The June 2019 Interim Pay Offer by the CPS and the MoJ

Here are my thoughts about the interim fee offer by the CPS and MoJ. It’s important to look at the context as well as the content of the offer. It’s not perfect but we’ve come a long way.

Context

In the dark days when Grayling was Lord Chancellor, there was little engagement, but palpable hostility, between MoJ and the criminal Bar. Since then, both sides have realised that constructive engagement is indispensable. The relationship will always be adversarial to a degree, but as we know from our everyday work, being adversarial is perfectly compatible with civility and cooperation, because it enables progress to be made. We looked over the edge of our silos and saw where there is common ground, and where the real issues lie.

The Bar’s contribution to the redesign of AGFS was always predicated on the government needing to invest significantly more money, in order to make careers and quality in criminal advocacy a sustainable long-term proposition.

That has always been the ambition. An increased fees is not an end in itself: the point is to ensure that the advocates who serve the Courts and the public as prosecutors and defenders are the best advocates, and they get a fair reward whether they are starting out or more experienced.

The leadership never conceded that the ‘figures in the boxes’ were enough to ensure that, and the re-design was always considered to be work in progress. The MoJ with its squeezed budget has felt unable to match our justified demands and ambitions. Put simply – we think we should be paid more, and they are unable or unwilling to commit as much of their budget as we would like. But engagement and good will, have enabled the dialogue to continue.

The pinch-point was always going to be PPE. The explosion of digital evidence has made PPE an unworkable and inefficient proxy for the complexity and difficulty. It is hard to defend it as a one-size-fits all method for assessing fees. It also created disparities between the incomes of barristers who have been routinely briefed in high PPE cases and those who have not. Some never got them. Getting many such cases, or getting none, may not reflect the quality of the advocate.

Those who got the occasional such case may have looked to them as a windfall to make up for the cases that did not pay. But reliance on unpredictable windfalls is no way to earn a living when bills have to be paid on time. The concentration of high PPE cases in a small number of hands (this is what happens) is not a fair distribution of work or money either. The loss of income is, of course, painful for people who have been used to making much more money than they do under the existing scheme. It needs to be compensated.

As the Bar said all along, and as the MoJ now recognise, the present PPE arrangements are too crude. The principle of payment ‘for work done’ is not always being kept to. It is not that the size of a case is never a guide to its complexity or seriousness. The trick, not yet achieved, is to devise an agreed method that identifies those high PPE cases that really do call for payment according to their size. Work is continuing on finding one.

Pausing there: there are those in the profession who think both that the MoJ would like to destroy the criminal Bar, and that the Bar’s leaders are somehow complicit or too feeble-minded to resist. Conspiracies theories may seem to explain complex phenomena and so give comfort to their proponents. All I can say is that in my experience of dozens of hours in discussion with MoJ officials, what they want is sensible and mature engagement; some may be more sceptical or less well informed than others, but at no stage did I sense a desire to destroy us. As for the Bar leaders, they have been resolute in defending the Bar’s interests and supporting our case with evidence.

Some people call for the appointment of an external negotiator. They miss at least two things: (1) barristers just are professional negotiators and persuaders; (2) if the external negotiator fails to win all or enough of the Bar’s demands, who is to blame? The people who appointed them. I for one would not want my subs to go to anyone who was not a member of the profession when dealing with issues like this.

It takes time to change entrenched attitudes: the old hostility may have faded, but the churn of ministers in the MoJ since 2014, and the loss of many of the more senior officials, meant that progress faltered. The Gauke administration has been relatively stable, and under him the response to the Bar’s demands has been positive. We voted in favour of AGFS Scheme 10 last summer, but the narrowness of the result and the unresolved issues gave the CBA a mandate for continuing to press for improvements. This resulted in the settlement reached in December 2018.

Far from giving up at that point, the Bar has continued to work for a better settlement. The CBA decided the time had come to tackle the CPS over its shocking long-term failure to pay barristers properly for so much of their work. It was the Bar’s decision to link the demands over prosecution and defence fees together, so it should come as no surprise that the CPS and MoJ – each a custodian of taxpayers’ money – should link them too. It’s not fair to see this as ‘divide and rule’.

Content

There’s no point repeating what you will have read in the messages from the CBA, the Chair of the Bar, the SE Circuit, and the DPP. You know what is on the table now, and what has been pledged.

The current Justice Secretary and Attorney General are both Bar-friendly but are unlikely to remain in post in whatever administration takes over in July. Their successors may revert to the older approach if the Bar rejects the offer. If background distrust of the government is well-founded, then why trust the new one any more than the present one?

This is an interim offer, not a final deal. The onus is on the CPS and MoJ to make good on what it has pledged in the next phase. If they fail, then action may be inevitable. 

The point of what I’ve set out here – if you’ve got this far – is that real progress has been made – much more slowly than anyone would have wanted, but nonetheless. It looks set to continue.

This is a win. 

 

RAPE TRIALS & JURIES

Jolyon Maugham QC, the well-known Remain campaigner and tax law specialist, writes in the New Statesman of the ‘impunity’ that he believes the legal system grants to men who commit rape. He is shocked by the ‘attrition rate’ between the number of sexual offences of rape and the number of convictions in Court. He cites figures from the Office for National Statistics that suggest that in 2013 ‘there were an estimated 60,000-95,000 victims of rape in a year, there were only 1,070 convictions.’ He believes ‘the solution can only be to change the law’, and questions whether juries should try rape cases at all.

