Contempt of Court, Criminal Justice, Criminal Law, English Law, Human Rights, Politics

Anonymity upon arrest

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

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

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

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

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

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

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

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

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

English Law, Human Rights, Scots Law

The UK and the ECtHR: 2012 statistics

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

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

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

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

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

Criminal Justice, Criminal Law, English Law

Sentencing in historic cases

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

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

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

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

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

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

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

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

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

Constitutional Law, English Law, Human Rights, Legal System, Politics, Scots 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?

Criminal Justice, English Law, Human Rights, Legal System

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.

Civil Liberties, Criminal Justice, English Law, Human Rights

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.

Criminal Justice, Criminal Law, English Law, Human Rights

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.