Category: English Law

Riot sentences too harsh?

There has been a lot of debate and discussion in the last week about the sentences being handed down by courts around England in connection with the mass-scale disturbances that took place over the space of four days last week.

The Courts have been handing down what appear to be, on the face of things, some very tough and overly harsh sentences which appear to be reflecting the public mood and especially the mood of the Government. More than 60% of those charged have been remanded into custody pending their cases being dealt with in the courts; this is significantly higher than normal. Last year only about 10% of all defendants were remanded in total. Some commentators have questioned this much wider than normal use of remand, and even gone as far as to suggest that the benches may even be trying to use remand as part of the punishment. There is, in law, a presumption in favour of bail being granted. There are no offences where the opposite is true. It is for the Crown to prove that the defendant should not be granted bail and instead be held in custody. Holding a person in custody, particularly before they have entered a plea of guilty or been found guilty by the Court is a serious matter. It is removing the liberty of individuals who are legally still innocent of any crime and are only suspected of having committed the crimes alleged of them. Therefore, it is not something that should be entered into lightly. Indeed it is not something that magistrates or judges would enter into lightly.

Yesterday two teenagers were sent to prison for four years over Facebook events they had created in order to try and incite riots. These sentences do appear overly harsh, but the fact that both defendants received the same sentence when the facts were really quite different is also of concern. In one case it is reported that the defendant not only created the Facebook event, but had turned up at the location detailed in the event as the meeting point. While it is reported that the other individual removed the event and apologised before police came to arrest him. If those facts are indeed true then there is a higher level of culpability in the first case and it would ordinarily be expected that this would lead to a more severe sentence than the second defendant.

Sentencing is not all about punishment, retribution and deterrence, but this is what sentences being handed down around England in relation to the mass public disorder appear to be about. There is another important element to the sentencing and that is proportionality. In order for the sentence to be proportionate the context in which that offence was committed must be looked at.

The offences with which people have been charged in relation to the mass public disorder are quite rightly being aggravated by the context of mass public-disorder. It would be reasonable to expect that people who are convicted or plead guilty to these offences to be treated by the courts in a more serious way.

The ordinary rules of sentencing should not be set aside in extraordinary circumstances. In order for justice to be justice at all it must be fair to all parties, the defendant included. In order that it is fair magistrates and judges should follow the same guidelines and processes as they would normally and not simply ignore them. Indeed, in England and Wales courts are bound by Section 172 of the Criminal Justice Act 2003 which requires them to have regard to any definitive sentencing guidelines issued by the Sentencing Guidelines Council. The definitive guidance issued by the Council are published online.

Many commentators are of the opinion that the Court of Appeal is going to be rather busy as they review decisions not to grant bail and decisions on sentences handed down by the courts in relation to the mass-disorder of last week. Court time is already at a premium and it is going to become filled with cases where defendants are appealing their sentences.

One factor that has been highlighted on a number of occasions has been the all night sittings of Magistrates’ Courts. Legitimate questions exist regarding the quality of the judgment of Magistrates and of representation (on both the Crown and Defence sides of the court) when cases are being dealt with in the early hours of the morning.

In Scotland a number of persons have been charged with offences relating to inciting riots on Facebook. It will be interesting to observe how the Scottish Courts handle these cases if and when the cases come before them for sentencing. Scotland didn’t see any of the scenes of mass-scale public-disorder that provide the backdrop and context for the sentences being handed down in Scotland. There does not appear to be the same level of public mood as there is in England, which is no doubt fuelled by the disorder. Therefore, it might be reasonable to expect a more considered and measured approach to sentencing. That said; each of the accused persons have been remanded into custody so hopes for a more measured and sensible approach to sentencing in these cases might be no more than wishful thinking.

Wandsworth seeking possession under Ground 1 in riot case

On Friday 12 August 2011 Wandsorth Council issued a press release that sparked a public debate. Wandsworth Council stated that they had issued a tenant with an eviction notice. The notice was issued relating to the conduct of an occupant of the council property after the occupant had appeared in court charged in connection with the riots that had taken place in London last week.

Commentators have been focusing on Ground 2 for possession which can be found within Schedule 2 to the Housing Act 1985. The following questions were posed to Wandsworth Council:

(1) Did Wandsworth Council issue a notice to the tenants referred to in the press release of 12 August 2011 indicating that the council would be “seeking possession of the property and that an application will be made to the courts seeking the tenant’s eviction”?
(2) If the answer to question 1 is in the positive, upon what grounds was the notice issued? In particular was Ground 2 of Schedule 2 of Housing Act 1985 mentioned?
(3) If the answer to question 2 above is in the positive, was ground 2(a) or 2(b) mentioned?
(4) If the answer to question 1 is in the negative why did Wandsworth Council issue a press release that suggested that they had in fact issued such a notice?

In response to those questions the Council had the following to say:

The tenant has been given a Notice of Seeking Possession under Ground 1 of Schedule 2 to the Housing Act 1985, as amended by Housing Act 1996 – namely a breach of their tenancy agreement.

Ground 1 reads as follows:

Rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed.

In their original press release Wandsworth Council said the following:

Under the terms of the agreement, which applies to all the council’s rented accommodation, all tenants, their household members and visitors are forbidden from a range of criminal and anti-social activities. Breaches of the agreement render them liable to eviction.

