Category: Criminal Justice

Criminal Justice (Scotland) Bill: Stage One Debate

Yesterday the Scottish Parliament had its Stage One debate on the Criminal Justice (Scotland) Bill, and the quality of the contributions from certain members was depressingly poor; some contributions are worthy of note because they were of a standard which should be seen from all members: John Finnie (IND) and Patrick Harvie (Greens) to name two.

Like many, I am of the view that corroboration does represent an important safeguard against wrongful conviction; however, I am not so wedded to the idea that I cannot see life without it. I do have a number of concerns though.

Firstly, there has been a lot of talk about cases not getting to court because of corroboration and how that limits access to justice for Complainers. There are two important factors to consider here: (1) it also limits access to justice for suspects. Even an arrest/detention (especially for something like rape) can be enough to permit a ‘bad smell’ to hang around the accused. (2) There will always be cases that do not proceed to trial because of a lack of sufficiency in the evidence. Removing the requirement for corroboration will not suddenly mean that every single case will proceed. Trials, especially High Court trials, are expensive and while justice ought not to be about money, it would be naïve to think that money doesn’t play a part – on a financial basis alone it would be impossible to have every case prosecuted.

What about this brave new world post-corroboration in Scotland? A lot has been mentioned in the debate about complainers in sexual offences and domestic violence cases; corroboration does provide assistance to these Complainers (although this point is almost never mentioned). It ensures it is never the case of the Complainer’s word against that of the accused. Where things get tricky in terms of rape complaints is around consent. There has to, as the law stands today, be corroboration of a lack of consent. Where does that come from? Lots of places: changes in behaviour by the complainer or third party evidence of the Complainer’s distress for example. In such cases where evidence of distress is not available it would place even more stress upon the Complainer as it will be down to no more than who the jury believes more: the complainer or the accused.

Now, so far I’ve yet to deal with why I am actually against section 57. My main opposition to it passing in this Bill is the outstanding Bonomy Review. The purpose of this is to work out the additional changes that will need to be made to the law of Scotland following the removal of the requirement for Corroboration. Let’s be clear this isn’t a minor technical change to the law of Scotland; it is absolutely fundamental. As such it is only right and proper that the Scottish Parliament knows what it is changing the law of Scotland to before they vote on such a fundamental proposal. Also, the very existence of the Bonomy review shows that the Parliament are voting on a partially thought-out proposal. The setting up of a review to fix problems with legislative provisions, before they’ve even been voted on for the first time by the Scottish Parliament, should cause alarm bells to ring in the minds of every single Member of the Scottish Parliament.

Image credit: Scottish Parliament website licensed under the Open Scottish Parliament Licence v1.0

During the debate yesterday Sandra White MSP made the preposterous suggestion that not abolishing the requirement for corroboration in this Bill was kicking the matter into the long grass. She was concerned that there would be insufficient time to deal with the matter before the next election, due in May 2016. The Bonomy review is due to report early next year, giving the Government and Parliament up to 15 months to draft a Bill and pass it; hardly a shortage of time! Furthermore, the Cabinet Secretary has said he won’t be enacting section 57 until such times as additional safeguards are introduced. The reality is; it’s probably going to be at last a further 18 months before this section is actually enacted. Whether it is passed now, or in 2015 will make little difference, it’s unlikely to be fully enacted before late 2015 or early 2016 anyway. Therefore, there is no good reason as to why Parliament cannot consider the full package (i.e. abolition and the full package of safeguards together). Indeed, passing legislative provisions which Parliament knows are incomplete and not fully thought through is not what MSPs are paid for. This is not how a serious Parliament in a mature democracy ought to function.

What has struck me most about this debate is the way in which highly emotive cases have been used as the justification, and this has polarised the debate. This has lead to deplorable suggestions by some, such as Christina McKelvie MSP, that those opposing the move to abolish the requirement for corroboration were against victims of rape and domestic violence. Her exact wording was:

There is a significant number of victims of sexual violence and domestic abuse whose cases do not go to court. In the past two years, that has affected 2,800 cases of domestic abuse and 170 rape cases. The Tories, the Liberals and—astonishingly—the Labour Party might be happy with that, but I will not have that on my conscience.