Whether juries are fit to try many kinds of case is a question that is never long out of public discussion. There are those like the outgoing director of the Serious Fraud Office who thinks juries should not try serious frauds, because they are too complicated; others say the same about cases with difficult scientific issues; and many in the senior judiciary think that defendants should lose the right to choose jury trials in cases that are too simple, such as shoplifting (not so simple if you wrongfully acquire a conviction for dishonesty and cannot get a job). In short, the jury has many enemies.

But the jury is you and me and our neighbours. Young and old, wise and foolish, all made of the same crooked timber of humanity as the judge, the police officer and the defendant on trial. The genius of this accidentally arrived at way of doing justice is that twelve turns out to be the right number to even out the differences. In her seminal 2010 study Are Juries Fair?, Professor Cheryl Thomas was permitted to speak to hundreds of jurors about their deliberations. The answer to her was Yes, with caveats including the need to give more help, such as written directions on the law and a list of the questions jurors should ask themselves on the ‘route to verdict’. The Courts have adopted most of her recommendations.

Professor Thomas corrected one of the ‘Misconceptions about jury verdicts in rape cases’: ‘contrary to popular belief and previous government reports, juries actually convict more often than they acquit in rape cases (55% jury conviction rate)’. That figure was consistent with the general run of cases, and does not suggest that there is anything peculiar about rape trials that sets them apart from others. The hallmark of many rape trials is that the jury have to decide between two contradictory accounts – complainant v defendant – with little or no supporting evidence on either side. Trials like that are not exclusive to cases of rape. With the prosecution having the burden of proving their case so that the jury are sure, the decision for the jury in any such case can be hard.

The prevalence of sexual offending is a great social evil, but the legal system and the alleged weakness of jury trials in particular can’t be held responsible for men committing rape, any more than they can for the upsurge in knife crime or burglary. Myths still abound about disrespectful treatment of women complainants by the police and in Court. Police officers, prosecutors and judges receive specialist training in sex offence work; abusive cross-examination by defenders is rare and judges do not tolerate it. That may not make the prospect of reporting a rape to the police and following it through to trial much less daunting, but perpetuating myths may contribute to the ‘attrition rate’. We can surely improve the support given to victims of sexual abuse, but changing the rules is not the way forward.

 

A Hero of our Times?

It’s not every day that one’s client is a legendary figure – as mine was, in the shape of Vladimir Bukovsky. It turned out that he was far too ill to be tried on the charges that he faced, of having indecent images of children, which he denied. At 75, his body was giving out, and the Judge at Cambridge Crown Court found his cluster of illnesses meant he could not effectively participate in the trial, even via a videolink from his home. The prosecution was stayed and remains in suspense until, perhaps, he is well enough again. This was a man who took on the Soviet state as a boy – he was expelled from school and then from university in 1961 for ‘lacking the character of a Soviet citizen’, and he spent the next 12 years in and out of prisons, labour camps and psychiatric wards – for the offence of ‘hooliganism’ – or as we would say, for telling the truth about the state’s systematic abuse of human rights. In 1971 he smuggled documents out of Russia that showed how political prisoners were treated as insane – and was promptly locked up again.  Recognised by now across the world as a prisoner of conscience, in 1973 he won his freedom, albeit in exile, by being exchanged like Cold War chess pieces for the leader of the Chilean Communist Party, Luis Corvalan, whom the Pinochet regime had imprisoned after the military coup. Bukovsky settled in the UK, and became a figurehead for the pro-democracy Russian diaspora all over the world. The Yeltsin government eventually restored his citizenship that the Soviets had removed, but Putin stripped him of it again when he had the temerity to stand against him in the 2008 presidential election. A man of extraordinary courage, but what a dismal last chapter to a heroic life.

John Plumstead

Yesterday I attended the memorial service at the Temple Church for His Honour Judge Plumstead, who died aged 64 in September. The church was packed: family, friends, colleagues from Bench and Bar, and members of the Court staff at St Albans, where he sat. The service was both grand and intimate, with personal reminiscences, a poem read by his daughter, hymns for the congregation and pieces for the superb Temple choir, and the stirring words of comfort that the Church is so good at providing on occasions like this. John Plumstead was a rarity among judges – many are respected, some are liked, but almost none are loved. He was.

Are Juries Unfit to Try Rape Cases?

Julie Bindel (Guardian 12 August 2016) thinks it’s wrong for juries to try rape cases because they lack expertise and don’t find enough defendants guilty. If lack of specialist expertise barred randomly selected members of the public from being jurors, there would not be many jury trials left. Citizens, in committees of 12, are remarkably good at dealing with complex cases of all kinds, and at doing justice. Judges generally agree. Trial by one’s peers is not something to toss away lightly on the basis of stereotypes and misconceptions. Working out who is telling the truth is not a matter for experts in any type of criminal case. Our fellow citizens are good at it, whichever segment of society they come from. Yes, they can sometimes produce results that the powerful dislike: stand up Clive Ponting. It’s sad that a brave campaigner for the powerless like Julie Bindel comes out with the same sort of thing. Juries have far more legitimacy in trying serious crime than a case-hardened panel of ‘experts’ ever would.

