Punitive Private Car Park Fines Are Ruled Lawful

The Court of Appeal has ruled that parking fines or charges issued in private car parks which are punitive in nature are lawful. This article considers the background to the issue and the judgment of the Court of Appeal in ParkingEye Ltd v Beavis [2015] EWCA Civ 402.

Background

When an individual parks their vehicle in a private car park a contract between the driver of the vehicle and the owner or operator of the car park is formed. Typically, in exchange for paying a price, the driver can leave their vehicle in the car park for a period of time; the car park owner or operator agrees to allow the driver to park their vehicle if the driver agrees to pay the price. More often than not, the greater period of time the driver wishes to stay, the greater the price will be. However, parking will sometimes be free, but subject to a maximum stay: the car park owner or operator agrees that the driver may park for free if the driver agrees not to stay beyond the maximum period of time allowed.

When a driver does not pay the price, or stays beyond the time for which they have paid, or stays beyond the maximum free period of parking, they breach the contract between themselves and the car park owner or operator. A fine or charge is then normally issued to the driver by the car park owner or operator for that breach of contract. Signs in the car park will often specify the level of the fine or charge.

The law does not allow the parties to a contract to impose penalties upon one another for breaching the contract; penalties are unenforceable. The parties are only allowed to agree a sum to be paid by the party in breach of the contract which genuinely pre-estimates the loss the other party has suffered by reason of the breach (known as ‘liquidated damages’). It was formerly thought that any sum required to be paid in excess of the genuine loss would be unenforceable as a penalty. In the case of private car parking charges, this was thought to mean that a charge in excess of in the region of £50 would be regarded as a penalty, since the car park operator would not lose more than that through issuing the fine and through other drivers being unable to park.

So is a car parking charge or fine of £85 lawful? On the face of it, it seems significantly in excess of what a car park owner or operator could be expected to lose by a driver overstaying. That was the issue that arose in ParkingEye Ltd v Beavis [2015] EWCA Civ 402.

ParkingEye Ltd v Beavis

Mr Beavis parked in a car park at a retail park in Chelmsford owned by British Airways Pension Fund. The car park was managed for the Pension Fund by ParkingEye. The car park had numerous signs displaying a maximum stay of two hours free parking. Overstaying could result in a charge of £85. ParkingEye made no money from running the car park apart from parking charges. Mr Bevis overstayed the two hour period by 57 minutes and a charge of £85 was duly issued to Mr Beavis by ParkingEye. When Mr Beavis refused to pay ParkingEye started proceedings to recover the sum.

Mr Beavis contended that the sum was a penalty, and therefore unenforceable. He also contended that the charge was unfair and therefore unenforceable under the Unfair Terms in Consumer Contracts Regulations 1999. Following a trial at the County Court in Chelmsford, it was held that the charge was not a penalty and Mr Beavis could be required to pay it. Mr Beavis appealed the decision to the Court of Appeal.

In the Court of Appeal, Lord Justice Moore-Bick, giving the leading judgment, held as follows:

1. The law had always refused to enforce what are considered to be ‘unconscionable and extravagant’ bargains.

2. Earlier cases had said that the essence of a penalty (which is unconscionable and unenforceable) was a payment stipulated to deter breach of a contract. Meanwhile, a contractual term requiring payment of a pre-estimate of genuine loss resulting from a breach of contract (liquidated damages) was legitimate, since this could be recovered through the courts in the ordinary way if necessary.

3. Earlier cases had said that a sum payable for breach of a contract would be a penalty if the sum was extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably result from the breach of contract. Thus if the sum required to be paid was clearly a deterrent, it was likely to be regarded as extravagant and therefore a penalty. This was the traditional view.

4. However, more recent cases had shown that a simple separation between either liquidated damages or a penalty was not sufficient. In some cases the sum required to be paid for breach could not possibly be regarded as liquidated damages, but had nevertheless been enforceable because it was not extravagant or unconscionable and was justifiable for other reasons, normally commercial reasons. That was to say, a sum which exceeds what could be regarded as genuine damages may not be regarded as penal if it could be commercially justified and its dominant purpose was not to deter breach.

5. If a commercial justification could be a reason to allow recovery of more than actual loss, it was difficult to see why others reasons could not justify such recovery also. The underlying principle was that the court will not enforce a bargain for an extravagant and unconscionable amount.

6. ParkingEye made no money from running the car park apart from parking charges. So it made no loss from Mr Beavis' overstay. But there could be an indirect loss to ParkingEye. It would lose the contract with the car park owner if it failed to make sure that there was free parking available for a limited period for customers of the retail park. That would then be a loss to ParkingEye and would damage its commercial reputation. So ParkingEye did have a commercial interest in people not overstaying the 2 hours free parking.

