For further information about the courts approach to these difficult Family court cases go to AirdaleNHS Trust v Bland (1993).
Brian Thomas, who suffers from from a sleep disorder, strangled his wife while dreaming he was attacking an intruder in their camper van. Thomas who was described as a devoted husband, strangled his wife while having a nightmare. He dreamt that she was an intruder who had broken into the camper van at night. The couple were on holiday at the time. Earlier in the evening they had been disturbed whilst parked in a village car park at the seaside village of Aberporth, south-west Wales.
Thomas told officers at the time that "boy racers" had been performing wheel spins and handbrake turns in the car park, where he and his wife had first parked their camper van. This was in July 2008. They were were so concerned that Thomas moved on to a pub car park. This may have been the event which triggered the nightmare about being attacked by an intruder.
Apparently the defendant had a medical history including the need for medication for depression. However it was suggested to the court that he stopped taking them when he and his wife went away in their van because they made him impotent .
Thomas was charged with murder. So how was it that the jury were directed by the trial judge to simply return a verdict of 'not guilty'?
A recording was played of the 999 call he had made minutes after strangling his wife. He was recorded as saying "What have I done? I've been trying to wake her. I think I've killed my wife. Oh my God. I thought someone had broken in. I was fighting with those boys but it was Christine. I must have been dreaming or something. What have I done?"
Paul Thomas QC, for the prosecution, informed the Crown Court that "He became convinced that one of these youths had broken into the van and a fight erupted in which he grabbed one of them in an armlock but it must have been a dream, because there turned out to be no intruders and the person he had seized by the throat was his wife."
Ordinarily where there has been an unlawful killing the Crown Prosecution Service will bring a charge of murder and it is then open to the defence to put together their account of what happened and this may invite a plea of not guilty or one of the special defences to a charge of murder. But this is not what happened in this case. At one stage the jury were informed by the prosecution "This is a highly unusual case. The defendant accepts he caused the death of his wife, but the prosecution do not seek a verdict of guilty to murder or manslaughter."
It became clear at an early stage that the mental capacity of the defendant was an issue and the jury were also told at one stage by the prosecution "Instead, very unusually, we seek what is called a special verdict – a verdict of not guilty by reason of insanity."
It seems as though Thomas had been prone to episodes of sleepwalking and other sleep-disorder behaviours for almost 50 years.
Such special verdicts are rarely encountered for several reasons not least being the potentially serious consequences for the defendant which include the possibility of an order that the defendant be detained in a secure hospital as well as the stigma of being declared insane and a lunatic.
The legal test of insanity is set out in The McNaghten Rules. The rules arise from a set of questions posed to to the House of Lords in Daniel M'Naghten's Case. May 26, June 19, 1843. following the attempted assassination of the British Prime Minister, Robert Peel, in 1812, by Daniel M'Naghten.
The rules have been a standard test for criminal liability in relation to mentally disordered defendants in common law jurisdictions ever since, with some minor adjustments. When the tests set out by the Rules are satisfied, the accused may be adjudged 'not guilty by reason of insanity'. The sentence may be a mandatory or discretionary (but usually indeterminate) period of treatment in a secure hospital facility, or otherwise at the discretion of the court (depending on the country and the offence charged) instead of the usual custodial sentence.
In the case of Brian Thomas it seems the prosecution had a change of heart and subsequently indicated that they did not intend to pursue the issue of the defendant's sanity - no doubt because of the unique circumstances of the case and questions over whether there would be any benefit to the defendant. However, the issue was not left alone entirely and the prosecution raised, as an alternative, the issue of 'insane automatism'.
Automatism is a general and complete defence to criminal responsibility and operates under the common law.
In general terms, it is a loss of control by the ‘mind’ over the movements of the muscles. In other words, the acts of the accused are, in effect, involuntary. This goes to the heart of the defence, which is founded upon the basic principles of criminal liability, namely, the existence of what amounts to an actus reus and mens rea. It can be argued that automatism is a complete defence in that not only does it negate the mens rea but is also contrary to the accepted principle that the conduct or behaviour of the accused must be voluntary. The criminal law is, after all, concerned with accountability and blameworthiness and the courts, by allowing this defence, are showing that it would be unfair to place the blame upon someone who is not properly responsible for their actions.