In rape cases juries are not less likely to convict: according to Professor Cheryl Thomas’s 201o study ‘Are Juries Fair?’ (answer: yes), in the 2-year period she studied juries, they convicted more readily in rape trials than in comparable cases of serious violence, at 55%. In the larger Court centres across England and Wales, the overall conviction rate ranged from 69% to 53%. The reasons for the differential were unclear but may be due to uneven distribution of different kinds of cases between the Courts. So rape convictions are not out of line with the general pattern.

Very few rapes are stranger rapes; in many cases, the accused and the accuser know one another and are the only significant witnesses. Where the issue is consent, the fact that ‘penetration’ has occurred is admitted and needs no scientific proof. The jury invariably decide the case by weighing one person’s word against another. That is seldom an easy task, in Court or outside, when judging an accusation of rape or anything else. The law demands –rightly – that no one may be convicted of an offence unless the jury are sure of guilt. They may think the evidence proves the accused is probably or possibly guilty – there may be strong suspicions – but still not enough to get over the line into being sure. That high standard protects the innocent from false or mistaken accusations – a protection of great value for which we should all be thankful.

Juries in rapes now receive explicit legal directions from the judge that are designed to dispel myths about complaints of rape. There are statutory restrictions on evidence about an accuser’s ‘sexual history’, which are rigorously applied. Juries hear about it only if it would cause serious unfairness to the defence if it was withheld. Judges have to strike a balance.

Prosecutors and Judges have specialist training before they can take on rape and serious sexual offence cases. Prosecutors are required to inform witnesses of the type of questioning they may face from the defence. In cases involving vulnerable witnesses, the Judge now receives the questions to be asked in cross-examination in advance, and may disallow inappropriate ones.

We could do more. A compulsory programme of vulnerable witness training for all advocates is coming. We could make the Court experience better for witnesses– by for example restoring the canteens that went in a recent mean-spirited round of cuts, so people at least can get a cup of tea while waiting. The MOJ could see to it that trials come on quicker.

What Julie Bindel proposes is to strip away a vital civil liberty because she thinks too many guilty men walk free. Perhaps some do: it may be a high price for our freedom, but it’s still worth paying.

Conspicuous Sumption

On 20th November 2013 Lord Sumption of the UK Supreme Court gave a lecture in Kuala Lumpur, entitled The Limits of the Law. It is well worth reading. The Supreme Court is rapidly developing into a full-scale constitutional court with enormous influence on life in the UK and in many other countries with a common-law tradition, including Malaysia, where its decisions command respect. When a member of that Court expounds his views about what Judges do and what they should be doing, anyone interested in law should pay close attention.

Sumption continues the theme of judicial parsimony he set out in his 2011 Mann Lecture, before his appointment to the Supreme Court. He believes that there is too much litigation in general, and in the field of public law and judicial review it has taken a wrong turning with excessive intervention in matters that are best left to others. ‘Parliamentary scrutiny’, he stated then, ‘is generally perfectly adequate for the purpose of protecting the public interest in the area of policy-making. It is also the only way of doing so that carries any democratic legitimacy.’ He envisages a clearly marked realm of policy into which judges must not trespass. Sir Stephen Sedley, whose absence from the Supreme Court is to be lamented, set about Sumption in the London Review of Books: also well worth reading. He criticised him for making assertions without evidence; misunderstanding the relationship between administration and judicial review in France, and misconstruing several major public law cases in the UK. Co-incidentally, one of the decisions that Sumption cited in 2011 in support of his view was the 1994 Pergau Dam case, which concern the construction of a dam in Malaysia: the Foreign Office wanted to use development funds for the dam, and would win export orders for British weapons in return. The High Court held that this use of the funds was outside its powers under the relevant statute, and was therefore unlawful. According to Sumption, this was an improper incursion into matters of policy; in Sedley’s view, it was the Court doing its proper job of construing a statute. (The Foreign Office chose not to appeal.)

In the Kuala Lumpur lecture, Sumption (wisely, no doubt) refrains from mentioning Pergau, but he repeats the French canard that occasioned the Sedleyan put-down, while maintaining the 2011 thesis. He now turns his big guns on the European Court of Human Rights for making a land-grab over matters far beyond the contemplation of the authors of the European Convention of Human Rights & Fundamental Freedoms, thereby upsetting the constitutional balance between Courts, Parliaments, and Executives in member states – particularly the UK. He criticises the Strasbourg doctrine of the ECHR as a ‘living instrument’:

…the Strasbourg court develops the Convention by a process of extrapolation or analogy, so as to reflect its own view of what rights are required in a modern democracy. This approach has transformed the Convention from the safeguard against despotism which was intended by its draftsmen, into a template for many aspects of the domestic legal order. It has involved the recognition of a large number of new rights which are not expressly to be found in the language of the treaty.

It is questionable whether the draftsmen intended their Convention to be treated like holy writ, frozen in time in 1950; but even if they did, Sumption gives no legal reason for later generations of judges to refuse to adapt its terms to changing circumstances. He skates over the important distinction between individual judgments, which may be questionable, and the principle of adaptability, which no one would question in relation to a domestic statute. For example, it would be absurd for me to defend a charge of ‘wanton and furious driving’ under s.35 of the Offences Against the Person Act 1861 (still in force) on the basis that I was driving a car, when the statute was intended for horse-drawn vehicles before cars existed. The provision is alive enough to apply to things ‘not expressly to be found in the language of’ the statute. The debate is as arid as that between American ‘originalists’ and their opponents over how to interpret the US constitution. The disagreement there, though couched in the language of law, masks the real, political dispute between conservatives and liberals within the judiciary, and beyond.