Ground 2 of the Housing Act 1985 does not appear to be engaged in this case.

Questions still arise around the fairness and proportionality of these steps taken by Wandsworth Council and there is little doubt that other council’s will be watching the outcome of this move by Wandsworth carefully, especially those who have been affected by the riots that spread across England last week.

Life Sentences

There is often a lot of criticism of the life sentence system in the UK in that it doesn’t mean life. The way in which these sentences are reported is not conducive to helping people to understand the sentence and that can damage public confidence in the system. When a member of the public reads in the newspaper or hears about a life sentence on the TV or radio they will often hear phrases like “must serve 16 years”. I’ve often heard people talk about how the latest big murder case to hit the news the accused is only handed a sentence of 18 years (as an example).

The problem does not lie with the Judges, in my view. The sentencing judge spells out the sentence in quite explicit terms to the accused and to anyone else who happens to be in the court room at the time sentence is passed. The following is an extract from a published sentencing statement by Lord Turnbull in the case of HM Advocate v William David McLean:

“I must stress though that this is not the sentence. Given your record you may well never be released at all. That question will be for the parole board. The sentence of the Court is that you should be imprisoned for life”.

Sentencing judges are required to set what is known as the “punishment part” of the sentence. Essentially this means that this is the minimum period of time that the accused must serve in prison before being eligible for consideration for release on life licence. In the above noted case this tariff was 17 years.

Is it the case that the prisoner is simply released after this period has expired? Well, the impression I get from people that I speak to is that the public believe that this is the case. In a recent Freedom of Information request made to the Scottish Prison Service I discovered that in Scotland there are currently 191 life sentenced prisoners currently being detained in custody beyond the punishment part of their sentence. None of these 191 “lifers” has been released by the parole board on licence since their punishment part had expired. Clearly the Parole Board are of the view that these 191 prisoners still pose a danger to the public and are not suitable for release on licence.

Under an almost exactly similar Freedom of Information request to the Ministry of Justice I was informed that on 17 November 2010 (the date the latest figures were available for) there were 7,656 life sentence prisoners in custody. Of these, 2,874 had passed their minimum tariff date. Again, recalled prisoners are excluded. Once again, it would seem that the Parole Board is not very quick in releasing people serving a life sentence who have served their minimum tariff. These 2,874 people clearly, in the eyes of the Parole Board, still represent a danger to the public.

There is the existence of whole life tariffs in which a offender knows from the day they are sentenced that they will never be released from prison and with those serving life sentences with minimum tariff periods there is the very real possibility that they will spend the rest of their life in prison. I am a firm believer in that everyone deserves a second chance and that the vast majority of people can be rehabilitated (the ability to rehabilitate an offender largely comes down to the offenders willingness of the offender to be rehabilitated). Not every person who commits a murder will forever more be a danger to the public. Take, for instance, your man or woman who kills their partner after suffering years of domestic abuse. Often such cases will be prosecuted as murder as the killing does not occur alongside the abuse they have been suffering. These individuals do not deserve to spend the rest of their lives in prison, but as they have been convicted of murder the only sentence available to the Court is life imprisonment.

The justice system, especially sentencing, cannot be based upon a one size fits all approach. The system does have its flaws, but let’s be clear on one thing, the minimum tariff imposed in court on a person sentenced to life is rarely what they serve before being released, and often it is much longer. The Parole Board are clearly doing their job.

Injunctions, Super-injunctions and Privacy: Part 2

Part 2 of my blog series on Injunctions, Super-Injunctions and Privacy will focus on the issue of Super-injunctions. I think it would be prudent to once again state what an Injunction is and what a “super-injunction” is as there is a lot of confusion, especially in the wider mainstream media as to what each is.

An Injunction is an order issued by the Court that prevents a person from doing a particular act. So that could be naming the victim in criminal proceedings involving children under 16 or the victim in a rape case. Moving away from criminal law it could be an injunction to prevent an anticipatory breach of contract or to prevent the printing in the media of untruths about a person.

A super-injunction is an injunction that has an additional layer of protection attached to it whereby the media cannot even report that the injunction exists. It is not one where anonymity has merely been granted, that is an anonymity injunction. The media are free to report about injunctions that have been granted where one party remains anonymous (provided that they do not break the terms of the injunction such as revealing who the anonymous individual is), they are not free to report that a super-injunction exists. The wider public should not know that one of these injunctions exists.

In the case of the footballer whose name is widely known but in terms of the injunction is only known as CTB this was not a super-injunction. Had it been a super-injunction the media would not have been able to report that an injunction had been granted. The injunction merely prevented the media from revealing the name of the footballer in question.

Having read the judgment of the Court and the reasons why such an injunction was granted I must say that I find no real reason was to why the Injunction should not have been granted. The narrative of the case suggests that the allegations that appeared in the paper were false and indeed that blackmail (a criminal offence) may have occurred. The media cannot be allowed to print libellous and defamatory stories about a person. The case of CTB is not a case where the footballer in question has done something wrong and is now trying to prevent it from coming out in order to protect his reputation, but rather is preventing what appear to be libellous statements about him being printed.

