July 2009 articles archive:

'Ecstatic' Debbie Purdy wins House of Lords assisted suicide appeal

Multiple sclerosis sufferer Debbie Purdy has won a landmark court battle. Are campaigners fears that this ruling could lead to more people ending their lives in foreign "suicide clinics" justified? What will be the implications closer to home?

Terminally ill Miss Purdy fought to find out whether her husband, Omar Puente, would be prosecuted if he helped her die at an organisation such as Dignitas in Switzerland.

She has demanded that the Director of Public Prosecutions, Keir Starmer QC, should state when he would bring cases for assisting suicide abroad. Currently this is a crime punishable by up to 14 years imprisonment.  No one has been convicted of the crime even though an estimated 115 Britons have committed suicide at Dignitas.  The concern is that those people who assist persons travelling abroad to die, or help them in assisted deaths in this country, could be prosecuted, but the circumstances and the law is too uncertain.  The principle of a review of the law and a clarification of the position appears to be an attractive one.  However, Keir Harmer QC has already said enough to signal that any clarification statement may well be wider than the Dignitas scenario.

In a statement on Debbie Purdy, issued on the 30 July 2009, Keir Starmer QC, the Director of Public Prosecutions, has said:

"This is a difficult and sensitive subject and a complex area of the law. However, I fully accept the judgement of the House of Lords. The CPS has great sympathy for the personal circumstances of Ms Purdy and her family. We will endeavour to produce an interim policy as quickly as possible which outlines the principal factors for and against prosecution. To that end, I have already set up a team to work through the summer with a view to producing an interim policy for prosecutors by the end of September.  In the absence of a legislative framework, cases of this sensitive nature present a significant challenge for prosecutors. I have therefore decided that once our interim policy is published, we will undertake a public consultation exercise in order to take account of the full range of views on this subject. In the continuing absence of any legislative framework by then, I will publish my finalised policy in the Spring of 2010."

Debbie Purdy's case was rejected in the High Court, as was an appeal to the Court of Appeal.

But Ms Purdy took the case to the highest court in the land, and on Thursday afternoon on the 30th July 2009, five Law Lords ruled that the DPP must set out the circumstances in which it would prosecute.

Ms Purdy, 46, said: "I'm ecstatic – I feel like I've been given a reprieve. I want to live my life to the full, but I don't want to suffer unnecessarily at the end of my life.  This decision means that I can make an informed choice, with Omar, about whether he travels abroad with me to end my life because we will know exactly where we stand.  I am grateful to the Law Lords for listening and rising to the challenge that this case presented. I also want to thank other campaigners like Diane Pretty, who is no longer with us, and all those whose efforts created this huge step towards a more compassionate law." 

Speaking outside court she said: "It feels like everything else doesn't matter and now I can just be a normal person. It's terrific.  It gives me my life back.  We can live our lives. We don't have to plan my death."

Train robber Biggs and the question of parole.

Those of you who may be wondering whether politicians should get involved in the criminal justice system may like to consider the case of Ronnie Biggs.

There is a theory that suggests that with the passing of time criminals are romanticised by the public, books are written about them and films are made in which they are portrayed in such a way as to enable the audience to be able to relate to them.  But what of Ronnie Biggs?

The media still write about him in the context of 'The Great Train Robber Ronnie Biggs' as if it should mean something to every living soul. 

For those of you who do not know about Ronnie, he came from  from Lambeth, South London.  He was a member of a 15-strong gang which planned and organised the interception of the Glasgow to London mail train as it passed through Buckinghamshire in August 1963.  They made off with £2.6m in used banknotes.

Ronnie  was given a 30-year prison sentence.  The courts were quick to signal to others what might happen to them should they embark on any similarly audacious plan.  After 15 months Biggs escaped from Wandsworth prison by climbing a 30ft wall and hiding in a furniture van.

He was on the run for more than 30 years, living in Spain, Australia and Brazil.  Ronnie Biggs returned to the UK voluntarily in 2001 mainly, it was alleged, on health grounds. He was locked up in Belmarsh high security prison on his return before being moved to a specialist medical unit at Norwich prison. Up until then he  was spotted occasionally and filmed or photographed apparently enjoying the good life in exotic locations.  The question is whether he has paid a high enough price to be let home?

Earlier in July this year, a  parole board recommended that he be released but Justice Secretary, Jack  Straw, intervened and disagreed.  Jack straw has since justified his decision on the basis that Ronnie had not expressed remorse for his crimes and stated that Biggs remains "wholly unrepentant" for his actions.

Ronnie's son, Michael Biggs, said about his father's recent hospitalisation  "It's the worst he's ever been. The doctors have just told me to rush there."

There have been instances when we may have begun to wonder whether we have been careful enough about sending the right persons to prison.   There are some nasty and dangerous people on parole or licence or remand and they have gone on to commit offences again.  These incidents have quite rightly triggered a debate and on occasions a change in government policy, noticeably changes in the law relating to young persons carrying knives, as a result of a high level of teenage deaths in knife related crimes.

One would hope that the efforts of the families of victims of such tragedies and others have enlightened us as to the need to tackle such social concerns and reduce the risk of harm to individuals. However,  does Ronnie Biggs still fall into the category of 'dangerous' or 'represent a high risk to the public'?