Examples of what might amount to automatism include spasms, reflex actions and convulsions as well as conditions such as diabetes, epilepsy and cerebral tumours, which come under the definition of disease of the mind.
The finding of 'insane automatism' will come to a special verdict of ‘not guilty by reason of insanity'. The same result as if the defendant had been found to be 'insane'.
In the case of Mr Thomas, the prosecution informed the court as follows "In other words, at the time of the killing the defendant was asleep and his mind had no control over what his body was doing."
The Prosecution went on to add "This was a case of insane automatism – because the sleeping disorder the defendant had suffered from since childhood was 'part of him' and not something that could be cured."
So again the question seems to have been raised as to whether in view of the unique circumstances, there was any benefit in going down this road as the outcome would be the same as if the verdict had been 'not guilty by reason of insanity'? The defendant would not have been acquitted but probably made the subject of one of the special orders.
The significance was not lost on Mr Thomas's defence who raised the potential defence of 'non-insane' automatism.
There is a distinction between insane and non-insane automatism. In the case of insane automatism the defendant will be suffering from a disease of the mind from an internal source and the verdict will be ‘not guilty by reason of insanity’. With non-insane automatism, if successful, the defence leads to full acquittal. The defence pointed to the stress of the disturbance earlier in the evening by the 'boy racers' as being the cause of the loss of control and not the defendant's mental state.
In the end, it seems as though common sense prevailed and the prosecution took the rather unusual step of announcing to the trial judge that the prosecution did not intend to offer any further evidence in the matter to establish the charge against the defendant. This left the trial judge no alternative but to assemble the jury and then direct them to return a verdict of 'not guilty'.
Inquests into some deaths could be held in secret in future after Parliament approved the controversial proposal in the Coroners and Justice Bill on Thursday 12th November 2009.
Apparently conservative peers dropped their opposition in the House of Lords on Wednesday leaving the way open for the government to push the proposals through the Commons the next day. Conservative MP's effectively abstained.
Following opposition last year, concessions had been made including giving the Lord Chief Justice, our most senior judge, the power to veto any requests for secret inquests without juries and also the power to decide the judge to be appointed to preside over any secret inquiry.
Ministers say secrecy may be needed in some cases for national security.
The government have advocated the proposals on national security grounds and want a secret inquest when evidence obtained by intelligence agencies plays a prominent role in the inquest.
Why the sudden rush you may well ask? Well, despite concern that the plans give the government too much power, many MPs remain worried that holding some inquests in private rather than in public and with the presence of a jury, will be too secretive. Thursday the 12th of November was the last day of the current parliamentary session! Students of the parliamentary legislative system will realise that there was no more time left for amendments and debate that is why!
Pressure groups such as Inquest or Liberty, remain sceptical about why the government has felt the need to tamper with the jury system for no good reason. Could it be that the government wish to avoid embarrassment.
But at least as Shadow Justice Secretary, Dominic Grieve, comments "It effectively gives the most senior judge in the country a veto not just over the appointment of the judge but over whether this process takes place".
It will be interesting to see how this law works in practice and whether relatives and families feel their concerns and interests are being met.
The law accepts that persons of a young age should not be held fully responsible for their actions. The age of criminal responsibility in England, Wales and Northern Ireland is 10 and that has been the position for some time.
Jay Jones' family from Wirral, Merseyside, has, after a long battle, won the right to claim compensation after their son, Jay, aged just three at the time, was attacked by another three-year-old. The attack took place two years ago.
Jay's mother has won the right to compensation from the Criminal Injuries Compensation Authority (CICA) for her son. Allegedly he was hit 11 times with a car jack by another three-year-old boy whilst they were alone together in a car. Jay was hospitalised and needed stitches to his head.
The issue was whether a claim for injuries sustained as a result of criminal behaviour could be awarded even though the culprit could not be prosecuted because he was not of sufficient age. It seems as though it has been finally accepted that it would be wrong to deny such a claim which otherwise falls within the terms of the compensation scheme.