I am in no doubt in my mind that the ability of a person whether they be in the public eye or not to prevent what they deem to be libellous and defamatory information about them from being printed is a good thing. How would you feel if the papers suddenly printed a story about you that suggests you acted unfaithfully towards your spouse, that in your mind is untrue and the evidence that exists was staged and part of a blackmail plot? One would imagine you would want to do everything in your power from stopping such a story being printed. Granted, the chances of that happening to someone outside of the public eye are remote, but it could be demonstrated equally as well with any number of more realistic situations for the average member of society.

The problem I have with super-injunctions is the secrecy of them. They cannot be open to scrutiny as they are entirely secret. They go beyond granting anonymity to the Claimant and mean that nobody outside of the parties, Counsel, Solicitors and Judge should know of its existence. I am sure there are perfectly good reasons for such injunctions to exist in terms of National Security and such like, but when it comes down to protecting the private life of individuals in the public eye I believe that is a step too far. They prevent, for example, a party to the injunction raising the issue with their elected representatives should they wish representation by their MP or local councillors.

As I have said in part 1 and will explore in more detail in part 3, privacy is essential in our lives. Each one of us, whether we are in the public eye or not, are entitled to some level of privacy. The right to a private and family life is important, but you will just have to wait for my thoughts on that.

[Part 1]

—-
NOTE: While the name of the footballer in question is in the public domain, the injunction remains in force. Any comments posted on this blog that name the footballer in the CTB v NEWS GROUP NEWSPAPERS case will either be deleted or redacted. This blog does not endorse the wilful breaching of court orders.

Injunctions, Super-injunctions and Privacy: Part 1

There has been a lot in the media of late over so called super-injunction. As is the case with all legal stories the newspapers continually distort the true picture to whip up a frenzy which results in Parliament looking at what is essentially a non-issue. I am going to attempt to add my voice to the many already out there on the internet.

An injunction, or if you are in Scotland an interdict, is a court order which prevents someone from doing something. For example, one could seek an injunction against one’s neighbour to prevent them from using their property in a way that prevents one from enjoying one’s own property or to prevent a newspaper from printing untrue stories about oneself. A super-injunction, and I’m not aware of there being any “super-interdicts” so this would appear to be an English only issue, is a special type of injunction that the wider public are not supposed to know exists – that is what makes it “super”.

The case of CTB v Imogen Thomas is not an example of a super-injunction, but rather the bog standard injunction described above. It does not have the extra layer of protection that meant its very existence was not supposed to be known by the wider public. Injunctions cover a wide array of things and could be used to prevent doctors from carrying out a medical procedure to being used as a pre-emptive way to prevent a breach of contract from occurring. They do not exist, as the media suggest, purely to stop celebrities from having details of their private lives splattered across the pages of a national newspaper (although that is one way they can be, and have been, used).

Injunctions and super-injunctions, particularly relating to celebrities, have sparked a debate on privacy, which has really only been of concern to those working within the English legal system. When considering the issue of privacy one must turn to look at section 12 of the Human Rights Act 1998. This places upon the court a clear burden to weight the public interest with the right to free expression. It has been said often before that what interests the public is not always the same as what is in the public’s interest. While the public very well may be interested in which celebrity is having an affair with who (and personally I cannot understand why that would be of any interest to anyone other than the parties involved) is it really in their interest to know? What benefit is there to the public knowing that Celebrity A is having an affair with Celebrity B? It is not for me to attempt to define what “public interest” means; that is either down to the Court or Parliament to do. However, some examples of what I would consider to be in the public interest would be:

A Government Minister acting corruptly in the exercise of his duties as a Minister – clearly there is benefit to the public of knowing such information and a Government Minister in such a position should not be able to prevent details of their corrupt actions being revealed to the wider public by way of a court order.

An MP acting in breach of the criminal law – I think that most would agree that a Member of Parliament breaking the Criminal Law is in the public interest and that the media should be free to report on this (in a way that does not prejudice any future criminal proceedings)

A company dumping toxic waste in an unsafe and illegal way – again, a clear example of something that would be in the public interest and that should not be able to be kept private by way of a court order preventing publication of details in the media.

To follow those three examples of things that, in my opinion, would be within the public interest some examples of what I believe the public might be interested in, but are not really in the public interest:

Celebrity A and Celebrity B (both single) have been seen in a restaurant having a romantic meal – the public might very well be interested in this, but the media should be able to be prevented from printing the details if Celebrity A, Celebrity B or both want to keep it private.

Celebrity A and Celebrity B (inclusive of politicians) are having an affair –again, the public might very well be interested in the lives of celebrities, but is it really in the public interest to have family disputes publicised in the paper? The effect of affairs can be bad enough, especially for any children involved, without having to see the details of it plastered in every newspaper, on every TV news bulletin and all over the radio for the next six weeks? I don’t think so.

Not every case is that straight forward, but I think it gives a flavour of the types of situations I am thinking of when looking at whether or not something is in the public interest or not. As I have already said above it’s not my place to try and put a definition on “public interest” – that must fall to Parliament and the Courts to define and interpret.