Such suggestions are utterly unacceptable in Parliament by MSPs; in making that statement Ms McKelvie demeaned herself and demeaned Parliament. Quite simply it was shameful and completely indefensible behaviour. She is not alone, some vocal people connected with various womens’ charities have been similar suggestions.

MacAskillKenny — Image credit: Scottish Parliament website licensed under the Open Scottish Parliament Licence v1.0

Finally, I turn to Mr MacAskill’s equally shameful closing statement in which he painted the opposition to section 57 as a ‘Better Together’ pact against the SNP. This ignores that Christine Grahame abstained on both votes, and that Patrick Harvey and John Finnie (both ardent supporters of ‘Yes Scotland’ and the later a former SNP member) both voted for the amendment proposed by Margaret Mitchell after also speaking against the Cabinet Secretary’s position in the debate. The Cabinet Secretary’s suggestion that everyone not with him is against Victims of crime was another outrageous slur; indeed I heard not one speech in the debate that could have been characterised as being against victims. Everyone speaking in favour of Margaret Mitchells amendment was essentially saying this: we need to ensure that we retain an acceptable balance in the justice system that ensures safe convictions. That brings us to the nub of the issue: we must ensure that when people are convicted of crimes, especially ones that will inevitably result in lengthy custodial sentences, that those convictions are safe. It is not good for a victim to see someone convicted of an offence against them just for the Appeal Court to come along and quash that conviction.

We have to ensure that balance remains in the system, and the Cabinet Secretary’s position does not allow for that. It is not acceptable for Parliament to vote on such fundamental matters when they are incomplete with only a promise that sufficient safeguards will be introduced (by way of Secondary legislation which bypasses the full and rigorous scrutiny of Parliament) in due course. The Cabinet Secretary’s position is untenable on this issue, and he must remove section 57 from the Bill re-introducing it in Primary legislation alongside whatever other reforms Lord Bonomy proposes.

Another blog on Corroboration

Corroboration has been part of the law of Scotland for many, many centuries. The corroborative requirement used to apply in civil cases, and not just criminal cases. The requirement for corroboration in civil cases was abolished on 3 April 1989 when section 1 of the Civil Evidence (Scotland) Act 1988 entered into force. The Criminal Justice (Scotland) Bill currently before the Scottish Parliament will see the end to corroboration in criminal cases as well.

The abolition of Corroboration in Scottish Civil cases came following a lengthy process; it began with Memorandum 46 on the Law of Evidence published by the Scottish Law Commission in 1980, which resulted in two reports. The first was report number 78 (published in 1983), entitled “Report on Evidence in cases of Rape and Other Sexual Offences”. That report resulted in Sections 141A, 141B, 346A and 346B being inserted into the Criminal Procedure (Scotland) Act 1975 (later replaced by the present statute governing criminal procedure in Scotland: the Criminal Procedure (Scotland) Act 1995) by virtue of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985. The second report was number 100, which was published in 1986, entitled “Evidence: Report on Corroboration, Hearsay and Related Matters in Civil Proceedings”. There was also a research paper by Sheriff I D MacPhail (chapters 1-5; 6-15; 16-19 and 20-25) which considered in detail the Law of Evidence in Scotland at that time.

In essence, the major reform to the Law of Evidence in Civil cases through the Civil Evidence (Scotland) Act 1988 followed an intense and lengthy period of scrutiny by the body established by law to look at reforms to the Law of Scotland. The abolition of corroboration in Scottish criminal cases is a major reform. It was inserted into a Government Bill following a brief review by a judge and a number of short consultations on Criminal Evidence and Practice (the Carloway Review). A process frequently described as an “emergency” by the Cabinet Secretary for Justice, Kenny MacAskill MSP, following the Supreme Court’s decision in Cadder v HM Advocate.

