Category: Human Rights

Cadder Update

Those of you who read this blog regularly or follow me on Twitter will know that since October I have been harassing public authorities and Members of the Scottish Parliament in relation to the case of Cadder v HM Advocate and the resulting changes to the Criminal Procedure (Scotland) Act 1995. In January, to mark the end of the first three months of the aforementioned changes I made requests to all eight Scottish Police forces in Scotland, and the British Transport Police as well as the Scottish Government in relation to this case. I am determined that the difficult questions will be asked and answered and those responsible for taking decisions are held to account. It is my view that the Scottish Government failed in relation to this case and that it could have been a lot more pro-active.

This blog post is simply to update everyone on exactly what has been happening and at what stage everything is at.

As you can see from the image above there are two Scottish Police forces and the Scottish Government left to respond to my request and all are overdue. Under the terms of the Freedom of Information (Scotland) Act 2002 a Scottish public authority has 20 working days to respond to a request made.

The Scottish Government did send me an E-mail late on Friday evening advising that due to sickness my response would be delayed. Unfortunately not a lot can be done about the person dealing with my request being sick and so I am hopeful to hear back from them in the next few days.

Both police forces who have not yet responded have sent acknowledgments to my request and have not requested any clarification on matters (as when they do the FOI clock stops until such times as they have received from me to the clarification sought). As such I intend to contact the Forces initially by telephone to see what is holding the requests up and then may refer the matter to the Information Commissioner for Scotland as a failure to respond. Their responses are now more than one week overdue!

Each police force who has responded to date has found a reason not to release the information requested, largely it comes down to a matter of cost. In fact, in all cases cost is at least part of the reason as to why the information sought has not been provided. They have all argued that their systems do not allow for the search to be carried out anyway other than for a person to sit down and manually go through custody records. I’m not an expert on IT nor am I an expert on the systems they use, but I do find it quite hard to believe so have therefore requested a review to be carried out by each force. I have made many FOI requests before, but have never, until now, made a request for a review. The matter is far too important for a refusal at the first stage simply to be accepted.

The Crown Office responded in full at the first stage.

I have began collating what I have to date in terms of information and hope that by the middle of next month will be in a position to come to some conclusions and put any difficult questions that need to be answered to the appropriate people (quite how that will happen I am not all that sure, but I will find a way!) It would be great to be able to get these questions out there in advance of the Scottish Parliamentary elections on 5 May 2011 as the Government may well be different which will make accountability a bit harder.

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Updates

Central Scotland Police are chasing the person responsible for providing the information and hope to respond in the next few days either with a response or with an update as to what is happening.

I was unable to speak to anyone at Dumfries and Galloway Constabulary by telephone (number listed for them directs to Grampian Police!) so have sent an E-mail to them seeking an update and advising them that the 20 working day period has now expired.

Central Scotland Police have again been in touch advising that the individual responsible for gathering the information is out of the office until tomorrow (09/03/2011) and will be in touch again soon with a further update.

Dumfries and Galloway Constabulary have responded to my request for an update stating that they “are currently looking at our system to establish what information can be retrieved” and that they will get back to me “as soon as possible.”

Now only the Scottish Government is to respond to the Freedom of Information request.

Last updated: 12/03/2011 at 18:08

The Crown Office responded in full at the first stage.

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.

The issue of Prisoners’ votes

Today in the House of Commons Members of Parliament overwhelmingly voted against extending the franchise to persons in prison having been convicted of criminal offences. The decisions of the European Court of Human Rights (ECtHR) in the case of Hirst v The United Kingdom ([2005] ECHR 681) has effectively been ignored until now. The matter which it raises has been a thorny one for politicians as it will not go down well with the vast majority of the general public.

