Category: Criminal Law

Professional Juries…not a chance

Yesterday the Justice Committee of the Scottish Parliament took evidence on the role of the media in criminal trials. During the session Ian McKee, justice campaigner, made a number of references in support of the idea of introducing professional juries into the Scottish Courts. This is a very bad idea.

The jury was, rightly, described by Aamer Anwar during the session as the “jewel in the crown” of the criminal prosecution system in Scotland. It has featured as a fundamental part of our system for centuries. It is important that people facing serious criminal charges are judged by their peers. The idea of having professional jurors is a repugnant one.

Professional jurors would not resemble the system we have today where local people are drawn at random to sit on a jury and decide on issues of fact placed before them. They would in effect be state employees and would be reliant upon the state for the money that feeds their children and keeps a roof over their head every single month. Yes, jurors currently get reimbursed for losses incurred as a result of sitting on a jury, but this is quite different to relying on the state to pay your wages every single month for sitting on a jury permanently. There is a risk that the independence of the jury from the State is jeopardised. If no actual prejudice occurred, at the very least there would be the appearance of prejudice in the process.

Some of the reasons advanced by Mr McKee for the introduction of professional juries was quite frankly insulting to anyone who has ever sat on a jury. I have very little experience of the court system and certainly none as a practitioner. However, I have (as a fair few law students will have) sat in courts during trials. While I have been sitting watching proceedings juries have always struck me as a largely diligent bunch of folk who are genuinely interested in hearing and understanding the evidence.

There is also a risk of corruption. When you reduce the jury pool to a small number of people rather than everyone in a given area it becomes easier to locate and corrupt jurors. This would undoubtedly be bad for justice.

Any advantages there may be to a system of having professional jurors are undoubtedly outweighed by the disadvantages to the system. The jury system may not be perfect, but no system ever is. However, the system largely works and has done so for centuries.

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)

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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.

Menacing Character: the “Twitter Joke Trial”

By now most people will be aware of the “Twitter Joke Trial” which involved the conviction of Paul Chambers (@pauljchambers) for sending a message of a menacing character via a public electronic communications network contrary to s.127(1)(a) of the Communications Act 2003. If you’re not aware of the facts they are set out succinctly in paragraphs 5 – 19 of the High Court’s judgement (link below).

This morning, at the Royal Courts of Justice in London, the Lord Chief Justice of England and Wales delivered the judgment of the Court in an appeal against conviction by Paul Chambers. This was the third time that Paul Chambers had sat waiting for an appeal judgment. The first appeal to the Crown Court was rejected and the second appeal, to the High Court, had to be reheard after the two judges failed to agree.

There has been a lot of comment and discussion on this case. Some of those who supported the conviction argued that it was necessary in light of the threat of terrorism that such “jokes” are taken seriously by the justice system so as to ensure public safety. Those who did not support the conviction were concerned about; inter alia, the affect on freedom of speech.

John Copper QC, leading Counsel for Paul Chambers, put forth a very convincing legal argument on the meaning of the word “menacing”. To do so they looked to another area of English law, Blackmail, which included reference to “menace”. Robert Smith QC, for the Director of Public Prosecutions, “submitted that no more, and no less, was needed than the application of ordinary language to the context in which any particular message was expressed and to all the relevant circumstances.” (Para 29) However, Mr Cooper argued “that for a message to be of a menacing character it must, on an objective assessment, contain a threat of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive.” (Para 29)

The High Court took the view that before being able to conclude that the message was of a criminal nature on the basis that it was of a menacing character, “its precise terms, and any inferences to be drawn from its precise terms, need to be examined in the context in and the means by which the message was sent” (para 31). Paul Chambers had sent his message at a time when the public was concerned about terrorism and the High Court recognised that the Crown Court was understandably concerned about this. However, the Court’s judgment states at paragraph 31:

In any event, the more one reflects on it, the clearer it becomes that this message did not represent a terrorist threat, or indeed any other form of threat.

The High Court pointed to the language and punctuation of Paul Chambers’ tweet as inconstant with the view that the writer had intended that the tweet to be or be taken as a serious warning.