As I have already mentioned, the abolition of corroboration in Scotland is a significant piece of reform. Many areas of Criminal Evidence depend, entirely or significantly, upon there being a requirement for Corroboration. For example, in Holland v HM Advocate, the existence of the requirement for corroboration was an important factor in the Court’s determination that dock identification did not breach Article 6 of the European Convention on Human Rights. With Corroboration playing such a significant role in the Law of Evidence in Scotland, it is important that the effects of its abolition are properly considered. It is also essential that all the necessary changes to the Law of Evidence that require to be made, are made at the same time and not in various bits of emergency legislation like the disaster that was the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010, or thorough piecemeal reforms which are required following the identification of yet another problem with criminal procedure arising out of the abolition of corroboration.

While I believe Corroboration is an important aspect of our system that ought to be retained, I could foresee it being removed without any real problem to the procurement of a fair trial. However, I can only see that if it is done in the context of a properly considered report that doesn’t just look at changes that could be made to the system, but one which has also adequately considered what other changes might have to accompany those changes to ensure that the system remains fair and balanced. Removing corroboration from Scottish criminal procedure has the capability of reducing the conviction or acquittal of a person down to nothing other than the credibility of the complainer against the credibility of the accused. That is an unsatisfactory position when a conviction can result in the loss of a person’s liberty for a very long time.

We cannot allow another ‘Cadder’ situation to, which undoubtedly had a significant impact on the ability of complainers to obtain justice because of the procedural errors in the Scottish justice system. If we are to make such a fundamental change to our justice system, we must ensure that it is done in a way that ensures any consequential changes are also made to protect the rights of both complainers and accused persons.

Abolition of Corroboration: where is the case?

Last night Cabinet Secretary for Justice Kenney MacAskill MSP was on Scotland Tonight defending his plan to abolish Corroboration. His arguments, as ever, simply do not stack up to scruity.

Right at the outset of his interview he said:

“We’re not going to have people convicted on one single evidence from one single witness. That’s been made quite clear by the Lord Advocate; there will always require to be additional evidence. That’s been made clear it’s not just a quantitative, but a qualitative test so the evidence of one person on its own will not be sufficient; there will require to be additional evidence to be led”.

This all sounds very good, the lawyers are screaming about innocent people being convicted on the evidence of one individual but the Cabinet Secretary has said they’re wrong. Well, it’s the Cabinet Secretary that is wrong. Under the Law of Scotland as it stands today, the essential facts of the case (those are that a crime was committed and that it was committed by the accused) need to be proved by corroborated evidence. That is each piece of evidence that goes towards establishing those two key things must be supported by another source of evidence independent to it. For example, that could be the evidence of an eye witness together with DNA evidence. What the Cabinet Secretary said last night is that the Lord Advocate, the person responsible for the prosecution of all crime in Scotland, will continue to require evidence from an additional source. However, that will be nothing more than guidance to prosecutors with no legal standing at all; it could not be founded upon in the Appeal Court as part of an appeal against conviction to show that there was insufficient evidence to allow a conviction; there would be no legal requirement for corroboration following its abolition. If the Crown were to decide to progress a case without corroborating evidence, they would be entitled to do so. Furthermore, the guidance of the Lord Advocate would be subject to change at the whim of the Lord Advocate without any consideration or scrutiny by anyone. The Cabinet Secretary’s assurances are meaningless and the Lord Advocate’s requirements are meaningless in law as well.

The Cabinet Secretary went on to discuss the safeguards that his Bill contains to address the loss of Corroboration as a safeguard. The only safeguard mentioned was the increase of the jury majority required for a conviction from 8 to 10. Is this really an adequate safeguard? The requirement for corroboration applies in all cases: summary and solemn cases. Juries are only present in Solemn cases and those cases represent a significant minority of cases which are progressed by the Procurator Fiscal in Scotland. How does increasing the jury majority safeguard those who are prosecuted before a Justice of the Peace, a stipendiary magistrate or a Sheriff on his own? It doesn’t. Therefore, it’s not an adequate alternative to the requirement for Corroboration.

Furthermore, on the question of jury majorities, the Scotland Tonight presenter compared the size of the Scottish majority to that required in England where ordinarily a unanimous verdict is required, but can be reduced upon the discretion of the judge to a 10-2 majority (i.e 83.33% of the jury require to be convinced beyond reasonable doubt of a person’s guilt before conviction). Under the Scottish Government’s proposals, only 66.66% of the jury would require to be convinced of the accused’s guilt before a conviction.