When Sumption says that Strasbourg acts ‘to reflect its own view of what rights are required in a modern democracy’, he insinuates that the judges are imposing their own views ex cathedra or from under the palm tree. In fact, the typical judgment will resemble that of a UK Court, by looking for authority for its reasoning in national law, European law, international treaties, and the previous decisions of national Courts as well as its own. A good example is Maslov v Austria, a leading case concerning the rights of a criminal facing deportation. The Court cited Austrian statutes, Recommendations of the Committee of Ministers of the Council of Europe, the UN Convention on the Rights of the Child (incorporated into Austrian law), EU Council Directive 2003/109/EC, decisions by the European Court, and decisions of its own. It then gave a reasoned judgment, based on these materials, on the criteria that national authorities should use when weighing up considerations for and against deportation, within the framework of Article 8 of the Convention. There is no hint of the palm tree.

Article 8, in Sumption’s view, is particularly problematic. He claims that it has been enlarged by Strasbourg in to include deportation among many other things, which are not ‘warranted by the express language of the Convention, nor in most cases are they necessary implications. They are commonly extensions of the text which rest on the sole authority of the judges of the court.’ He seriously misdescribes what the Court did in Maslov and how it reached its conclusions. The Judges relied on authorities well beyond their own sole authority. They behaved like the Supreme Court itself when it interprets relevant statutes and cases in order to reach its conclusions – which may change the law in an unforeseen way.

The only concrete example of this deplorable practice that Sumption gave in Kuala Lumpur is the prisoner voting-rights cases, Hirst v United Kingdom and Scoppola v Italy, neither of which relied on Article 8, but were brought under Article 3 of the 1st Protocol of the ECHR, (the right to free elections). In Hirst, the Court held by a majority that the UK’s blanket ban on all prisoners voting in elections was unlawful. It called on the UK to refine the ban. It reached its decision by reference to the Convention and an array of European, Canadian, and South African materials. Its process, as in Maslov, was readily recognisable to a common lawyer who demands authority and precedent for propositions of law. Now, whether the Court got it right is an open question; the fact that there were dissenting judgments indicates that the issues were unusually difficult to resolve. Sumption not only thinks the Court got it wrong, but they should never have considered the matter at all. But if legal instruments such as conventions and treaties incorporated into national law make a question justiciable, then a person cannot be blamed for asking the Courts to decide the question, and the Courts cannot be blamed for making decisions.

Sumption takes his complaint further: not only should Strasbourg not consider such matters, but in ruling on them it engenders a ‘democratic deficit’:

The treatment of the Convention by the European Court of Human Rights as a “living instrument” allows it to make new law in respects which are not foreshadowed by the language of the Convention and which Parliament would not necessarily have anticipated when it passed the Act. It is in practice incapable of being reversed by legislation, short of withdrawing from the Convention altogether. In reality, therefore, the Human Rights Act involves the transfer of part of an essentially legislative power to another body.

This is opaque. When Parliament passed the Human Rights Act it knew that Strasbourg treated the Convention as a living instrument; it could therefore have predicted that the law would continue to develop, as it had done before the Act. Parliament’s crystal ball was no better or worse than anyone else’s, even if its powers of scrutiny are ‘perfectly adequate. So no surprises there. Section 3(1) of the Act provides:

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights (emphasis added).

That, I suggest, is a fairly modest aim. If a nation’s Parliament adopts a set of human rights principles on behalf of its citizens (which even the extra-judicial Sumption admits to finding ‘wholly admirable’), the least it can do it tell itself to stick to them ‘so far as it is possible to do so’. It did not sign up to them exactly as Strasbourg found them to be in October 2000, frozen in time forever, but as they continued to evolve in changing circumstances. Far from transferring its proper legislative function to ‘another body’, Parliament ‘brought rights home’, in the phrase in use at the time.

The Strasbourg judges are neither poets nor unacknowledged legislators of any kind. They examine the lawfulness of actions by States, according to principles that the States (some more democratic than others) have adopted. States normally win. Some people think the Court is too deferential to States. If a State withdrew from the Convention in order to be relieved from compliance with Strasbourg, it could appoint its own Human Rights Court to make rulings on the Convention, which it could call its Supreme Court. If the rulings of that Court were subject to reversal by Act of Parliament – a practice to which Sumption refers in relation to non-human-rights cases – then what status would human rights decisions, and the rights themselves, have? Much reduced. They would be temporary, provisional, precarious. Under a British Bill of Rights, Lord Sumption and his colleagues might make a human rights decision that the government disliked, and Parliament could then reverse it by legislation. If by some constitutional wizardry that was made impossible, people would make the same complaints about our Supreme Court as they now do about Strasbourg – unless the members of that Court all adhered to the self-denying, Sumption doctrine. Our Supreme Court would probably look more like the US version, complete with its own version of fights about ‘originalism’, but without the sacred text of their Constitution to guide all the branches of government. How much of an advance would that be?

Cruel Britannia by Ian Cobain

Anyone wanting an outline of the bi-polar disorder that affects official thinking about torture in particular and human rights in general should read Ian Cobain’s Cruel Britannia (Portobello Books, November 2012), and cross-refer to Lord Bingham’s The Rule of Law (Penguin 2005).