The Prime Minister has repeatedly said that he does not like the idea of judges making the law and doing Parliament’s job for them. I would agree that I do not like such a situation, but that is not what we have here (although I do feel it necessary that the Courts can provide an equitable remedy where none exists in law – where the Courts do this though it then falls to Parliament to deal with the gap that has arisen in the law by passing legislation). We have judges interpreting the Human Rights Act, a piece of primary legislation passed by the United Kingdom Parliament. It is the job of the Courts to interpret legislation passed by Parliament.

Privacy is an important aspect of human life. None of us wants our every move or the problems within our family plastered across the news. Some might argue that by being in the public eye celebrities should expect such things, or that celebrities are quite happy to use the media when it suits them. I do not subscribe to this view. Each us has a right to decide what we disclose and what we do not disclose to those around us. Not one of us is without a secret or two. There should be as little interference with that right as possible and freedom of expression is not an excuse for publishing private details about a person’s personal life that someone has sold to you or that you have discovered by investigating a person. Only where it is in the public interest should a person’s privacy be placed after freedom of expression. The media do not have a right to publish what they want about who they want regardless of the wider consequences. When they decide to print photographs of a person having an affair there are many innocent people who are affected – the innocent partner(s) who have been faithful, any children that may exist (and that may well include nieces and nephews).

Exactly what is in the public interest to reveal about a celebrity or not is a difficult question. By the nature of their position in public they are inevitably going to be role models for younger people in society. So, if I were to be caught speeding by the police in my car it would most probably not be in the public interest for the press to report that. However, if a premier league footballer is caught speeding then that very well may be in the public interest to report.

However, I can think of only a few situations where it might be in the public interest to report the affair of a high profile public figure. An example might be where such an affair could compromise the political process (e.g. a Government Minister having an affair with someone who has or is seeking a Government contract – especially where that Government Minister is or may be responsible for awarding said contract).

Generally, I am not in favour of restricting the press. However, free expression is not an absolute right (and cannot ever be) and is subject to exceptions. The privacy of a person, whether they are in the public eye or not, where there is no real public benefit to knowing should be respected and in my view there should be a presumption in favour of protecting that persons privacy if they so wish.

I do have concerns about so called “super-injunctions” as in my view no court order should prevent a person from discussing a matter with their elected representatives. Such injunctions are, thankfully, very rare. I will go on to explore what super-injunctions and privacy in more detail in blog posts over the coming days.

Tomlinson Inquest verdict

On 1 April 2009 London saw protests and demonstrations in relation to the G20 summit taking place the following day in London. Following those protests a video was made publically available by the Guardian newspaper which showed a man being struck by a police officer and then violently pushed to the ground. That man was Ian Tomlinson who collapsed and died shortly after. Ian Tomlinson was walking away from the police, had his back to them and his hands in his pockets and posed no real threat or danger to the police. Today, the inquest into his death concluded with a verdict of unlawful killing. The jury decided that Police Constable Simon Harwood had used “excessive and unreasonable” force in striking Ian Tomlinson.

At the time the incident raised serious concerns about the conduct of the police when it came to policing demonstrations and those concerns have only grown as the years have passed. Less than a month ago the High Court held that the police use of kittling at the same protest had been unlawful. Last week there were reports of somewhat dubious “conspiracy” arrests ahead of the Royal Wedding on 29 April 2011. A video of one such arrest can be found here. There were also arrests of peaceful demonstrators in Soho Square, London on 29 April 2011 and a video of those arrests can be found here.

In relation to the death of Ian Tomlinson the Crown Prosecution Service are conducting a robust and thorough review into whether PC Harwood should be prosecuted or not and the Metropolitan Police Service has advised that PC Harwood will be the subject of internal misconduct proceedings. It is of course for the CPS to decide whether PC Harwood should be prosecuted and if so what the charge should be. However, I would have thought a charge of manslaughter would be a very likely option. The question of whether PC Harwood remains a Police Officer or not is in the hands of the Metropolitan Police, but I find it hard to see how they could do anything other than dismiss PC Harwood following the result of the inquest. Of course, any decision by the MPS may well be delayed until after the CPS decide what to do and the conclusion of any criminal proceedings.

Of course, not everyone agrees with the verdict. An anonymous Police Inspector writing under the name of Inspector Gadget has suggested that the verdict may result in a reluctance for the police to get involved and lay hands on anyone.

The Police must be able to use reasonable force in order to prevent significant violence and disorder. However, I find it difficult to believe that anyone looking at the video of the incident involving Ian Tomlinson could be of the view that the force used by PC Harwood was in anyway reasonable and justified. Other video evidence of PC Harwood’s actions on that day suggest that he is either wholly unfit to be a police officer or at the very least unfit to be involved in any public order policing.

At least one comment on Inspector gadget’s post has me a little bit annoyed. It goes as follows:

“SORRY !!!!!!!!!!!!!!!!!

Same old same old yet AGAIN, people have this officer hung drawn and quartered on the basis of what ?????

A ” BIT OF A VID “……………………AGAIN !”

I’m sorry but don’t the police use CCTV on a regular basis as a significant part of their case against people accused of assault? What is the difference between moving images of a police officer using unreasonable and unjustified force against a member of the public and moving images of a member of the public using unreasonable and unjustified violence against a police officer or another member of the public? I fail to see any difference whatsoever between the two.

Due process should be allowed to continue with the MPS internal misconduct proceedings, the review by the CPS and any subsequent criminal proceedings.