The Cabinet Secretary made much of the requirement of corroboration being archaic and pointed to advanced in evidence such as DNA as forms of evidence that make corroboration redundant. I will look specifically at DNA evidence; I feel that too much emphasis is placed on DNA evidence in our modern justice system. A lot of DNA evidence is not conclusive. A cigarette but at the scene of a murder with the DNA of the accused on it is not conclusive that the accused was even at the scene of the murder, let alone was there when the murder took place. The cigarette but could have arrived there by other, innocuous means (that is not necessarily placed there deliberately as part of a “fit up”). If the scene of the crime was at the bottom of a hill the cigarette but could have been discarded at the top of the hill some hours before the murder and arrived at the scene of murder through the effect of gravity. An item of clothing left at the scene of a Housebreaking accidently by the offender containing the DNA of the accused might not be conclusive either. Consider the situation where two people have similar, or identical, pieces of clothing. The innocent accused picks up the offenders by accident when they were earlier in the same public place while the offender picks up the innocent accused’s and subsequently leaves the item of clothing at the scene of the crime. Again, not part of a “fit-up” and an entirely plausible situation that could occur. In almost all cases; DNA evidence will require corroboration to give it the effect that it needs to have to secure conviction.

If we do away with the requirement for corroboration, it will be up to the jury to make an almost impossible determination as to how the DNA evidence arrived at the scene of the crime. Programmes such as CSI have skewed society’s view of DNA evidence and resulted in it being considered the “golden bullet” it so often is not (“he must have done it; his DNA was there”). It is entirely possible that innocent people will be convicted as a consequence of uncorroborated DNA evidence.

The Rational of the requirement for Corroboration that stands today was set out by Barron David Hume, one of Scotland’s “institutional writes” in the following way:

No matter how trivial the offence, and how high so ever the credit and character of the witness, still our law is averse to rely on his single word, in any inquiry which may affect the person, liberty, or fame of his neighbour; and rather than run the risk of such an error, a risk which does not hold when there is a concurrence of testimonies, it is willing that the guilty should escape.

The words of Barron Hume are as true today as they were when he wrote them in the early 19th Century. It cannot be the genuine desire of the Scottish public to see innocent people convicted for crimes that they did not commit simply because one convincing witness said in court that the accused was guilty of the crime.

The fact is that Corroboration does not hinder prosecutions; it helps prosecutions (and this is a view shared by many within the prosecution service). If the statement of a witness is supported independently by other evidence it strengthens the testimony of the witness; a witness who might otherwise come across as unbelievable is instantly strengthened by the existence of corroborative evidence.

The Scottish Government has not, in my view, made out the case for such a substantial change to the Criminal law of Scotland. If we are going to make such a fundamental change it would be useful to do so following a thorough consideration of the issues, perhaps by the Scottish Law Commission. Lord Carloway’s review was brief and followed what the Scottish Government describe as an “Emergency situation”. There is something quite ironic about the Government proposing to change the law of Evidence with little or no relevant evidence.

Is it the case that the complainer clearly lied?

In Scotland, there can be three conclusions to a criminal trial: (1) the accused is found guilty, (2) the accused is found not proven and (3) the accused is found not guilty. This seems fairly straight forward, (1) means they did it (2) means nobody is sure whether they did it and (3) means they didn’t do it. Only that’s not really how it works; it is a great deal more complicated than this.

Let’s start with numbers (2) and (3), although they look different they are identical in law: the Crown has failed to prove its case against the accused beyond reasonable doubt, and as such the accused is acquitted. Historically, this meant that the accused could never be tried again for the same crime. However, following fairly recent changes to the ancient double jeopardy rule (the rule that said no person may be tried twice for the same crime), it is now possible for the Crown to have a second go at prosecuting an individual for a crime for which they have already been acquitted in a set of strict and limited circumstances. On the whole though, an acquittal means that the person leaves court innocent in the eyes of the law (exactly how they arrived at court) and free from the threat of a further prosecution in connection with the same matter.