Kenneth Clarke, the last Minister of Justice, is still pushing the Security & Justice Bill. So far, he has failed to persuade Parliament that secret trials, in which the government alone get to decide what evidence should be made public, are a good idea. The spy services want their dark deeds kept dark. They dread being challenged with accusations of criminal or civil liability. Even if the government retreat a little on the Bill, there is likely to be more not less secrecy in legal proceedings that are deemed sensitive. Clarke’s successor, Chris Grayling, thinks the UK should seriously contemplate withdrawing altogether from the European Convention of Human Rights.

The idea that citizens have human rights that they can assert against public authorities in Court is, bizarrely, regarded as something foreign and disreputable. Very few politicians have stood up to defend the Human Rights Act, whose main objective was to allow UK citizens to use UK Courts to assert rights they had anyway, rather than go to Strasbourg. Now the heat is also on Judicial Review, the precious and entirely home-grown legal challenge to administrative decisions – not on their merits, but on the narrower basis that the decision-makers have failed to follow proper and lawful procedures. All the while, the continuing assault on legal aid denies poor citizens access to the law, which has grown into a forest of rules and regulations in so many areas that touch our lives, so that anyone entering it without expert guidance should abandon all hope.

In all these policies, and especially in the doublethink around torture, we can see what the late Bernard Williams condemned as ‘Government House utilitarianism’ in action. He used the term to characterise an account of morality given by the nineteenth philosopher Henry Sidgwick in his The Method Of Ethics. Sidgwick asked  ‘whether exceptions should be permitted from ordinary rules on Utilitarian principles’. He thought society was made up of ‘enlightened utilitarians’, an elite minority, who could live good lives by ‘refined and complicated’ rules with numerous exceptions; and everyone else, for whom this more sophisticated system ‘would be dangerous’. He said that

‘… on Utilitarian principles, it may be right to do and privately recommend, under certain circumstances, what it would not be right to advocate openly; it may be right to teach openly to one set of persons what it would be wrong to teach to others; it may be conceivably right to do, if it can be done with comparative secrecy, what it would be wrong to do in the face of the world; and even, if perfect secrecy can be reasonably expected, what it would be wrong to recommend by private advice and example.’

Williams saw this as little more than organised hypocrisy, practised brutally by the British colonial elite in the Empire, for their own advantage.

Ian Cobain in Cruel Britannia shows that the British Government operated a policy of torture on its German enemies during and after World War II, and later in the colonial wars that ended the Empire in Cyprus, Palestine, Kenya, Malaya, Aden, and in Northern Ireland; and then in Iraq, and at arm’s length (but nonetheless) in the Americans’ so-called war on terror, with connivance at kidnapping for trial in the USA (euphemised to ‘rendition’) and the shipping of detainees for interrogation by the torture squads of numerous unsavoury regimes around the world (‘extraordinary rendition’). With forensic skills of a high order, through official records and by talking to witnesses and survivors, Cobain has traced the genealogy of torture methods, and of the men who twisted the minds and bodies of their prisoners, from 1945 to the present. The same methods of torture, and the same men and their pupils, reappear over and over again, in every location where Britain has used torture. The tortured had minimal redress. Government House routinely lied and destroyed evidence. It took 50 years for the Foreign Office to discover an archive from Kenya which they foolishly forgot they had (or they would surely have destroyed it too), and it took a Court order for them to disclose it to the elderly men and women whom British officials had starved, castrated, raped, and tortured in other ways that would have charmed the SS. Cobain’s account is not ancient history. We do not know what the Government gets up to in secret now, and lies about – in the name of its own utilitarian morality: the rest of us are not to be trusted with the truth about its view of right and wrong, and where its and our interests lie. We are to be discouraged from finding out.

I want it to be normal for Ministers and the people who work for them to be held to account, not just every few years at elections, but while they are in power. I don’t want to rely only on the brilliance of an Ian Cobain to tell me what has been done in my name. Government should operate on the basis that I and everyone else can readily assert our rights not to be tortured or subjected to inhuman or degrading treatment or punishment (Article 3 of the European Convention of Human Rights); not to be killed (Article 2); to have a family and private life that is not interfered with for no very good reason (Article 8); to express myself freely (Article 10); to practise my religion (Article 11); not to be locked up without due process of law (Article 5); to have a fair trial (Article 6). Having rights protected by law is a modest demand and, sadly, a modest protection against the State’s desire to get its own way at any price. But at least it is better than not having rights.

English law regards torture as ‘an unqualified evil’: so said Lord Brown in the famous 2005 case A and others v Secretary of State for the Home Department (No 2). But he was not immune from the bi-polarity which afflicts the subject. He said that the executive:

…has a prime responsibility to safeguard the security of the state and would be failing in its duty if it ignores whatever it may learn or fails to follow it up. Of course it must do nothing to promote torture. It must not enlist torturers to its aid (rendition being perhaps the most extreme example of this). But nor need it sever relations even with those states whose interrogation practices are of most concern. (emphasis added)

 Even Lord Bingham saw a distinction between the use in Court of evidence obtained by torture (never), and its value for intelligence purposes (as ‘duty’ required). In the same case, he said:

 I am prepared to accept…that the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence. But by the same token it is, in my view, questionable whether he would act unlawfully if he based similar action on intelligence obtained by officially-authorised British torture. If under such torture a man revealed the whereabouts of a bomb in the Houses of Parliament, the authorities could remove the bomb and, if possible, arrest the terrorist who planted it. There would be a flagrant breach of article 3 for which the United Kingdom would be answerable, but no breach of article 5(4) or 6.