One might argue that the criminal justice system including the judiciary and parole board should be able to deal with these rare cases.  Experience should tell us that government ministers are politicians after all and not necessarily well equipped to use vetoes of this kind. 

It does not seem very long ago that the then Home Secretary, John Reid, (before the Home Office functions were split following John Reid's remarks that the Home Office was not fit for purpose) wrote a letter to the judiciary urging them to only send to prison offenders who represented a danger or unreasonable risk to the public.  With so many repeat offenders, bail offenders and 'supervised' offenders (i.e. those who offend whilst being supervised within the community as an alternative to custody) it seems hardly surprising that within days, Jack Straw has changed his mind and authorised the release of Ronnie on humanitarian grounds on condition that Ronnie behaves himself.


The Macpherson Report - Ten Years on

Does racism still exist in the police? Some communities think so, as do friends of Stephen Lawrence and even the Home Affairs Committee, chaired by Keith Vaz, seems to have doubts.

The Home Affairs Committee have in effect said that racial discrimination still exists in the police, 10 years after a report described Britain's biggest force as 'institutionally racist'. It is hard to believe that it was 10 years ago that the Metropolitan police came under such close scrutiny and came out of it battered and bruised with its reputation badly dented.

The Macpherson inquiry severely criticised the police over its handling of the Stephen Lawrence murder investigation.  Police found themselves in the dock and the report labelled the Metropolitan police force 'institutionally racist' and condemned officers for 'fundamental errors'.

The Lawrence family were represented by Michael Mansfield QC who had previously made his name in a succession of high profile cases in which he helped highlight numerous miscarriages of justice.  Such cases included the Birmingham Six, alleged IRA bomber Judith Ward, the Tottenham Three and the Bridgewater Four.  Michael Mansfield acquired a formidable reputation as a civil rights lawyer. He spoke of his experiences and why he mistrusted the police.  At the time there was much said about what was wrong and what should be done.  The inquiry, headed by Sir William Macpherson, came up with a report which set out 70 key recommendations. 

The Macpherson inquiry also took the view that the public's confidence needed to be restored and openness and accountability encouraged.  Home Secretary, Jack Straw , unveiled  measures designed to combat racism in the wake of the inquiry. 

Mr Straw, setting out the government's point-by-point response to each of the 70 recommendations for change made by the inquiry chairman, Sir William Macpherson, said his plan of action should bring about 'real, practical change'.  Brave promises indeed.

Sir Peter Condon was the Metropolitan Police Commissioner at the time, but Commissioners come and go, and ironically it was the former police Commissioner Sir Ian Blair who gave evidence to an inquiry in April this year into how race and religion affected employment in the Metropolitan Police. 

The Metropolitan Police Association Race and Faith Inquiry came 10 years after the Macpherson Inquiry which looked into the way police handled Stephen's murder.  Boris Johnson, London's Mayor, called for the inquiry following a number of race allegations against the police.

Sir Ian, resigned in October 2008 amidst controversy and speculation following the shooting of Charles de Menezes. In June, the Met's most senior Asian officer, assistant commissioner Tarique Ghaffur, said he would sue the force for racial discrimination and victimisation.

Sir Ian Blair has said he did not think 'there was anything racist' when asked about how the police had investigated Stephen's death. 

Nobody has been successfully prosecuted in relation to the murder and Stephen's family have not been able to see justice done for their son It was Stephen's case and others like it that prompted the government into reviewing the 800 year old double jeopardy rule which prevented someone being tried again for the same offence if they had previously been acquitted.  The law was eventually changed and legal history has now been made with the first successful prosecution brought as a result of new compelling evidence.  So the case is a graphic illustration of how victim's families can be apparently denied justice as a result of such alleged 'fundamental errors'.

Moving on to more practical issues, the thorny subject of 'stop and search' has reared its head again.  For those of you who are looking for a contemporary reference on this issue the Committee in question accepted that there had been some progress, but that black people are still more likely to be stopped and searched. This will invariably give rise to negative influences within communities and get in the way of good policing.

The Chairman, Keith Vaz, also spoke of the Home Affair Committees disappointment that 'While there is such blatantly disproportionate representation of particularly black people in the criminal justice system... there will continue to be damage to community relations which in turn undermines police work.'

Equally of concern is the suggestion that a disproportionate number of black and Asian people also had their profiles held on the police DNA database.  This comes hard on the heels of the concerns that we are out of step over the issue of retaining DNA profiles of persons who have been acquitted of charges against them.


Double-jeopardy first-conviction of Mario Celaire

In a legal first, Mario Celaire a former footballer who had been cleared by a jury of murdering his ex-girlfriend, has now been convicted of her killing.

 In a legal first, Mario Celaire a former footballer who had been cleared by a jury of murdering his ex-girlfriend, has now been convicted of her killing. This is the first time someone has been convicted of an offence they had previously been acquitted of by a jury. This conviction comes after an amendment to the 'double jeopardy' rule, which now allows a suspect to be tried twice for the same crime if compelling new evidence is found.

