set on fire while he was on remand.  Even prison officers, it was reported, were abusing him while he was in custody.  In his own words “I was being treated as if I was already guilty.”  He hadn’t been involved in the riots.  He had been working all day and then indoors in the evening that the offence in question took place.  His case underlines clearly the serious problems we have in our society that threaten to undermine the criminal justice process.

Another case is the more widely reported one of Chris Jefferies.  He was arrested on suspicion of Murder in the Joanna Yates murder investigation.  He was subjected to demonization  by the press and again social media sites were jumping down the process and treating him like he had been convicted of the offence.  The “hang ‘em” mob were out in full force more or less from the moment his arrest was made public.  Again, he was innocent of any involvement in that crime.  Another man, Vincent Tabak, was convicted in that case.

There are numerous other examples of such cases which could be given.  They underline the need for the Contempt of Court Act.  They should also be acting as lessons for those who jump to the conclusion that everyone arrested or charged must be guilty of whatever it is they have been charged with.  The 1981 Act exists to protect the innocent, to protect the guilty and to protect the public.  It helps to ensure that those who are accused of a crime face justice in a fair way and it protects the public by trying to ensure that things that substantially prejudice the trial are not put into the public domain.  It would not be in the interest of public safety to have dangerous people walking the streets because their trial had to be stopped on the grounds that it had been so substantially prejudiced as to render it unfair.  Such a scenario means that the victims don’t get justice, offenders go unpunished and the wider public are at risk.

Social media is an excellent tool, but the Contempt of Court Act 1981 was written long before the advent of social media.  The technological advances which mean that we have moved away from companies being the only publishers who can reach large audiences with members of the public regularly publishing material that can reach thousands of people within minutes; this creates a problem for the operation of the law.  How do we ensure that those who use Twitter and Facebook are aware of the 1981 Act and what it means for them?  How do we ensure that everyone understands that Facebook and Twitter are not forms of private communication between their friends?  Twitter and Facebook, contrary to the belief of some, is not just like being down the pub with your mates.  The messages posted on these (and other) social networking sites are mostly capable of being seen by anyone in the world.  There are serious questions and it is essential that these are looked at to protect the integrity of the criminal justice system.  It is my view that this is too serious a problem to react to when it’s too late.  Action is needed before a serious case collapses due to prejudice stemming from Twitter, Facebook or another social media outlet.

Links
Contempt of Court Act 1981
Human Rights Act 1998
Police got the wrong man: Salford teen charged with Miss Selfridge arson during Manchester riots is cleared (Manchester Evening News)
The Lesson of Joey Barton’s tweets (The Guardian)
Contempt laws are still valid in the internet age (Comment is free, the Guardian)

—-
I have left the comments section open for now.  If any comments are posted below which are (or may be considered as) a contempt of court will be removed.  Please comment sensibly.