The High Court also said (at para 32):

In our view, the Crown Court read too much into the observation of Lord Bingham in his judgment in the House of Lords that the criminality of the sender cannot depend upon whether a message is received by A or by A’s reaction. Lord Bingham was saying no more than that a message proved by an objective assessment, applying the standards of an open and multi-racial society to be of a prescribed kind, does not cease to be so just because it was not received or because the person who received it was not, in the context of the present prosecution, menaced. The effect of the message on those who read it is not excluded from the consideration.

The High Court looked at the way in which the airport discovered the tweet, the fact that it was treated as a “non-credible” threat by the airport authorities. They also considered the fact that the airport police took no action and that the speed of the process from discovery to Paul Chambers’ arrest was a sign of there being no real urgency. No evidence had been put before the Court that suggested even the most minimal upgrade to security following discovery of the tweet. The Crown Court, in considering the appeal, was wrong not to consider these factors as part of its decision.

The High Court also noted (para 33):

the fact that those responsible for security at the airport decided to report it at all, which was treated as a significant feature, rather overlooked that this represented compliance with their duties rather than their alarmed response to the message

In essence, the staff at the airport were doing what they were obliged to do in order to comply with company procedures. They had no real discretion as to whether the matter should have been taken any further and so to place such a heavy reliance upon their reporting of the matter to the police was incorrect.

The High Court found that the reliance upon Paul Chambers’ response to a question in interview as to how some people might have reacted to his tweet as misguided. The High Court said that this failed to recognise “the care needed to approach such a widely phrased question in context.” (para 33) Some people, the High Court said, “included those who might lack reasonable fortitude.” (para 33)

The High Court concluded “that, on an objective assessment, the decision of the Crown Court that this “tweet” constituted or included a message of a menacing character was not open to it. On this basis, the appeal against conviction must be allowed.” (para 34)

In short, when seeking to apply the menacing character element of s.127(1)(a) of the Communications Act 2003 it is necessary not simply to look to the dictionary definition of a menace, but to consider whether the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive by the message.

Comment

There is no denying that the tweet in question was not the most sensible thing to put out into the public domain. There was, and remains today, a public sensitivity around terrorism and security of the United Kingdom. However, I am sure we have all said things along the lines of “I’m going to kill x” or “I’m going to blow up y”. We have never really meant it and it will have normally been an expression of our frustration over a particular situation. The matter, when taken out of context can look a lot worse than it actually is. In this case, the context was important in understanding the meaning of the message.

The criminal law ought not to be covering situations unnecessarily and the approach taken by the court to this case previously was far too wide in nature. This was demonstrated, I thought, well by reference to Shakespeare’s “kill all the lawyers” line in Henry VI by John Cooper QC in his submissions to the Court on behalf of Paul Chambers.

This is a sensible decision that restricts the scope of s.127(1)(a) of the Communications Act 2003 to protect those who are making jokes or using colloquial language to express their frustration when using Twitter, Facebook and any other form of internet based social media that will come in the future.

The CPS has come in for a lot of criticism over their decision to prosecute Paul Chambers. For the most part, it’s probably unfair. They took a view that there was sufficient evidence for a reasonable prospect of conviction (based on a wrong interpretation of the law) and thought there was a public interest in prosecuting. One can understand why though given the terrorism threat in the UK. Misguided bomb hoaxes against an airport should be taken seriously by the police and prosecuting authorities. It was clear in this case though that this was not a bomb hoax and perhaps the CPS developed a blinkered view of the case and couldn’t get past thinking about terrorism.

Justice was, eventually, done though and the High Court has given a sensible decision that, one would think, the vast majority of right minded, sensible and level headed people would consider is correct.

Links
High Court’s Judgment in Chambers v DPP (pdf)
Chambers v DPP on BAILL I (web)
Communications Act 2003

Justice

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 (Hume ii at p 385)

There has been a definite shift in policy at the Crown Office and Procurator Fiscal Service. Over the last five years there has been a definite reduction in its independence from Government. As the years have passed the Crown Office has become more and more an arm of the Justice Directorate. The current Lord Advocate and the Solicitor-General are very much in the media, something which one might not have seen so much in the past.