The Criminal Injuries Compensation Authority had previously twice refused to pay out. The authority had disputed whether a three-year-old could be guilty of a crime of violence but it was eventually established at an Appeal Tribunal that the age of the attacker was irrelevant.
The facts of this case appear be to very unusual to say the least but maybe the importance of the decision is that it sets a principle which others may wish to pursue. The problems of anti social behaviour in socially deprived areas around our towns and cities are well documented. Youngsters, some of whom are younger than 10, engage in anti social behaviour and criminal behaviour, often at night. They are caught by the police and taken to the police station only to be let loose once their age is established. They are then returned home only to go out the next night and cause havoc again.
The case in question is a timely reminder that, no matter how condemning the evidence against a child appears to be, the criminal law accepts that, on behalf of society, the criminal courts are not equipped to assess the culpability in someone under 10.
It is a serious social problem which featured as part of Sara Payne's recent report. This precedent seems to accept that even though the offender is a young person below the age of criminal responsibility, the person harmed or injured may be compensated under the Criminal Injuries Compensation Scheme.
As Ben’s father said at the time on the steps outside the Old Bailey "How many families will have to stand on the street outside the Old Bailey to get justice?" Not only did the case further highlight the concerns about young peoples' willingness to carry and use knives but it also triggered a new debate about the adequacy of the tariff system in mandatory life cases.
Many people do not understand why the starting point for killers using guns is 30 years, whereas the minimum number of years in the case of anyone using a knife to kill, is only 15.
Jack Straw, the Justice Secretary, has made the announcement this week that the minimum prison sentence for persons found guilty of knife crime is to increase to 25 years. This will bring it more in line with the 30-year "starting point" for those convicted of gun murders.
Many will see this as a victory for common sense at a time when there is still concern over crimes of violence and especially ones where knives are used.
Jack Straw told the House of Commons shortly after the trial of Ben Kinsella's killers that minimum sentences for knife murders were to be reviewed.
Some of you may recall that the European Court of Human Rights said the database in England and Wales was illegal because it allowed police to indefinitely retain the profiles of people who had been arrested - but never actually charged or found guilty of a crime.
However, it said the Scottish part of the database was legal. The police in Scotland delete most of the profiles falling into this controversial category. The Scottish system is seen as fairer.
The measures are intended to address the court's judgement. The Home Office announced the proposals saying that they believe they have come up with a solution that balanced the public's concerns with the legitimate operational needs of the police. These proposals are not going to be accepted lightly.
The measures will need to go before Parliament where they will be scrutinised and challenged. Some may say that this is where our parliamentary system comes into its own - it provides a check and a balance. No doubt one argument will be that the system should be the same as in Scotland. Another point will be that there is little data about how many crimes have been solved using DNA from innocent people. There are some that will argue that it goes too far and that it is not enough to beat the law and order drum and expect an informed public to accept generalisations these days. Some individuals have already taken a stand and see it as a very real civil liberties issue.
Most law students will know that a person is innocent until proven guilty. Surely retained DNA profiles of innocent people should not in any way be seen as a 'not guilty - possibly' list.
Alan Johnson, Home Secretary, on the other hand seems intent on sticking to generalisations about DNA playing vital roles. This may be the case where data is available to show how many suspects were identified through DNA profiling from DNA collected from crime scenes, or already held on the database. However this may not be enough to answer the government's critics. More than mere generalisations might be expected in any meaningful debate.
Alan Johnson has been reported as saying: "It is crucial that we do everything we can to protect the public by preventing crime and bringing offenders to justice. The DNA database plays a vital role in helping us do that, providing thousands of crime scene matches every year, and helping to put many criminals behind bars where they belong. I believe the proposals represent the most proportionate approach to DNA retention, as well as the most effective way of ensuring the database continues to help us tackle crime."
Some will see these proposals as confirmation of the government's stubborn determination to hang on to its desire to build a national DNA database by stealth.
In addition it remains to be seen whether the blanket six year policy, with only limited exceptions, will be enough to satisfy the European Court of Human Right's concerns about whether such a policy infringes privacy laws.
