Discussing Rape, Sensibly

Introduction

Rape is an emotive subject, and rightly so; it is a hideous crime. However, it has become increasingly difficult to discuss the topic. Commentators on the subject are often berated for ‘victim blaming’ or otherwise doing a disservice to victims. Recent examples of this condemnation include the recently retired judge who was pilloried for suggesting the rape conviction rate will not increase until women stop getting so drunk, and the creators of a new nail varnish that detects ‘date-rape’ drugs in drinks being criticised for putting the onus onto women to prevent rape, rather than encouraging men not to rape in the first place.

However, it is vitally important that rational and sensible debate is not stifled by the militant, the ignorant or the misinformed. Unless rape is discussed sensibly and rationally there is a risk of losing sight of what is so peculiarly bad about rape and what amounts to rape, as well as jettisoning progress made on attitudes toward rape.

This article will discuss three particular topics that have led in recent times to strong reactions, with the intention of bringing some objective perspective to the issues. Those topics are:

(a)        victim drunkenness;

(b)        precautions taken by victims; and

(c)        the relative severity of different rapes.

It is hoped that this discussion exposes the issues to be more than merely ‘black or white’, but instead deeper and more nuanced, thereby enabling rational and sensible discussion.

Victim Drunkenness

Last week a recently retired circuit judge, Mary Jane Mowat, said ‘…I will pilloried for saying so, but the rape conviction statistics will not improve until women stop getting so drunk’.

It was no surprise that this comment sparked fury. Natalie Brook, service manager at the Oxford Sexual Abuse and Rape Crisis Centre, said the former judge’s comments on rape were ‘outrageous, misguided and frankly dangerous’. She said: ‘Rape convictions will improve when those who perpetrate it, who are disproportionately male, stop raping and when society stops blaming women for somehow being complicit in this act of violence. Rape is 100 per cent the fault of the perpetrator’.

However, is it right to say the former judge was victim blaming? It is not. She herself made clear it was unacceptable to rape a drunken woman. She said: ‘I'm not saying it’s right to rape a drunken woman, I'm not saying for a moment that it’s allowable to take advantage of a drunken woman’.

Far from being victim blaming or ‘outrageous, misguided and frankly dangerous’, the comments made by the former judge were in fact entirely correct, for this reason: a conviction for rape is most unlikely to result from the evidence of a person who was drunk at the material time when that is the sole evidence. This requires further explanation.

In law, under section 1 of Sexual Offences Act 2003, the offence of rape is only committed when three elements are proven:

(1) the intentional penetration by a person (A) of the vagina, anus or mouth of another person (B) with A’s penis;

(2) B does not consent to the penetration; and

(3) A does not reasonably believe that B consents.

Those three elements must be proven by the prosecution; in essence, they must be proven by the person who alleges they were raped. And it must be proven so that there is no reasonable doubt that A raped B. That is to say a jury must be convinced so that they are sure A raped B. That is an exceedingly high standard. It might be questioned why the standard of proof is so high for criminal offences. Is it not the case there is never smoke without fire and therefore if we have some evidence against an individual so that we are reasonably confident of their guilt that is enough to convict them? That approach is wholly unacceptable for two reasons. Firstly, history shows us there is very often smoke without fire. Secondly, society adopts such a high standard of proof because the consequences of a criminal conviction are severe. Convictions are accompanied by a strong social stigma – particularly in the case of sexual offences – and can result in an individual being deprived of their liberty. They also often result in the loss of employment and can destroy families. Since the consequences of convictions are so severe we ensure that they are only visited on those who we are sure are deserving of them: those who we are sure committed an offence. Therefore rape must always be proven by the prosecution; there can be no exception to this hallowed principle. The failure to prove any one of three elements results in the conclusion that the offence of rape was not, in law, committed and the defendant is innocent.

Rape almost invariably occurs in circumstances where only the alleged offender and alleged victim are present: there are no other witnesses. Therefore (assuming the absence of, for example, CCTV footage) the only evidence to prove or disprove an allegation of rape is the evidence of the alleged offender and alleged victim: it is one person’s word against the other’s. But the alleged victim must, as it has been explained above, prove the alleged offender’s guilt. They must prove each of the three elements of rape; a jury must be sure, on the alleged victim’s evidence alone, that the alleged offender is guilty. That is not an easy task: who of us are ever sure that something happened when one person says that it did and another says it did not? If the alleged victim was drunk, so that she (or less often, he) has little recollection of what was said or what happened, then it becomes almost impossible to give a compelling account that will convince a jury of the alleged offender’s guilt: how could they possibly convince a jury that they did not consent to sex, or that the alleged offender did not reasonably believe consent had been given, when they have a patchy recollection themselves? As a consequence of the alleged victim’s drunkenness they cannot provide the necessary evidence to justify a conviction – their credibility is diminished, if not extinguished.