Our system is extremely simple in respect of a person’s standing in law when accused of a crime: all persons are presumed innocent until found guilty in a Court of law. That finding of guilt may be as a result of the accused’s own guilty plea, or it may be following a trial. An acquittal following a trial does not necessarily mean that the complainer has told lies or has not been the victim of a crime. What it means is that the Crown failed to put before the Court (a Justice of the Peace, Sheriff or Jury depending on the forum in which the trial is held) to convince the Court that the accused is guilty of the charges alleged by the Crown. It is for the Crown to prove the charge, and to prove the charge that it alleges. Certain aspects of charges can be deleted if the Crown has failed to prove them, but has overall proved the offence. For example, an ‘aggravation’ can be deleted from the charge where the evidence does not support the aggravation, but where it supports the basic offence. Other things can be deleted from a charge as well. For example, if the Crown alleges assault to severe injury and permanent disfigurement, but the evidence only proved assault to severe injury, the permanent disfigurement aspect to the charge could be deleted. Another example could be where the charge alleges that the accused assaulted the complainer by punching and kicking the complainer, but the evidence only proved that the accused punched, rather than punched and kicked, the word ‘kicked’ could be deleted from the charge.

These deletions can be made by the Crown itself, or they can be made by the finders of fact (e.g. a jury could remove an aggravation from the charge where it finds the basic offence proved, but not the aggravation alleged). The onus is on the Crown to prove the essential elements of the case though. Where it fails to satisfy the finder of fact (in the case of a jury trial that would be the jury to a majority of 8 to 7) that the accused committed the crime alleged, the accused is entitled to be acquitted; he or she is free to go with the law viewing them to be innocent.

Of course, not every single case that results in an acquittal has arisen out of the lies of the complainer. We have a system that requires the Crown to bring sufficient evidence before the Court to prove beyond all reasonable doubt that the accused committed the crime alleged. The standard of proof is extremely high and the burden largely falls on the Crown, and for very good reason. A finding of guilt could allow the State to deprive an individual of their liberty for a very long time. Furthermore the state has far more resources at its disposal when bringing a prosecution against an individual.

In recognising that some guilty people do walk away from court, it is not an invitation to treat those who are acquitted with suspicion. The law is clear: they were innocent before the trial and they remain so after the trial. There is no presumption of guilt and nor should there be. It is an effect of our system of justice that some guilty people will walk free after a trial, just as some innocent people will be convicted. Both are unfortunate, but doing as much as possible to avoid the latter results in the former.

There certainly should not be a jump to the conclusion that the complainer(s) in a case where the accused is acquitted have perjured themselves. Where there is evidence that this is the case it should, of course, be investigated and a prosecution brought where it is in the public interest to do so. However,due process has to be followed just as much in that case as in the case that went before it.

In essence, while an acquittal does equal innocence in the eyes of the law; it is realistic to accept that it does not always equal what might be termed as ‘true innocence’. However, whether the person is innocent or not is quite frankly irrelevant beyond the trial. In legal terms they are innocent and as a consequence society has an obligation to judge them as innocent, and to treat them as such. The court that heard the case and acquitted the accused heard all of the available evidence and decided that it was insufficient to allow for a conviction. The accused is entitled to put the episode behind them and to move on with their life. Equally, complainers are entitled to support to move on from the crime of which they have been a victim. In a lot of cases the fact that they have been the victim of a crime is not in doubt, the police and the Crown have just been unable to show that it was the accused that perpetrated the crime (and it may very well be the case that it was someone other than the accused that committed the crime, hence the right of the accused to have society treat them as innocent).

I hope that this makes sense. If not, here is what I have been trying to say distilled down into five small points:

When a person is acquitted it does not automatically follow that the complainer wasn’t telling the truth
Equally, it does not follow that simply because the complainer may not have been lying that the accused got away with their crimes.
The acquitted accused is entitled to move on from the episode and obtain support as required.
The complainer is also entitled to move on from the episode and obtain support as required
Where there is evidence to support that the complainer wasn’t telling the truth, it should be investigated and prosecuted where such a prosecution would be in the public interest.