The ECtHR did not decide in Hirst that all prisoners should be given the right to vote and indeed it was very clear from its judgment that this was not the practical implication of its decision. What it has decided is that the automatic removal of a person’s right to vote upon being sent to prison having been convicted of a criminal offence is unlawful in terms of the European Convention. I dealt with a the relationship between the United Kingdom and the Convention and its institutions in a blog post yesterday evening and so do not intend to deal with those points in great detail here (though they are intrinsically linked in respects of the arguments put forward by opponents of prisoner suffrage).

While watching the debate in the chamber today through the BBC website I heard many arguments against the move and as is always the case some were more convincing than others. One MP argued that those who fought for the vote to be extended beyond male land owners would not have considered voting as a right but rather a privilege. This was one of the less convincing arguments that I heard during the debate. I was left wondering if I was the only person who understood the point of their fight for the vote being based on the principle that it was a right and not a privilege!

As I said above I am of the opinion that in some cases it is appropriate to remove the franchise from some people while they are in prison as part of their punishment. I have given some thought as to how I would approach this issue if I were a member of the Government and settled on the following (which I believe would comply with the judgment in Hirst):

1. All prisoners sentenced to 12 months in prison or less will retain their right to vote in all cases. 12 months is not an arbitrary figure that I magically pulled out of a hat, but it is based on the law as it currently stands in relation to those who can hold a seat in Westminster. Currently anyone sent to prison for 12 months or less can seek to be elected to Parliament and continue to hold their seat while in prison.

2. All prisoners sentenced to 12 months, but less than 4 years will lose their right to vote, unless otherwise ordered by the court

3. Where it is likely that an individual is going to be sentenced to a period of custody in excess of 12 months but less than 4 years may make an application before sentencing to not have their right to vote suspended. The court would consider as part of the sentencing process whether the individual should be permitted to retain the vote based on a set of guidelines issued by the Sentencing Council or the Supreme Court.

4. In cases where the individual is sentenced to a term of imprisonment of more than 4 years the question of their ability to vote could be considered by the Parole Board as part of their wider duties applying the same guidelines discussed in point 3 above. Prisoners would have to make an application to the parole board for this to be considered when making their application for parole.

Voting by prisoners would be conducted by way of postal vote and would be for the constituency in which their last known address was. In cases where they had no last known address their vote would be cast in the constituency where their parents currently reside. Where no parent remains alive, or where the parents are no longer in the United Kingdom it would be based upon the town in which their birth was registered. Where none of the criteria are met their constituency would be the one in which the court they were sentenced falls.

This would ensure that no one constituency is overly affected by prisoners voting and indeed that no one Member of Parliament is overly burdened by prisoners to the detriment of his or her other constituents.

As was pointed out in the chamber by some MPs today the United Kingdom cannot simply pick and choose which decisions of the ECtHR it follows. Courts make decisions which are unpopular with one party to the case before them; it is a consequence of their function. They are being asked to adjudicate between two parties who disagree with each other; this means that at least one party will not be happy with the outcome of the case. The United Kingdom agreed to have the ECtHR make judgments on matters relating to the European Convention on Human Rights and as such gave up part of its sovereignty when it did so. The giving up of sovereignty is part of the function of International Law. To allow a pick ‘n’ mix approach to judgments of the ECtHR undermines its authority and makes the convention a meaningless statement of intent.

Regardless of the Parliament’s decision in the vote today it is going to have to pass legislation that changes the law as it stands and it should do so having taken part in a reasoned debate that looks at more complex options, such as the one described above, to resolve the matter.

Should the UK withdraw from the ECHR?

Many times before on this Blog I have considered the Human Rights Act 1998 (HRA), the Convention upon which it is based, the United Kingdom’s relationship with that Convention and its institutions. In a week where we hear arguments proposing that the United Kingdom should withdraw from the European Convention on Human Rights and Fundamental Freedoms 1950 (ECHR) I find myself once again giving thought to the situation and how we might have arrived here.