Observing that a victim’s drunkenness diminishes their credibility so as to prevent a conviction for rape is not blaming the alleged victim for their own rape or the failure to mount a successful prosecution: it is making an objective observation that the victim’s drunkenness has almost certainly deprived them of the ability of providing convincing evidence of the alleged offender’s guilt. If the alleged offender is guilty of rape then they are guilty of a heinous crime, nothing changes that. But the victim’s drunkenness does almost certainly prevent a conviction for rape. It is therefore correct to say conviction statistics will not improve so long as alleged victims are drunk. Indeed, even if alleged victims are not drunk it is difficult to satisfy the high burden of proof when there is no other supporting evidence. Again, as it has already been said, that does not make it the victim’s fault; it is simply the consequence of circumstances where there is limited evidence and a justice system which, rightly, requires proof of guilt.

Two other points should be made. Firstly, having sex with someone who is drunk does not automatically amount to rape. Alcohol causes individuals to behave differently and make decisions that they would not make when they are sober. That a person would consent to sex when drunk but not when sober does not transform the sex into rape. Drunken consent is still, in law, consent. Individuals must be responsible for their own conduct and accept the effects of voluntary intoxication on their own behaviour.

Secondly, and related to the first point, where an individual is so drunk that they lose capacity to consent, such as when they are unconscious or rendered unable to make a decision on whether to have sex or not, they cannot legally consent and any act of sex will amount to rape where it can also be proven that the alleged offender did not reasonably believe consent had been given. That said, if the alleged victim was so affected by alcohol then, for the reasons explained above, it would be extremely difficult to secure a conviction because the alleged victim’s evidence would have little weight on account of their drunkenness.

In summary therefore, stating that the rape conviction statistics will not improve until alleged victims (predominately female, but occasionally male) stop getting drunk is a perfectly legitimate, sensible – and correct – observation. It could not be further from blaming victims; it merely identifies the barriers to a conviction raised by drunkenness.

Precautions

Moving on to the second area where strong reactions have been recently observed, the background is familiar. It is said that females (who are disproportionately affected by rape) should avoid walking out late at night to avoid the risk of rape, in addition to taking other precautions. Critics of these suggested precautions contend that they place the burden on victims to avoid being raped, rather than encouraging men not to rape, and that when women do not take these precautions they are in part responsible for their own rape. In essence, it is said that suggesting precautions is a form of victim blaming.

This was exactly the response to a recent innovation created in the United States – a nail varnish that changes colour in the presence of the most common date rape drugs. The wearer of the varnish is simply required to stir their nail in their drink and if it changes colour it indicates a spiked drink. Writing in the Independent, Chloe Hamilton said: ‘Anti-rape inventions such as these, that focus on what women can do to avoid being raped, not only tell girls that they should be on their guard and primed for an assault at all times, but also that if they’re not prepared, it is they who are at fault, not the men intent on drugging them and assaulting them’.

Is the issue so black and white? Is it correct to say that recommending precautions such as not walking alone late at night and colour changing nail varnish places the onus on victims to protect themselves and blames them when they do not adopt the recommendations and are subsequently raped? In short, it is not. It does not logically follow from recommending precautions that those who do not adopt them are at fault for any attack. In the case of rape it is the perpetrator who is always at fault; they have absolutely no right to force sexual activity on anyone.

It is perfectly legitimate – and sensible – to recognise that there are risks in life, however unwarranted those risks are (as is the risk of rape), and to take suitable precautions. That does not place the onus on potential victims to take precautions, or blame victims when precautions are not taken. It merely recognises, objectively, that certain risks can be avoided by adopting suitable precautions; it does not attribute fault to those who opt not to take the precautions. For example, no one has right to burgle another’s property. However, given that it is an unfortunate fact of life that it is a common crime, many homeowners opt to install a burglar alarm. If a homeowner opts to not install an alarm they are not at fault if they are burgled. Indeed we would not say the homeowner is duty-bound to install an alarm or at fault for not installing an alarm. The fault lies squarely with the offender. Similarly, in the case of rape, it is an unfortunate and unacceptable fact of reality that there will always be monstrous individuals prepared to attack others sexually. It therefore makes sense to take precautions and heed advice to avoid that possibility. However, there is no onus on victims to take precautions, and victims are not at fault if they are raped when precautions are not taken. The rapist is wholly at fault.