It is often thought that the prosecution is on the side of victims and in recent years the prosecution service in Scotland has aligned itself with a “victim’s agenda”, championing the rights of individual victims. In doing so they have wrapped up their arguments for the abolition of the rule of corroboration in emotive subjects (sexual offences and domestic violence) which makes it hard for people to try and oppose their arguments. Politically it could be painted that someone against the abolition of corroboration is against convicting rapists and those responsible for abusing their spouses/partners. It stifles debate and proper consideration of the facts, including what would need to be put in place to replace a safeguard if it were removed.

The decision in Cadder v HMA Advocate has been a good opportunity for the newly politicised Crown Office and the Government to argue that there needs to be a re-balancing of the system because the balance had went too far in one direction. That is an argument that I do not really accept, but won’t examine here. There seems to be a clear agenda to make it easier for the Crown to obtain convictions and harder for the defence to defend the accused. Of course, society wants to see more people who have committed crimes convicted. For a guilty man to walk out of court free is frustrating, but that is the nature of our criminal justice system. Sometimes the prosecution can’t produce the necessary evidence to convict someone. There are two responses to this situation. First (and it’s my preferred response) is to simply accept that as a consequence of the system and that it can’t get it right every time. The second is to effectively move the goalposts making it easier for the Crown to get a conviction. This has its own consequence and it is one that I would much rather avoid: a greater number of innocent people are likely to be convicted.

The nature of criminal law is such that it ought to be difficult for the prosecution to convict the accused. Convicting a person of a crime is more than a simple finding of fact. When a person is convicted of, for example, murder, it is not simply saying that the victim was killed by the accused, but that the accused is guilty of murdering him. In other words, the accused is deserving of punishment. The accused could be guilty of killing the victim, but not guilty of murder. For example, if the accused was an armed police officer and shot the accused because the accused had been shooting a gun in the direction of him and his colleagues; the police officer is guilty of killing the accused, but is probably not guilty of his murder (in simplistic terms). The criminal law is about delivering punishment. I suspect most people have at some stage in their life been punished for something that they have not done or been punished unjustly. Those who have been in that position might remember what it was like to be punished for something that you knew that you had not done. While, we have done away with the ultimate sanction (death) in our criminal justice system, the punishment that can be dished put by the system is still severe. For example, a person wrongly convicted of murder will be given a sentence of life imprisonment. Such a person is unlikely never to be released because the parole board would never consider someone still protesting their innocence as being of low enough risk to release on licence. Perhaps we don’t like to see the fallibility in our system because we do not want to consider the consequences of it?

Contrary to popular belief, prison is not a nice place. While prisoners have three meals a day, access to education and most have a television in their cell, they are still in prison. Their freedom has been removed from them. Outside of prison we make decisions all the time that you take for granted: to have a take-a-way for dinner, to go out to the cinema, to meet friends, to spend an extra hour in bed and so on. The issue here is not that everyone in prison is innocent, but rather that prison is a punishment and it is wrong to lock away innocent people, perhaps for lengthy periods of time, simply to satisfy the demands of some victims and victims’ groups. The very fact that a guilty verdict might result in a person going to prison, perhaps for the rest of their life, is a strong reason as to why it ought to be difficult for the Crown to convict a person.

There seems to be a worrying shift in public perception of persons accused of committing a crime. Whether this is a reality or simply a perception created by certain media outlets is another matter. That perception seems to be that people are beginning to believe that if a person is on trial they must be guilty (and if not of what they are accused certainly something else and should be punished anyway). This challenges a presumption which is at the heart of our system: that a person is innocent until they are proved guilty by evidence in a court of law. The presumption accepts that the police (and everyone else involved in the justice system) are human and make mistakes. They miss evidence or become so focussed on onlyone line of enquiry that they convince themselves that a particular person is guilty, regardless of the truth (sometimes even to the point that they make the evidence fit their version of events). The presumption recognises the inherent fallibility of the system.

There have been a couple of examples recently, granted they have come from England, that underline the way in which the presumption is being disregarded by some in society. I’ll look at the John Terry example. John terry, an English premiership footballer, said some nasty things. That is a fact; he admitted such in his evidence. However, he was found not guilty by the Court and there was a complete outrage on Twitter, on Facebook and in pubs up and down the country. Some of my friends some of those who were part of the “angry mob”. The outburst failed to recognise that simply because he admits having said the nasty thing in question doesn’t mean he was guilty of the offence charged. There was, demonstrably, a great deal of misunderstanding about exactly what Terry was charged with. People focussed on the racist aggravation and as a result appeared to conclude that because he admitted saying the racist things he must be guilty. That is not how the criminal law works though. For a person to be guilty of an offence there are certain things that the Crown must prove to the required standard. If the Crown fails to do that, as they did in the John terry and Simon Harwood cases, then the accused must be acquitted of the charges.