In the past I have largely been critical of the media and its selective or in some cases its misreporting of cases relating to Human Rights issues. Generally I have been of the opinion that this is somewhat a deliberate act by certain sections of the popular press, but have been given cause to reconsider this position. I had a discussion with a news agency recently regarding an article they had written in which they specifically blamed the European Union for a Human Rights matter. What I discovered was, what appeared to be, genuine ignorance of the fact that the ECHR is entirely separate from the European Union and not only that but ignorance of the Council of Europe. Whether this was a genuine ignorance or a pretend ignorance is something I would not wish to speculate on. Furthermore, I would not wish to speculate as to whether any genuine ignorance in this case is something that is widespread across the various media companies within the United Kingdom.

The ECHR was drafted following the atrocities that were seen within the Nazi regime that had spread across a significant section of Europe. It was drafted out of a desire to never again allow such atrocities to take place. It was an important treaty at the time and its importance is equally as great, if not more so, today. It guarantees the citizens of the 47 Nations who have signed the treaty fundamental rights and freedoms. The rights contained within are ones that most people would consider to be fundamental: the right to life, the right to be free from torture, the right to a fair trial, freedom of expression and such like. They are rights and freedoms which anyone in a western democracy would consider as being essential elements of a democracy in the sense that without them there would not be democracy.

A treaty is a powerful statement of intentions by a State. When signing up to such a treaty it sends out a message from the state to its citizens and other nations around the world. It clearly illustrates the basic values and principles which that State believe in. However, a treaty is nothing other than a statement. Without an institution by which member states can be held accountable it lacks a bite. This was the feeling at the time and resulted in the birth of the European Court of Human Rights (ECtHR). Without such an institution the treaty is almost meaningless, but through the ECtHR the citizens of all 47 member states have a right of recourse to hold their Government accountable to the promises they have made by being signatories to the treaty.

Simply having an institution in place where arguments can be made and judgments pronounced is not enough. That institution must have the ability to enforce the decisions it has made. The Court is an unelected body and that gives it an independence and freedom that national Governments and Parliaments simply do not. The United Kingdom has voluntarily agreed to submit to the jurisdiction of the ECtHR and as a result has to apply judgments made in relation to cases against it and take note of other judgments that may impact upon the UK Government’s policy. If the Government was simply able to ignore the judgments it did not agree with then the institution would be entirely useless and result in the situation of a country signing up to a meaningless document.

The United Kingdom is an international proponent for Human Rights and advocates less democratic states to adopt many of the ideals set out within the ECHR. The United Kingdom, along with others, has been very vocal about Human Rights abuses in countries such as North Korea, Iraq, China and Saudi Arabia. To pull out of such a prominent international treaty on Human Rights while advocating the adoption of the very ideals set out in that convention by other countries would seem odd, not to mention the diplomatic headache it would create. The United Kingdom would come under pressure from its European allies, all of whom are signatories to the ECHR. However, these reasons are not the ones that we should be focusing on when defending our membership of the institution that is the ECtHR and being a signatory to the ECHR.

When defending the ECHR it must be remembered exactly where its roots lie, not one of us in this country is ignorant of the horrors of the Nazi regime in the 1930s and 1940s. The Holocaust is taught to every single pupil to some degree in our schools prior to their leaving. The atrocities perpetrated by the Nazi regime lead by Adolf Hitler and uncovered in the post war period and trials at Nuremberg shocked to the core those who had not experienced it. The stories from those who lived in those areas and experienced the terror are truly shocking and hearing them should make anyone with any human decency want to do all they can to prevent such atrocities happening again. It is here where we find the routes of the ECHR.

In the United Kingdom we have suffered the largest assault on our civil liberties and fundamental democratic rights and freedoms since the Second World War. The rights and freedoms contained within the ECHR and enshrined into domestic law by the HRA are the very the UK went to war in 1939 to protect. It is important that we are not cavalier in the way we treat and view these rights and freedoms.