We may never know the exact support for Tony Blair as politicians are politicians after all and the appointment was not exactly open and transparent. Many however will speculate as to why Tony Blair was not elected. Some Europeans might say it was due to Tony Blair's support for the Iraq war. Not only that, but our own poor record as Europeans may have had something to do with his non-election. We have not exactly embraced the EU with open arms and as a country we do not use the EU's common Euro currency, nor do we participate in the principle of the passport-free zone. It must be difficult to come across as an enthusiastic European when your own country has opted out of what some European countries see as important EU principles.
Herman Van Rompuy, has been described as dull, uninteresting and a poor orator and politically to the right of centre politics. He seems to fit the bill for those EU leaders seeking a low profile chairperson able to greet foreign dignitaries and present an acceptable face to the outside world. Other countries, including Britain, would have preferred a high profile role requiring a well known figure who could take a place on the world stage.
We were however much more successful with the appointment of Lady Ashton to the second key post of high representative for foreign policy. This post was created under the terms of the recently ratified Lisbon Treaty.
Some will say that the Lisbon Treaty is rather vague about the role of the newly created president of the European Council. So we must wait and see how the post evolves. What is perhaps more clear is that the EU's foreign minister is potentially a much more powerful figure. Already Baroness Cathy Ashton has been likened to Hilary Clinton and Angela Merkel as one of the most powerful women in world politics. Little over a year ago she was the Leader of the House of Lords and a junior member of the cabinet until her appointment as a trade commissioner for the last year serving in Brussels. In her new role she will represent the foreign policy interests of half a billion EU citizens and will have to grapple with such international time bombs as Iran's nuclear programme, the Middle East conflict between Israel and Palestine not to mention Afghanistan and the need for a unified policy.
Gordon Brown says Lady Ashton's appointment shows that we are at the heart of Europe. Well is that a good thing or not? In the meantime, for those of you who want some answers to your questions go to the link on the right hand side: Q & A The Lisbon Treaty.
George Maben, 45, from Rosehill Surrey, strangled 65-year-old widow Maureen Cosgrove at her home earlier this year. It is possible that this case will be remembered due to the fact that Maben was arrested after police bugged his car and he was recorded as saying: "God, forgive me for what I have done."
The recording went on: "Please God, help me... for me and Lucy eliminated from all police inquiries and everything's all right, please God help me. I just could not take it any more. Every single day, she was breaking me down. Please God will you forgive me? Please God, sorry."
The jury convicted Maben of murder and the trial judge has ordered that he serve a minimum of 13 years before he may be considered for parole.
Judge Jeremy Roberts indicated that he was reducing the term which might have been expected from a pre-meditated murder. The judge said that it was because it was out of character and because Maben had been under pressure.
All this at a time when some victims and their families are finding it hard to find justice in our legal system. Sara Payne for one.
The judge went on to say "It was no-one's fault that the situation developed where your relationship with Lucy, whom you loved deeply, and her mother, whom you must have seen as a obstacle, drove you to such an act of desperation." No doubt these words were carefully chosen, but is there a danger that on the face of it, this seems to be an 'excuse' or 'justification' for what Maben did.
Again this is another example of the use of the tariff system which may send out all the wrong signals to potential wrongdoers and to victims' families.
Some may say that Maben will have enough time on his hands now for prayer.
Lets leave the last word to those more closely involved.
Mrs Cosgrove's son John has said: "As the partner of our sister, George Maben was welcomed and included within our family group. The acts of kindness we showed have been repaid with the callous and brutal murder of our mother. We will never come to terms with the nature of our loss but this verdict gives us some closure in the knowledge that her killer has now been brought to account and our hope is that she may now rest in peace."
Det Chief Insp John McFarlane of the Metropolitan Police has said: "It is terrible - Mrs Rees has a child by the killer of her own mother. Maben is a cool, manipulative individual who sought to control her."
A bit more praying then!
Sara Payne blames complex sentencing rules which prevent victims from having a clear picture of how long their attacker will be behind bars.
Sara has conducted a nine-month review of the criminal justice system and would like to see changes to the law to make anti-social behaviour a criminal offence.
Sara does not believe it is right to attempt to deal with 'relatively serious' offences with anti-social behaviour orders and dispersal orders instead of prosecution through the criminal courts.
Sara has clearly not forgotten the case of Fiona Pilkington, who killed herself and her disabled daughter, after a campaign of harassment by youths, and this may well have influenced her when carrying out her review.