The criminal courts do not exist simply to satisfy the needs and desires of the public. They exist to look at matters in a more objective way, to consider the evidence and to make a finding based on the evidence. Simply moving the goalposts to obtain more convictions doesn’t mean that justice is being achieved anymore than it was before. When victims leave court believing they have had justice when the reality is an innocent person has been convicted, they have not received justice but have been cheated by the system. I do not want to see more victims cheated by believing that they have had justice when the true perpetrator still walks free. That is not fair on either the innocent person or the victims.

Put simply, more convictions does not always equate to better justice. It is necessary to have safeguards in place to ensure that, so far as is reasonably practicable, only the guilty are convicted. Having those safeguards in place will mean that guilty people walk free from court, but that is preferable to a greater number of innocent people being punished. Many of the safeguards in our criminal justice system are there to protect the innocent, not the guilty. Yes, the guilty will benefit from them, but that is a consequence of the system. However, it is a necessary one.

I started this blog post with a quote from Barron David Hume’s commentaries. It is effectively saying that it is better that some guilty men escape punishment in order to reduce the likelihood that an innocent man suffers punishment. It is framed very much around corroboration and how corroboration acts as a level of protection. Of course, no system is perfect and even under the current system some innocent people are convicted. However, it is clear that its abolition is all about increasing the number of convictions to satisfy some victims, some victims’ groups and some others in society. Many of the arguments advanced for its abolition are, in my view, weak. The idea that we can abolish corroboration and leave the rest of the system as it is quite frankly is dangerous. It demonstrates fully the real reasons for abolishing corroboration: convictions, not justice. If we’re going to abolish corroboration and replace it with something else, why bother with the upheaval if the reality is the situation isn’t going to be much different? Not much has changed since Hume wrote the words quoted right at the outset of this blog. Justice demands that obtaining a conviction be hard. Those victims who have not seen the offender in their case convicted deserve sympathy and help to rebuild their lives. However, we cannot simply create more victims in order to try and help them find closure and move on or to satisfy what they have in their mind. When we convict innocent people we create more victims and the original victims are victims for a second time. The support for those wrongly convicted and then later exonerated is all but absent. It’s as if the system doesn’t accept that it makes mistakes.

We need a proper debate about justice in Scotland. It must be one that doesn’t simply pit the guilty against their victims. Those innocently caught up in the system wrongly accused must be considered too. It is largely for their benefit that defence protections exist. Of course, they exist for the guilty to: it is necessary that punishment is proportionate to the offence. It also needs to be an objective debate that isn’t wrapped up in emotive cases or offences. The results of such a debate are likely to weaken, not strengthen, the justice system in Scotland. The corroboration requirement came into existence in Scots law at a time when it was arguably far more vengeful than it is now, but yet we seem to be willing to trade in essential protection for innocent people in order to appease the needs of some for vengeance. That’s not justice

Sam Hallam: what are the wider lessons?

Sam Hallam has featured heavily in the news over the last couple of days. Sam was convicted of the murder of trainee chef Essayas Kassahun in central London and sentenced to life imprisonment. However, seven years on a catalogue of failures by the police, prosecution and courts have resulted in the Crown withdrawing any opposition to Sam Hallam’s appeal and his conviction being quashed.

A lot has already been written on this case. I draw attention to it not to pour over the mistakes of the police, the CPS and the judiciary. Rather, I draw attention to the case because it demonstrates a number of quite fundamental things in a clear way.