It would be possible to withdraw from the ECHR and have our own domestic legislation setting out what our rights and freedoms are. However, there is a significant problem in this. Currently, if the Government is defeated in the Supreme Court on a Human Rights issue it has no real choice other than to carefully consider the legislation in question and seek to pass an alternative. Without the International element to Human Rights the United Kingdom’s constitutional arrangement would mean that there is nothing at all to prevent the Government simply ignoring the fundamental freedoms and rights guaranteed. It is always open to the United Kingdom to withdraw from the ECHR and go down this route, but the accountability comes not only from the ECtHR, but the United Kingdom’s allies. The diplomatic situation that would be created by withdrawing from the ECHR is one that no Government would want to face, especially one such as the United Kingdom which is so very loud on matters of Human Rights in relation to other countries. It is these combined factors that keep not only the United Kingdom accountable, but the other nations who have signed up to this treaty. It is the combined force of the other member states and the ECtHR that helps to ensure that a situation similar to that seen develop pre 1945 from happening again.

Not one international treaty is without some form of institution monitoring compliance. Some of these institutions comprise unelected officials (e.g. The European Court of Justice, The European Court of Human Rights and The International Criminal Court) while others comprise elected officials from the member states (e.g. The United Nations Security Council and elements of the European Union) and some are directly elected by the people within the member states (e.g. The European Parliament). The nature of the institution dictates the form it must take. For example, a court which is to consider disputes between a State and its citizens should not be one made of political appointees or officials elected by the citizens. Such an institution has to maintain its independence from the parties who will be appearing before it if it has to have any credibility.

The role in which the media plays in informing the public and by extension forming public opinion is one that I have covered on a number of occasions before on this blog and so I do not intend to discuss it in this blog post, partly because I would simply be repeating myself and partly because this is already a rather lengthy blog post. I will however say this: the European Convention protects each and every individual within the 47 member states who have signed it, it can and is utilised by ordinary people out with the context of criminal matters. It is not and never has been a document protecting criminals and the decisions made based on the ECHR affect every single person in the United Kingdom in some way. The protections won in previous cases are available to anyone who should ever need them.

Should the UK withdraw from the ECHR? The simple answer is No. The ECHR and the ECtHR are essential elements of our lives, our judicial system and our politics. Their existence is essential, along with the collective responsibility of the member states, to ensuring a repeat of the terror experienced across much of Europe in the 1930s and 1940s does not occur again.

A UK Bill of Rights?

The Prime Minister has been a prominent proponent of repealing the Human Rights Act 1998 and replacing it with a British Bill of Rights. This has won approval from many within the wider society and more pertinent to him the grassroots of his own party. Such a move could be problematic for their partners in the Government who are well known supporters of the Human Rights Act.

The Human Rights Act 1998 was introduced by Tony Blair’s Government in his first term as Prime Minister and was heralded as a huge step forward in legal history. The Act fully came into force in October 2000, but cases had come before the courts in Scotland under the Human Rights Act due to sections of the Scotland Act 1998 forcing Scottish Ministers to act in a way that is compatible with the legislation.

There have been some very high profile cases brought under the legislation such as slopping out and access to solicitors while in police custody. Some have caused public outrage as being unpopular and has lead to sections of the population calling for its abolition and viewing it as something that protects the criminal and forgets about the victim. The less contentious decisions don’t often reach the wider media which has resulted in a very one sided and rather biased view of the effect of the Human Rights Act. Decisions that lack a contentious element aren’t headline news and this would go some way to explaining the biased reporting of the Human Rights Act, but doesn’t excuse it. As the main source of information for the public the media is somewhat bound to given an accurate picture of the things they report, but inevitably editorial bias and the desire to sell as many papers, have the largest share of the viewing figures and such like get in the way and prevent sensible and accurate reporting.

We have seen some blatant misreporting of Human Rights decisions. One example that comes to mind was the decision not to deport the individual convicted for murder Philip Lawrence. The UK Human Rights Blog ran by the Barristers at 1 Crown Office Row published a very good article on the misreporting of this case. The article they wrote rightly pointed out that this was not a decision based on Human Rights. While the case had a Human Rights element to it; it was a secondary element to the case. The main thrust of the argument was the EU freedom of movement principles. Had the Human Rights arguments failed the outcome would not have been any different as the Freedom of Movement rules of the European Union would still have been successful resulting in the same outcome.