Home Secretary, Alan Johnson, has not identified the need for tougher laws maintaining the laws in place at the moment are good enough. He has instead called for a greater effort from police and councils to combat anti-social behaviour.
Sara's report entitled Redefining Justice, further highlights the plight of victims, calling for victims to be given ready access to information about their case.
Sara has campaigned for victims' rights since her daughter Sarah was murdered by sex offender Roy Whiting in 2000.
This is not the first time Sara has taken to the campaign trail. Many of you may remember her efforts to establish what has become known as 'Sarah's Law' allowing residents access to information about convicted sex offenders in their neighbourhood.
Sara clearly still holds strong views about the justice system, saying: ''Victims and witnesses deserve better from the justice system - a system that in the past only defined justice as catching the criminal and protecting the public. While these are vital, it leaves the needs of the victim second - with a high risk that their lives will be left shattered. Traditionally we have categorised victims and their needs by the type of crime committed against them. Delivering justice must become about supporting the victim to overcome the impact a crime has had on them so that they can get on with their lives.''
One may question why it is only after the event that something gets done. In this case Dano Sonnex and Nigel Farmer were found guilty of the appalling murders of French students Laurent Bonomo and Gabriel Ferez. An investigation into the London Probation Service was ordered by Jack Straw, the Justice Secretary, but by this time, Dano Sonnex had been tried, convicted and sentenced for the sadistic murder of Laurent Bonomo and Gabriel Ferez at a flat in New Cross, London. After the trial it emerged that there had been failings by the London probation service, prompting the resignation of David Scott, the Chief Probation Officer for the London area. At the time of the murders, Dano Sonnex was subject to a warrant for his arrest and recall to prison for breach of his probation licence conditions.
It seems like yet another tragedy waiting to happen. Could anything have been done to better protect the public? Many of you may think so even before hearing the outcome of the investigation. It is not as if the Probation Service did not have concerns about the adequacy of its own services.
In a report last June, Andrew Bridges, the Chief Inspector of Probation, gave a warning that the supervision of offenders assessed as medium risk — the same category in which Sonnex was put — was unsatisfactory. He ordered an action plan within four weeks of the date of his report which at least suggests a sense of urgency.
Andrew Bridges was reported as saying that overall, probation in London was “travelling in the right direction under committed leadership” and went on to say "The management needed to retain....a determined watching brief on the quality of its front-line practice and not to do anything which risks impacting negatively on what is a tentative but promising improvement journey”.
Less than two weeks after Mr Bridges’s report was published, Sonnex, under the supervision of London probation, murdered the two French students.
So why did it happen?
A number of reasons have been put forward. The internal inquiry conducted after Sonnex and Nigel Farmer murdered the students concluded that the Probation Service’s failings were “a consequence of high case-loads, relative inexperience, and having insufficient supervision from a senior probation officer who also lacked experience and was in an acting position”.
In particular it has been widely reported that Dano Sonnex's probation officer had three times the average workload. Apparently the female officer supervising Sonnex, having been qualified as a probation officer for nine months, had a case-load of 127 offenders — compared with an average of 37.7 cases per probation officer across London as a whole.
Rather worryingly the National Association of Probation Officers have pointed to a lack of experienced senior case officers.
The National Offender Management Service, identified that management failings had led to an unacceptable situation.
A spokesperson for the organisation also referred to the lack of experience and the heavy workload pointing out the officer dealing with Sonnex had only limited experience and the overall probation team in the Borough was relatively young. He added that the case-load of 127, borne by the probation officer, could not be defended.
One wonders about the level and quality of the support that caseworkers received. Indeed this seems to be the concern of Harry Fletcher, the Assistant General Secretary of the National Association of Probation Officers, who said: "If staff had received the same level of supervision, attention and inspection as they received during the inquiry after the murders, things might have been different".
As any first year law student should know, Treaties are a primary source of European Union Law. Treaties are directly applicable. In the event therefore that a treaty creates individual rights then those rights can be relied upon by the individual Van Duyn v Home Office (1974), Macarthys Ltd v Smith (1980). In addition Treaties have both vertical and horizontal direct effect.