In 2005, the 800-year-old legal principle that anyone acquitted by a jury could not be retried even if new evidence was uncovered, was repealed in England and Wales.  This change in the law allows the Court of Appeal to order a retrial if the evidence is strong enough.

Mario Celaire became the first person in UK history to be convicted of a crime for which he was previously been found not guilty.  He has been given two life sentences for killing a former girlfriend, Cassandra McDermott, and trying to murder another female victim, Kara Hoyte.

Mario Celaire had denied beating Cassandra McDermott, 19.  She had been left to die alone at her mother's house on October 25th 2001. Celaire was acquitted of her murder after a trial in 2002.

Some six years later, Celaire, 31, a former footballer from Sydenham in south London, attacked another ex-girlfriend, Kara Hoyte.  He used a hammer to attack her and Kara Hoyte was left with terrible injuries. These included severe brain damage but she was still able to identify her attacker.

At his second trial in May this year, the one-time Maidstone United player pleaded guilty to the manslaughter of McDermott and the attempted murder of Hoyte.

Celaire admitted he attacked McDermott after their four-year relationship ended. He slammed her head three or four times against a hard edge, such as a door, and then left her unconscious under a duvet in her room where she choked on her vomit and died.

He admitted attacking Hoyte after the pair split up in 2007. Celaire, who changed his surname to McNish after his original murder acquittal, was sentenced at the Old Bailey to life in jail with a minimum term of 23 years.

Simon Denison QC, for the prosecution, informed the court that Celaire had a history of violence towards women.

Simon Denison QC recounted that Celaire was 15 when he took part in the gang rape of a vulnerable 17-year-old girl at Lewisham College. He and the attackers lured the girl into a basement.

Celaire pleaded not guilty but was found guilty and jailed for five years.  This was  reduced on appeal to four years.

Cassandra McDermott, 15 and Celaire, 19  began  their  volatile relationship in 1997.  The subsequent violent disturbances resulted in the police attending on a number of occasions but McDermott repeatedly refused to press charges.  Denison described the final attack as "A sudden violent assault in which Cassandra suffered four or five hard blows to the face that left her unconscious on the bedroom floor, the cause of her death however was tragic. While she was lying on her back unconscious, she vomited. Being unconscious, she was unable to clear her airways and inhaled the gastric contents into her lungs and died."

Denison said the crown had to accept Celaire's plea of manslaughter as there was no evidence of a sustained assault or the use of a weapon.

Six years later Celaire used a hammer on Kara Hoyte after she began a relationship with another man.

Jennifer McDermott, the mother of Celaire's previous victim, praised Hoyte for helping bring her daughter justice.  Up until now she would have been unable to bring closure to that part of her life.

Mrs Jennifer McDermott, 58, the mother of Cassandra said in a victim impact statement read to the Old Bailey "My heart goes out to Kara for her bravery and determination. She has shown immense courage to see this process through of telling her story but also of the confession that Mario made to her of killing Cassandra. It was Kara's determination for justice that made it possible for Cassandra's case to be reopened."

The public gallery erupted and there was a shout of "rot in hell" in court as Celaire was jailed.

The judge told Celaire: "You present a very real and continuing danger to young women with whom you enter into a close relationship."

Celaire was given two life sentences and told he must serve a minimum of eight years after pleading guilty to the manslaughter of McDermott. He was given a concurrent life term with at least 23 years for the attempted murder of Kara Hoyte.

Kara also read out a letter to the court, and addressed Celaire

"Mario, why did you do this to me?" she wrote. "I don't hate you, I pity you. I will get better and better with each day and stronger. You have only damaged my shell, I am still the same determined and strong person I always was … I leave here today free, with the whole world at my feet and a new life to be whatever I choose to be. You, on the other hand, have a long time to reflect and to understand you cannot control another person – that their life is just that: theirs."

No jury trial approved

The Court of Appeal ruling that a criminal trial can take place without a jury for the first time in England and Wales makes legal history.

The Court of Appeal ruling that a criminal trial can take place  without a jury for the first time in England and Wales makes legal history.

The Lord Chief Justice, Lord Judge, made legal history by allowing the trial to be heard by a judge alone.  As most law students will know criminal trials at the Crown court are held before a judge and a jury.

The power came into force in 2007 but this is the first time the power has been used.

The case is about four men accused of an armed robbery at Heathrow Airport in 2004. The judge said jury "tampering" was a "very significant" possibility.

Lord Judge announced that  the cost of the measures needed to protect jurors from potential influence, such as the services of police officers, was too high and that such measures may not in any event be effective.

Lord Judge said that they "did not sufficiently address the potential problem of interference with jurors through their families," .

Lord Judge also referred to the unfairness of imposing "additional burdens" on individual jurors.

Lord Judge, sitting with Lord Justice Goldring and Mr Justice McCombe, explained that the case had been brought to trial three previous times and alleged "very serious criminal activity".

The court were informed that the case included possession of a firearm with intent to endanger life, possession of a firearm with intent to commit robbery and conspiracy to rob.

"The objective of the robbery was something in the region of £10m in sterling and mixed foreign currency," Lord  Judge told the court.

Apparently the actual proceeds amounted to £1.75m and have still not been recovered in full.