It is this kind of blatant false reporting and misrepresentation by the UK media that has somewhat contributed to the wider public view of the Human Rights Act. It’s not the sole reason, but the other main reasons are largely down to editorial decisions taken by the UK media. In my view the UK media have a lot of questions to answer in relation to much of their correspondence on legal matters, including Human Rights matters.

This year the UK Government will setup a commission to look at the issue of Human Rights in the UK and specifically whether to repeal the Human Rights Act and replace it with a UK Bill of Rights. I see no sense in this other than to appease the right wing media and many within the Conservative Party. Such a commission will come at public expense at a time where we are suffering huge budget deficits and significant cuts to public expenditure. What will the commission achieve?

The Human Rights Act 1998 gives domestic effect to important elements of the European Convention on Human Rights and Fundamental Freedoms 1950. This is a treaty that the United Kingdom is a signatory to and as such has certain obligations under the treaty. Any Bill of Rights introduced by the UK Coalition Government will not change these elements, and indeed, will have to include the same aspects as included within the current legislation. Essentially it will be largely the same piece of legislation with a different name. Governments should never be wasting public money with such pointless exercises, but at a time where the UK Government is swinging the axe over Government spending it seems odd that they would pursue a policy that they must be well aware will result in no real change.

Simply repealing an Act of Parliament and replacing it with another almost identical piece of legislation will not change things in any great way. It’s unlikely to change the way in which the UK Courts interpret the issue of Rights in the United Kingdom as they often look to the judgments of the European Court of Human Rights when coming to their decisions.

I really do find this as being a pointless exercise in the pursuit of popularity at a time when money is tight. The UK Government often level allegations of seeking headlines that would make them popular against the previous Administration and have often said they are about making real decisions for the long-term benefit of the whole country. I fail to see how such a decision would be anything other than seeking popularity within certain sections of the UK media and their readerships.

The Ministry of Justice offered no comment on the allegations levelled against the Government within this article.

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.

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.

Police Detention in Scotland: After Cadder

At 9:45am on Tuesday 26 October 2010 a bench of seven justices of the Supreme Court took their seats to deliver a judgment that would radically affect Criminal Procedure in Scotland. For decades police have had the right to interrogate detainees without there being any access to proper legal advice and representation for the individual detained by the police.

In England and Wales those arrested by the Police have had the right to seek legal advice before being questioned by the police since the passing of the Police and Criminal Evidence Act 1984. Scotland is far behind the times here. It cannot be argued that allowing the police to question a suspect without them being able to seek legal advice and representation is right, fair or just.

There was no way that, in light of the decision of the Grand Chamber of the European Court of Human Rights in the case of Salduz v Turkey that the current procedure as provided for under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. This was recognised by the Lord Advocate as she attempted to reduce the impact of the Courts decision by issuing emergency guidelines to the Police that allowed those in police detention the right to access a solicitor. We will leave aside the issues that this cause, as they are, for now, irrelevant. Had the Lord Advocate been confident that the Supreme Court would have upheld the Crown’s position there would have been no need for such a move. The only doubt in the minds of those in power, must have been, how far the Supreme Court would go.

The decision of Their Lordships is, in my opinion, the correct one to have made. This aspect of our criminal justice system was not representative of a criminal justice system seeking to lead the way and be recognised as a leading justice system attracting the admiration of commentators around the world.

I have on many occasions written my general views on the matter, so shall depart from that to look at the Bill being passed through the Scottish Parliament to alter the system and also look at the practical implications of the Cadder decision.