It is therefore clear that recommending precautions to avoid rape merely recognises, objectively, that we live in a world where there are risks that we should not be exposed to that can possibly be avoided when certain measures are taken. It does not place an onus on victims to avoid being raped or blame them when they are raped having taken no precautions; it does not alter the underlying philosophical position that those who commit a crime are entirely responsible for committing that crime.

Relative Severity of Rapes

The final topic that has in recent times attracted strong opinions is whether all rapes are equally serious. As it was noted in this article, both Crimewatch presenter Nick Ross and former Justice Secretary Ken Clarke have found themselves on the receiving end of strong criticism for suggesting that certain rapes are more serious than others. For the critics, rape is rape and there are no gradations of severity. So are some rapes more serious than others? While the arguments will not be repeated here, for the reasons given in this article it is entirely correct to say that some rapes are more serious than others. All rapes are serious, but some are more serious. That is a logical and sensible conclusion.

Conclusions

Although rape is a highly emotive subject, it is hoped this discussion has discussed the issues in a sensible and rational way and distilled some logical conclusions: the rape conviction rate is likely to improve if victims are not drunk; recommending precautions to avoid rape does not blame victims; and some rapes are more serious than others. Alarmist headlines often mask legitimate observations and should be treated with caution. The issues are far from black or white: they are complex and intricate, and should be discussed sensibly and rationally. While rape is absolutely wrong, the issues surrounding rape are far from absolute.

What are your thoughts?

Lee Rigby Murderer to Appeal Sentence

It has emerged that one of the killers of soldier Lee Rigby has secured permission to appeal against his sentence.

The Facts

Michael Adebowale, 22, was sentenced alongside Michael Adebolajo, 29, at the Old Bailey in February this year for the murder of the soldier in Woolwich last year.

The pair ran down the solider in a car before attacking him brutally with knives. Adebolajo hacked at the soldier’s head, while Adebowale stabbed his torso. For more information on the facts, see this earlier article.

Mr Justice Sweeney sentenced the pair to life imprisonment. Adebolajo received a whole life term, meaning he will spend the remainder of his life in prison. Adebowale was sentenced to a minimum of 45 years in prison before he can be considered for release. They were sentenced in their absence after being removed for disrupting the proceedings. The judge described their actions as ‘sickening and pitiless conduct’, adding that the pair had shown no remorse.

It has now emerged that a High Court judge has granted Adebowale permission to appeal against his sentence. It follows earlier news that Adebolajo is to appeal against both his conviction and sentence.

What is the law on appealing against a sentence?

Appeals Against Sentence: The Law

Adebowale had a right to appeal the length of his sentence, as do all convicted offenders, under section 9 of the Criminal Appeal Act 1968. However, leave (or permission) to appeal must be granted by the Court of Appeal, unless the sentencing judge grants leave within 28 days of passing sentence: section 11 of the 1968 Act.

Where it is necessary to seek leave to appeal from the Court of Appeal, the application must, under section 18 of the 1968 Act, be made within 28 days of the sentence.

The reasons (or grounds) for the appeal will then normally be considered by a single judge on the case papers alone; there will be no actual hearing. The judge can grant leave 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. It appears in this case that permission was granted by a single High Court judge on the papers.

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 at least two judges. It will often be three judges. If leave is granted the Court of Appeal can then proceed directly to consider the appeal itself.

Once leave is granted the appeal against sentence will be heard by at least two, and often three, judges. There are a variety of grounds for appealing against the sentence imposed. These include, but are not limited to:

- that the sentence was ‘manifestly excessive’ (the most common ground of appeal);

- that the sentence was wrong in law; and

- that there were procedural errors.

It is unclear what Adebowale’s grounds of appeal are.

If the Court of Appeal agrees that Adebowale’s sentence was inappropriate it can quash (cancel) the original sentence and substitute any sentence that could have been lawfully passed on Adebowale by the Crown Court, so long as it does not treat him more severely: section 11 of the 1968 Act.