So even the most forceful contemporary defender of Rule of Law principles found that the fruits of torture have a lawful use, even if torture itself must be condemned. Banning torture-evidence in Court – where the public would find out – and the approval of its use for intelligence purposes – in secret – must have given the torturers and their masters in Government House great comfort. The proposed limitations on our ability to use the law to uncover secret wrongdoing mean that Ian Cobain’s book is likely to need regular updating.

 

 

An Idiot’s Guide to Self-Defence

The law of self-defence is clear and based on common experience. In 1971 the Privy Council in the leading case of Palmer v R [1971] AC 814 held that

It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary.

Section 3 of the Criminal Law Act 1967 provides that

A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large

Section 76 of the Criminal Justice & Immigration Act 2008 adopted the common law principles from Palmer and other leading decisions, without changing the substance of the defence.  Section 148 of the Legal Aid Sentencing & Punishment of Offenders Act 2012  amended Section 76, to give further ‘clarification’.

The law permits the citizen to use reasonable force for the following purposes:

  • Self-defence
  • Defence of another person
  • Protection of property
  • Making a lawful arrest
  • Preventing crime

The citizen includes the police officer, to whom the law grants no additional licence to use violence.

What is reasonable is measured by the belief of the person using force. There may be no time for anything other than an instinctive reaction. The law does not require a fine calculation of just what amount of force is needed, but it does require that the use of force should be necessary in the circumstances, as the person concerned saw them. There is no duty to run away instead of using force.  “If … in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken” (Palmer).

There are limits. An obviously disproportionate response would not be reasonable – such a shooting an unarmed burglar in the back, and killing him, as he ran away. This is what occurred in the notorious case of Martin [2002] 1 Cr App R 27. The use of violence has to be controlled or else the law will yield to lawless vigilantism.

The Crown Prosecution Service has published Guidance on how to deal with cases of self-defence. Where a person has used force against some one committing a crime, the CPS advises

Common examples are burglary or theft from motor vehicles. In such cases, prosecutors should ensure that all the surrounding circumstances are taken into consideration in determining whether a prosecution is in the public interest.

  • Prosecutors should have particular regard to:nature of the offence being committed by the victim;
  • degree of excessiveness of the force used by the accused;
  • extent of the injuries, and the loss or damage, sustained by either or both parties to the incident;
  • whether the accused was making an honest albeit over zealous attempt to uphold the law rather than taking the law into his/her own hands for the purposes of revenge or retribution.

People who think that the law needs changing to free householders to take gross and disproportionately violent action against burglars should read the CPS Guidance. They should also apply some commonsense and ask whether it’s more likely that a burglar will take a weapon if he thinks he’s going to be attacked. Do we want more dead burglars and more dead householders?

New Immigration Laws: Miaow!

The Home Office’s Statement of Intent: Family Migration (June 2012) sets out the Government’s plans to reduce the number of immigrants coming to the UK from outside the European Economic Area (and those staying here, especially if they have committed crimes), to be enacted in a revision of the Immigration Rules in July. It makes no reference to domestic pets, but includes a major change in the approach to the right to family and private life in Article 8 of the European Convention of Human Rights. The new rules, it is said, will expressly incorporate the requirements of Article 8 into the Immigration Rules. But much is left unexplained, in particular the role of the Judges in determining Article 8 appeals. The intention appears to be to stop Judges using their own discretion when they think that an official has made the wrong decision in an Article 8 case.

Since the Human Rights Act 1998 came into force, something like a parallel jurisdiction has evolved in Article 8 cases in immigration law (with echoes of the availability of remedies in equity where none existed at common law). An applicant who fails to comply with the requirements of the Immigration Rule that applies to her case may still succeed if she can show that she has formed a family or private life, and the state cannot prove that removal or a refusal to allow entry is justified and proportionate on public policy grounds. A large body of case law has grown up around the way in which ‘decision makers’, including judges, should look at Article 8. It was originally thought that it could only apply to claimants themselves, and not family members who would be affected by adverse decisions. That changed when the House of Lords ruled in Beoku-Betts v SSHD [2008] UKHL 39 that decision makers should take account of the impact of a person’s removal upon those sharing family life with him as well as its impact upon him directly. In the leading case of Huang [2007] UKHL 11 they held that there is no requirement for an appellant to prove exceptionality, although they thought that cases in which removal was otherwise lawful, but are found not to comply with Article 8, would be rare:

“…the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality.” [20]

They held that the task of a Tribunal considering an Article 8 appeal was ‘to decide for itself’ whether the challenged decision is unlawful as incompatible with a Convention right, or compatible and lawful. They referred at para. 18 to the State’s ‘negative duty to refrain from unjustified interference with a person’s right to respect for his or her family’ and also its ‘positive duty to show respect for it’; they went on to describe the ‘core value’ which Article 8 exists to protect:

“…Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant’s dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant. The Strasbourg court has repeatedly recognised the general right of states to control the entry and residence of non-nationals, and repeatedly acknowledged that the Convention confers no right on individuals or families to choose where they prefer to live. In most cases where the applicants complain of a violation of their article 8 rights, in a case where the impugned decision is authorised by law for a legitimate object and the interference (or lack of respect) is of sufficient seriousness to engage the operation of article 8, the crucial question is likely to be whether the interference (or lack of respect) complained of is proportionate to the legitimate end sought to be achieved. Proportionality is a subject of such importance as to require separate treatment.” (emphasis added)

The trend has been for the UK Courts, taking the lead from not only from the European Court of Human Rights in Strasbourg but also from decisions by the European Court, applying EU law, to make it easier for Article 8 claims to succeed, by emphasising the state’s ‘positive duty to show respect’ for family life. The welfare of children is pre-eminent in cases where a parent faces removal, and if a child’s welfare is likely to suffer, removal of the parent may be impossible. This applies across the board, notoriously to cases in which ‘foreign criminals’ (doubly bad!) rely on their family rights to avoid deportation.

