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?

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?

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?

Court of Appeal Rules Trial Cannot be Held in Secret

The Court of Appeal has today ruled that a terrorism trial cannot be held entirely in secret and the names of the defendants cannot be withheld.

Background

The Crown Prosecution Service (CPS) brought terrorism charges against two defendants, known as AB and CD. AB is charged with preparing acts of terrorism under section 5 of the Terrorism Act 2006, and with collecting information likely to be useful for terrorism under section 58 of the Terrorism Act 2000. CD is also charged with an offence under section 58 of the 2000 Act, and with possession of false identity documents with an improper intention under section 4 of the Identity Documents Act 2010.

Much of the evidence to be relied on has been obtained by the work of the intelligence services. It is by its very nature secret. Therefore the prosecution applied to have the entire trial conducted in private with the names of the defendants withheld. The application was supported by Ministerial Certificates from the Home Secretary and the Foreign Secretary which set out why the evidence should be kept secret. Mr Justice Nicol initially dealt with the application.  Part of the hearing was open, part was in private (in the absence of the media), and part was held in the absence of all except the prosecution (known as an ‘ex parte’ hearing) (this is where the highly sensitive material was discussed). Nicol J’s two primary conclusions were, firstly, that the trial could be conducted entirely in camera (in private) and, secondly, the defendants’ names could be withheld.

The media appealed both of these conclusions to the Court of Appeal under section 159 of the Criminal Justice Act 1988. Sitting in the Court of Appeal, Lord Justice Gross, Mr Justice Simon and Mr Justice Burnett overturned Mr Justice Nicol’s decision.

The court noted that open justice is a fundamental principle of the common law and a way of ensuring public confidence in the legal system (for more on the common law, see this article). The reason for this is clear: if we can see justice in action and can verify that the course of justice proceeds correctly, we can have confidence in the justice system. The court said exceptions to the principle of open justice are rare and must be ‘necessary and proportionate’.

The court further noted that national security is also a national interest of the highest importance, and the work of the security services must remain secret as a matter of necessity. Consequently, tensions can arise between the secrecy demanded by national security and the openness demanded by open justice.

The court explained that the tension between national security and open justice is resolved according to the following principles:

• Firstly, considerations of national security will not by themselves justify departing from open justice.
• Secondly, open justice must, however, give way to the more fundamental principle that justice must be done. Therefore, where there is a serious possibility that insisting on open justice in the national security context would frustrate justice by, for example, deterring a prosecution where there should be one, a departure from open justice may be acceptable.
• Thirdly, the question of whether to give effect to a Ministerial Certificate (which states the need for secrecy) is for the court. However the court will not lightly depart from an assessment made by a Minister.

Applying these principles, the court held, firstly, that there was a significant risk that the administration of justice would be frustrated if the trial were to be conducted in open. Indeed, the prosecution might not continue at all if it was forced to reveal secret information in public. Therefore it was necessary that the core of the trial must be held in camera. However, there would be no risk to the administration of justice if the following elements of the trial were heard in open court:

• Swearing in of the jury;
• Reading the charges to the jury;
• At least part of the judge’s introductory remarks to the jury;
• At least part of the prosecution’s opening;
• The verdicts; and
• If any convictions result, sentencing (subject to further legal argument).

These elements will therefore be conducted in open court.

The court held, secondly, that given the core of the trial would be held in private, there was no risk to the administration of justice requiring the names of the defendants to be withheld. They can therefore be named as Erol Incedal (AB) and Mounir Rarmoul-Bouhadjar (CD).

Accordingly, the Court of Appeal disagreed with Mr Justice Nicol on both issues. Although it permitted the core of the trial to be held in private, it refused to permit an entirely secret trial and declined to withhold the names of the defendants. It added the following warning: ‘We express grave concern as to the cumulative effects of (1) holding a trial in camera and (2) anonymising the defendants. We find it difficult to conceive of a situation where both departures from open justice will be justified’.

Comment

This decision should be welcomed. The very core of British justice is open justice. Indeed, it is said that ‘…justice should not only be done, but should…be seen to be done’. An entirely secret trial would have set a dangerous precedent. While it cannot be said a trial should never be entirely secret (where the interests of justice so require), it can be said that only the most exceptional circumstances will justify this course. Those circumstances were not present here.

What are your thoughts on open justice?

Court of Appeal Overturns Legal Aid Judgment: Abuse of Process Law

The Court of Appeal has overturned the decision to halt a major fraud trial after barristers refused to represent the defendants because of cuts to legal aid.