Lord Judge described trial by jury as a "hallowed principle" of British justice, but noted that the Criminal Justice Act 2003 did allow a trial to be heard by a judge alone in appropriate situations.

Lord Judge went on to explain that "where it arises the judge assimilates all the functions of the jury with his own unchanged judicial responsibilities".

"This function, although new in the context of trial on indictment, is well known in the ordinary operation of the criminal justice system and is exercised for example by district judges [magistrates' courts] in less serious, summary cases."

Crown Prosecution Service

There may have been the possibility that due to concerns about the fairness of any trial that the individuals may not have faced justice.  A Crown Prosecution Service spokesman said: "Rather than the case not proceeding at all this decision enables these defendants, who we allege are involved in serious criminal activity, to be tried and brought to justice."


Liberty director of policy Isabella Sankey said: "This is a dangerous precedent. The right to jury trial isn't just a hallowed principle but a practice that ensures that one class of people don't sit in judgement over another and the public have confidence in an open and representative justice system. What signal do we send to witnesses if the police can't even protect juries?"

Legal History in the making

The new trial will be the first Crown Court case in England and Wales to be heard by a judge alone using powers under Sections 44 and 46 of the Criminal Justice Act 2003, which came into force in July 2007.

It allows for a trial without a jury when there is evidence of "a real and present danger that jury tampering would take place" and where additional measures to prevent it would not fully succeed, hence Lord Judge's reference to the need to be able to extend protection to families of jurors.

No-jury trials are a more regular feature of justice elsewhere in the UK.

Some of you may have learnt that elsewhere in the UK no jury trials are a more common feature.  Diplock courts (named after Lord Diplock) have been used in Northern Ireland since 1973 to combat jury intimidation by paramilitary groups.

Some criminal cases in Scotland are heard by a Sheriff in the Sheriff Court or by a bench of one or more lay justices in the District Court.


Murder – mandatory life sentence – tariffs – knife

Ben Kinsella’s killers sentenced to life June 2009.

As Ben’s father has said on the steps outside the Old Bailey "How many families will have to stand on the street outside the Old Bailey to get justice?"
Juress Kika, 19, Jade Braithwaite, 20, and 18-year-old Michael Alleyne were found guilty at the Old Bailey, on Thursday 11 June 2009, of stabbing 16-year-old Ben to death after an argument in a pub which did not involve him.
Apparently Ben paid the ultimate price because Braithwaite felt that some one, other than Ben, had not respected him in the pub.  Respect, of course, cannot possibly be earned in this way. Someone should have told Braithwaite and the others that you have to earn respect, and they should treat others as they would like to be treated.

Ben, who had been in that part of London celebrating the end of his GCSEs, can be seen on CCTV being chased down a road and cornered between two vans after becoming separated from his friends in the early hours of June 29 last year.   He was a straight A * student much loved by his family.

Ironically Ben had once written to Gordon Brown calling for action to halt the menace of knife crime.  The evidence showed that he had walked away from the fight outside Shillibeers bar in Islington, north London.

Ben had been stabbed 11 times in just five seconds in an attack condemned as "cowardly" by the judge, who told all three they must serve a minimum of 19 years in prison before being considered for parole.   The fact that the prosecution could not establish who had used the knife made no difference – under the law it was enough that they were there.

The Old Bailey erupted with obvious delight at the verdict as the Common Sergeant of London, Judge Brian Barker, sentenced each of the killers to a minimum of 19 years.  Murder carries a mandatory life sentence so that the trial judge had no discretion, except to consider the appropriate tariff when setting the minimum number of years they must serve for knife crime i.e. 15 years.  As one might expect some members of our society do not think this is enough.

When sentencing, Judge Barker told the killers: 'Ben Kinsella had in front of him a lifetime of promise and you have taken all that away from him by a brutal, cowardly and totally unjustified attack. The background is depressing and all too familiar in these courts. It reflects the futility of carrying and using knives by some young people.'

Judge Barker continued 'Your behaviour generates outrage in all right-minded people and your blind and heartless anger defies belief.  No attempt was made to help him in any way and not a hint of remorse has been shown by any of you. I can only deduce that in your minds someone had to pay the ultimate price, whoever that might be. What you have done has caused untold anguish, this was a terrible attack and you knew exactly what you were doing and you must take responsibility for your actions.'

The judge added, 'The crime was aggravated by the fact that you picked on an obviously younger and smaller lone victim.'

Brooke Kinsella, who has been responsible for voicing concerns about knife crime, said outside court: 'The sentences are good, but it is little more than Ben lived, so it is not really enough.'

Ben's mother, Deborah, told ITV News she wished the sentences were longer. 'Life should be life' she said.  Deborah Kinsella is not alone in this view.

Ben's father, George Kinsella, spoke of parents who "live in fear" of their children not returning home from school every day.

Speaking on the steps of court after Thursday's verdicts, he said: "How many families like ours will have to stand on the street outside the Old Bailey to get justice?  Knife crime is now sadly embedded in the heart of Great Britain, always running the lives of gangs and feral youths.  Parents live in fear until their children are safely home. It could be a wrong word, a wrong look or the wrong postcode.  In Ben's case, it was something which was nothing to do with him at all."