The appeal is awaited with interest.

What are your thoughts on the original sentence?

A Right to Die – Part 2: The Judgment

The Supreme Court has ruled that there is no right to assisted suicide. Those who are physically unable to end their own lives cannot receive assistance to die from individuals and medical professionals.

For the full background to the case and the issues, see the first part of this article, ‘A Right to Die – Part 1: The Background’. This article proceeds directly to discuss the Supreme Court’s judgment.

The Judgment – Summary

The court, by a majority of seven to two, dismissed the appeals brought by Mr Nicklinson and Mr Lamb. It unanimously allowed the appeal brought by the DPP. Therefore there was no right to assisted suicide and the DPP was not required to clarify his policy on prosecutions for assisted suicide.

The Judgment

The Supreme Court was required to determine two issues. Firstly, it had to determine whether the present law on assisting suicide was incompatible with article 8. Secondly, it had to determine if the DPP was required to clarify his policy on when  a prosecution would be brought for assisted suicide.

Was the Present Law on Assisting Suicide Incompatible with Article 8?

The court unanimously held that the question of whether to impose a general ban on assisted suicide lied within the margin of appreciation accorded to the United Kingdom. The ‘margin of appreciation’ is the area of discretion left to each country by the European Court of Human Rights within which it will not interfere. The margin is often wider on controversial and sensitive issues where there is no consensus across the countries that make up the Council of Europe. Accordingly, whether the current law on assisted suicide was incompatible with article 8 fell to be decided by the Supreme Court under the Human rights Act 1998.

The court held that the ban on assisted suicide in section 2(1) of the Suicide Act 1961 did interfere with the right to a private life guaranteed by article 8 because it prevented those who were physically unable to end their own lives from determining how and when they should die. Thus the ban could only be justified if the ban satisfied the requirements of article 8(2) – the ban had to be ‘necessary in a democratic society’ for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights of others.

Five of the Justices, Lords Neuberger, Mance, Kerr, Wilson and Lady Hale, held that the court had the authority under our constitution to make a declaration of incompatibility in relation to section 2 of the 1961 Act. A declaration of incompatibility is a declaration under section 4 of the Human Rights Act 1998 that the law is incompatible with one or more of the rights guaranteed by the European Convention. However, Lords Neuberger, Mance and Wilson concluded that while the sensitive and controversial nature of the issue of assisted suicide did not prevent the court from making a declaration, it would be inappropriate to do so until Parliament had been given the opportunity to consider the issue, in essence because it and the courts had steadfastly been against assisted suicide in the past and the issue needs to be carefully considered.

Further, Lords Neuberger, Mance and Wilson said that the main justification for the ban was the apparent risk to the lives of vulnerable people who may feel a burden to their family or society and who might take their lives if assisted suicide were an option, but would otherwise not do so. The interference with Mr Nicklinson’s and Mr Lamb’s rights was grave and the arguments in favour of the current law were by no means overwhelming. However, even if it had been appropriate for the court to grant a declaration of incompatibility (which it was not in their judgment), their Lordships would not have done so because of evidential issues related to how death would actually be brought about and what safeguards would be in place.

On the other hand, Lady Hale and Lord Kerr would have issued a declaration of incompatibility. They concluded that article 8 confers a right on individuals to decide by what means and at what point their life will end. The ban on assisted suicide made no exception for those freely choosing to end their life and was therefore incompatible with article 8.

Lords Sumption, Hughes, Reed and Clarke also accepted that the court had jurisdiction to determine whether the ban on assisted suicide violated article 8, but thought that the question turns on issues which Parliament is in principle better qualified to decide. Therefore, under the present circumstances, the courts should respect Parliament’s assessment. The question required a judgment to be made about the relative importance of the right to commit suicide and the right of the vulnerable, especially the old and sick, to be protected from pressure to so. In reality, it was unlikely the risk of pressure could ever be wholly eliminated and therefore the issue was how much risk was acceptable. That involved important issues of social policy and a moral value-judgment, which was more suited to determination by Parliament as the part of government which represents the people.

Accordingly, while the court unanimously held that it had the authority to determine the issue, it decided, by a majority of seven to two, that the current ban on assisted suicide does not violate article 8 of the European Convention.