Today there are many people in the UK who support the reintroduction of capital punishment for those convicted of Murder. There are a growing number of murder convictions which have been spectacularly overturned many years after conviction and after the Court of Appeal had rejected appeals. Sam Hallam’s is another one of those. It is an important one though. Sam Hallam would almost certainly have been executed by now had the UK retained the death penalty. An innocent man would have lost his life for a crime that he had not committed. This was not simply a case of the police getting it wrong. The ineptitude of the Metropolitan Police in this case has been blown open for all to see. They were, in essence, lazy and grossly negligent. They did not conduct the investigations they should have and had they Sam Hallam would never have seen the inside of a Court let alone a prison. In this case the police are not solely to blame: the CPS, the prosecution Barristers, the trial judge and the original Court of Appeal judges all permitted the miscarriage of justice to happen and to continue. This is not a case of a technicality overturning a conviction. This is about the whole system having got it very wrong from the very outset. Sam Hallam’s case is not alone in this though and others have been released following it being discovered that there is absolutely no way that they could have committed the crime in question. Sam Hallam is not innocent because there is some reasonable doubt over the conviction. He is innocent because there is no doubt of it. He was nowhere near the murder when it took place. These are the cases that demonstrate clearly why capital punishment should remain consigned to the history books. While releasing someone from prison after they have served time for a crime they did not commit and paying them a large amount of money in compensation (quite rightly) is not enough to make up for the years lost to prison it at least allows the individual to live the rest of their life. Capital Punishment is final. Once the sentence is carried out there is no going back and when it’s discovered that a huge mistake was made and an innocent man was executed there is absolutely nothing that can be done about it. Sure the conviction can still be quashed and an apology issued to the family of the victim, but that does not bring the wrongly executed individual back.

The case also highlights another vitally important point and that is the funding of the criminal justice system. Without the correct levels of funding going to the police, to the prosecution, to the courts and to the defence teams the number of cases where innocent individuals are convicted will only rise. As the police have to find savings in their budgets will their investigations routinely be scaled down? Will vital lines of inquiry routinely not be followed up as they hope they’ve “got their man”? Will the CPS spend less time weighing up and evaluating the evidence before decided whether to charge or not? Will the prosecution team have to spend less time on preparing the case and thus not disclose vital material to the defence or notice a huge gaping hole in their case? Will the defence have to cut back on the amount of work they put in the case and risk missing the bug gaping hole that the prosecution has already missed? This could be the reality of the future. Already defence counsel and defence solicitors are providing vast amounts of their time doing work for their cases which is essential but for which they have little hope of receiving remuneration for. Legal Aid rates are being cut and are moving towards fixed fees. Lawyers do have a professional obligation towards the court and to their client. However, when they need to feed their own families and keep a roof over their heads will the amount of time spent on cases for no pay reduce as their time is taken up with a greater number of cases to continue earning enough money? It’s a serious possibility and is already occurring.

Many in the public think lawyers get paid too much as it is. Some lawyers do make obscene amounts of money. However, you can be almost certain that their vast earnings do not come from legally aided work. No, their vast earnings come from private client cases where the client can afford to fork out thousands upon thousands of pounds to be represented. There is a great skill to the law. Few people could walk into a court and successfully represent themselves, let alone another individual. It takes year of study and many more years of practice to refine the skills and the knowledge needed to be a good lawyer. The work undertaken by lawyers is vital to the continuing harmony of our society. Without lawyers and the legal profession the rule of law would likely breakdown. If lawyers are unable to dedicate the time to cases because they can’t afford to then public confidence in the system will be reduced as more and more miscarriages of justice are revealed.

What about the police? They are under huge pressures at the moment, particularly in England and Wales. The Home Office is passing on cuts of 20% to English and Welsh police forces. That’s a lot of money. What that means in real terms is fewer officers on the streets to respond to incidents, fewer officers available to properly and thoroughly investigate crime. That means guilty people getting off and innocent people getting convicted.

Yes, we are undergoing extraordinary public spending pressure and every area of public spending needs to bear some of the cuts. However, an improperly funded justice system means that any hope of justice gets squeezed out of the system.

Do we want more Sam Hallam’s? If not then we must ensure that the justice system is efficient and properly funded. That’s the entire system: the police, the prosecution service, the courts and the lawyers.

R v Liam Stacey

So, today I read on the Guardian’s website a very interesting comment piece on Liam Stacey. Stacey was handed a custodial sentence at Swansea magistrate’s court for racists tweets he made in the aftermath of footballer Fabrice Muamba’s collapse during a football game, a collapse that was as a result of a life threatening medical condition.