The killing, the 17th murder of a teenager in London last year, has added to calls for a review of the laws on carrying knifes.

So what of the government’s response?  Too late for Ben some might argue but are they finally prepared to listen to the public concerns?

Jack Straw, the Justice Secretary, has told the House of Commons that minimum sentences for knife murders are to be reviewed. The move follows concern over the sentencing in the case of Ben Kinsella. The current tariff for knife murder is 15 years. For gun murders it is 30 years.  Mr Straw has been reported as saying that he would examine the minimum term "starting points" for people convicted of murders involving knives in England and Wales.

Ben's parents, George and Deborah Kinsella, clearly are of the view that the government should review sentencing guidelines to enable judges to hand down stiffer sentences.

Jack Straw says "In the light of these concerns I intend to review the provisions of schedule 21 of the Criminal Justice Act 2003 with a view to deciding whether to amend it as I can by order.  I will of course be consulting the senior judiciary and the Sentencing Guidelines Council and would be very happy to receive wider representations."   Does this sound convincing?

Not according to Dominic Grieve, the Shadow Justice Secretary, he said the Conservatives welcomed a review but said that what Mr Straw had announced looked like a publicity stunt. Mr Grieve went on to say "The government cannot expect to be taken seriously when it is releasing thousands of violent offenders from prison early, because of chronic overcrowding".

George Kinsella, Ben’s father, is reported as saying "If you murder someone with a gun, the starting tariff is 30 years. But if you do it with a knife, it's 15 years.  What's the difference?"

Mrs Kinsella, participating in a programme for the BBC, told the programme that she believed knife crime sentencing was "too complacent". Sounds familiar!

What is worrying is the recent announcement that the number of knife deaths in areas targeted by an anti-knife crime scheme has risen, according to the Home Office.

The government's Tackling Knives Action Programme (TKAP) started last July in 10 police areas in England and Wales following a series of high-profile teenage stabbings.

In its first nine months, we are told that 126 people died after being attacked with a knife or other sharp object - this is seven more than in the same period the previous year.

Overall knife-related violence has fallen by 10%, but the number of deaths among teenagers remains unchanged. Is the programme making any difference?  Well this is what they say-

Warwickshire Chief Constable Keith Bristow, who leads TKAP, said "It's a mixed picture in the sense that in some places there have been some increases but overall it's going in the right direction.  This is a long journey. Success when you're dealing with these sort of problems might be measured in generations, not weeks or months."

The Home Secretary, Alan Johnson, also thinks its early days, he said, "The fact that a stabbing leads to the tragedy of a death is nothing to do with the perpetrator of the stabbing, its to do with how quickly the health service got to them, etc.  The number of stabbings being down overall is encouraging and that's what we're looking for at this stage just one year in. We're not saying this programme's completed. We're saying there's a long way to go yet but there are encouraging signs."

Justice Secretary Jack Straw has spoken about tougher penalties that had been introduced for knife crime and it has been made clear that anyone aged 16 or over should be prosecuted for a first offence.  "This tough stance is already having a positive impact - latest figures show that more people are going to jail, and for longer, when caught carrying a knife."

But what do the families think?  Colin Knox, whose 18-year-old son Robert was fatally stabbed in south-east London last year, said the government's knife crime strategy lacked deterrence. Mr Knox says  "We need to send a strong message to the knife carrier - if you carry a knife you will get a custodial sentence, as a minimum of six months."

This is clearly at odds with some academics Professor Marian Fitzgerald, for example, a criminologist at Kent University, said the government was putting too much emphasis on knife carrying instead of knife crime. This goes against Colin Knox's view that strong signals should be sent to knife carriers.




Juries – use in inquests – government proposals

Justice Secretary, Jack Straw, to drop plans to hold private inquests without juries.

Perhaps we are learning to appreciate and value some aspects of our legal system.  For example, the use of members of the public as jurors, when they participate in the inquest process.  

It is also perhaps ironic that our appreciation does not come from encouragement from the government, but quite the opposite - meddling or tinkering so as to attempt to undermine!  

Ordinarily inquests are conducted in public and are reported.  So what? some may say, but the government has argued that there are circumstances when inquests should be held in private for national security, crime prevention or diplomatic reasons (whatever they may be).

A proposal for non-jury inquests was included in the Coroners and Justice Bill earlier this year.  This provision was intended to cover situations involving sensitive information.  'Big Brother' some of you may say, and you may be right.

Originally the proposals were framed so as to enable a government minister to make the decision as to whether the press and public should be banned from an inquest.  This could have been seen as political intervention and unacceptable to bereaved families and other interested parties but in any event the Justice Minister, Jack Straw, introduced an amendment delegating the power to a High court Judge.

The openness and worth of inquests have been demonstrated on many occasions and in some cases criminal proceedings have come about as a result of the work they do.

Not surprisingly there has been some reaction from groups concerned with civil liberties and rights.

Fortunately the government has decided not to proceed with the proposals.


Shami Chakrabarti, director of civil liberties campaign group Liberty, said: "We welcome this sane and humble climb-down".

