LawScape’s First Year

LawScape was first published precisely one year ago today. It set out with the shortly stated, but difficult to achieve, aim of digesting law and legal news in an accessible way.

The law is often complex and difficult. Legal reporting is frequently inaccurate or insufficiently precise. Moreover there are boundless misconceptions about what the law is and what it ought to be. LawScape set out quite simply to make the law understandable to those who have no legal background. In attempting to do so, it has covered the major criminal trials of the year, such as the Philpott trial; significant human rights decisions, such as the one on whole life sentences; and even philosophical issues related to the law, such as whether rape is always (equally) serious. It has also seen the start of a series of articles on the English Legal System generally, aimed at those with no experience of the law. I hope that LawScape has contributed in some small measure to your understanding of the law. If it has, it is succeeding in its aim. If it has not, then, as always, I welcome your comments and suggestions.

I confess myself surprised and humbled by the scale and diversity of readers this year. LawScape has had significant worldwide readership. This should not really be a surprise since the English legal system is the world’s leading legal system. Other countries rightly look to the example we set.

This coming year will see LawScape continue to digest law in an accessible way. Until then, I wish you all a happy and healthy new year.

Best wishes,

Daniel Setter 

A Right to Die?

This week the Supreme Court will consider whether there is a right to die so that those who are physically unable to end their own lives can receive assistance with suicide from individuals and medical professionals.

The Issue

Some individuals who have permanent and catastrophic physical disabilities decide (with full mental capacity) that they want to end their own lives. They are unable to end their lives because of their disability and seek assistance, either from individuals, such as relatives, or from medical professionals, to end their lives. However, the law provides that it is a criminal offence to assist another to commit suicide.

Section 2(1) of the Suicide Act 1961 provides it is an offence for a person to do an act capable of encouraging or assisting the suicide or attempted suicide of another person, if that person intends to encourage or assist suicide or an attempt at suicide. The maximum sentence for the offence is 14 years imprisonment.

Under section 2(4) of the Act, a prosecution for encouraging or assisting suicide may only be brought with the permission of the Director of Public Prosecutions (DPP), the head of the Crown Prosecution Service (CPS).

On the face of it, the law is clear: helping others to commit suicide is a very serious offence. Suicide itself is not an offence, under section 1 of the 1961 Act.

Individuals who want assistance to end their lives have argued that article 8 of the European Convention on Human Rights (ECHR) permits them to determine how their lives should end. Article 8(1) of the ECHR sets out the right to a private life and is part of the law in the United Kingdom under the Human Rights Act 1998. It provides: ‘Everyone has the right to respect for his private and family life, his home and his correspondence’. Those wanting to end their lives argue that self-determination is an important part of their private lives; therefore to prevent their determination to end their lives by denying them assistance to die breaches their human rights. Accordingly they argue the Suicide Act 1961 should be changed or not enforced to be human rights compliant.

The challenge for the courts has been to try and determine where the law actually lies.

Previous Cases

The first major case in this area was R (Pretty) v Director of Public Prosecutions (2001). Dianne Pretty suffered from motor neurone disease and was unable to end her own life. Her husband was willing to assist her with her final wish. Assisting his wife would amount to assisting suicide under the 1961 Act. Pretty therefore sought an assurance from the DPP to the effect that he would not allow her husband to be prosecuted. When the DPP refused to give such an assurance Pretty brought a claim arguing that her human rights would be breached in not allowing her to be assisted. She argued, amongst other things, that the right to life under article 2(1) of the ECHR included a right to die, and that she should be able to determine when her life ended under article 8(1) of the ECHR, as discussed above. The House of Lords (the previous name for the Supreme Court) dismissed her arguments, holding that there was no right to die and that article 8 did not include a right to determine when to die. The court held that even if it was wrong about article 8, and there was a right to determine when to die, then the current law in the Suicide Act 1961 was justified under article 8(2) as being in accordance with the law and necessary in a democratic society to protect the vulnerable from abuse should be law be changed to allow assisted suicide; the law in the Suicide Act was proportionate to the aim of protecting the vulnerable in society.

Pretty appealed the decision to the European Court of Human Rights in Strasbourg (Pretty v United Kingdom (2002)). The European Court agreed with the House of Lords but for different reasons. It held that preventing Pretty from determining when to end her life did interfere with her rights under article 8(1) because self determination formed a part of an individual’s private life. However, that interference was justified under article 8(2) for the reasons the House of Lords gave.

The next case to deal with these issues was R (Purdy) v Director of Public Prosecutions (2009). Debbie Purdy suffered from multiple sclerosis. There would come a time when life would be unbearable for her. She wanted to end her life in due course while she was still physically able to do so. By this stage she would require assistance, so she planned to travel to a country where suicide was lawful (such as the Dignitas clinic in Switzerland). Her husband was willing to help her make the journey but she was concerned he would then be prosecuted under the 1961 Act for assisting suicide. She sought information from the DPP on the factors he would take into account in deciding whether to prosecute, but he refused. She brought a claim relying on article 8(1). She argued that the Suicide Act interfered with her private life and breached her rights because the restrictions imposed on her private life were insufficiently defined in law. It was argued the law was insufficiently defined since it was unclear when the DPP would allow a prosecution under section 2(4) of the 1961 Act. The House of Lords agreed: article 8(2) required restrictions on human rights (including the right to determine when one’s life will end) to be in accordance with the law. This meant it had to be accessible and sufficiently precise so that individuals could understand its scope and foresee the consequences of their actions so they could avoid breaking the law. However, the DPP’s policy was insufficiently precise and individuals could not foresee how it would apply to them. Therefore the DPP had to clarify his policy. That revised policy can be viewed here.