Sex Offenders’ Regsiter

Yesterday the Government was forced to confront another unpopular decision from the Supreme Court based on Human Rights issues and yet again this will result in further unpopularity with the wider public. Once again that tabloid press have excelled themselves with their less than reputable reporting of the situation and had led the public to believe something that simply is not true.

The judgment in question relates to the keeping of sex offenders on the Sex Offenders register for life after having been sentenced to a period of imprisonment of longer than 30 months. The Supreme Court held that this was unlawful and as a result the Government are required to make further changes to the Law.

What is the Sex Offenders’ Register?

Contrary to popular belief there is no single, centralised list of registered sex offenders. Persons who have been convicted of a sex offence can be required to register with the police on regular intervals and be required to inform them of when they are leaving the country, where they are working, where they are living and other such matters. This is what is referred to as the Sex Offenders’ Register. Sex Offences could cover anything from flashing in the street to more serious offences such as rape and sexual abuse of a child.

What the Supreme Court judgment means?

Under the current system any person sentenced to a period of 30 months in prison or more for a sex offence is required to report to the police for the rest of their natural lives. There is no way of appealing this decision currently or arguing that their punishment and rehabilitation has had the required effect and no longer a danger to the public. It is this lack of mechanism to appeal that the Supreme Court has found is unlawful and it is this and only this that the Government is required to change.

The Government is simply required to provide a mechanism which allows an offender to appeal. The judgment does not require the Government to automatically stop people from registering with the police after a certain period of time nor does it require the Government to legislate in a way that means persons do not need to register with the police for the rest of their lives. What it requires is that the Government provides a mechanism whereby a person subject to such an order is able to appeal the order and have it removed or even altered.

Currently the Government is looking to allow persons who have been registering with the police under this scheme for a period of 15 years to appeal the order. This does not mean that the order will be revoked, indeed quite the opposite. It will require the applicant to prove that they no longer pose a danger to society. If they cannot satisfy the test set out by the Government then their application would be refused. Of course, they would need to be permitted to try again and the Government would need to decide what length of time, if any, would be required before a person could apply again

The Issues

Of course this matter is a controversial one as it relates not only to public protection but to a group of offences that the public quite rightly find grotesque. We treat sexual offence seriously in our judicial system and this measure was introduced as a way of ensuring public protection after a person has been released from prison.

However, one of the biggest issues is that of punishment. For how long should a person be punished for a crime? The “sex Offenders’ Register” is a lifelong punishment for individuals and does not recognise that the original punishment (i.e. the loss of liberty by having been sent to prison) and the rehabilitation work carried out whilst the offender was in prison and most likely continued outside of prison may have actually worked in rehabilitating the offender. Of course, not everyone can or will be rehabilitated and that is not what the Supreme Court or anyone else for that matter is trying to say. What is simply being identified is that the system lacks the recognition of this and that must change.

In reality those on the Sex Offender’s Register are not monitored all that closely and people can and do managed to abscond without the police knowing. Having a system whereby the offender’s case is going to be reviewed and monitored more closely may assist their rehabilitation further. It may give some the motivation to really deal with whatever the underlying issues to their offence was (and with these types of offences there usually will be some kind of underlying reason). This can only be a good thing.

Proposals in England

The proposal in England are that an individual will be able to appeal to the police after a period of 15 years to have their name removed from the register and that there will be no appeal from this decision.

I don’t think that these proposals go quite far enough and are indeed flawed. Firstly, we are asking the police to decide whether to continue or discontinue an order made by the courts. Such an order is issued by the court as part of the sentencing for the offence. The only right and proper authority to review such a decision is the court itself (or at the very least a body such as the Parole Board or similar). By allowing the Police the ability to make such a decision with no route of appeal risks breaching Article 6 of the European Convention on Human Rights (right to a fair trial). Can the police be a truly independent and impartial tribunal?

Further to that the inability to appeal could raise further problems. If a person is not permitted to challenge a decision or seek an appeal against the order again at a later date then further Human Rights issues arise. A system similar to that seen in parole hearings may be something to consider: decision is (usually) final, but a fresh application can be made after (usually) a period of 12 months.

I understand the Government’s wish to do as little as possible as it is going to be unpopular with the public (along with other decisions such as prisoners’ votes). However, they do themselves no favours by not being open and honest about the situation with the public. By putting headlines and sound bites before public honesty they are actually manufacturing many of the problems they are trying to avoid. They may have ulterior motives for this, but I would not like to speculate on the matter.

Control Orders: An Abomination

Since their introduction under the terms of the Prevention of Terrorism Act 2005 (“the 2005 Act”) following the ruling of the House of Lords on the previous system under the Anti-terrorism, Crime and Security Act 2001 Control Orders have proved to be a contentious issue between the Government and Civil Liberties campaigners.

What exactly are Control Orders?

A control order is something which can be imposed upon a terrorist suspect by the Home Secretary. Under the order the Home Secretary can place upon an individual a huge set of restrictions upon their liberty. These restrictions include:

(a) a curfew of up to 16 hours per day

(b) restrictions as to where the “controlee” lives and who he can admit to his home

(d) a requirement to allow themselves to be monitored electronically and have their photographs taken (i.e. be spied upon)

The full list of restrictions that can be included in an order can be found in section 1(4) of the 2005 Act.

