Category: English Law

Abu Qatada and the Rule of Law

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

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

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

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

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

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

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

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

More ill-informed codswallop from the tabloid press

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

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

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

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

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

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

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

Criminal record checks, Article 8 and fairness

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

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

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

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

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

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

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

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

Sexual Offences and the Sex Offenders’ Register

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

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

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

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

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

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

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

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

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

Contempt of Court

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

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

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

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

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

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

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

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

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

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

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

Julian Assange

The latest twist in the Julian Assange saga has presented with it some interesting legal and diplomatic questions.  In June Assange walked into Ecuador’s embassy in central London seeking political asylum on the grounds that as a result of the decision to extradite him to Sweden he feared he would be further extradited to the United States of America where his human rights would be infringed.

I am no expert in International law and there are people far more learned than I in these matters who have commented.  I have linked to some of their writings and other commentary at the end of this blog post.  There are serious issues at play in this case and I thought I would put my two-penneth in.

This whole saga started in October 2010 when the Swedish authorities issued a European Arrest Warrant (EAW) for Mr Assange.  EAWs are a way of ensuring the co-operation between member states of the European Union.  When the Swedish authorities issued the EAW, Assange was living in the UK and had been for no more than a couple of months.  There had been appeals against the EAW in Sweden and it was in December 2010 that Assange was informed by the Metropolitan Police Service that a valid EAW had been received.   Mr Assange then sought to challenge his extradition to Sweden in the English Courts and took his case all the way to the Supreme Court of the United Kingdom which held against him.  A number of important decisions were taken in these cases including that the offence for which he is sought is the equivalent to the offence of Rape in English law (something which some Assange supporters, even today, state is not the case) and that the under criminal procedure in Sweden the case against Mr Assange had reached a point that would be the equivalent of having been charged in English law.

One of the difficulties with any extradition proceedings is that each legal system is different and one cannot simply compare the system in the country seeking extradition to the system here in the UK.  Indeed, there is no uniform process of criminal procedure in the United Kingdom.  The UK courts have looked at the Swedish and English systems and decided that if Mr Assange was facing these allegations in England he would likely have been charged by this point.  This is important because Article 1 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (“the Framework Decision”) states that an EAW can only be issued “for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.”  In order to charge Mr Assange with any offence (within the meaning of Swedish and not English law) the Swedish authorities require to conduct a further period of questioning.  Mr Assange and his supporters have tried to use this in order to challenge the validity of the EAW.  However, as noted above the UK courts have found that the Swedish authorities are seeking him for the purposes of conducting a criminal prosecution and not merely to question him in relation to an allegation.

I don’t propose to say much else on the history of this case as it is really history now and much has already been written on it by others.  However, I do propose to consider the developments of the last few days and also some of the wider implications.

I first of all wish to state clearly that I am in favour of Mr Assange going to Sweden to face these allegations.  They remain only allegations at this stage and Mr Assange is afforded the presumption of innocence.  I make no comment on his guilt or innocence in relation to these allegations.  However, they are extremely serious allegations and the women who have made them have rights as well.  They have the right provide their version of events in court and to have the Swedish judicial system consider the evidence against Mr Assange and determine whether he has committed a criminal offence contrary to the law of Sweden.  He may be guilty and he may be innocent.  The only way in which that can be determined is for Mr Assange to face the Swedish judicial system.  If his supporters believe him to be innocent then they should be encouraging him to go to Sweden and prove that fact so as to ensure his name is cleared of these terrible allegations.  In my view, any right-minded and sensible individual should be in favour of Mr Assange going to Sweden to answer these allegations.

There has been some suggestion that Mr Assange could be further extradited to the United States of America where he may be tortured or face the death penalty.  Neither the UK nor Sweden will extradite a person to a country where they will face torture or the death penalty.  The European Convention on Human Rights (ECHR) will simply not allow it and any attempt to extradite Mr Assange to the USA without sufficient assurances that he will not be tortured and that he will not face the death penalty will likely lead to a sufficient challenge before the European Court of Human Rights (ECtHR) in Strasbourg.  Both the UK and Sweden are signatories to the ECHR and under the Framework Directive Sweden would need the consent of the UK before extraditing Mr Assange to the United States of America (Article 28, paragraph 4).  This means that the assurances given by the United States would need to satisfy both Sweden and the United Kingdom that Mr Assange will not be tortured and will not face the death penalty.  Of course the Home Secretary might be minded to give such consent were it sought; it would not prejudice Mr Assange’s right to recourse to the ECtHR.