Firstly, the practical implications are clear for all to see. There are tens of thousands of cases pending in the Courts or currently being heard by Courts at all levels where the Cadder decision will apply. Those most at risk is where the Crown has sought reliance on evidence obtained during police interview from the accused without the accused having been able to first seek legal advice. Therefore, I suspect it will only be cases which were unaffected by the emergency guidelines are at risk. I have come to this conclusion on the basis that the guidelines allowed for those in police detention to consult a solicitor and it cannot be said to be fair to allow a person to rely on Cadder to have incriminating evidence they gave the police without having a solicitor present where they declined to seek advice from a solicitor.

Essentially tens of thousands of cases may collapse if the Crown has insufficient evidence out with that obtained under police questioning where no access to a solicitor was permitted to prove the case beyond reasonable doubt.

Due to the rules surrounding corroboration it is quite possible that the incriminating evidence was extra and where prosecutions that have been successful would have still been successful without such evidence the convictions should be safe and therefore, no miscarriage of justice has occurred.

It is hard to say exactly how many cases are affected and the courts wills imply have to look at each on a case by case basis and examine all the evidence lead and assess how critical the evidence obtained in police interview was to the conviction.

On the whole the Bill being passed as an emergency, upon brief reading, looks to be more or less satisfactory. It seems to be largely based on the principles established by the relevant sections of the 1984 Act in England and Wales.

There is one aspect of it that I would change. The Bill allows for detention of up to 12 hours, this I have no issue with. Six hours was clearly no longer going to be sufficient, especially in more complex and serious cases where a solicitor is requested. Based on rough calculations anything up to 4 hours of that time could be taken up with processing the suspect, informing solicitors, waiting for solicitors to turn up and for them to have a private consultation with their client.

What I do have issue with is the provisions relating to extension. In principle I have no issues with the police seeking more time to question an individual where they feel it is needed. However, I am of the opinion that the Court should be the one to decide whether it is actually needed or not. Under the proposed legislation another Police Officer designated as a Custody Review Officer (in practice this would be an officer of Inspector or above) would make the decision. In my opinion, 12 hours is long enough for the police to hold someone without having to justify the individuals continued detention to another authority.

Essentially, these changes are necessary and long over-due. I am pleased to see them finally being brought into Scots Law and will be in place as early as Saturday if the Government has the legislation passed as quickly as they wish. Simply because this is emergency legislation doesn’t mean that it should not be open to proper scrutiny. We must get this right if we are to avoid further cases before the Supreme Court on this matter. The Government have had since May to consider their response to all the likely eventualities of Cadder. As a direct result of that it should be expected that this legislation has been given significant thought and should therefore prevent further appeals to the Supreme Court.

The Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Bill can be read here

The decision of the Supreme Court in Cadder v HMA can be read here

The statement from the Scottish Government can be read here

The Statement from the Lord Advocate can be read here

BREAKING NEWS: Scottish detention procedure is unlawful

Today their Lordships in the United Kingdom Supreme Court unanimously held that the procedure in Scotland that allows an individual to be held in police custody for up to 6 hours without access to a solicitor is unlawful.

Sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 allow the police to detain a person who they has reasonable grounds for suspecting has committed or is committing an offence punishable by imprisonment. This detention can last up to six hours. During detention, the police may question the detainee, although the detainee does have the right to remain silent and he is to be informed of this at the time of his arrest. The detainee is entitled to have a solicitor informed of his detention. However, the detainee has no right to consult with that solicitor prior to interrogation by the police or to have a solicitor present while the police are questioning him. The question before the court was whether this amounts to a breach of the right to a fair trial, recognised in Article 6(1) and 6(3)(c) of the European Convention of Human Rights (ECHR).

Their Lordships held, applying the decision in the European Court of Human Rights in Salduz v Turkey that this was unlawful. However, they did not give their judgment retrospective effect. In other words where a case, including all appeals has been concluded, the judgment is unlikely to have any impact. Where it may have an impact is in cases currently before the Courts or yet to go before the courts. Whether the Lord Advocate’s energy guidelines will have had an impact in this area or not remains to be seen.