The issues

Control Orders were advanced by the last Government as a way of keeping the country safe from terrorist and the threat of terrorism. By controlling the lives of those they suspected of being involved in terrorism it was felt that they could prevent terrorist attacks from taking place.

The conditions which must be satisfied before a control order can be issued can be found section 2 of the 2005 Act. The two conditions are:

a) has reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity; and

b) considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual.

Once the Secretary of State is satisfied that the above two conditions are met an order can be granted by him. This is where some of the issues begin to arise around Control Orders.

The first of the issues that will be discussed in this post is the issue of who is issuing the order. Under the 2005 Act these orders are issued by the Secretary of State, ordinarily it would be the Home Secretary who makes these orders, but as there is technically only one position of “Secretary of State” with many people appointed to it any of the Secretaries of State could grant an order. These are not orders granted by a court having assessed evidence placed before it, but rather a member of Government issuing an order which places substantial restrictions on a person who is legally innocent (a point that will be discussed below). We have, in effect, a member of the Executive carrying out a judicial function based on nothing more than “reasonable suspicion”. This is an affront to the democratic process; it should not ever be within the Government’s power to carry out such functions. In simple terms impartiality and objectivity cannot be guaranteed and these are important foundations of our justice system: it is fair, impartial and objective.

In the first issue mentioned above there was reference to the subjects of these control orders being legally innocent and this is a crucial point in the argument against control orders. Those subjected to these orders, placing huge restrictions upon their liberty, have not been found guilty of being involved n terrorism by a court. Furthermore, when most of the orders are granted not even accused of being involved in terrorist activities. They are only suspected. Reasonable suspicion wouldn’t, for example, be enough to charge a person with an offence (which could then lead to a period on remand), but yet the Secretary of State can grant an order restricting the liberties and freedom of innocent people on only a reasonable suspicion. There has been no trial, indeed there may not ever be a trial or the trial may take place following a protracted period of time. In Scotland, if a person is accused of a crime (i.e. they have actually been charged with an offence) and that person has then been remanded in custody the trial must commence within 110 days. This is an important safeguard for accused people, who remain innocent until their guilt is proven by the Crown in court, as it prevents the state from holding people in prison for significant periods of time while they remain innocent.

Persons who have a control order are not kept in prison (the system was introduced to replace holding terrorist suspects in prison without charge or trial after it was ruled illegal on Human Rights grounds), but they do have some significant restrictions placed upon them by the state while they continue to investigate their crimes. People can be kept on these regimes for years. At the time of writing a Freedom of Information request had been submitted to the Home Office to try and identify the length of time people are being subjected to these orders.

Last week The Independent carried the story of Cerie Bullivant. Mr Bullivant is a young man who converted to Islam. He had a control order issued in 2006 and had it in place for two years. The High Court quashed is order because the Home Office had failed to show reasonable suspicion that he was a security risk. Three years on his life is still a complete mess and the label of “bomber” still haunts him. This is an innocent man and the State have ruined his life, how many more has this happened to and how many is it currently happening to?

A further issue with these orders that was briefly touched upon above is that they are indefinite in nature. Once they are imposed they remain there until a legal challenge against it is successful, the Secretary of State lifts it or the subject is charged and either convicted or acquitted of terrorist offences. There is nothing else within the criminal justice system which allows the removal or restriction of an innocent person’s liberties and rights on an indefinite basis, especially with so little evidence required. There are issues relating to the evidential matters, which will be discussed later. The very nature of these things being indefinite is an affront to the justice systems in operation of the United kingdom, which are based upon the idea that a person is innocent until they are found guilty by a court or by their own admission. These abhorrent control orders are simply a contradiction of those fundamental principles of justice in Scotland, and the UK at large.

On the evidential front, much, if not all, of the evidence used to secure a control order is secret. In some cases it may not even exist, there is just simply no way of knowing. If there is evidence, it can be of no real value at all. Looking at the case cited above, Mr Bullivant had some small connection to an individual who had actually been convicted of terrorism and that, coupled with what appeared to be a legitimate trip to Syria looks to have been enough to justify two years of strict restrictions on his freedoms and liberties.

The courts have been had a deluge of cases before them on this fact. The Crown was simply not releasing the evidence to the suspect which had lead to the control order. It is another fundamental aspect of the legal system in this country that the Crown must prove its case and not only that but for the accused to know exactly what it is he is being accused of. This makes representation of any challenge against them. The standard state answer appears to be that to reveal the evidence woukd put National Security at risk. This is simply not right, there cannot be a situation where people are detailed in their own homes on state authority which has been granted based on evidence which is secret and has not been seen by any individual other than the Secretary of State who granted the order. This represents a police state.

These are the kinds of abuses that are more commonplace in China, Iran, North Korea and so on. Indeed were stores of such practices to come from these countries the UK Government would be one of the first to condemn them, but instead they see fit to have laws that allow such practices on the statute books in the United Kingdom.

The Future

After several challenges in the Courts to control orders and a change of Government to one that includes the Liberal Democrats, changes are on the way for control orders. Nothing has been confirmed by the Government at the time of writing as to exactly what will replace these orders, but it would be wise to assume that something not to dissimilar will be brought in with a different name.