7. It was clear that the charge in this case was a deterrent. But that did not necessarily lead to the conclusion that the charge was extravagant and unconscionable. The traditional approach of comparing the amount required to be paid compared with the maximum possible loss was inappropriate. It was necessary to return to first principles, namely, that the court will not enforce an agreement for payment (in the event of breach of the contract) of an amount which is extravagant and unenforceable. While an amount grossly exceeding the possible loss would normally be a strong indicator or extravagance and unconscionableness, other factors may rob the bargain of that character. Those factors may be commercial or otherwise. In the present case, the charges were justified for commercial and social reasons. There were obvious benefits to consumers and retailers in having free parking for limited periods; but that could only be achieved if there was a mechanism to prevent abuse of free parking. The charge to prevent this would have to be big enough to be deterrent in nature, and economically worth collecting through the courts. Further, there was support from the Protection of Freedoms Act 2012; its terms showed that Parliament considered it is in the public interest that parking charges should be recoverable, provided that they are clearly brought to the attention of motorists. The charges were not grossly unreasonable. Therefore they were not to be regarded as a penalty.

8. As to the argument under the Unfair Terms in Consumer Contract Regulations that the charge was unfair, the issues were whether ParkingEye acted contrary to the requirement of good faith in imposing an £85 fee, and, if so, whether it caused a significant imbalance in the parties’ rights and obligations to the detriment of Mr Beavis. It could not be said that ParkingEye acted contrary to the requirement of good faith because it had clearly displayed the terms on signs. It also could not be said that the charge created a significant imbalance between ParkingEye and Mr Beavis because public authorities successfully managed their carparks with fines and there was no sign that such an approach created an imbalance in the parties' rights and obligations. Therefore the term was not unfair under the regulations.

9. Accordingly, the charge was not a penalty or unfair, and Mr Beavis could be required to pay it. Lord Justice Patten and Sir Timothy Lloyd agreed.

Comment

The decision is somewhat surprising. By departing from the conventional approach to penalties the Court of Appeal has made legitimate charges that were previously thought of as unenforceable. It will be an unwelcome decision for motorists, who will now be liable to pay parking charges that are not ‘unconscionable and extravagant’ in amount. However, that is not the end of the matter. Mr Beavis has been granted permission to appeal the decision to the Supreme Court, so the Court of Appeal’s decision may yet be overturned.

The judgment can be read here.

What are your thoughts on the judgement?

Supreme Court Rules Prince Charles Letters Must be Released

Introduction

It has been widely reported in the media that the Supreme Court has ruled that letters sent by Prince Charles to various government departments expressing ‘particularly frank’ views must be made public.

The so-called ‘black spider memos’ – a reference to Prince Charles’ handwriting – expressed Princes Charles’ own deeply held views and beliefs on particular matters.

This article explores the background to the case, and the decision of the Supreme Court.

Background

The Freedom of Information Act 2000 (‘FOIA 2000’) enables members of the public to see documents held by many public bodies, subject to certain exemptions. The Environmental Information Regulations 2004 (‘EIR 2004’) enable members of the public to see documents containing ‘environmental information’, again subject to certain exemptions.

In April 2005, Rob Evans, a journalist working for the Guardian newspaper, requested release of the letters that passed between Prince Charles and various government departments. Those requests were made under both FOIA 2000 and EIR 2004. However, the government departments refused to release the letters on the ground that they considered the letters were exempt. Mr Evans complained to the Information Commissioner, who upheld the refusals. Mr Evans then appealed to the Information Tribunal, and the matter was transferred to the Upper Tribunal. After a full hearing the Upper Tribunal decided, in September 2012, that many of Prince Charles’ letters (referred to as ‘advocacy correspondence’) had to be released. The government departments did not appeal the decision.

However, in October 2012, the Attorney General, the Government’s senior law officer, issued a certificate under section 53(2) FOIA 2000 and regulation 18(6) EIR 2004 stating that he had, on ‘reasonable grounds’, concluded that the government departments had been entitled to refuse disclosure of the letters, and set out his reasoning. In essence, the Attorney general said the public interest in releasing the letters was outweighed by the public interest in not releasing the letters. In particular, there was a strong public interest that the letters should not be released in order to preserve the following three ‘constitutional conventions’ (informal, but well-respected customs):

1. the monarch should be able to consult, encourage and warn their government – the so-called ‘tripartite convention’;
2. the heir to the throne should be instructed in the business of the government in preparation for their reign – the so-called ‘education convention’; and
3. the monarch is expected to act in accordance with ministerial advice – the so-called ‘cardinal convention’.

In addition to preserving those conventions, the Attorney General also pointed to the private and confidential nature of the letters, and that the content of the letters might jeopardise Prince Charles’ political neutrality. The same reasons had effectively been given by the government departments at the outset and by the Information Commissioner when refusing to order the release of the letters.

If the certificate issued by the Attorney General was valid, its effect would be to override a decision of the Upper Tribunal, a judicial body with the same status as the High Court.

Evans started proceedings to ‘quash’ (or cancel) the certificate on the following grounds:

1. the reasons given by the Attorney General were not capable of constituting ‘reasonable grounds’; and/or
2. in so far as the advocacy correspondence was concerned with environmental issues, the certificate was incompatible with Council Directive 2003/4/EC (“the 2003 Directive”), a European Union (EU) piece of law which overrides English law under the European Communities Act 1972.