"It was completely bizarre for a government that has spent over a decade lecturing the public about victims' rights to attempt to exclude bereaved families from open justice."

Amnesty International

Amnesty International UK campaigns director Tim Hancock agreed it was to be welcomed, adding: "When someone loses their life at the hands of the state, it's essential - and required by international law - that an independent and impartial inquiry finds out how and why it happened."

Parliamentary opposition

Last year’s Counter-Terrorism Bill originally included the proposal for secret inquests but was dropped due to parliamentary opposition.

The BBC reports that “Some MPs and human rights organisations were concerned that cases such as "friendly fire" military deaths and deaths at the hands of the police could be heard in private, instead of being subject to public scrutiny.”

Human Rights Watch

Ben Ward, associate director for Europe at Human Rights Watch, is quoted as saying the decision to abandon the plans was "A welcome development".

He said: "Had the proposals been passed, we might well have seen an inquest like the one into the death of Jean Charles de Menezes held behind closed doors."  Who can deny the public interest in the events that led to the shooting of Jean Charles?

Lay people in the legal system – jury – jury room

Jury foreman’s revelations in the case of a childminder who was accused of manslaughter.

Students may find themselves discussing the value of the contribution made by lay people in our legal system.  The jury’s role in criminal cases is limited to trials at the Crown Court where the defendant has pleaded not guilty.  In practice this may amount to about 20,000 cases each year.

In such discussions it is inevitable that we may also find ourselves discussing the issue of secrecy.  On the one hand the jury discussion and deliberation takes place in secret and the law (in the form of Section 8 of the Contempt of Court act 1981) prohibits any enquiry as to how the jury reached its decision.  This has certain consequences when it comes to considering whether juries can understand and follow the evidence. If juries are not required to give any reasons for their verdicts how can this aspect be properly researched?

On the other hand the fact that the work of the jury is secret may be a good thing because it can be argued that it frees the jury from pressure and protects the jury from outside influences.

The law

We may well have understood the secrecy of the work of the jury from films and dramatisations as well as from legal studies and we have probably heard of the term contempt of court.  It is contempt ‘to obtain, disclose or solicit any particulars of statements made, opinions expressed, an argument advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings.’  The prohibition was introduced because newspapers were tempting jurors with payments if they would sell their story.

The case of Keran Henderson

Keran Henderson, a child minder, was convicted in 2007 of the manslaughter of 11 month old Maeve Sheppard by a majority verdict of 10-2 and was sentenced to three years. Henderson is to appeal against her conviction.  The contempt arose out of making public the concerns of two of the jurors about the complexity of expert medical witnesses.  This amounted to a disclosure.

The effects of secrecy

As already mentioned the fact that deliberations are held in private can be said to protect the jurors from pressure.  The difficulty is that there is no way of knowing whether the jury did understand the case and that the verdict was given for the right reasons.

We are helped by some examples and the case of R v Mirza (2004) is of some importance.  The case came before the House of Lords- our most senior Court.  In that case the defendant was a Pakistani who had settled in the UK in 1988.  The defendant had an interpreter during the trial but this did not go unnoticed by the jury and it seems as though the jury doubted the need for this because they sent notes to the trial judge asking why Mirza needed an interpreter.  He was convicted by a majority of 10-2.  

Some six days later one jury member wrote to the defendant’s counsel suggesting that the use of an interpreter had been a ruse possibly to obtain the sympathy of the court in some way.

The juror also made it known that she had been shouted down when she had objected.  The revelations show possible bias or prejudice but the House of Lords were clear in their opinion that Section 8 had been infringed and that it was a contempt to disclose or obtain or solicit information about what had happened in the jury room.   It made no difference that such information was to be used for the purposes of an appeal.

In R v Connor and Rollock a juror wrote to the Crown Court indicating that while several of the jurors thought that it was one or other of the defendants that were responsible for the stabbing, they should convict them both to teach them a lesson.  This was after the verdict but before sentencing.  The jury had returned a 10-2 majority decision.  The individual juror had also included the statement that she had tried to persuade the rest of the jury to consider which defendant was responsible but that her fellow jurors had complained that they would be there a week if that were the case.

Students may remember the colourful case of R v Young (Stephen) (1995).  The case concerned a charge of murder of two people.  At the end of the trial the jury were sent out to deliberate but on failing to reach a verdict at the end of the first day the jury stayed overnight at a hotel.   

It came to light that some of the jury held a séance using a ouija board to try and contact the dead victims to ask them who had killed them!  As it happened a guilty verdict was returned the next day.  The defendant appealed to the Court of Appeal and they quashed the verdict and ordered a re-trial.  The Court of Appeal felt able to distinguish the hotel room from the jury room and were able to enquire into the events at the hotel as they were not part of the discussions in the jury room.

Police powers, use of firearms and the IPCC

Man shot dead by police at a house in County Durham (May 09).

Some of you may find your self discussing the use of firearms by police and how the deployment of armed response units is managed within particular police areas.  

This debate may also be relevant in the context of murder, due to the inclusion of the requirement that the death must be the result of an unlawful killing.  A policeman who kills in the lawful exercise of his duty will not be guilty of murder.  Problems arise should individual officers exceed the authority given to them in which case criminal proceedings may follow.