The Current Case

The two previous cases set up the arguments in the current case, R (Nicklinson) v Ministry of Justice. This concerns three conjoined cases. The first is brought on behalf of Tony Nicklinson, who recently died. The second is brought by Paul Lamb. Both Lamb and Nicklinson are unable to commit suicide even with assistance and would require another to terminate their lives. They are arguing that a blanket ban against assisted suicide breaches their right under article 8(1) to determine when they die and is not proportionate. The third claim is brought by an individual known only as ‘Martin’. He can end his own life with assistance but has no close relatives able to assist him. He would require the assistance of a medical professional and is arguing that the DPP’s guidance on when prosecutions will be brought is still unclear in relation to health professionals.

All three were unsuccessful in the High Court. In the Court of Appeal, Nicklinson’s and Lamb’s appeals were dismissed. The Court of Appeal held that the ban was proportionate for the same reasons given in Pretty; it was inappropriate to give rights beyond article 8(1) because it would be against the will of Parliament, who had expressed its opposition to assisted suicide through the Suicide Act 1961. It was for Parliament to change the law, not the courts.

Martin’s appeal was successful. The Court of Appeal agreed that the DPP’s policy was not sufficiently clear in relation to medical professionals assisting suicide. The DPP is appealing this decision. The Supreme Court will consider all of the issues together.

Thoughts on the Case

It is likely that the Supreme Court will agree with the Court of Appeal. It would be surprising if it concludes there is a right to die. What is more likely is that it confirms the issue is for Parliament to decide, not the courts. Nevertheless, the Court is taking the matter very seriously. It is sitting as a panel of nine. Only the most important legal cases demand a panel of nine Supreme Court Justices. Ordinarily cases are heard by five Justices. More important cases are heard by seven Justices. The most important cases of all are heard by nine Justices.

If, as predicted, the Supreme Court concludes that the matter is an issue for Parliament, it will be down to Parliament to decide if it will legislate to allow assisted suicide. It may get the opportunity to consider that next year, when Lord Falconer’s Assisted Dying Bill receives further consideration. This is based on the system in Oregon, United States, where assisted suicide is permissible.

What are your thoughts? Should we allow assisted suicide?

*Note*

The arguments and judgments in each of the cases mentioned are detailed and complex. I have simplified them so that the article is accessible. If you would like further information on any of the cases, please leave a comment.

Jurors and Contempt of Court: New Proposals

The Law Commission has proposed a number of reforms concerning jurors researching cases outside of the evidence presented to them in court. What is the current law and what has been proposed?

Background and Current Law

When an individual is selected to serve on a jury they promise on oath to ‘give a true verdict according to the evidence’. That is to say they promise to base their verdict only on the evidence presented to them in court; they will not research the case themselves, rely on information not presented to them in court or discuss the case with anyone else outside of the jury room. It is made abundantly clear to jurors by the judge in every case that they must only judge the evidence and not seek or rely on other external information

The need to make this promise is entirely justified. Information which is not presented in court but found elsewhere (such as in a newspaper or on the internet, or through discussing the case with another person) may be factually inaccurate or otherwise unreliable. Relying on this information to reach a verdict jeopardises a fair trial: it could lead to the conviction of an innocent individual or the acquittal of a guilty individual.

Recognising the dangers of external information being used in the decision making process, and the risk it poses to the integrity of the justice system, the courts treat researching a case very seriously. Jurors who research a case face conviction for contempt of court under the common law (for more information on the common law, see this article). Contempt is essentially an act which interferes with the administration of justice. A custodial sentence (imprisonment) is almost inevitable in these circumstances.

The two recent cases of Attorney General v Fraill (2011) and Attorney General v Dallas (2012) illustrate the courts’ severe approach. Fraill was a genuinely exceptional case concerning drugs and corruption. Fraill was one of the jurors and actually discussed the case with one of the defendants on Facebook. She was sentenced to immediate custody for 8 months. In Dallas, a case concerning grievous bodily harm, the juror researched the case on the internet and then shared the information with her fellow jurors. She was sentenced to immediate custody for 6 months.

Having considered the current position we can now consider the Law Commission’s proposals for reform.

The Law Commission’s Recommendations

Firstly, what is the Law Commission? The Commission is a body that was created by the Law Commissions Act 1965 to keep the law under review and recommend reforms where necessary.

Secondly, why have the proposals been made at all? Law Commissioner David Ormerod has said that they will make the law clearer and more certain for the courts and jurors; jurors will know the rules and wrongdoing can be prosecuted like any other crime.

So what has been proposed? The Commission has proposed the creation of a new statutory criminal offence for a sworn juror to deliberately search for information related to the case that they are trying. A statutory offence is simply one that is written in legislation (for more information on legislation, see this article).

The new offence will be triable on indictment only (by a jury) and will have a maximum sentence of two years’ imprisonment and/or an unlimited fine. Community penalties would also be available.

Alongside the new criminal offence the Commission has recommended a number of other measures to prevent juror misconduct. Firstly, improved school education on the role and importance of jury service is recommended. Secondly, the Commission recommends giving improved information to jurors about what they can and cannot do. Thirdly, it is recommended that jurors should possibly have to a sign a written declaration after they have received a warning not to conduct their own research. Fourthly, a revised oath which includes an agreement to base the verdict only on the evidence and not to seek information elsewhere is recommended. Finally, the Commission recommends that judges should have a statutory power to remove internet-enabled devices (such as smart phones) from jurors; the power would be applied automatically each time the jury is in the deliberating room and applied at other times where it is proportionate and in the interests of justice.

In addition to these recommendations the Law Commission has made recommendations on publishing prejudicial material and research on juries. The full report can be read here.

What are your thoughts? Would you be tempted to research a case?

Mairead Philpott Loses Appeal Against Sentence

Last Friday (29 November) Mairead Philpott lost her appeal against her 17 year sentence for killing her six children in a house fire in Derby. On what basis did she appeal? And why was her appeal rejected?

Background Facts

Mairead Philpott’s husband, Mick Philpott, hatched a plan to start a fire with petrol to frame his former mistress, Lisa Willis, so as to gain an advantage in a custody battle over her five children. Ms Willis and her children had previously lived with Mr and Mrs Philpott and their six children and had recently left, taking her five children with her. Mr Philpott was concerned his previous convictions would harm his chances of securing custody and therefore intended to frame Ms Willis for the fire to improve his chances.