The Divisional Court dismissed his claim. However, the Court of Appeal allowed Evans’ appeal on both grounds. The Attorney General appealed to the Supreme Court. The issue before the Supreme Court was therefore whether the certificate was valid, and in particular:

1. whether the Attorney General was entitled to issue a certificate under section 53 FOIA 2000 that he had ‘on reasonable grounds’ formed the opinion that the government departments had been entitled to refuse to release the letters;
2. whether, in any event, regulation 18(6) EIR 2004 complied with the relevant provisions of EU law; and
3. if it did not, whether the certificate could stand even in relation to the non-environmental information.  

It is worth noting that the Supreme Court had not seen the advocacy correspondence and did not need to in order to determine the issues.

The Judgment of the Supreme Court

The case was heard by seven Justices of the Supreme Court. In summary, the Supreme Court dismissed the Attorney General’s appeal. By a majority of 5:2 the Court held that the Attorney General was not entitled to issue a certificate under section 53 FOIA 2000 in the manner that he did and therefore that the certificate was invalid.

By a majority of 6:1 the Court held that regulation 18(6) was incompatible with the 2003 Directive and must be treated as invalid, and therefore that the certificate would in any event have been invalid to the extent it related to environmental information.

The judgement, known as R (Evans) v Attorney General [2015] UKSC 21, can be read here.

Reasons for the Decision: FOIA 2000

In relation to the appeal concerning FOIA 2000, Lord Neuberger (with whom Lord Kerr and Lord Reed agreed) concluded that section 53 FOIA 2000 did not permit the Attorney General to override a decision of a judicial tribunal or court by issuing a certificate merely because he, a member of the Government, took a different view after considering the same facts and arguments. To allow that would be unique in the laws of the United Kingdom and would cut across two constitutional principles which are fundamental components of the rule of law, namely that a decision of a court is binding between the parties and cannot be set aside, and that decisions and actions of the Government are reviewable by the courts, and not vice versa (paragraph [52] of the judgment). Clear words had to be used if the Act was to have that effect, and section 53 was a very long way from being clear enough (paragraphs [58]-[59]).

Lord Mance (with whom Lady Hale agreed) reached the same conclusion as Lord Neuberger but for different reasons. He said that it would be open to the Attorney General to issue a certificate under section 53 if he disagreed with the decision of the Upper Tribunal. But, disagreement with findings of fact or rulings of law in a fully reasoned decision would require the clearest possible justification, while disagreement as to the weight to be attached to competing public interests would require properly explained and solid reasons [130-131]. In this case the Attorney General unjustifiably undertook his own redetermination of the relevant factual background, which he was not entitled to do. The Attorney General’s certificate did not engage with the closely reasoned analysis of the Upper Tribunal and proceeded on the basis of findings which differed radically from those made by the Upper Tribunal without real or adequate explanation. This could not be regarded as satisfying the test for issue of a certificate (paragraphs [142], [145]).

Lord Wilson and Lord Hughes each gave judgments disagreeing with the majority. They concluded that the Attorney General was entitled to issue the certificate under section 53 for the reasons he did.

Reasons for the Decision: Environmental Information Under the 2003 Directive

On the issue of environmental information, Lord Neuberger and Lord Mance (with whom Lady Hale, Lord Kerr, Lord Reed and Lord Hughes agreed) noted that article 6.1 of the 2003 Directive requires that, following a refusal by a public authority of a request for environmental information, the refusal must be reconsidered or reviewed administratively. They also noted that under article 6.2 the person seeking the information must have access, after the administrative review, to a review procedure before a court of law or similar body whose decisions may become final. Finally they noted that article 6.3 requires that the final decisions of the court should be binding on a public body holding environmental information (paragraph [100]). In light of these provisions, they held that it would be impermissible for the government to have another attempt at preventing the release of the letters, and therefore regulation 18(6) EIR 2004 was incompatible with article 6 of the 2003 Directive (paragraph [103]). However, that conclusion only applied to the environmental information (paragraph [111]).

Lord Wilson disagreed on this issue, holding that making a section 53 certificate in relation to environmental information whose release had been ordered by a court or judicial tribunal was not incompatible with the provisions of the 2003 Directive.

Conclusion

The Supreme Court’s decision means that the letters will now have to be released and made public. This will undoubtedly be a disappointment to Prince Charles, who values his privacy and wrote the letters on the understanding that they would remain private.

The Guardian’s decision to pursue the release of the letters is, perhaps, a curious one. It appears to have been premised on the belief that the letters will show Prince Charles to be a political figure, whose actions have to be scrutinised as part of democracy. However, basic constitutional theory dictates that a monarch, or future monarch, has no influence on the government. Indeed it is the monarch who must follow ministerial advice. The government makes policy and is accountable for it. A monarch, with their wealth of knowledge on state affairs, is entitled to consult, encourage and warn their government in the interests of the nation. But a monarch can have no influence on policy. So is there a need to see their communications to government, when the views contained within may show a political persuasion and compromise the public political neutrality which is so important for every monarch, who remains head of state whatever the political position of the government of the day?

What are your thoughts?

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