The Home Secretary’s infamous ‘cat’ speech merely gave infelicitous expression to a view that too many people were being let in (and too many criminals were being allowed to stay) through Article 8, and that it was somehow an abuse. The Home Office now intend that the new Immigration Rules will supersede the separate consideration of claims under Article 8 in all but the most exceptional cases:

The new rules will reflect fully the factors which can weigh for or against an Article 8 claim. They will set proportionate requirements that reflect, as a matter of public policy, the Government’s and Parliament’s view of how individual rights to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis. [7]

What happens at present is that the Home Office (or Visa Officer or Entry Clearance Officer in an embassy abroad) will assess an application with family/private life elements under the relevant Immigration Rule, and then again under Article 8. The ‘refusal letter’ will typically set out both assessments. A failure to consider Article 8 at all will almost certainly cause a Tribunal to find that the decision was ‘not in accordance with the law’ for the purposes of Section 84(i)(f) of the Nationality Immigration & Asylum Act 2002, and new a decision will have to be taken – usually by the Tribunal itself.

So in a sense, the government is merely doing a tidying-up exercise, reuniting the Immigration Rules with the principles of Article 8 – so that ‘equity’ and ‘law’ are one in this area.

But Article 8 will not go away, and the extensive jurisprudence on it – from the Strasbourg and UK courts – will not go away either.  According to the Statement of Intent

This does not mean that the Secretary of State and Parliament have the only say on what is proportionate. The Courts have a very clear role in determining the proportionality of the requirements in the Immigration Rules. It is for the State to demonstrate that measures that interfere with private and family life are proportionate. But a system of rules setting out what is or is not proportionate, outside of exceptional circumstances, is compatible with individual rights, as has been accepted by the Courts in other spheres, e.g. housing law. Where the rules have explicitly taken into account proportionality, the role of the Courts should shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the rules. [37]

This is a puzzling statement. It suggests that the ‘Courts’ – including the Asylum and Immigration Tribunal? – will not look at whether ‘individual administrative decisions’ are proportionate in Article 8 terms. The experience of Immigration Judges is that sometimes those decisions are wrong because officials have failed to give due weight to matters that show that the proposed interference with Article 8 rights is disproportionate: for example, where the official failed to appreciate that in a relationship between adult family members there are exceptionally close emotional ties, and real, committed and effective personal support – enough to bring the relationship within the protection of Article 8. The government appear to think that only a challenge to the rules themselves will be possible. It is not the role of the Tribunal to ‘review the proportionality of the rules’ – whatever this means. If the rules themselves do not comply with the ECHR, that is a matter for the higher courts to consider. Hitherto, the Tribunal has been required to determine each case on its own facts, and has the duty to make its own findings of fact – including findings about whether an adverse Article 8 decision was ‘proportionate’. If the plan is to restrict the Tribunal’s independent fact-finding and its ability to reach its own decisions on proportionality, it is arguable that appellants would be deprived of an ‘effective remedy’ for breaches of their human rights – something guaranteed under Article 13 of the Convention.

It’s almost as if the Home Office don’t trust the Judges.

The Trouble with Joint Enterprise

The Lord Chief Justice is the UK’s most senior judge and has particular responsibility for the administration of criminal justice in the Courts. When suggests that the ‘fiendishly difficult’ law of murder needs reform, you might think that people would sit up and pay attention. On 6th December 2011 Lord Judge told a press conference that

‘It is sometimes felt that in the long run the complications [in the law] leave a sense of injustice about how an individual case has fitted into the framework overall. I would have thought myself that a careful consideration of reform of the law of murder might reduce the call for the automatic sentence to be removed.’

He also spoke of the difficulties in the legal doctrine of ‘joint enterprise’ which prosecutors use against people who are marginally involved in group violence that leads to a killing.

There is a serious mismatch between the law that allows people who are very remotely connected to a killing to be found guilty of murder, and the law that requires everyone convicted of murder, whether the actual killer or the fringe member of a gang to get the same sentence: life imprisonment. One or the other or both must change.

A little legal background. The law distinguishes between ‘principals’ – people who are directly responsible for committing offences, and ‘secondary parties’, who are guilty because they have indirectly participated in a ‘common design’ with the principal but may not have performed the criminal action with him. But in practice there are three forms of joint enterprise liability:

1. Where two or more people commit a single crime together, all as joint principals, for example when three robbers together confront bank staff.

2. Where D2 aids and abets D1 to commit a single crime, for example where D2 provides D1 with a weapon for use in a robbery, or acts as getaway driver, or gives encouragement (as, notoriously, with ‘let him have it, Chris’ in the case of Derek Bentley).