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.

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.

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.

Prisons, prisoners and prison conditions

There has been a lot of talk over the last few days about prisons and the conditions within them. We have seen the traditional tabloid/right-wing mantra of prisons should be tougher and they’re too much like holiday camps.

In Scotland it was suggested that prisoners should have phones inside their cells while in England and Wales the Secretary of State for Justice has said they are looking at the Incentives and Earned Privileges (IEP) scheme; particularly how they could make it tougher. The former has resulted in condemnation while the latter has resulted in celebration by the tabloid press.

These types of discussions make me angry. This pandering to prejudice does not help society; it actively harms society. When talking about prisons and prisoners the terms used are dehumanising in nature: “thug”, “lag”, “lout”, “animal”, “monster” and “caged” are some of the ones I dislike the most. In order to have a criminal justice system that works we have to proceed on the basis that we are dealing with human beings and not animals. When we work on the basis that they’re sub-human or animals it becomes so much easier to treat them in a way that would ordinarily be condemned.

There is also a great misconception about prison. A person is sent to prison as a punishment and not to be punished. The two are worlds apart and when we recognise that it is prison that is the punishment and not what happens inside the prison; we can begin to think properly about what needs to happen in prison in order to ensure that prisoners are rehabilitated.

The idea of placing phones in each cell is a good one. It is well known that family contact is important. Currently there are so few phones in prisons for prisoners’ use that it is not possible to maintain a proper relationship. Calls are short and there can be significant periods between calls. The time available for prisoners to use the phone is limited due to the amount of time that they spend out of their cell. For some it can be a choice between having a shower and making a phone call to their children/parents/partner or whoever else is on the outside.

There is of course written communication. However, that is still conducted by way of ordinary post. The time that it takes a letter to get through the system to the prisoner and for that prisoner’s reply to get back through the system it can easily be a whole week. Visitation is also permitted, but it is also limited by time and numbers.

In other words, the current system isn’t very good at ensuring family contact is maintained. However, the amount of time that prisoners spend locked in their cell in the evening and over the weekend could be put to better use. Having phones in the cell will ensure that more prisoners will be able to have better contact with their friends and family on the outside.

Of course, processes would need to be put in place to ensure that the phones are not abused and that is the role of the prison authorities to work that out. It shouldn’t be dismissed simply because it’s a “perk”.

The idea that prison should be tough is a false presupposition. For most, the conditions inside of prison play little part in whether they offend/re-offend. The Conditions outside of prison play more of a role than the conditions inside prison do. It’s about the community that someone lives in: if they’re surrounded by people to whom taking drugs and committing crime is normal then that is likely to play a significant part in whether a person begins taking drugs and committing crime. It’s not the only explanation: people from good backgrounds where drugs and crime is not the norm still commit crime. However, for those that re-offend after prison the community they go back to plays an important role.

A person can develop a determination to change while in prison; however, upon release the cold hard reality hits them. They go back into the community from where they came and start associating with the people they associated with before they went into prison: they know nowhere else and know nobody else. They are then surrounded by all the temptations of drugs and crime that they were before and very quickly they are living their old life again. That might make people question the sincerity of their determination to change, but it shouldn’t.

Those who have a real determination to want to change should be offered a radical change in lifestyle. They should be offered the chance to be released into a different location (one which is well away from where they were before prison) and should be placed into contact with people willing to help prisoners on release and who can help guide them through getting a job. These ordinary people can introduce them to a new community; one where drugs and crime is not the norm. It’s really an extension of the probation service, but it’s stuff that the probation service doesn’t have the time or the resources to do. It can be offered to those who are serving both long and short sentences.

I think this kind of approach would radically change re-offending rates. In order to break the cycle of crime we need to treat people like humans and give them real practical help to radically change their life. Putting them back into the circumstances they came from is unlikely to really help them change. Society has to take a greater responsibility for helping break the cycle of crime. The ultimate decision is that of the offender, but if someone wishes to change then society should get round them and help them to do that.

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.