The public at large should oppose any alternative that does not ensure due process is followed in a timely manner. The powers for terrorist offences are already far beyond those of normal criminal procedure, with pre charge detention of 28 days, no automatic right to access to a solicitor before interrogation by the police. Any replacement for control orders that does not put a suspect before a court to answer the accusations against him (and to date all control orders issued have been to males) and stop persecuting people for years on little more than “reasonable suspicion”. If these people really are as dangerous as the Government would like us to believe then the only place for them to be is in prison where they can do no harm.

These control orders can be issued to anyone for the weakest of suspicion. Mere association with someone who themselves is associated with someone who has, is or may be involved in terrorism could, in theory, be enough for the Secretary of State to issue a control order.

It must not be acceptable for us to trade our freedom and liberties for a perceived security. Do not be fooled, these control orders do not keep the country secure. It is something invented by the last Government, like so much of its criminal justice policy, to make it look as though it was doing something. Often the only effect of these actions was to make people feel safer and more secure, regardless of whether they actually were any safer or more secure. Control Orders are simply an example of this. Think about it: if these people were actually as dangerous as the Government makes them out to be by placing control orders on them, do you really think they would leave them on the streets? No, if there was the evidence that they were actually involved in terrorism they would be prosecuting them and ensuring they do no harm by keeping them in prison.

R v David Chaytor

Today former Labour Member of Parliament David Chaytor was sentenced to a custodial sentence of 18 months at Southwark Crown Court in relation to three charges relating to the 2009 MPs expenses scandal.

I’m sure it is not hard for us to remind ourselves of the background to these cases for they caused such a level of public outcry, anger and condemnation that politicians today are still feeling the effects of the scandal.

The journey to this point has been a long and convoluted one involving several attempts by those charged with offences relating to the scandal to take their cases outside the courts by arguing that Parliament alone had the jurisdiction to deal with these matters. However, the justices at the Supreme Court held otherwise and now due process in criminal courts can take place.

Mr Chaytor has been dealt with much more swiftly than the other individuals as he changed his plea to guilty to three charges of false accounting. The charges related to claims totalling £22,650 however only £18,350 as the claim for an invoice for technical support was refused on grounds other than deception. The claims were made over a period of just over two years. Counsel for Mr Chaytor, James Sturman QC, advised the court that £13,000 of this had already been repaid by Mr Chaytor.

In his sentencing statement the judge, Mr Justice Saunders, said:

“The public are entitled to expect that people who legislate for the public will themselves be honest in their dealings with the State and in particular with their use of public funds which are paid for out of taxation. The whole expenses scandal has shaken public confidence in our legislature. It has angered the public. Mr. Chaytor only bears a small part of the responsibility for that erosion of confidence and public anger, but it was an important part because, as he has accepted, his conduct was dishonest.”

(Mr Justice Saunders, R v David Chaytor)

There is a great deal of trust placed in our elected politicians at all levels and where they break this trust by committing criminal acts then it is only right that they feel the full force of the Law. In his sentencing statement Mr Justice Saunders made it clear that he increased the starting point of the sentence on the basis of the level of trust involved in this case and rightly so: the greater the level of trust involved in such a case the more serious the offence committed has been.

Mr Justice Saunders drew a comparison between MPs who make false claims for expenses and those who claim for state benefits to which they are not entitled. Mt Chaytor is no better or worse than someone who has wilfully and fraudulently claimed state benefits to which they are not entitled and let’s be clear here, Mr Chaytor’s offences were not accidental transgressions by submitting invoices incorrectly, but rather a clear attempt to get money from the public purse to which he was not entitled: he submitted an invoice never issued to him and created a tenancy agreement for a home he paid no rent on.

The eighteen month sentence handed down by Mr Justice Saunders today was following a 25% discount for a guilty plea. The full discount of one third was not offered as, in the opinion of Mr Justice Saunders, Mr Chaytor had not plead guilty at the earliest opportunity (which he considered to be the decision of the Supreme Court referred to above). This sentence should be a warning to our politicians not to steal from the public finances as a lengthy custodial sentence is probable.

The cases of the other individuals charged with offences relating to the 2009 expenses scandal will go to trial later this year and if convicted are likely to face tougher sentences for having been found guilty rather than admitting their guilt. Of course, under our fine legal system they are innocent until found guilty, either by the court or by way of their own admission.

You can read the sentencing comments of Mr Justice Saunders, in full, here and a good case comment by the UK Human Rights Blog can be found here.

In his sentencing statement the judge Mr Justice Saunders said:

The public are entitled to expect that people who legislate for the public will themselves be honest in their dealings with the State and in particular with their use of public funds which are paid for out of taxation. The whole expenses scandal has shaken public confidence in our legislature. It has angered the public. Mr. Chaytor only bears a small part of the responsibility for that erosion of confidence and public anger, but it was an important part because, as he has accepted, his conduct was dishonest.

The cases of the other individuals charged with offences relating to the 2009 expenses scandal will precede to trial later this year and if convicted are likely to face tougher sentences for having been found guilty rather than admitting their guilt. Of course, under our fine legal system they are innocent until found guilty, either by the court or by way of their own admission.