As part of the plan, Mr Mosley would break down the back door and rescue the children. However, as Mr Philpott lit the fire after pouring petrol through the letter box, the downstairs exploded and the six children, who were upstairs sleeping, could not be reached. They all died from smoke inhalation.

The Philpotts were arrested after their hotel room was bugged by police following the fire. Mick Philpott was recorded as telling his wife to ‘stick to her story’. Forensics showed that all three individuals had the same petrol as used in the fire on their clothes.

Mick and Mairead Philpott denied manslaughter but were found guilty at Nottingham Crown Court after less than eight hours of deliberation by the jury (for more information see this article). Paul Mosley was also found guilty after denying manslaughter. Mick Philpot and Paul Mosley were found guilty unanimously, while Mairead Philpot was found guilty by a majority verdict.

Mairead Philpott was sentenced to 17 years imprisonment along with Paul Mosley. Mick Philpott was sentenced to life imprisonment, with a minimum of 15 years imprisonment (for more information on life sentences, see this article).

The Appeal: Procedure

Both Mairead Philpott and Paul Mosely wanted to appeal the length of their sentences.

Friday’s hearing was the result of the following procedural steps. Philpott and Mosely had a right to appeal the length of their sentence, as do all convicted offenders, under section 18 of the Criminal Appeal Act 1968. The appeal must be made within 28 days from the date of sentence and can only be heard if leave (or permission) to appeal is granted under section 11 of the 1968 Act.

The reasons (or grounds) for the appeal are normally considered by a single judge on the case papers alone; there will be no actual hearing. The judge can grant leave (permission) to appeal if they feel there are grounds for an appeal or they can reject the appeal if they find there are no grounds for an appeal. Both Philpott’s and Mosley’s applications for permission to appeal were rejected.

When an application for permission to appeal is rejected, the applicant can make a renewed application for appeal within 14 days of the refusal under rule 65.5 of the Criminal Procedure Rules 2013. These renewed applications are heard in person by a full court of three judges. If leave is granted the Court of Appeal can then proceed directly to consider the appeal itself.

Philpott and Mosley both made renewed applications. Mosley abandoned his appeal the day before the case was heard, so the hearing only related to Philpott. This is what we saw televised on Friday (for more information on televising proceedings in the Court of Appeal, see this article). Unusually for the Court of Appeal it sat in Nottingham; the Court of Appeal normally sits in London.

The Appeal: Arguments and Judgement

So what was argued on behalf of Philpott? It was argued that her sentence was ‘manifestly excessive’ because ‘[her] utter dependence ... on Mick Philpott, whilst not excusing culpability, legally or morally, was not given sufficient weight in assessing the length of her sentence. In essence then, it was argued that her sentence was too long because the sentencing judge failed to sufficiently consider how manipulated and dominated Mairead Philpott was by Mick Philpott – she simply was not that blameworthy.

The Court of Appeal disagreed. Although it granted leave to appeal because of the unique features of the case, it held the sentence was justified for four reasons. Firstly, it was not a ‘spur of the moment’ plan; it had been carefully and deliberately thought out. Secondly, the risks of pouring petrol inside a building and setting it alight must have been obvious. Thirdly, Philpott actually participated in setting the fire as petrol was found on her clothes. Finally, she was capable of standing up to Mick Philpott but did not do so on this occasion. Overall then, the sentence reflected her level of blameworthiness.

Conclusion

In my view it cannot be said that the decision of the Court of Appeal is wrong. It was an exceptionally serious crime that claimed the lives of six young children. That is deserving of severe punishment.

What are your views?

Three Women Rescued from Slavery: Laws on Servitude

It has recently emerged that three women have been rescued from slavery in Brixton, south London.

The three alleged victims are a 30 year old Briton, a 57 year old Irish woman, and a 69 year old Malaysian.

Police officers said the women had suffered years of ‘physical and mental abuse’. They are now in the care of a non-governmental organisation following their rescue last month.

The 30 year old woman is believed to have spent her entire life in captivity.

A 73 year old man and his 67 year old wife were arrested on 21 November 2013. They are believed to be Aravindan Balakrishanan and Chanda Balakrishanan, former Maoist acitivists. They have been bailed until January 2014.

The MP Frank Field, has said this case is just the ‘tip of an iceberg’. He is currently leading a review of evidence in advance of a modern slavery law being drafted.

So what are the current laws on slavery?

Human Rights

Everyone has the right not be held in slavery of servitude. It is a fundamental right set out in Article 4 of the European Convention on Human Rights 1950. Article 4 provides:

1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory labour.

3. For the purpose of this Article the term “forced or compulsory labour” shall not include:

(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military         service;

(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

(d) any work or service which forms part of normal civic obligations.

So when an individual breaches another’s human rights and holds another them in slavery, what offences are they are they potentially committing?

Offences

Section 71(1) of the Coroners and Justice Act 2009 creates two offences. A person commits an offence if:

(a) the person holds another in slavery or servitude and the circumstances are such that person knows or should know that the other is being held in slavery or servitude; or

(b) the person requires another to perform forced or compulsory labour and the circumstances are such that the person knows or should know the other is being required to perform forced or compulsory labour.

Section 71(2) of the 2009 Act says references to slavery, servitude, forced labour and compulsory labour will be interpreted in accordance with Article 4 of the European Convention on Human Rights.

The maximum sentence for these offences is 14 years’ imprisonment under section 71(3) of the 2009 Act.

Alternatively, a person can be charged with false imprisonment. This is an offence under the common law (for more information on the common law, see this article). The essence of this offence is holding another without the authority to do so.

According to the case of R v James (1997) a person is guilty of this offence when they prevent another’s freedom of movement, either by physical restraint or deliberate intimidation. The person must intend to prevent the other’s movement or be reckless as to it. Recklessness was defined in R v Cunningham (1957) as foreseeing a risk in their actions but then unreasonably taking those actions anyway. So in this case a person would be reckless if they saw that their actions might prevent another’s free movement but still taking those actions.