The Scottish Government is probably going to be publishing a statement relating to the decision of the Supreme Court later today and I suspect that the Crown Office will also make or issue a statement later today.

Once I have had time to digest the judgment of their Lordships I will comment more fully on the case.

The press summary can be read here and the full judgment of their Lordships can be read here

Update

Well it has been a couple of weeks since I last blogged and I’m now at the end of the fourth week of the semester.

If you follow me on Twitter you will be aware that I’m being kept rather busy with University work just now. I’m more or less up-to-date with the reading that is designated as “essential” and I’ve also managed to do some of the reading marked as “recommended”. I continue to spend the majority of my time locked away in the library and I am easily doing (including timetabled classes) 38 or 39 hours work per week for my degree. This, of course, should mean great results in the forthcoming essays and the end of semester exams in December. However, I never have bene that great at exams, so we’ll just have to wait and see.

I’m enjoying most of my modules this semester. There is one in particular that I am not enjoying and that is down to a combination of having no interest in the subject area at all coupled with a lecturer who is constantly making mistakes in the lectures (whcih doesn’t give one much confidence).

I’m finding Delict probably the most enjoyable of my modules this semester. Depsite this it is an area I doubt I’ll ever enter into in practice. My reasons for entering into the Law were really to stand up for the small man against the giant state (which is why I am drawn towards Human Rights, Criminal defence, Immigration). Although in saying that, I do have a keen interest in Family Law. This interest in Family Law stems from the voluntary work I did for a national chldren’s charity where. My interest really lies in the child in such situations and ensuring that proceedings cause the least disruption possible to the life and development of he child. Parent’s don’t always get on and sometimes they decide to divorse, but in these situations (my experience has taught me) the child freqeuently gets “forgotten” about by the warring parties (or even becomes a tool used by the parties to cause pain and distress to the other). Sometimes, I suspect, adults don’t really realise just how much these situations affect the child, and certainly, I’ve spoken to young children (as young as 7) who have a good understanding of just what is going on and are being affected in ways that the adults may not even realise!

Anyway, I digress.

I’ve not been busy enough to forget about blogging. In fact, I’ve spent some time over the last few weeks working on some well considered blog posts on particular areas of Law. They are all still in draft form and still quite a bit away from being finished pieces of work that I would want to publish on my blog. However, these will come over the weeks and months to follow.

I continue to watch the news with interest. There continues to be a lot of interesting things happening in the world of Scots Law at the moment. The Decision of their Lordships in Cadder v HMA is due in the coming days and the trial of Tommy and Gail Sheridan for perjury is underway. Of course, the decision to release Abdelbaset Ali Mohamed Al Megrahi continues to be a story dominating news at the moment as do the issues surroudning his trial and conviction. The recent decision by the Lord Advocate to resign at the next election of the Scottish Parliament is also of interest, not least because this will mean the appointment of a new Lord Advocate, but there is also the consideration of Judicial Review over the Information Commissioners refusal to look at who paid for the threats of legal action issued on behalf of the Lord Advocate relating to the Hollie Greig case.

The Lord Advocate’s announcement of her inetntion to step down at the next election has also led to an examination of her time in the post. Elish Angiolini QC was the first woman and the first solicitor to be appointed to the post. I’m sure plenty of people will be willing to support her time in post or to condemn it. I don’t really have much of an opinion on the matter, other than that I harbour no bad feelings towards her.

There is also the legislation being brough forward by the Scottish Government to modernise the rules on double jeopardy in Scotland. This will, of coure, have a profound effect on the criminal justice system in Scotland and we must make sure that the legislation is framed in such a way that it is not open to abuse.

All of these are things I have blogged about in the past and will continue to blog about as they continue to develop and unfold over the coming months.

I’m also on the look out for new and exciting opportunities to fill the time I’m not spending on University work, socialising or sleeping. So, if you know of any then let me know!

Anyway, I think it’s about time I stopped procrastinating and got back to some hard work looking at the wonders of mental harm in the context of delictual liability!