In May 2009 a man was shot dead by police in what has been described as a siege at a house in Cheapside, Shildon, County Durham.  The police were responding to 999 calls and it is reported that they saw a man with a crossbow, which he then fired.  As a result armed police officers surrounded the house.

The police have powers, which enable them to use force at times, but the use of such force must be appropriate and proportionate.  The issue here may be whether a crossbow can ever amount to a circumstance, which merits the deployment of armed response vehicles?  

Presumably it would have been possible to cordon off and restrict access to the area.  Apparently the incident took place in the early hours of the morning when very few people would have been about.  It has been reported that officers saw the crossbow being fired.  It is perhaps fair to say that the police themselves would have been the only targets having secured the area – the man was inside the house albeit at a window.  

What was the danger to the public?  Was there any likelihood of the man breaking out and reeking havoc?  Is it fair to say that the threat posed was to the police themselves?  A difficult situation surely but then there must be many incidents when difficult operational situations arise – needing clear operational lines of command and authority.
The Independent Police Complaints Commission (IPCC) has praised the restraint of police firearms officers in the past "The latest figures on police use of firearms prove that officers show great professionalism in dealing with dangerous situations every day of the week, ….”   In the fullness of time this incident may be seen by the IPCC as another such situation.

The police are reported as having surrounded the house.  How realistic was the prospect of the man escaping?  Was the house effectively sealed off?  If so what prompted the police to open fire?  In such siege situations surely there must be some laid down plans of some sort and that shooting is not a first response?  So why did they fire?

Some of you may recall the shooting of Jean Charles de Menezes on the London underground. The Metropolitan police was found guilty of a catastrophic series of errors during the operation that led to firearms officers shooting Jean Charles de Menezes dead at Stockwell station, South London, on July 22 2005.

The force was fined £175,000 and ordered to pay £385,000 costs after an Old Bailey jury found it had breached the Health and Safety at Work Act 1974 and failed in its duty to protect members of the public in the killing of the innocent Brazilian.

Some of you may also recall that mistakes have been made in the past over replica guns and things that look like guns - illustrated by such cases as the shooting of Harry Stanley by armed police officers after they saw Mr. Stanley with what appeared to them to be a sawn off shot gun wrapped in a blue plastic bag. ... it turned out to be a table leg.

The debate will continue and perhaps it’s a good thing that it does.

DNA records, arrest and the criteria to remove records from database

Case brought by Matthew Wren to have his DNA records destroyed.

This case may be of interest to students for a number of reasons.  It is memorable in itself, but ironically the High Court’s decision comes the same day as the Government’s proposals to continue to hold the DNA details of innocent persons on the national database for up to 12 years.

Mr Wren was a teacher and was determined to have his DNA details destroyed following the determination that Northumbria Police had unlawfully arrested him. The teacher had been arrested after a pupil had assaulted him but then accused Mr Wren of assault.  Mr Wren was suspended from his job. 

It was clear that the recording of the arrest for allegedly assaulting a child and subsequent retention of DNA records would have dire consequences for Mr Wren when it came to future employment in particular if it involved working with young people.  There was the issue of a Criminal Records Bureau check.  One can understand why Mr Wren felt so strongly about his treatment by the police.

It was argued that Mr Wren had voluntarily gone to the police station with his solicitor for interview.  On arrival he was arrested and treated as a detained person.  This was so, even though the question of whether this was necessary, was raised.

The interview was conducted and Mr Wren answered all questions and was released.  There was no charge.  The police investigated the matter but took no action against the pupil in respect of the alleged assault on Mr Wren.

The action against the police proceeded by way of judicial review in the Queens Bench Divisional Court.  The action challenged the legality of the arrest and required the destruction of the DNA samples.

It should be pointed out that the significance of the arrest was that this meant that the police could take his photograph, fingerprints and DNA sample and as we now understand from recent rulings by the European Court of Human Rights - hold this information indefinitely irrespective of the person’s innocence.

As a law student you will probably know that under Section 24 of the Police and Criminal evidence act 1984 a police officer can arrest anyone he reasonably suspects of committing an offence so long as it is necessary to do so.  The requirement of ‘necessity’ was added by an amendment to the Serious Organised Crime and Police Act 2005.

Mr Wren’s counsel argued that “It seems that many police forces have operated a general policy of arrest without realising that they can’t do so unless it is necessary. Hopefully this case will make them think again.”

The Queens Bench Divisional Court (the Police having conceded) issued a consent order that the arrest was unlawful and ordered the deletion of the photographic, fingerprint and DNA records and the amendment of the national database.

Criminal courts, sentencing, death by dangerous driving

Are all forms of criminal offences treated in the same way?

Students looking for material to use by way of discussion to illustrate an understanding of the jurisdiction of the criminal courts and their sentencing power in the Magistrates Court and Crown Courts might find this case of interest.  

The case concerns the conviction of 22 year old Stephen Toogood of causing death by dangerous driving after two of his cousins were killed when his car overturned.  Toogood admitted the offence and was sentenced to seven and a half years at Worcester Crown Court on the 29 April 2009.