The maximum sentence for this offence is life imprisonment under the common law.

Conclusion

It is to be hoped that the three women can now find some sense of ‘normal’ life. Meanwhile, it will be interesting to see if their alleged slave masters are prosecuted. LawScape will bring news of any updates.

The Phone Hacking Trial: What are the Charges?

Introduction

We are now a few weeks into the trial of eight people for criminal allegations that emerged from the investigation into the News of the World newspaper before its closure in 2011.

The newspaper was closed by its parent company, News International, in July 2011 after the revelation that in 2002 the tabloid has instructed a private investigator to ‘hack’, or intercept, voicemails left on the mobile phone of Milly Dowler, a teenager who was abducted and murdered.

The hacking exploited that mobile phone operators gave customers default PIN codes to access their voicemail by either using another phone or dialling a separate number.

So who is on trial and what have they been charged with?

Defendants and Charges

There are eight defendants standing trial who are charged jointly with various offences. The offences for which they have been charged appear in an indictment, which is the formal document charging the defendants with certain offences. The actual indictment in this case appears at the end of this article. I shall deal with each defendant in turn.

Rebekah Brooks

She is the former editor of the News of the World. She is charged with five offences.

She is charged, firstly, with conspiracy to intercept communications in the course of their transmission.

This is an offence under section 1(1) of the Criminal Law Act 1977. Section 1(1) of the 1977 provides it is an offence for a person to agree with others to follow a course of conduct which, if it is carried out as they intended, would involve an offence being committed. In essence, it is planning to carry out another offence.

The offence that was allegedly planned and committed was the unlawful interception of communications, or ‘hacking’, under section 1 of the Regulation of the Investigatory Powers Act 2000. This provides it is an offence for a person to intentionally intercept communications in the course of their transmission without lawful authority.

Under section 3 of the 1977 Act, the maximum sentence for conspiracy is the maximum sentence of the offence planned. The maximum sentence for unlawful interception is two years imprisonment under section 1(7) of the 2000 Act. Therefore the maximum sentence for conspiracy here is two years imprisonment.

The nature of this charge is that Brooks is alleged to have agreed with a number of other individuals (including Glenn Mulcaire and Clive Goodman who have already been convicted of phone hacking) for them to hack the voicemails of a number of people.

Brooks is charged, secondly, with conspiracy to commit misconduct in public office.

Again the conspiracy is charged under section 1(1) of the 1977 Act. It is alleged the offence planned was misconduct in public office. This is an offence under the common law (for more information on what the common law is, see this article). The elements of this offence are set out in the case of Attorney General’s Reference No 3 of 2003 (2004). The offence is committed when a public officer wilfully neglects to perform their duty, or misconducts themselves, to such a degree as to amount to an abuse of the public’s trust in the office holder, without reasonable excuse or justification.

The maximum sentence for this conspiracy is life imprisonment because the maximum sentence for misconduct in public office is life imprisonment.

The nature of this charge is that Brooks allegedly agreed with a number of public office holders, such as police officers, to pay them for confidential information which would later be used in newspaper articles. By acting in this way the office holders would be committing misconduct in public office. Brooks is charged with two counts of this offence because it is alleged she agreed with two different groups of people to make these payments.

Brooks is charged, thirdly, with conspiracy to pervert the course of justice.

Again the conspiracy is charged under section 1(1) of the 1977 Act. It is alleged the offence planned was perverting the course of justice. This is an offence under the common law. This offence is defined in the case of R v Vreones (1891) as doing an act tending and intended to pervert the course of public justice.

The maximum sentence for this conspiracy is life imprisonment because the maximum sentence for perverting the course of justice is life imprisonment.

The nature of this charge is that it is alleged Brooks agreed with others to permanently remove seven boxes of archived material from the archive of News International. Brooks is charged with two counts of this offence because it is also alleged she agreed with others to conceal documents, computers and other electronic equipment from police officers.

Andy Coulson

He is also a former editor of the News of the World. Additionally, he served as David Cameron’s government director of communications. He is charged with three offences.

He is charged, firstly, with conspiracy to intercept communications in the course of their transmission.

The law is the same as above. The nature of this charge is that Coulson is alleged, along with Brooks, to have agreed with a number of other individuals (including Glenn Mulcaire and Clive Goodman, who have already been convicted of phone hacking) for them to hack the voicemails of a number of people.

Coulson is charged, secondly, with conspiracy to commit misconduct in public office.

The law is as before. The nature of this charge is that Coulson allegedly agreed, along with Goodman, with a number of public office holders, such as police officers, to pay them for confidential information to be used in newspaper articles. Coulson is charged with two counts of this offence because it is alleged he agreed to make payments on two different occasions.

Ian Edmonson

He is the former news editor of the News of the World. He is charged with one offence.

He is charged with conspiracy to intercept communications in the course of their transmission.

The law is the same as above. The nature of the charge is that Edmonson is alleged, along with Brooks and Coulson, to have agreed with a number of other individuals (including Glenn Mulcaire and Clive Goodman, who have already been convicted of phone hacking) for them to hack the voicemails of a number of people.

Stuart Kuttner

He is the former managing editor of the News of the World. He is charged with one offence.

He is charged with conspiracy to intercept communications in the course of their transmission.

The law is the same as above. The nature of the charge is that Kuttner is alleged, along with Brooks, Coulson and Edmonson, to have agreed with a number of other individuals (including Glenn Mulcaire and Clive Goodman, who have already been convicted of phone hacking) for them to hack the voicemails of a number of people.

Clive Goodman

He is the former royal editor of the News of the World. He is charged with two offences.

Goodman is charged with conspiracy to commit misconduct in public office.

The law is as before. The nature of the charge is that Goodman allegedly agreed, along with Coulson, with a number of public office holders, such as police officers, to pay them for confidential information to be used in newspaper articles. Goodman is charged with two counts of this offence because it is alleged he agreed to make payments during two different periods.

Cheryl Carter

She is Brooks’ former personal assistant. She is charged with one offence.