Was the DPP’s Guidance Lawful?

As to the second part of the appeal, the court unanimously allowed the DPP’s appeal, overturning the Court of Appeal’s judgment. The court held that it was one thing for it to decide that the DPP must have a policy, but it was quite another for it to dictate what should be in that policy. That was for the DPP. The exercise of judgment by the DPP, the variety of relevant factors, and the need to vary the weight to be attached to them according the circumstances of each individual case, were all proper and necessary features of the system of prosecution in the public interest. Thus the appeal was allowed.

The full judgment can be read here.

Comment

The Supreme Court’s judgment is unsurprising. Whether assisted suicide should be permitted is a hugely controversial issue and it is not something the courts will feel content to definitively rule on until the issues are better understood. However, Parliament has been firmly warned; the Supreme Court has indicated that if Parliament does not satisfactorily deal with the issue in a reasonable time then there is the ‘real prospect that a further, and successful’ challenge will be made to the current ban.

Parliament is currently debating the issue as Lord Falconer attempts to navigate his Assisted Dying Bill through Parliament. This would permit the terminally ill to be assisted to die if they are terminally ill, have less than six months to live and have a clear and settled intention to end their own life. Interestingly, even if this Bill becomes law it would not assist any of the individuals in this case because they are not terminally ill. A wider law would be necessary. Developments in this area will be awaited with interest.

For my own part, I am in favour of assisted suicide. What are your thoughts?

Andy Coulson Sentenced to 18 Months Imprisonment Over Phone Hacking

Introduction

Last Friday the hacking trial culminated in the sentencing of Andy Coulson and four other individuals for conspiracy to hack phones.

The 46 year old, who had served as the editor of the News of the World and as Director of Communications for Prime Minister David Cameron, was found guilty at the Old Bailey in June. For more information, see this earlier article.

Coulson was sentenced alongside four ex-journalists at the tabloid, as well as private investigator Glenn Mulcaire. They had all pleaded guilty to conspiracy to hack phones.

 The sentences were as follows:

- Coulson, 46, of Canterbury – 18 months imprisonment.

- Former chief reporter Neville Thurlbeck, 52, of Esher, Surrey – six months imprisonment.

- Former news editor Greg Miskiw, 64, of Leeds – six months imprisonment.

- Private investigator Glenn Mulcaire, 43, of Sutton, Surrey – six months imprisonment suspended for twelve months with 200 hours of unpaid work (community service).

- Former reporter James Weatherup, 58, of Brentwood, Essex – four months imprisonment suspended for twelve months with 200 hours of unpaid work.

Sentencing Remarks

Sentencing the group, the judge, Mr Justice Saunders, said there was ‘a very great deal of phone hacking while Andy Coulson was editor’. It was ‘unforgivable’ how the News of the World had acted in relation to phone of murdered schoolgirl Milly Dowler. The defendants were all respected journalists whose careers were now ‘irreparably damaged’. Andy Coulson had to take ‘the major share of the blame for the hacking at the News of the World’. It was no defence, and no mitigation, that the individuals did not know they were behaving criminally; they all knew hacking was morally wrong.

Specifically in relation to Coulson, Mr Justice Saunders, said that the starting point for his sentence would be two years, the maximum sentence for the offence (on which, see below), because of the quantity of phone hacking he was involved in and because he was the editor controlling the investigative methods used by his reporters. However, that would be reduced by six months to reflect his former good character and that there had been delay in the matter coming to trial for which he was not responsible.

The Offence

The group were convicted of conspiracy to hack phones or, more technically, 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 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. Thus the maximum sentence for conspiracy here was two years imprisonment.

Notes on the Sentence

Having been sentenced to imprisonment for 18 months Coulson will be entitled to be released on licence after serving one half of the sentence, under section 244 of the Criminal Justice Act 2003. So long as he complies with the licence conditions he will not then return to prison. However, it is likely that he will be released even sooner than the halfway point of his sentence under the Home Detention Curfew scheme, in accordance with section 246 of the 2003 Act. Under this scheme, Coulson will be subject to a curfew and electronically monitored (known as ‘tagging’). The scheme is designed to help the reintegration of prisoners back in to society.

What are your thoughts on the sentence?