3. Where D1 and D2 participate together in one crime (crime A) and in the course of it D1 commits a second crime (crime B) which D2 had foreseen he might (intentionally) commit.

The difficulties arise in case 3 and are laid bare when the law deals with group violence that ends in a killing. The classic case would involve a showdown between two gangs of youths. They charge around in a park shouting and waving knives at each other. Gang A runs off, but Gang B sees and chases after a straggler.  The leaders of gang B catch up with him and stabs him. He dies on the spot. The killing takes place out of sight of X, who was at the back of Gang B and did not know about the stabbing until afterwards. Now, if X went to Park intending to do some violence in the showdown with gang A, and he foresaw that someone else in his gang might kill or seriously injure another person, then X is guilty of the murder as much as the stabber. The judges have developed the doctrine of joint enterprise to make this possible.

So joint enterprise makes X guilty of murder without intending to kill or seriously injure anyone  – the necessary mental elements that must be otherwise be proved in murder. He did not use a weapon. He did not see the weapon being used. He did not know that a killing had occurred. He is guilty because he joined in another, prior ‘common design’, and foresaw that some one else might (intentionally)  kill or cause serious injury.

He will get a life sentence: the minimum time he has to serve before he can be considered for release on licence may be shorter than the actual stabber’s but it is a life sentence nonetheless.

Can a conviction for murder on that basis be justified, and if so should it call for the same sentence as the real killer gets?

The meaning and application of joint enterprise in murder cases has occupied the country’s most senior judges in the House of Lords/Supreme Court and the Court of Appeal (Criminal Division) with worrying regularity over the last 20 years, and each time the Court has given subtle but important variations to its statements of what the law is. (For reference, the leading cases are R. v Powell & English (1999) House of Lords; R. v Rahman (2009) House of Lords; Yemoh (2009) Court of Appeal; Mendez (2010), Court of Appeal;  R. v A (2010), Court of Appeal)).

Another case, Gnango (2010, Court of Appeal) shows how far the Courts have been prepared to go and is worth looking at in more detail. G and some one referred to as Bandana Man (B) had a gun fight in the street. A shot from B’s gun killed a passerby. Bandana Man ran away. A jury convicted G of murder, having been directed that if they thought G & B had taken part in the joint enterprise of affray (ie the unlawful violence in the gun fight between themselves), and if G realised that B might kill someone by shooting, then G was guilty of murder.

The Court of Appeal unusually assembled 5 of its most senior Judges to hear the appeal (the usual number is 3). They decided that the Judge’s directions went too far – they thought that the killing by B of the passerby was too far outside the scope of the joint enterprise (G and B to shoot one another) for G to be guilty of her murder. The prosecution appealed to the Supreme Court, including Lord Judge. In a judgment given on 14th December 2011 they upheld the conviction by a majority of 6-1. They took a broad brush approach, deciding that G and B had chosen to indulge in a gunfight in a public place, each intending to kill or cause serious injury to the other, in circumstances where there was a foreseeable risk that this result would be suffered by an innocent bystander. It was a matter of chance which of the two fired what proved to be the fatal shot.

So liability depends on joining crime A and foreseeing that crime B might occur. That is a very open-ended basis for convicting people. The sheer number of times that joint enterprise has come before the highest appeal Courts clearly suggests that trial judges, and maybe even the appeal judges, are having difficulty in formulating and applying the law correctly. If they struggle, what are teenagers who may get caught up in group violence meant to think? You go along for what may be an ugly bit of fighting – perhaps sparked off by an immature row outside the school gate; things get out of hand – some one pulls a knife; a boy is killed – and you can be found guilty of murder if you foresaw or realised that it might happen. Please note: ‘might happen’; not ‘would happen’. Might happen.

Of course gang violence is a scourge in some places in the UK; and people die pointlessly in gang fights. Their families’ lives are destroyed. There is an undoubted public interest in discouraging and preventing gang violence, and the criminal law has an important role to play. Lord Brown expressed the view in Gnango that

‘The general public would be astonished and appalled if in those circumstances the law attached liability for the death only to the gunman who actually fired the fatal shot (which it would not always be possible to determine).’

He may well be right – in circumstances like the insane shoot-out in Gnango’s case. However, the trouble with the present law is that it allows prosecutors to cast the net too wide in some cases, and to draw in people who on a common-sense view are too remote from the killing to share full responsibility for it. The result is an increased risk that the wrong people end up with convictions for murder. Are we comfortable with a law which, in effect, allows a jury to say: you were there or thereabouts; you were in the gang; you didn’t kill but we think you all must pay? When the Lord Chief Justice speaks of a ‘sense of injustice about how an individual case has fitted into the framework overall’ this is not the voice of a wet liberal – as can be shown in the line he takes in Gnango.

If we need to convict people on this basis, shouldn’t we at least allow the sentencer to draw a distinction between the person who has pulled the trigger and his co-defendant who went along and merely foresaw that some one might be killed? While the life sentence remains the only sentence for all kinds of murder, how can that be just? Andrew Jeffries QC and Kim Evans write about the problems in the one-size-fits-all sentence in the The Justice Gap focussing on mercy killings getting the same sentence (apart from the tariff) as gangland executions. The same issue arises in joint enterprise – there must be a better and more flexible way of measuring degrees of culpability in sentences.

(This post also appears in http://thejusticegap.com – the brilliant online magazine which tells you what the law is really about.)