She is charged with conspiracy to pervert the course of justice.

The law is as before. The nature of the charge is that it is alleged Carter agreed, along with Brooks, with others to permanently remove seven boxes of archived material from the archive of News International.

Mark Hanna

He is the former head of security at News International. He is charged with one offence.

He is charged with conspiracy to pervert the course of justice.

The law is as before. The nature of the charge is that it is alleged Hanna agreed, along with Brooks, to conceal documents, computers and other electronic equipment from police officers.

Charlie Brooks

He is Brooks’ husband. He is charged with one offence.

He is charged with conspiracy to pervert the course of justice.

The law is as before. The nature of the charge is that it is alleged Brooks agreed, along with Brooks and Hanna, to conceal documents, computers and other electronic equipment from police officers.

Conclusion

The defendants all deny the allegations. This is a complex trial and is expected to last in the region of six months. It will be interesting to see how the case develops.

The Indictment

INDICTMENT

REGINA v Ian Edmondson, Rebekah Brooks, Andrew Coulson, Stuart Kuttner, Clive Goodman, Cheryl Carter, Charles Brooks and Mark Hanna

The charges are as follows:-

Count 1

STATEMENT OF OFFENCE

Conspiracy to intercept communications in the course of their transmission without lawful authority, contrary to section 1(1) of the Criminal law Act 1977.

PARTICULARS OF OFFENCE

IAN EDMONDSON, REBEKAH BROOKS, ANDREW COULSON and STUART KUTTNER between 3 October 2000 and 9 August 2006 conspired together, and with Glenn Mulcaire, Clive Goodman, Greg Miskiw, Neville Thurlbeck, James Weatherup and persons unknown, to intercept, without lawful authority, communications in the course of their transmission by means of a public telecommunications system, namely mobile phone voicemail messages.

Count 2

STATEMENT OF OFFENCE

Conspiracy to commit Misconduct in Public Office, contrary to section 1(1) of the Criminal Law Act 1977.

PARTICULARS OF OFFENCE

CLIVE GOODMAN and ANDREW COULSON, between the 31st August 2002 and the 31st January 2003, conspired together and with persons unknown to commit misconduct in public office.

Count 3

STATEMENT OF OFFENCE

Conspiracy to commit Misconduct in Public Office, contrary to section 1(1) of the Criminal Law Act 1977.

PARTICULARS OF OFFENCE

CLIVE GOODMAN and ANDREW COULSON, between 31 January 2005 and 3 June 2005, conspired together and with persons unknown to commit misconduct in public office.

Count 4

STATEMENT OF OFFENCE

Conspiracy to commit Misconduct in Public Office, contrary to section 1(1) of the Criminal Law Act 1977.

PARTICULARS OF OFFENCE

REBEKAH BROOKS between 1 January 2004 and 31 January 2012, conspired with John Kay, Fergus Shanahan, Geoffrey Webster and Bettina Jordan-Barber and persons unknown to commit misconduct in public office.

Count 5

STATEMENT OF OFFENCE

Conspiracy to commit Misconduct in Public Office, contrary to section 1(1) of the Criminal Law Act 1977.

PARTICULARS OF OFFENCE

REBEKAH BROOKS, between 9 February 2006 and 16 October 2008, conspired with Duncan Larcombe, John Hardy and Claire Hardy and with persons unknown to commit misconduct in public office.

Count 6

STATEMENT OF OFFENCE

Conspiracy To Pervert The Course Of Justice, contrary to Section 1(1) Criminal Law Act 1977

PARTICULARS OF OFFENCE

REBEKAH BROOKS and CHERYL CARTER between 6 July 2011 and 9 July 2011 conspired together to do a series of acts which had a tendency to and were intended to pervert the course of public justice, namely permanently to remove seven boxes of archived material from the archive of News International.

Count 7

STATEMENT OF OFFENCE

Conspiracy To Pervert The Course Of Justice, contrary to Section 1(1) Criminal Law Act 1977

PARTICULARS OF OFFENCE

REBEKAH BROOKS, CHARLES BROOKS and MARK HANNA, between the 15 July 2011 and the 19 July 2011 conspired together and with Lee Sandell, David Johnson, Daryl Jorsling, Paul Edwards and persons unknown to do an act or a series of acts which had a tendency to and were intended to pervert the course of justice, namely to conceal documents, computers, and other electronic equipment from officers of the Metropolitan Police Service who were investigating allegations of phone hacking and corruption of public officials in relation to the News of the World and The Sun newspapers.

INDICTMENT ENDS

Lowering the Age of Consent: In Defence of Democracy

Prime Minister David Cameron has flatly rejected calls from a leading public health expert to lower the age of consent for sexual activity to 15 without a debate. Was he right to do so?

The Issue

The president of the Faculty of Public Health, Professor John Ashton, has argued that society has to accept about a third of teenagers are having sex aged 14 or 15. He argues that lowering the age of consent to 15 would make it easier for teenagers to get sexual health advice. He said that ‘[teenagers] are doing it and we need to be able to support them and protect them’.

In addition, he suggests that in countries with a lower age of consent, young people get involved in sex at a later age and the teenage pregnancy rates are lower.

Meanwhile, David Cameron has confirmed the Government has ‘no plans to change [the age of consent].’

The Current Law

The current age of consent is 16. This applies to all sexual acts by all individuals, whether the participants are heterosexual or homosexual. The law between heterosexual and homosexual acts was harmonised to the age of 16 in January 2001. The current law is set out in the Sexual Offences Act 2003. Section 13 of the 2003 Act provides that it is an offence for a person under 18 to engage in sexual activity with a child under 16. The maximum sentence for this offence is five years imprisonment. Where the person committing the offence is aged 18 or over, the maximum sentence is 14 years imprisonment: section 9 of the 2003 Act.

Democracy

It is plain that faced with a third of teenagers breaking the law and high teenage pregnancy rates, the time has come to discuss whether the current age of consent is still adequate. However, David Cameron has denied us that debate flatly and without justification. It is highly undemocratic. The essence of democracy is dialogue and debate.