Phone Hacking Trial: The Verdicts

Introduction

The phone hacking trial has now concluded. On the 138^th day of the trial the jury returned the majority of its verdicts, convicting former News of the World editor Andy Coulson of conspiring to hack mobile telephones. Meanwhile, Coulson’s predecessor, Rebekah Brooks, was cleared of all charges.

The following day the judge, Mr Justice Sweeney, discharged the jury from considering its final verdicts after it became clear the jury would be unable to make a decision. The judge also criticised the Prime Minister, David Cameron, for making potentially prejudicial comments following the initial verdicts while the jury was still deliberating on other charges. It was announced today that there will be a retrial of the charges the jury was unable to decide on.

The prosecutions followed 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 was possible because mobile phone operators gave customers default PIN codes to access their voicemail by either using another phone or dialling a separate number.

Who was on trial, for what, and what were the verdicts?

Defendants and Charges

There were eight defendants standing trial who were charged jointly with various offences. I shall deal with each defendant in turn.

Rebekah Brooks

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

She was 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 was two years imprisonment.

The nature of this charge was that Brooks was 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.

Verdict: Not guilty.

Brooks was 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 was 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 was charged with two counts of this offence because it was alleged she agreed with two different groups of people to make these payments.

Verdict: Not guilty.

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

Again the conspiracy is charged under section 1(1) of the 1977 Act. It wass 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 was that it was alleged Brooks agreed with others to permanently remove seven boxes of archived material from the archive of News International. Brooks was charged with two counts of this offence because it was also alleged she agreed with others to conceal documents, computers and other electronic equipment from police officers.

Verdict: Not guilty.

Andy Coulson

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

He was 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 was that Coulson was 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.

Verdict: Guilty.

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

The law is as before. The nature of this charge was 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 was charged with two counts of this offence because it was alleged he agreed to make payments on two different occasions.

Verdict: Jury discharged. To be retried.

Ian Edmonson

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

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

The law is the same as above. The nature of the charge was that Edmonson was 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.

Verdict: Not guilty.

Stuart Kuttner

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

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

The law is the same as above. The nature of the charge was that Kuttner was 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.

Verdict: Not guilty.

Clive Goodman

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

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

The law is as before. The nature of the charge was 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 was charged with two counts of this offence because it was alleged he agreed to make payments during two different periods.

Verdict: Jury discharged. To be retried.

Cheryl Carter

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

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

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

Verdict: Not guilty.

Mark Hanna

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

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

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

Verdict: Not guilty.

Charlie Brooks

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

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

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

Verdict: Not guilty.

Final Comments

The trial was one of the costliest trials in legal history, with the total costs estimated at nearly £100 million. Details about the costs involved can be found here. The original indictment (the document formally charging the defendants) appears below.

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

Right to Die Campaigners Lose Appeal at Supreme Court

The Supreme Court has ruled there is no right to be assisted to die. Although a majority of the nine judges ruled the court had the authority to declare the current law breaches the right to a private life, the majority concluded there was no such breach.

More to follow.

A Right to Die – Part 1: The Background

The Supreme Court will decide tomorrow whether there is a right to die so that those who are physically unable to end their own lives can receive assistance from individuals and medical professionals.

This article sets out the background to the case and the issues. Part 2 of the article will discuss the Supreme Court’s judgment.

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 to the 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. Lamb is and Nicklinson was unable to commit suicide even with assistance and would require another to terminate their lives. The arguments on their behalf contend 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 appealed this decision. The Supreme Court has considered all 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 sat 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 decides tomorrow 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 later this 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?

Supreme Court Confirms CRB Checks Breach Human Rights

The Supreme Court ruled last week that the former system of CRB checks breached human rights to privacy, upholding an earlier ruling by the Court of Appeal.

Background

The factual background to the case, and an explanation of the Court of Appeal’s judgment, can be found in this earlier article. I will not repeat them here.

In short, the case centred on CRB checks, which are obtained by prospective employers to check whether prospective employees have convictions or other history making them unsuitable for employment. The particular issue for the Supreme Court was whether enhanced CRB checks – which disclose all previous convictions and cautions irrespective of how long ago they were acquired, their triviality, or their relevance to the proposed employment – were an unjustified interference with an individual’s right to a private life, as guaranteed by Article 8 of the European Convention on Human Rights (ECHR). Enhanced CRB checks are often obtained for roles requiring work with children or vulnerable adults.

