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?