Stacey made one tweet directly related to Muamba and several other racist tweets in response to those who chose to challenge his views. For this he was given 56 days in prison, quite a stiff sentence for a person who had never before been in trouble with the law. In the aftermath the public and the media were praising the judiciary for their tough action in relation to some pretty offensive behavior. However, offensive behavior isn’t necessarily a crime in its own right.

There was a lot of confusion around what Stacey was actually convicted of. As can be seen from the Guardian piece, different media outlets said different things. After reading the Guardian Article I thought that I would check again the Judgment refusing the appeal against sentence. The Judgment stated that Stacey had pleaded guilty to an offence under s.31(1)(b) of the Public Order Act 1986. This was, as far as I could see, not reported in any media outlet. So, I decided to go and look at what the offence actually said. However, it turns out that s.31 of the Public Order Act 1986 was repealed in its entirety in 2000 (repealed by paragraph 1 of Schedule 3 to the Football (Disorder) Act 2000). What was even more interesting is that when I looked back at the various versions of the section that had existed since their introduction in the Public Order Act 1986 I could find no trace of the section ever having created an offence. The section was making provision for other offences that were committed in connection with football. So, even the Crown Court’s official judgment is incorrect. The question remains what did Stacey actually plead guilty to?

It might seem irrelevant, but the Guardian comment make some very good points in relation to this case (and the law more generally). Should the media be supporting a sentence without actually knowing what offence was committed? Should the media be providing such support without informing the public as to what was actually tweeted by Stacey? I would suggest that both of these questions should be answered in the negative.

The tweets quoted within the Crown Court’s judgment are offensive in the extreme. They use extremely racist language and make other offensive comments in relation to those to whom Stacey responded. The tweet that Stacey made directly about Muamba (as quoted by the Crown Court in their judgment) is not actually racists, although it is offensive. The Crown Court in their judgment state that many of the messages criticising Stacey used “abusive language” (paragraph 8). One media organisation pointed to an offence under s.4A of the Public Order Act 1986, although some have questioned whether such a section could even have applied to the tweets Stacey made. I will not comment on that.

What does need to be clarified in my view is exactly what offence did Liam Stacey plead guilty to. If he in fact plead guilty, as the Crown Court states, to an offence under s.31(1)(b) of the Public Order Act 1986 then he hasn’t actually pleaded guilty to any offence and should therefore not be in custody (although I would be rather shocked to disocver that the Magistrates, the CPS, the defence solicitor, the barristers and the Crown Court all missed this, so I am sceptical as to whether this is actually the case).

I am not in any way condoning what Stacey wrote. As I have already pointed out his tweets as quoted by the Crown Court were offensive in the extreme. I write this to demonstrate the continued problems with the media’s reporting of the criminal law. It is, in my view, highly irresponsible of the media to report a person’s conviction (whether that conviction was byway of a guilty plea or by being found guilty by the court) without first being clear what the conviction was for. That information is essential in order to ensure the public are adequately informed.

So, what offence did Liam Stacey plead guilty to?

Criminal Procedure: Time to start from scratch?

Criminal Procedure in Scotland is broadly governed by the Criminal Procedure (Scotland) Act 1995. This Act sets out much of the way in which a criminal case is conducted from initial contact by the police with a suspect and/or witness through to the rules governing appeals against conviction and sentence.

The Act is incredibly out of date and has been amended on a number of occasions. The first major challenge to the provisions of the 1995 Act was the now infamous Cadder case which focused on sections 14 and 15 of the 1995 Act, and in particular the failure of the law to provide for a suspect detained under section 14 of the 1995 Act to have access to legal advice and representation. In that case the United Kingdom Supreme Court rejected the decision of the High Court in McLean v HM Advocate and held that the failure of the 1995 Act to provide for a suspect detained under Section 14 of that Act to have access to legal advice while in custody was a breach of Article 6 of the European Convention of Human Rights (ECHR).

The Cadder decision resulted in amendments being rushed through the Scottish Parliament which provided for, inter alia, the provision of access to a solicitor by a person detained under Section 14 of the 1995 Act before they were questioned by the police.