Article 8

In the present case the claimants (those bringing the claim) argued that disclosing the information contained in enhanced CRB checks to prospective employers breached their right to privacy, as protected by Article 8 of the ECHR. Article 8 guarantees an individual a right to privacy. However, that right is not absolute. The right can be interfered with if it is necessary to achieve certain aims, such as the protection of the rights of others, and where interferences are clearly defined in law. The Government contended that the law permitting enhanced CRB checks protected the rights of others, namely the rights of children and the vulnerable, and were therefore justifiable interferences with the right to privacy

These arguments required the Supreme Court to determine three issues:

1) Did enhanced CRB checks interfere with the claimants’ right to privacy?

2) If so, were those interferences in accordance with the law?

3) If they were in accordance with the law, were they necessary?

I will discuss each of the issues in turn.

Interference

The first issue for the court was whether enhanced CRB checks actually interfered with claimants’ right to privacy. The Supreme Court noted the right to privacy includes a right to form relationships with other human beings and that excluding individuals from employment would be likely to affect the formation of relationships. Since CRB checks could result in a person being excluded from employment (and from forming relationships), it followed that releasing data about an individual’s convictions would interfere with their private life.

In Accordance with the Law

Since the CRB checks interfered with the private lives of the claimants, the second issue was whether the interference was in accordance with the law. This entails that the law must be adequately accessible and foreseeable. The majority of the Supreme Court also held that this meant the law should not subject an individual to arbitrary interference. It concluded that the law on CRB checks did not guard against arbitrary interference because it drew no distinction between the types of offences a person had committed, how long ago they were committed, the sentence received or the relevance of the offences to the proposed employment; it simply allowed the disclosure of all previous offending in an arbitrary manner. Since the law permitted arbitrary interference, the interferences were not in accordance with the law.

Accordingly, since the interferences were not in accordance with the law, they amounted to a breach of article 8: the claimants’ private lives were interfered with in an unlawful way.

Necessary in a Democratic Society

Although the court concluded the law on enhanced CRB checks was unlawful because it was not in accordance with the law, it nevertheless went on to determine whether the interference would have been justified as being necessary in a democratic society. This issue is a question of proportionality, which in law is a three-part test. Firstly it is asked if the disputed law pursued a legitimate aim; secondly, it asks if the disputed law was rationally connected to the aim; finally, it asks whether the disputed law was any more that was necessary to achieve the aim. The court held that although the law aimed to protect the vulnerable, it was not rationally connected to that aim because it permitted the disclosure of totally irrelevant convictions. Therefore the law was not proportionate.

Overall then, the law on enhanced CRB checks interfered with the claimants’ right to privacy and was unjustified; article 8 had been breached. The Supreme Court’s judgment can be read here.

Comment

This is an unsurprising decision. However, it is curious that the Government decided to appeal the Court of Appeal’s judgment. Shortly after the Court of Appeal handed down its judgment, as I explained in this article, the Government changed the law on CRB checks to filter old and irrelevant convictions from CRB checks in order to ensure the law complied with article 8. The Government spent vast sums of money appealing a decision even though it was prepared to follow the decision and change the law to make it complaint with article 8. That is not a commendable use of public funds.

What are your thoughts?

‘Cannot be Named for Legal Reasons’: What Reasons?

Introduction

A frequent feature of many news reports on criminal trials is that certain individuals ‘cannot be named for legal reasons’. In this article I shall explain some of the main ‘legal reasons’ – known as reporting restrictions – that prevent the publication of the names of certain individuals or other information.

Children

The primary category of reporting restrictions applies to children. Since children are vulnerable, reporting restrictions are almost always imposed when they are concerned in criminal proceedings. For these purposes, children are those under the age of 18.

The nature of the reporting restrictions depends upon the court in which the child is appearing. In those cases where a child is appearing in the youth court, reporting restrictions are automatically imposed by section 49 of the Children and Young Persons Act 1933. Section 49 provides that no report can be published which reveals the name, address or school of any child, or which includes any information likely to lead to the identification of the child. Further, no picture of the child may be published. The restrictions apply whether the child is the defendant, the alleged victim or a witness: section 49(4) of the 1933 Act.