Debate is highly desirable. As John Stuart Mill noted when arguing in defence of free speech, debate is vital for two reasons. Firstly, if we suppress debate we might lose the benefit of discovering the truth about something or improving the state of affairs. Secondly, even if we have already achieved the truth or best state of affairs, suppressing debate prevents us from defending the truth or current state of affairs which consequently damages our ability to justify the truth or state of affairs.

Solution

So should the age of consent be lowered to 15? For my own part I am not sure if this is correct. It would allow the predatory minority of members of society to pursue even younger girls. Similarly, I do not think that society wants to punish teenagers, who all develop and become ready for sexual relations at different ages, for engaging in their sexual relationships. Indeed, lowering the age of consent will improve access to sexual advice and might well lead to better sexual health and lower teenage pregnancy rates. We have one of the highest rates of teenage pregnancy in Europe, even though other countries have a lower age of consent (such as Sweden where it is 15).

Both of these concerns might, perhaps, be met by the introduction of a ‘two year rule’. Under a two year rule the age of consent would remain 16, but the law would provide that an individual engaging in sexual activity under that age would not be prosecuted so long as both participants have attained the age of 14 and there is no more than two years between the two participants. Perhaps this suggestion answers the problem. Perhaps it does not. That is the whole point of having a democratic debate and that is what society has been denied.

What are your thoughts?

Royal Marine Murder: Armed Forces Prosecutions

This week brought the unfortunate news that a Royal Marine has been found guilty by a Court Martial of murdering an Afghan insurgent. What happened and how do military prosecutions differ from civilian prosecutions?

The Facts

In September 2011 in Helmand province, an eight man patrol was tasked to deal with an Afghan insurgent who had been seriously injured in an Apache helicopter attack. Amongst the members of the patrol were Marines A, B and C. Everything the Marines did was captured on Marine B’s head camera. A portion of the audio taken from the camera recording can be listened to here.

They found the insurgent in the middle of a field and dragged him to the edge of the field. While dragging him, they were heard abusing him and laughing at him. Marine C, the youngest of accused Marines, was heard to say: ‘I’ll put one in his head if you want’. Marine A replied: ‘No, not in his head ‘cause that’ll be fucking obvious’.

Having reached the edge of the field Marine C said: ‘Maybe we should pump one in his heart’. The prosecution alleged that the marines waited for the Apache to depart the scene so their actions would not be seen. Marine A then shot the insurgent in the chest with a 9mm pistol before telling him: ‘There you are, shuffle off this mortal coil, you cunt. It’s nothing you wouldn’t do to us’.

Marine A was subsequently heard to say: ‘Obviously this doesn’t go anywhere fellas. I’ve just broken the Geneva convention’. The other agreed and Marine B suggested that they could claim the shot was a warning shot if anyone heard it.

The video was discovered by chance a year later when it was found on another marine’s computer during an unrelated investigation. Additionally, Marine C’s diary was later found to say that he had been disappointed not to shoot the insurgent.

The three marines were charged with murder and faced a Court Martial. Marine A accepted that he had shot the man but argued that he believed the man was dead and had shot the corpse in ‘frustration’ at the end of a tough tour. He said that he had said he had broken the Geneva conventions by shooting a prisoner’s corpse. Marines B and C said they did not know Marine A would shoot the man and denied they encouraged or assisted him. Marine A was convicted. Marines B and C were acquitted.

Military Prosecutions

The marines are part of the armed services and therefore subject to service law. They were consequently charged with murder under section 42 of the Armed Forces Act 2006. Under the 2006 Act, serious offences can be tried only by a Court Martial. A trial at a Court Martial proceeds in a very similar way to ordinary civilian criminal trials in the Crown Court. Instead of being presided over by a circuit judge, a Court Martial is presided over by a judge advocate. The current Judge Advocate General, Jeff Blackett, presided at the marine’s Court Martial. A Court Martial also differs from an ordinary trial in the Crown Court in that there is no jury; instead there is a board made up of officers and warrant officers. There will be at least three members on the board but no more than seven. The number of members depends on the severity of the offence. In this case there were seven members on the board. Matters of law are decided by the judge advocate. Matters of fact are decided by the board only just as a jury in a civilian trial determines the facts. The board also decides any sentence to be imposed. This is unlike civilian trials where the judge determines the sentence in addition to the law.

Next Steps

Having been convicted of murder Marine A now faces a mandatory life sentence. Sentencing has been adjourned while a report is prepared to assist the Court Martial to determine the minimum sentence that must be served because he can be released on lifelong licence.

Marine B and Marine C can return to their units.

The marines had been granted anonymity as the judge agreed their lives would be at risk if their identities were known. He had, however, agreed to lift the anonymity order after the trial. The men have indicated they intend to appeal the lifting of the order so it has been left in place for the time being. That issue will now be determined by the Court Martial Appeal Court.

Conclusion

It is a huge shame that this murder occurred. Indeed the Royal Marines have called it ‘a truly shocking and appalling aberration’. Nothing will ever make this course of behaviour acceptable. However, on today of all days, Remembrance Sunday, we should not allow this to taint our view of the British military. Instead, we should remember their ordinarily high level of professionalism, courage and dedication. We should remember how many of them have given their lives in the pursuit of democracy.

Further Arguments on Cameras in Courts

Last week history was made with the first television broadcast from the Court of Appeal. The next step, the Government says, is the broadcasting of remarks made by judges during the sentencing of convicted offenders. However, trials will not be broadcast. Meanwhile television companies ultimately seek to broadcast trials, and some senior members of the judiciary foresee that as the end result.

So is the broadcast of full trials desirable? I firmly believe it is not and shall seek to persuade you why.