The Criminal Justice and Licensing (Scotland) Act 2010 made changes to the 1995 Act some of which have now come under scrutiny by the High Court. In Cameron v procurator Fiscal, Livingson the Appeal Court held that the amendment in question was a breach of Article 5 of the ECHR. The amendment in question was the insertion of paragraph (cb) into section 24(5) of the 1995 Act. Section 24(5) of the 1995 Act sets out the standard conditions for a person released on bail. The Court can add further conditions to that bail, but the standard conditions will always apply. Paragraph (cb) provided that as standard a person who was on Bail must do two things if reasonably required to do so by a Constable. Those things were (i) participate in an identification parade or other identification procedure; and (ii) allow any print, impression or sample to be taken from the accused. The remaining standard bail conditions are fairly, well, standard and cover things that one would reasonably expect such as not committing other offences, not interfering with witnesses, turn up at court when instructed to do so etc. However, the insertion of paragraph (cb) into the standard conditions is slightly controversial.

Previously such conditions as those found within paragraph (cb) would have been added by the judge presiding over the bail application. The Court would have to have been satisfied that such conditions were necessary. However, now anyone on Bail would be required to adhere to such conditions and they are quite invasive. Sample could cover anything from a urine sample, to a DNA swab to a blood sample, all of which are invasive procedures and normally if taken without consent may well constitute an assault.

In any event, this blog post is not about the latest decision per se, but is more about the 1995 Act. It is not fit for purpose. Criminal procedure in Scotland has fallen behind in terms of adhering to basic standards of human rights. Successive Scottish Parliaments and Administrations have failed to ensure that Scotland’s procedures in bringing offenders to justice and protecting the public comply with human rights.

The two pieces of legislation passed in 2010 to amend the 1995 Act, particularly the post-Cadder emergency legislation, are nothing other than sticking plasters over a rotting limb. What is required is an urgent, full-scale review of the 1995 Act and for it to be subsequently repealed and replaced with a brand new piece of legislation.

The review recently completed by Lord Carloway at the request of the Justice Secretary is a good starting point for this urgent and important piece of work. However, it is important that the 1995 Act is not merely amended with whatever recommendations are accepted from Lord Carloway’s report, but that the accepted recommendations form the basis of a brand new piece of legislation that aims to codify the current law (including the case law).

It is important that this review canvases the opinions of all criminal justice stakeholders from victims groups to criminal justice social workers, solicitors, Counsel, COPFS and anyone else who has an opinion. It’s important that criminal procedure keeps up-to-date with developments in human rights.

I do hope that in response to this latest judgment that the Justice Secretary and First Minister do not launch a hysterical attack against the judiciary and announce a serious attempt to look at criminal procedure in Scotland. I hope that they appoint a review team who are knowledgeable and experienced in the criminal justice system and that any review team is not confined to just judges and lawyers but that representatives from all the major stakeholders are present to ensure that we have a system that is fit for purpose and is beyond challenge from a human rights perspective.

Initial views: Lord Carloway’s report

Lord Carloway today published his report into criminal procedure and evidence in Scots law following a review of around 12 months. The recommendations made by Lord Carloway were mostly expected, but one has caused particular controversy within the legal sector already: the recommendation that the requirement for corroboration be abolished in Scots law.

The report is in excess of 400 pages in length and it would be foolish to comment in any great detail or come to a definitive position on the content of the report at this stage. There is a lot to take in and digest. However, there are some things that can be said initially about some of the recommendations that have been made in the report.

Arrest and Detention

It is certainly a good idea to move away from the idea of detention an arrest being separate. Providing a constable with a general power of arrest where reasonable suspicion exists is probably the way forward in terms of Scots law. The move to reduce the maximum period of detention from 24 hours to 12 hours is also welcome. There was no real evidence at the time the Scottish Parliament passed the emergency legislation last year following the Cadder case to increase the maximum period of detention to 24 hours. The recommendation to require a custody review to take place at six hours is also welcome. The evidence coming from the police is that in most cases post-Cadder detention has been less than six hours anyway.

The recommendation to allow the police to liberate a person from custody either pending further investigation or while waiting to go before the court after charge or report is something that also appears to be a sensible recommendation. The recommendation that the maximum a person can be conditionally liberated from police custody pending investigation to 28 days appears to be immensely sensible. Looking south of the border to England the lack of a maximum period to which a person can be bailed pending further enquiries is resulting in some people (albeit a very small number) being on police bail for many months, even as many as 12 months. That represents a significant burden upon a person who may not have committed the crime being investigated and is, as far as the law is concerned, an innocent person.