R v Crawley

A few weeks ago I discussed the case of R v Crawley. It is a £4.5 million fraud prosecution brought by the Financial Conduct Authority as part of Operation Cotton. It concerns alleged land banking fraud, where land is divided into smaller plots and sold to investors on the basis that it can be developed and will soar in value; but the land is often protected with little chance of development being permitted, meaning it is worth a great deal less than the investors paid.

However, barristers have not been found to represent the five defendants because all barristers have refused to undertake the work at the new legal aid rates for Very High Cost Cases (VHCC), which were slashed by 30% in December 2013 by the Government. The barristers that had initially undertaken to do the work returned their briefs when the fees were cut.

Alexander Cameron QC, the Prime Minister’s own brother, appeared pro bono (for free) on behalf of the defendants and argued that they could not receive a fair trial without being properly represented in this hugely complex matter. Further, it was contended no independent barristers would take the case in the future, and there was no realistic prospect of sufficient defence advocates being available before January 2015 from the Public Defender Service (PDS) (a small group of defence lawyers employed directly by the Government). He therefore requested a stay on the proceedings (that is, indefinitely halting them).

Judge Anthony Leonard QC, sitting at Southwark Crown Court, agreed. He made two broad conclusions. Firstly, he held:

‘I am compelled to conclude that, to allow the State an adjournment to put right its failure to provide the necessary resources to permit a fair trial to take place now amounts to a violation of the process of this court.’

Secondly, he found:

‘Even if I am wrong about that, I further find that there is no realistic prospect that sufficient advocates would be available for this case to be tried in January 2015 from any of the sources available to the defence, including the PDS. Whatever reason is put forward by the party applying, the court does not ordinarily grant adjournments on a speculative basis’.

For those reasons Judge Leonard QC held that the prosecution was an abuse of the court’s process and stayed (stopped) the proceedings indefinitely. For the full article on Judge Leonard QC’s decision, which sets out the entire background, see this earlier article. Judge Leonard QC’s decision can be read here.

The prosecution appealed the ruling under section 58 of the Criminal Justice Act 2003, seeking to reverse the ruling. Under section 67 of the 2003 Act, rulings may only be reversed by the Court of Appeal where it is satisfied the ruling was wrong in law, involved an error of law or principle, or was not reasonable for the judge to have made.

An expedited appeal was heard on 12 May and judgment was handed down on 21 May. The Court of Appeal overturned Judge Leonard QC’s decision.

The Court of Appeal Judgment

In the Court of Appeal Sir Brian Leveson, President of the Queen’s Bench Division, noted that the judge’s two broad conclusions covered both categories of abuse of process. The two categories are:

1) Where the court concludes that the defendant can no longer receive a fair hearing. The focus in this category is firmly on the trial process itself. Where there cannot be a fair trial, the proceedings will be stayed;

2) Where the court concludes that it would be unfair to try the defendant. The focus in this category is on the integrity of the justice system. It applies where the court considers the defendant should not be on trial at all, even if the trial itself could be fair. For example, it will often be unfair to try a defendant where there has been bad faith, unlawfulness or misconduct by the authorities.

Ordering a stay of proceedings is a remedy of last resort. A stay should never be ordered where a lesser remedy will be just and proportionate in all the circumstances.

The Court of Appeal said the judge’s first conclusion engaged the secondary category of abuse. That is to say the first conclusion was to the effect that a stay was necessary to protect the integrity of the justice system because the Government had failed to provide representation. The Court said the judge’s second conclusion engaged the first category of abuse. In essence, it would be unfair to try the defendants because a trial has to take place in a reasonable time but there would not be any defence barristers available in that time; it would be unfair to try the defendants without representation. The Court of Appeal dealt with each of the judge’s conclusions in turn.

As to the first conclusion, the Court of Appeal held it was wrong to link the Financial Conduct Authority with those responsible for providing legal aid as two parts of the State. To conclude the State had violated the process of the court or that the integrity of the justice system had been jeopardised was simply wrong as a matter of principle.

In relation to the second conclusion, the Court of Appeal made a number of findings. Firstly, it held the judge was wrong to consider whether the PDS was able to cover all upcoming VHCC trials. Secondly, since PDS advocates accepted cases on a first come, first served basis, at the time there was a potential pool of advocates available for an adjourned trial in January 2015. The judge was wrong to think that the defendant’s solicitors could wait until October 2014 to instruct barristers (the latest time to allow for preparation for a January 2015 trial), and that by that time all the PDS advocates would be instructed on other matters, because he had also said no independent barristers would accept the work at the new legal aid rates. Therefore only PDS advocates would be available and they should have been instructed at the time. The judge was wrong to conclude advocates would be unavailable; there were sufficient PDS advocates available.