Magistrates courts deal with some 97% of criminal cases and all criminal cases start in the Magistrates Court.  If a case is deemed to be more serious than ‘summary offences’ then they will be referred to the Crown Court.  This was the situation in the case of Stephen Toogood as it involved the loss of life.

The government does publish sentencing guidelines and tariffs but this does not always mean that the court's task is made any easier.  The difficulty here would have been how to balance the interests of the victims and their families with the need to protect the public and deter others from similar actions.  The problems seem to have been compounded in that both victims were only 19 and had their whole lives in front of them.

Drink does not seem to have played a part but the West Mercia Police were convinced that the incident involved two groups of friends racing each other in two cars.  

The criminal law is concerned with the matter of blameworthiness and here the guilty act was based around a day to day activity i.e. driving as opposed to something more obviously wrong e.g. robbery or intentional harm or killing.  The law however provides that standards of driving are expected and that in some circumstances a criminal charge can be brought.

As PC Andy Saunders, of North Worcestershire police, said: "This sends out a clear message to people that this kind of behaviour on the roads will not be tolerated."

"Before this incident they had all set out as friends and enjoyed a good day. No one set out to kill anyone but what started out as a bit of fun has led to two people losing their lives."

"Stephen Toogood now has to live with the consequences of his actions, but so too do the families of Shane Toogood and Sam Cox and our thoughts are with them."

No doubt the issue of causing death by dangerous driving will remain in our minds as a result of our attention being draw to cases of persons ‘texting’ and using their mobile phones whilst driving at speed.

Detention, access to a lawyer and human rights

Samantha Orobator, held on drug smuggling charge in Laos prison, but denied access to a lawyer.

Students wanting to be able to compare UK police powers and safeguards against infringement of individual rights may find the recent case of Samantha Orobator helpful.  Samantha reportedly became pregnant in Phonthong prison where she had been held since last December.  

It is also of some considerable concern to such agencies as Reprieve, a legal charity, that although she is facing a possible death sentence for drug smuggling she has allegedly been refused access to a lawyer.

Reprieve ‘uses the law to enforce the human rights of prisoners, from death row to Guantánamo Bay’. According to Reprieve ‘their vision is of a world in which the Universal Declaration of Human Rights (UDHR) is honoured by all governments, everywhere in the world, in every situation, regardless of the extremity of circumstances faced by a particular government or society’.

In the UK suspects have certain rights including the right to legal advice. The Police and Criminal Evidence Act 1984, as amended, and the supplemental Codes of Practice strive to strike the right balance between the needs of the individual and society as a whole. This case is a timely reminder that other authorities may operate with other priorities.

In this country there are a growing number of examples of individuals who may have been dealt with differently by the courts and authorities had it not been for the Human Rights Act 1998.  There are widely drawn provisions to ensure a fair trial. It could be argued that the authorities are too generous in their interpretation and application in this country.

What safeguards are operating to protect Samantha?

Amnesty International are actively involved in safeguarding the rights of Samantha and others in similar predicaments, and on a note of realism have emphasised that no one has been executed in Laos since 1989.

Samantha has now been found guilty of smuggling heroin and sentenced to life in jail.  The mandatory death sentence was commuted to life due to her pregnancy.  No doubt there will now be moves to ensure that she serves out her sentence in a British jail.

Samantha has now (August 2009) been flown back to Heathrow Airport, where she was met by police and taken to Holloway Prison, in London.  Her lawyers have made damning statements about  her "disgraceful 'show trial' conviction".

Orobator pleaded guilty to smuggling heroin and would have faced the death penalty in Laos had she not been pregnant.

Samantha has taken time to say in public "I am enormously relieved and happy to be back on British soil. It has been an unimaginable nightmare."

The issue of whether Samantha should serve out the whole of her commuted sentenced will no doubt be the subject of speculation in the future.



Recent Posts

The latest posts from the lawmentor.co.uk blog archives.

Caparo three part test – revisited

In Robinson the Supreme Court laid to rest the proposition that there is a Caparo test which applies to all claims in the modern law of negligence.

Statutory interpretation - penal legislation is construed strictly

The Supreme Court reminded everyone per Lord Reed and Lord Hughes that 'Penal legislation is construed strictly, particularly where the penalty involves deprivation of liberty'.

Court of appeal gives judgment acknowledging unmarried woman's rights

The claim related to bereavement payments under the Fatal Accidents Act 1976 as amended.

European union law – in the case of conflict between national law and european law

Walker (Appellant) v Innospec Limited and others (Respondents) [2017] UKSC 47 On appeal from [2015] EWCA Civ 1000

Vicarious liability is alive and well

This decision extends the doctrine of vicarious liability in respect of foster carers for the fist time and it represents another example of the potential for the expansion of this form of liability.

Supreme court busy - make sure you are geared up for your course

The Supreme Court has been especially busy lately.

Gina miller v secretary of state for exiting the eu 2016 as an example of the importance of judicial independence

Law students are now required to take note of how the independence and work of the judiciary has been reformed

Policing and crime bill and provisions for bail after arrest but before charge

The clear intention is that decisions on pre-charge bail should come under scrutiny.