An Argument Against Broadcasting Trials

It is almost inevitable that the broadcasting of trials would lead to short snippets of edited footage appearing on news programmes. This editing of raw footage into newsworthy sound bites is the first concerning prospect televised trials present. Edited material is peculiarly dangerous since it does not present the whole picture and, in its worst form, can positively misrepresent a situation. I recall an excellent example of this danger which, as it happens, concerned the print media, who has long been welcome along with the rest of the public to attend trials for the purposes of reporting. This particular case concerned serious allegations against a professional male of grooming a 15 year old male teenager. Although the defendant was not charged with the offence, rape was also alleged. A local newspaper reporter attended and listened to the entirety of the complainant’s evidence. Like much unchallenged evidence it sounded convincing. At the conclusion of the complainant’s evidence the reporter left and did not subsequently return. She missed one of the best displays of cross-examination I have ever seen, which exposed the teenager’s evidence as grossly inconsistent at best. Sure enough however, the newspaper’s report covered the salacious detail of the allegations yet failed entirely to report on the systematic explosion of the complainant’s evidence. Instead, a short article later appeared that said the defendant had been cleared. Overall, the reporting was inaccurate and highly damaging to a demonstrably innocent man. The inalienable stigma of being accused of a sexual offence was not countered at all by accurate reporting. Instead, I suggest it was exacerbated by incomplete reporting. I am not for a moment suggesting that was the reporter’s intention, but it was the inevitable consequence of ‘edited’ reporting, reporting that did not present the full picture but instead presented an incomplete one.

Complex fact scenarios do not lend themselves to being edited into a short segment. When they are reduced to this, a misleading picture is almost certain to follow. This is extremely dangerous. Returning to the unfortunate defendant I mentioned above, had that trial been edited into a news segment it might very well have misled in exactly the same way as the newspaper report. Now however, instead of a local readership gaining an inaccurate impression the whole nation can gain one. The defendant would be indelibly marked in the national consciousness with the stigma of having been accused of a sexual offence. To my mind that is not justice, that is rank injustice.

We are of course familiar with edited material. We are often subjected to recordings of Parliament than have been edited. Shortened edited portions present one picture, while anyone who watched the proceedings in full on BBC Parliament has often seen another. The distortion that edited material creates is intensified by the on-demand media consumption culture we now live in. We do not receive this edited information on sporadic news broadcasts. Instead news is broadcast all day, every day, and modern technology allows us to consume news on the move. Edited, inaccurate material has the ability to be all pervasive and it is positively dangerous. So if it is the editing of material that is problematic can we not safely broadcast uninterrupted trials? This requires a more general examination of the arguments against broadcasting trials.

Firstly, it takes a great deal of courage for the victims and witnesses of crime to attend court and give evidence. It is often difficult to secure their attendance; most people understandably fear giving evidence. It seems to me to be highly probable that broadcasting proceedings would make it even more difficult to secure the attendance of victims and witnesses (although I do not have statistical evidence to support this). Victims and witnesses are often required to recall extremely disturbing events in their life, events which they rarely wish to recall; especially to the unknown individuals they face in a courtroom. Requiring them to recall events in the knowledge that they are being broadcast nationally is, I suggest, likely to deter victims and witnesses from coming forward so that they can avoid that level of publicity. You might respond that everything a witness says can be reported in the print press, so does television broadcasting make a difference. I argue that it does: reading words is not the same as seeing the actual individual presenting the evidence in their own voice. Words are dissociated from the person, but audio images are not; the spotlight is squarely on an identifiable and vulnerable individual. Even if the individual were not shown on screen their voice identifies them far more than reading their spoken words in a newspaper. Perhaps the only way to avoid this is to obscure witnesses’ voices too. So far as I know, this has not been suggested as a realistic or desirable option.

In my view, it is far more important that we secure justice (through a trial) by ensuring victims and witnesses are not deterred from giving evidence, rather than televising trials in the pursuit of open justice. After all, if justice is thwarted by victims and witnesses being deterred from giving evidence then what we are televising could hardly be described as justice. It would be a façade of justice while many crimes fail to reach trial where a just outcome can be secured. You might respond: ‘How do we know we have secured justice if we cannot see it? Is it not a vital principle that justice must not only be done but be seen to be done?’ Yes it is. But justice can be seen and can be checked; it is just limited to those in attendance at the court. I suggest that the number of people that a witness anticipates might see them giving evidence affects their willingness to give evidence. If that is the case, it is better that we secure justice and limit the number of people directly observing the witness giving evidence, rather than televising all proceedings in the pursuit of open justice.

A second argument against broadcasting trials appears to be that television companies are interested only because of the potential for salacious content, not to ensure that the course of justice is openly broadcast in its entirety. I am prepared to be corrected on that point, but I have not seen any television companies offering to fund the broadcast of complete trials to ensure they are not misleading. What instead appears to be desired is newsworthy snippets of sensational material. This leads us back to the dangers of edited material.

Meanwhile we must ask what broadcasting trials would achieve? Likely positive outcomes include a better understanding of the court system and perhaps greater for respect for it and its participants. But this is nothing that we cannot already achieve. Simply attending a court can result in these outcomes. You might respond that this is not practical for many people as they work or have other commitments. My response is simply that there is no established lobby by members of the public demanding the broadcasting of trials. The public appears to be perfectly content to read court news. Moreover, these outcomes do not outweigh the risk to justice identified above: there is little point televising trials if it is likely to damage justice.

Conclusion

The issue of televised trials is not simply matter of improving open justice. The aim of the justice system is to ensure just outcomes. Televised trials pose a risk to justhat is not outweighed by the benefits of open justice. We should not therefore allow justice to be compromised by televised trials.

What are your thoughts?

Cameras in the Court of Appeal

History was made yesterday when proceedings from the Court of Appeal were televised for the first time.

A Change in the Law

The broadcast followed a change in the law that lifted a ban on recording proceedings. The ban is contained in section 41 of the Criminal Justice Act 1925 and section 9 of the Contempt of Court Act 1981. Section 32 of the Crime and Courts Act 2013 provides that the Lord Chancellor may, with the agreement of the Lord Chief Justice, direct in an order than the provisions of the ban do not apply. The order which allows the recording of proceedings (and sets out the rules) in the Court of Appeal is the Court of Appeal (Recording and Broadcasting) Order 2013.