The recommendation that periods of detention broken by periods of conditional liberation by the police should not exceed the twelve hour maximum does appear to be a sensible recommendation initially. This would certainly prevent any abuse of detention by the police and ensure that they are only detaining a suspect when it is absolutely necessary and they have a purpose for doing so. It does seem rather odd that currently a person is kept in custody while investigations are ongoing in what are relatively minor offences.

A route of appeal to a Sheriff against any of the conditions imposed by the police on a person whom they are liberating is an important safeguard to ensure that a suspect who may not have committed any crime, and is innocent in law, is not overburdened by restrictions upon their liberty.

Investigation

The recommendations made in the report that relate to waiver, vulnerable adults and children appear, initially, as sensible. A statutory framework for waiver would ensure that a standard procedure is applied across the country would appear to be a sensible proposition.

Evidence

At a first glance the recommendation to abolish the requirement for corroboration appears to be an unsupportable suggestion. Throughout the day the Law Society of Scotland as well as individual solicitors have come out against such a move citing it as an important safeguard in the Scottish legal system. The fact that it is an “archaic” rule and that Scotland is in a minority by retaining the rule are not, I submit, strong enough arguments for its abolition.

Appeals

The recommendation to repeal the power granted to the High Court if Justiciary last year to be able to refuse to hear an appeal following a reference by the SCCRC is to be welcomed. The provision was not properly considered before being enacted during the passing of the emergency legislation last year and fundamentally undermined the role of the SCCRC.

The above are by no means detailed or settled points of view on the content of Lord Carloway’s report. It will no doubt take several weeks to properly read and digest the content of the report so expect more on this issue in the weeks and months to come.

Is there really a gap in the law?

One of the Scottish Government’s main reasons for introducing the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill is that there is allegedly a gap in the current law to deal with these offences. It is undeniable that Breach of the Peace has continued to be re-defined in a way that excludes a lot of conduct from it. However, in 2010 the SNP Government introduced a new offence of Threatening or Abusive Behaviour (Criminal Justice and Licencing (Scotland) Act 2010, s.38) to deal with these cases.

This new offence has been in force for little over one year now and the Scottish Government are continuing to maintain that the law is in adequate. If indeed the law is inadequate then the question as to why they did not do more in the last Parliament to deal with this problem needs answered. However, it doesn’t actually appear that there is a gap in the law. Earlier this year I published on here figures that had been released by the Crown Office and Procurator Fiscal Service (COPFS) in answer to an FOI request I had made on the s.38 offence. I have since followed that up with another request seeking more detailed figures and today a response was sent to me by COPFS.

This second FOI request related to s.38 offences that had been aggravated by religious prejudice pursuant to section 74 of the Criminal Justice (Scotland) Act 2003. The figures released today by COPFS cover the period since the offence came into force until 31 October 2011.

COPFS had received reports from the police containing 331 charges under s.38 where the alleged offence was said to be aggravated by religious prejudice. Of those 331 charges, 309 were prosecuted (with decisions on 4 charges still to be taken).

Of those prosecuted 16 were prosecuted on indictment with seven of those resulting in a conviction and a further seven still to come to trial. Out of the 293 charges prosecuted summarily, 192 resulted in a conviction and 82 are still to come to trial.

The COPFS were unable to advise how many of those offences related to football as the database does not record that data.

This suggests that the existing provisions are being utilised by the police and there have been a significant number of successful convictions for threatening or abusive behaviour that has been aggravated by religious prejudice. The fact that COPFS cannot confirm how many offences have been committed in relation to football is an important gap in the data and is something that should really be explored before the Scottish Government declare Scots law to have a gap that needs fixed urgently by legislation. The fact remains that the Scottish Government are making assertions that simply cannot be supported by evidence and where evidence does come to light it suggests that the Government’s position is even less credible than it was prior to the new evidence coming to light.

The Scottish Government really ought to scrap this Bill and look at the issues properly. Assessing the evidence is an important aspect of deciding on an appropriate way forward and it would appear that the Scottish Government have failed to properly assess the evidence.