As we all know, the law needs to be certain. So what of the effect of Treaties so far as our own law is concerned? The question was raised as long ago as 1972, when we joined the European Community. Does anything further need to be done to bring Treaties to life so that they are law? The answer is a clear and firm 'no'. To become effective they only need the ratification of each of the 27 member states.
The Lisbon Treaty was ratified by the Czech Republic - the last EU country to do so - on the 3 November 2009, more out of reluctance than enthusiasm it seems. Following the second vote on the Treaty by the Irish Republic the way was clear for the Treaty to be ratified so long as the Czech Republic could be convinced. On the 3 November the Czech constitutional court threw out a legal challenge to the treaty presented by a group of senators. Later that day the country's president, Vaclav Klaus, signed the pact more by way of apology than anything else, finishing the ratification procedure.
The Treaty is expected to officially become law in December 2009. Section 2 (1) of the European Communities Act 1972 provides that all treaties are 'without further enactment to be given legal effect or used in the United Kingdom'.
Some of you may remember that a European constitution had been planned but many saw it as yet another step towards a 'united states of Europe' and it was rejected and replaced by the Lisbon Treaty. The Treaty itself is about streamlining the EU institutions to enable the enlarged Union, with its 27 states, to function better. You may want to take the opportunity of discussing some of the changes that will now come about. These changes include:
Before we leave this matter for now, some of you may be wondering what the case of Van Duyn was about. The case supports the legal point that not only does Section 2 (1) of the European Communities Act 1972 make EU law part of our law, but it enables individuals to rely on it. In the case of Van Duyn v Home Office (1974), the European Court of Justice decided that individuals were entitled to rely upon Article 39 giving the right of individuals to the freedom of movement. The Court held that the Article was clear and conferred rights on individuals and therefore took direct effect.
As a result the rights conferred on individuals could be enforced in the European Court of Justice as well as the national courts. The Home Office, being the government department responsible for immigration controls, were found wanting in that they failed to correctly recognise the significance of Article 39.
The case of Macarthys Ltd v Smith (1980) further supported the fact that UK citizens are entitled to rely upon the provisions of the Treaty of Rome and other treaties, such as the Maastrict Treaty and the Lisbon Treaty if they create rights. This is so even though the rights have not been enacted in English law. In the case in question, Wendy Smith claimed that she was paid less than her male predecessor for doing what was effectively the same job. As her predecessor had left her employer's employment, a breach of UK legislation did not arise but she was able to successfully argue that her employers were in breach of Article 141 of the Treaty of Rome which entitled men and women to equal pay.
No doubt the debate about the lack of sovereignty of Parliament will continue, as will the debate to the effect that we are not fully embracing the EU, but merely a bystander in many respects. For example the UK has ratified the Treaty on the basis that the Charter of Fundamental Rights has been excluded so far as the UK is concerned, by a written guarantee that it will not effect UK employment law or other social rights. This is quite an important provision some of you may think, but you have not been given any say in the matter, because unlike Northern Ireland we were not allowed to have a referendum. It would be nice to be consulted but it is now too late, the Treaty has been ratified despite the fact that it went through something closely resembling a metamorphosis in the sense that when the text was originally agreed in October 2004 it took the form of a written constitution for member states.
Baby RB's father had put forward the idea that a tracheotomy – creating an opening in the neck to deliver air to the lungs – would allow him to be taken off his hospital ventilator and possibly Baby RB could be treated at home.
However the father withdrew his opposition to the application for permission to switch off the life support after hearing the medical evidence. Apparently Baby RB would still be dependent on artificial ventilation and, in an emergency, it would probably be necessary to remove his breathing tube, causing far greater distress than if he were in hospital on a life support machine.
In light of this change of position, lawyers for the health authority told Mr Justice McFarlane that all parties now agreed that it would be in the boy's best interests for the course proposed by the doctors to be followed.
The judge made an order that RB's parents and the trust make appropriate arrangements to bring the baby's life to "a dignified end".
The judge said it was a "sad but in my view inevitable outcome" and the "only tenable one for RB".
For further information about the courts approach to these difficult Family court cases go to AirdaleNHS Trust v Bland (1993).
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