Earlier this week the Foreign Minister of Ecuador announced that the Government of Ecuador was offering Mr Assange political asylum.  This caused outrange amongst the British and Swedish Governments who strongly criticised the decision.  The evening before the decision on Mr Assange’s application for Asylum was announced the British Government sent what has been considered to be quite a threatening letter to the Government of Ecuador.  It is recognised in International Law that premises used as Diplomatic or Consular premises are sovereign territory of the country using them.  This means that, while still in the UK, the United Kingdom cannot enter the premises to arrest Julian Assange without the permission of Ecuador’s Government.  To do so would be similar to English police officers travelling to Ecuador and removing a person from the country and brining them back to the UK.  They would not normally have jurisdiction to do that, unless Ecuador’s Government had so agreed to them having such jurisdiction.

The latter reminded Ecuador that under English law the UK Government could cease to recognise Ecuador’s premises by virtue of the Diplomatic and Consular Premises Act 1987 (“the 1987 Act”).  The 1987 Act is an interesting one and it wasn’t really enacted with cases like Mr Assange’s in mind.  As Carl Gardner stated in a comment on his blog post in relation to this issue (see links below for article), one of the principle considerations behind the 1987 Act was where diplomatic premises were being misused.  A Minister for State in the Foreign and Commonwealth Office (FCO) at the time, Baroness Young, use the example of where diplomatic premises were being used for terrorist purposes.

The Embassy of Ecuador is being used for the purposes of its mission.  I would find it hard to accept that granting asylum to a person and keeping that person there when the UK did not agree with that decision would be a sufficient reason for de-recognising the current premises used by Ecuador as its embassy.  In any event, removing diplomatic status of Ecuador’s embassy in London would open the way for Ecuador and its allies to retaliate and take action against our own diplomatic premises.  This, I would suggest, is not really a viable option and would be a severe abuse of the legislation.  Quite why the UK put such a “reminder” into a letter is something that can only be speculated upon.  It could have been a blunder, it could have been part of a diplomatic strategy or it could even have been part of an elaborate plan that has been negotiated between the three nations and Mr Assange.

Storming the Embassy is not really an option either.  It’s not been openly suggested by the UK Government, but some on the internet have suggested that the UK Government might just send the British Police (or even the SAS) into the embassy and drag Mr Assange out.  Such a move would be deeply disturbing and would no doubt be considered as an act of aggression towards it by Ecuador.  Again, such a move would put the UK’s diplomatic premises in Ecuador and other nations at risk and would set a dangerous precedent which is clearly contrary to the settled international custom on diplomatic premises.

The outcome of this case is likely to be rather dull than any of this.  It’s not likely to result in Judicial reviews in the UK Courts as the UK tries to use the 1897 Act; it’s not likely to result in a case of Ecuador v the United Kingdom before the International Court of Justice and it’s most certainly not going to result in a raid upon a foreign embassy in London.  What, in my view, is more likely to happen is that deal will be struck which will allow Mr Assange to either hand himself over to UK authorities or to make his way to Sweden and into the hands of the Swedish authorities.  It’s going to be impossible for Mr Assange to get out of the UK to Ecuador and there are real practical issues about him remaining in Ecuador’s embassy for the rest of the days (not least given the small size of Ecuador’s embassy in London).

In essence, Mr Assange should go to Sweden and answer the extremely serious allegations made against him.  He is probably more protected against extradition to the USA by being in Sweden than remaining in the UK.  By going to Ecuador’s embassy he has managed to create a diplomatic nightmare involving at least three countries.  The conclusion to this long-running saga might be some way off, but it will certainly not involve storming diplomatic premises and will unlikely involve stripping diplomatic premises of their diplomatic status.  Although, with Mr Assange anything is possible!