The First Case

The first case broadcast was an application for permission to appeal against sentence. In May 2013, Kevin Fisher was convicted of possessing counterfeit currency and items to make counterfeit currency. Amongst the items found in his possession were 1.6 million metal discs (known as ‘blanks’) that were to be transformed into fake currency. He was sentenced to a total of seven years in prison. He was seeking permission to appeal against the length of his sentence. His application had already been refused by a judge on a reading of the case papers, so he renewed his application at an oral hearing in the Court of Appeal.

Fisher’s barrister, Alexander Cameron QC (Prime Minister David Cameron’s elder brother) argued that the seven year sentence was incorrect for three reasons. Firstly, he argued that Fisher had been sentenced for the wrong offence; secondly, he argued the sentence was longer than the sentences passed in similar cases; finally, he argued the sentence was too long compared with the sentence Fisher’s co-accused received.

After retiring briefly to consider the arguments, the three judges returned to announce their decision. Lord Justice Pitchford delivered an ex tempore judgment (one given verbally without having been written in advance) and held that Fisher had been correctly sentenced. His application for permission to appeal was dismissed.

Final Thoughts

Televising appeals is a positive step which should improve the public’s understanding of the justice system. It is to be hoped that proceedings are recorded so that they do not have to be watched live when much of society is working or otherwise engaged.  It is less clear if it would be a positive step to broadcast actual trials. For more on the arguments for and against televising proceedings, see this article.

What are your thoughts on televised proceedings?

What is Terrorism? Revisited

What is terrorism? In this earlier article concerning the dreadful murder of solider Lee Rigby in Woolwich, we saw that section 1 of the Terrorism Act 2000 defines ‘terrorism’ as follows:

• the use or threat of ‘action’,
• which is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
• which is made for the purpose of advancing a political, religious, ideological or racial cause.

‘Action’ includes:

• serious violence against a person,
• serious damage to property,
• endangering a person’s life (other than the life of the person committing the action),
• creating a serious risk to the health or safety of the public or a section of the public, or
• anything designed to seriously interfere with or seriously disrupt an electronic system.

The definition is drawn widely and, in essence, involves the use or threat of violence for political, religious, ideological or racial causes.

How far does the definition extend? In particular, does it include military attacks by groups that are not backed by the state against national or international armed forces in a non-international armed conflict (for example, does it extend to Taliban attacks on coalition forces in Afghanistan)? That was the question facing the Supreme Court in the case of R v Gul [2013] UKSC 64 (the sixty-fourth case heard by the United Kingdom Supreme Court in 2013).

Background

Mr Gul was convicted by a jury of five counts of disseminating terrorist publications, contrary to section 2 of the Terrorism Act 2006. He was sentenced to five years’ imprisonment. ‘Terrorist publications’ includes publications which are likely to be understood as a ‘direct or indirect encouragement…to the commission, preparation, or instigation of acts of terrorism’.

Mr Gul’s publications included videos posted on YouTube showing, amongst other things, attacks by members of al-Qaeda and the Taliban on military targets in Chechnya and on coalition forces in Iraq and Afghanistan, and attacks on civilians, including the 11 September 2001 attacks on the United States. The videos appeared along with commentary praising the bravery and martyrdom of the attackers, and encouraging others to act in similar way.

At Mr Gul’s trial in the Crown Court the judge held that attacks by non-state armed groups against national or international armed forces in a non-international armed conflict in their territory were ‘terrorism’. The Court of Appeal agreed with this, and dismissed Mr Gul’s appeal against conviction and sentence. Mr Gul appealed to the UK’s highest court, arguing that this interpretation of ‘terrorism’ was too wide. In particular, he argued, firstly, that the 2000 Act was intended to give effect to the UK’s international treaty obligations, and since ‘terrorism’ in international law did not extend to military attacks by non-state armed groups against state (or inter-governmental organisation) armed forces in a non-international armed conflict it should not be read that way under the 2000 Act; secondly, it would be wrong to read the 2000 or 2006 Acts as criminalising in the UK acts which occur abroad, and; thirdly, as a matter of law some qualifications must be read into the wide words of the definition of ‘terrorism’.

The Judgment of the Supreme Court

The Supreme Court approached the issue by considering, firstly, what ‘terrorism’ meant based on the provisions in the 2000 Act and, secondly, whether that meaning conflicted with international law.

In relation to the first issue, the Supreme Court held that on a natural reading of the definition of ‘terrorism’ in the 2000 Act, the term had a very wide meaning and there was no reason to read that natural very wide meaning in a restrictive way. The definition had been drafted in a deliberately wide way to take account of the unpredictable forms that terrorism might take. Accordingly, the only reason to interpret the definition more restrictedly would be if it conflicted with any of the UK’s international law obligations.

Addressing the second issue, the Supreme Court held that there was no accepted definition of terrorism in international law, which was an ‘insuperable obstacle’ for Mr Gul to overcome. In the absence of an accepted international definition it could not be said that the UK’s definition of ‘terrorism’ had to be read in any particular way. Moreover there was no issue with criminalising acts occurring abroad since the relevant criminal act (publishing terrorist material) occurred in the UK.

In summary, then, on a natural reading of the definition of ‘terrorism’ the term was wide enough to encompass military attacks by non-state armed groups against national or international armed forces in a non-international armed conflict, and there was no reason in UK (domestic) or international law to read it otherwise. The appeal failed.

‘Terrorism’ Too Wide?

Interestingly, the Supreme Court stated that the definition of ‘terrorism’ was ‘concerningly wide’. Indeed they noted that the current law ‘allows members of any nationalist or separatist group to be turned into terrorists by virtue of their participation in a lawful armed conflict, however great the provocation and however odious the regime which they have attacked’. It was especially concerning given the wide powers given to the police in relation to terrorist matters. Any narrowing of the definition of ‘terrorism’ would, the Supreme Court said, be welcome.

What are your thoughts? Is the definition of ‘terrorism’ too wide?