The court may lift the reporting restrictions in certain circumstances. Firstly, the court can lift the restrictions if it necessary to avoid injustice to the child: section 49(5)(a) of the 1933 Act. Secondly, restrictions can be lifted if the child is unlawfully at large and it is necessary to lift the restrictions for the purpose of detaining them: section 49(5)(b) of the 1933 Act. However, restrictions can only be lifted under this category where the child has been charged with, or convicted of, a serious offence: see section 49(6) of the 1933 Act. Finally, restrictions can be lifted under section 49 where the child has been convicted of an offence where the court is satisfied that it is in the public interest to do so: section 49(4A) of the 1933 Act. For example, Jon Venables and Robert Thompson were revealed as the killers of two-year-old James Bulger in November 1993, despite being only aged 11 themselves.

It is an offence to publish a report in contravention of section 49: section 49(9) of the Act. It is punishable by a fine of up to £5,000.

In those cases where a child is appearing in a magistrates’ court or the Crown Court, reporting restrictions may be imposed by the court under section 39 of the Children and Young Persons Act 1933. The reporting restrictions are not automatic, unlike section 49. Section 39 provides that a court may direct that no newspaper report can reveal the name, address, or school, or any information likely to lead to the identification of the child. Further, a direction may be given that no picture of the child may be published. Section 39 applies to sound and television reports just as it applies to reports in newspapers: section 57(4) of the Children and Young Persons Act 1963. The restrictions apply whether the child is the defendant, the alleged victim or a witness: section 39(1)(a) of the 1933 Act.

The court may lift the reporting restrictions at its discretion. It is an offence to breach a direction given under section 39: section 39(2) of the Act. It is punishable by a fine of up to £5,000.

Sexual Offences

Another important category of reporting restrictions concerns those who allege a sexual offence has been committed against them.

Under the Sexual Offences (Amendment) Act 1992, the alleged victim in a case involving one of the sexual offences mentioned in section 2 of the Act, which includes rape, is  automatically entitled to anonymity. Once an allegation of one of the relevant offences has been made, nothing may be published which is likely to lead members of the public to identify the alleged victim: section 1 of the 1992 Act. Under section 1, the reporting restriction lasts for the lifetime of the alleged victim.

Under section 3 of the 1992 Act, the restriction may be lifted by the court in two circumstances. Firstly, the court may lift the restriction if it is required by the defence so that witnesses will come forward and the conduct of the defence is likely to be seriously prejudiced if the restriction is not lifted: section 3(1) of the 1992 Act. This covers those cases where the defendant believes there are witnesses to the alleged crime that can corroborate the defendant’s account of the incident. Secondly, the court may lift the restriction if it is satisfied that the restriction imposes a substantial and unreasonable restriction on the reporting of the proceedings and it is in the public interest to relax the restriction: section 3(2) of the 1992 Act.

In addition to the court being able to lift the restriction, the alleged victim may also waive their right to anonymity in writing: section 5(2) of the 1992 Act.

It is an offence to publish information in breach of the restriction, punishable by a fine of up to £5,000: section 5(1) of the 1992 Act.

Name and Other Matters

Another broad power to impose reporting restrictions is located in section 11 of the Contempt of Court Act 1981. This provides that where the court uses a power it has under the common law (for more on the common law, see this article) to allow a name or other matter to be withheld from the public in the proceedings, the court may give directions prohibiting the publication of the name or matter in relation to the proceedings if it is necessary for a certain purpose.

This provision allows the courts to restrict reporting of, for example, the name and addresses of witnesses. It even allows the court to restrict reporting of the defendant’s name. This might be necessary where, for example, the defendant’s life might be endangered if their identity is known publicly. However, section 11 only applies where the court has already used a power it has to withhold a name or other matter. It cannot be used where the information has already been made public.

Publishing information in breach of this restriction is punishable as contempt of court.

Conclusion

There is a range of restrictions on court reporting. This article has sought to explain some of the most commonly imposed restrictions. A guide examining all reporting restrictions in the criminal courts has been published by the Judicial College, the Newspaper Society, the Society of Editors and Times Newspapers Ltd. The third edition was published today. It can be read here. It will be especially useful to the journalists amongst you. The range of restrictions should not, however, mislead anyone into believing that the British justice system is one that routinely restricts open reporting of criminal matters. On the contrary, the default principle of British justice is open justice: ‘…justice should not only be done, but should…be seen to be done’. This was seen last week when the Court of Appeal refused to hold a criminal trial wholly in private. Reporting restrictions are only imposed by the law when they are justified.

Do you agree with reporting restrictions? Do you think they are too extensive?