You can read the sentencing comments of Mr Justice Saunders, in full, here and a good case comment by the UK Human Rights Blog can be found here.

The Media and Police Investigations

Before I begin I will make a couple of things clear. Firstly, I am not and do not claim to be an expert on police investigation techniques or process. Secondly, I am not making any specific accusations against any particular journalist or media outlet.

Last week the Attorney General in England took the unusual step of effectively reminding journalists of their obligations under the Contempt of Court Act in relation to their coverage of the investigation into the death of Jo Yates.

I am all for the press having the freedom to report on such cases and indeed anything that they feel is worthy of being printed or broadcast (even if I disagree with their editorial decisions and policies). It is an important right in a democratic society and one that I will vigorously defend. Curtailment of this right should only go so far as is absolutely necessary in a free and democratic society (and that goes for any other fundamental freedoms, rights and liberties).

However, with all rights comes responsibility, and of late (not just with the Jo Yates murder inquiry, but indeed in many other stories featured in the media over the last few years) the media seem to have forgotten about the responsibilities that come with such rights. They must make sure that everything they present is balanced, fair and does not in any way prejudice a person, group of persons or a process. They must also respect the privacy of private individuals.

A prime example of the privacy issue can be seen in the Jo Yates case. The effective media scrum to get the best footage or shot of the grieving relatives as they visited the site where Jo Yates’ body was discovered. In my view, respect for the privacy of those grieving the loss of Jo Yates demanded that this very difficult and emotional moment was a private one not broadcast on the national television news. Indeed, I’m not really all that interested in how the family are grieving and what they are doing in order to help themselves come to terms with the loss of Jo Yates. I’m more interested in the capturing and prosecution of the person responsible for such a heinous crime.

A further responsibility that the media have is to respect the privacy of police investigations and not comment critically on the investigation. The fact remains that the media are only aware of what the police tell them and that will comprise of so little that it is fair to say the media don’t have a clue what’s going on. It’s unhelpful and not really in the public interest for them to do these things: indeed it may even hamper a police investigation as they spend time countering accusations of ineffective investigations made against them by the media.

I have enough confidence in our police forces that they will conduct investigations into such serious and heinous crimes to the best of their ability with the knowledge and resources available to them. It is up to the police to decide what is significant enough for them at that time to follow up. Resources are limited (as much as we would like the opposite to be true, it is not) and as such the police cannot possibly follow up on every single possible lead received. They must assess how each lead fits into what they already know and decide from there which leads are important enough for them to follow-up at any particular stage of the investigation.

Further to that, it is for the police alone to decide what should be released into the public domain through the media and for them to decide when and how the media can assist their investigation. It is highly irresponsible for the media to get “experts” in who have no direct knowledge or involvement with the case in hand to discuss what should or might be happening. This is pure speculation and does nothing to assist the police and their investigation.

Part of the problem may stem from the 24 hour news provision. The various news stations have this need to fill every single second with what they consider to be news and can end up digging into a story so much that what they end up reporting is so far removed from the situation in hand it’s laughable.

Character assassination of those arrested on suspicion of these high profile crimes is utterly unnecessary and potentially very dangerous for the media outlets. I’m not normally in favour of censorship of the media, but I really see no reason for the name of people arrested during the course of an investigation to be named in the media and would be in support of legislation to prevent the naming of suspects in all cases until they have at least been charged, and in some cases until conviction. What if, and here’s an idea, the person arrested is in fact innocent. What use has the media served by digging up people who knew X 2 or 3 decades earlier talking about their hair colour or how they found them to be “strange”? That of course, is merely conjecture by one or two individuals, but it suits the media in this country down to the ground. It gives them something to report (rather than reporting on worthwhile things). Of course they find the worst photograph of the suspect and together with their gutter investigations and reporting make it look like they are probably guilty. On some occasions reports by the media during investigations appear to be more like trials by the media of each individual who happens to be arrested or interview in the course of an investigation.

There is also an arrogance surrounding the media generally in such cases. In a news item I watched on TV today I heard the reporter say the following (or something almost exactly similar):

“There has been no reason or explanation for the delay in giving us this information”

This quote was in relation to the information released by the police today that Jo Yates was wearing only one sock, not boots and no jacket when she was found dead on a road near a quarry. I’m sorry, but the police are not answerable to the media as to why they have chosen to release information when they have (and not later or earlier). In fact, the police are under no obligation to give the media any information in relation to cases they are investigating. The police release information to the media when they feel that to do so may assist their inquiries.

We have a system in this country to bring people to justice. The police investigate a crime, any case against a person is then put before a court and the court then decides upon the guilt or innocence of an individual based on the evidence put before them. The media can play an important part in helping to obtain information that can help the police find the right individual to put before the court but they must not in anyway, act in a way that is reckless or irresponsible.

I heard an argument, on TV, over this matter during one of the many reports on Jo Yates saying that they way in which the British press have conducted themselves is nothing compared to the way in which the press conduct themselves in the USA. This was an apparent defence of the British media, but I’m sorry just because the media in the USA is worse doesn’t mean that either are acting correctly.

I’m sure by now that you will have got the point I am trying to make. If you haven’t in short it is this: the media must act responsibly when exercising its right to freedom of the press and that I am rather annoyed with the way in which the media have been conducting themselves over the last few years.