The Council Framework Decision (pdf)
Extradition Act 2003
Diplomatic and Consular Premises Act 1987
Assange v Swedish Prosecution Authority (High Court of England and Wales judgment)
Assange v Swedish Prosecution Authority (Supreme Court judgment) (pdf)
Wikipedia Article on the European Arrest Warrant
Julian Assange: can the UK withdraw diplomatic status from the Ecuadorian embassy? (Carl Gardner)
Assange, Asylum and Immunity (Charles Crawford)
Julian Assange: can he get out of this? (Carl Gardner)
Will the Ecuadorian embassy be stormed? (David Allen Green)
The desperation of Julian Assange (David Allen Green)
Assange and the Supreme Court decision (David Allen Green)
Assange (@PME200)

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.


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.

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

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?

Live TV coverage of court proceedings?

In any democracy having an open and accountable court system is an important pillar.  Justice should be conducted in an open fashion whenever possible and this, I believe, should include the televising of some court proceedings.

Scotland is not averse to having cameras in the Courts.  The BBC were granted exclusive access to film in Glasgow Sheriff Court to produce the TV Series “Sheriff Court” and cameras were permitted into the High Court of Justiciary to film the handing down of the Appeal Courts decisions in the appeals against conviction of Nat Fraser and Luke Mitchell.

There is certainly room for television cameras in courts.  However, I remain concerned about their impact on the trial process if trials were to be televised.  I would say that this extends to some civil proofs as well as criminal trials, but the concerns relate mostly to criminal trials.

A lot of things happen during the course of a criminal trial that cannot, for obvious reasons, be broadcast on the television.  If a full days sitting at the High Court, for example, was to be televised then it is quite likely that a significant amount would need to be cut out.  This could cause difficulty for live broadcasting.

Throughout a case at court a jury may be required to leave the court room while legal debates take place.  These could be on a whole range of things including whether to admit or exclude a piece of evidence.  The jury are generally not permitted to hear such debates for a number of reasons.  Firstly, matters of law are for the presiding judge alone and not the jury.  Secondly, it’s rather pointless holding a legal debate to exclude, for example, a piece of evidence and permitting the jury to be present and to hear/see the evidence in question.  These legal debates are rather boring, even for those sitting on the public benches who have an interest in/knowledge of the law and the probability of anyone wanting to sit and watch is not very probable.  However, if this debate was to be broadcast then matters which should not be within the knowledge of a juror might well become into the knowledge of a juror.  That could potentially undermine the trial process and the accused’s right to a fair trial.

Jurors are not supposed to discuss cases when outside of the jury room and when they are not all gathered together.  There is little doubt that some jurors already go home and offload to a spouse or partner about what they saw or heard that day in court.  To think otherwise is foolish, some of the evidence which jurors will see and hear is so harrowing that they have to discuss it with someone.  It’s no different to, for example, a police officer going home and talking about their day to their spouse/partner (again, they shouldn’t be but it does happen).  However, what if that spouse or partner had seen some of the trial on the television while in the house?  Could we then start to get opinions of those who are not jurors influencing the decisions of juries in our courts?

What about showing the jury or witnesses on TV?  Yes, anyone could in theory turn up at the court and sit in the public gallery and see witnesses or jurors.  However, in my experience court staff do not expect people to be in the public galleries and will often make enquiries as to the person’s reason for being there.  With someone in the public gallery arousing suspicion then someone in the public gallery acting in a suspicious manner is likely to get the alarm bells ringing in the minds of the court police officer, court clerk and possibly even the presiding judge.  Having witnesses or jurors appearing on the television could make it far easier for there to be interference with or intimidation of witnesses or jurors during the course of a trial.  That impacts upon the administration of justice and could render the trial process unfair.

Undoubtedly, news editors will likely want footage from the trial for their news bullet-ins.  Would this be appropriate? Taking what might be 30 seconds of evidence from up to 5 hours worth of evidence?  Jurors will obviously have already heard the evidence.  However, could this 30 second clip taken entirely out of context affect a juror’s perception or memory of the evidence?  It could do so in a good way, but it could equally do so in a bad way.

You can create all the criminal offences you want to help avoid the above problems, but if one of the above problems does arise then retrospective criminal action against the offender won’t stop the damage that may already have been done to the trial in question.  Serious breaches as a result of television broadcasts might well result in an expensive retrial having to take place.

However, I would be highly supportive of TV cameras capturing just about every other aspect of court proceedings.  Undoubtedly a murder trial might be more appealing to the public than a proof on whether a line in a contract means X, Y or Z but should a murder trial be broadcast live in its entirety?  I would say no.