Overall, the Court of Appeal concluded that Judge Leonard made errors of law or principle and a number of his conclusions were not reasonably open to him. His ultimate finding did not constitute a reasonable exercise of the discretion open to him.

Accordingly, the case will be returned to Southwark Crown Court for trial.

The Court of Appeal’s judgment can be read here.

Comment

For my own part, the decision of the Court of Appeal is, with respect, incorrect.

It is fallacious not to treat the Financial Conduct Authority and the Ministry of Justice (which provides legal aid) as part of the unified State. If the FCA did not exist to prosecute fraud concerning financial services, then the State would create a body to do so; it is undeniably part of the State. Moreover, although the FCA is in no way responsible for legal aid, the State, as a whole, is responsible for legal aid. Granting an adjournment to allow a trial in January 2015 after the State’s reduction in legal aid resulted in a lack of legal representation indisputably benefits the State, irrespective of whether there is any fault. It was reasonable for the judge to conclude that such a benefit would violate the court’s process.

Furthermore, it seems to me that it was reasonable for the judge to consider the availability of PDS advocates for all VHCC trials. Even if enough advocates were available for this trial were they instructed immediately, the probability is there will be insufficient advocates for future cases. If independent barristers do not accept the cases, which is not likely, we shall again revisit the position of insufficient advocates for trials. Applications to stay prosecutions will surely follow.

It is vitally important, as the Court of Appeal noted, that there are sufficient high quality advocates for the justice system to function efficiently and justly. The Government cannot and should not ignore this. It is therefore imperative that the Ministry of Justice and independent barristers engage to end their dispute.

What are your thoughts?

Lee Rigby Killer to Appeal Conviction

One of the two men found guilty of the horrific murder of solider Lee Rigby is to appeal against his conviction. What is the law on appeals?

Introduction

In December 2013, Michael Adebolajo and Michael Adebowale were found guilty of murdering the solider outside his army barracks in Woolwich, south London. The pair is yet to be sentenced. The judge, Mr Justice Sweeney, adjourned sentencing to await the outcome of another appeal which is considering whether whole life sentences are lawful (for more information on that appeal, see this article).

Adebolajo is now seeking to appeal against his conviction. He will be appealing on five separate grounds, one of which is that the judge refused to allow his defence – that he was acting as a soldier – to be determined by the jury. He alleges that the United Kingdom is at war with Muslims and therefore his attack was a military strike. In English law, murder cannot be committed in the heat and exercise of war, so a military strike can theoretically be a defence.

What is the law on appeals against conviction?

Appeals Against Conviction: Permission

Adebolajo is entitled, as are all convicted offenders, to appeal against his conviction under section 1 of the Criminal Appeal Act 1968. In order to appeal, section 1 of the 1968 Act provides that the offender has to obtain permission (or leave) to appeal from the Court of Appeal. Alternatively, the trial court can grant permission within 28 days of the conviction. Ordinarily it is necessary to seek permission from the Court of Appeal. The application for permission to appeal (which identifies the reasons, or grounds, for appeal) must be made within 28 days of the conviction, under section 18 of the 1968 Act.

The grounds for appeal are normally 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. Should the application for permission to appeal be 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, normally by three judges.

Appeal Against Conviction: Grounds for Appeal

In the event that leave to appeal is granted, the question to be determined at the appeal is set out in section 2 of the 1986 Act. That provides that an appeal will be successful if, and only if, the Court of Appeal considers that the conviction is ‘unsafe’.

Any argument can be deployed to contend that a conviction is unsafe. Common arguments focus on evidence that was arguably wrongfully admitted or excluded, alleged errors on the part of lawyers, defects in the indictment and the conduct of the judge.

In the event that the Court of Appeal agrees the conviction is unsafe, it shall quash the conviction under section 2 of the 1968 Act. It may order a retrial under section 7 of the 1968 Act if the interests of justice so require. Otherwise section 2 provides the defendant shall be treated as though they were acquitted at trial – that is, found not guilty.

Comment

I would be surprised if Adebolajo’s appeal is successful. The evidence against him was remarkably strong. It is almost impossible to argue he killed Lee Rigby in the course of a war, and certainly not in the heat of a war. Even if there were errors during the trial, it would be surprising if they were enough to convince the Court of Appeal that Adebolajo’s conviction is unsafe.

Government Argues Whole Life Sentences Can Be Imposed Despite Ruling by European Court of Human Rights

Introduction

The Government has argued in the Court of Appeal that whole life sentences can be imposed for the most serious crimes, despite a ruling by the European Court of Human Rights that whole life sentences are unlawful in their current form.

In July last year, the European Court of Human Rights ruled in Vinter v United Kingdom (2013) that whole life sentences – or whole life orders – amount to inhuman and degrading treatment, and therefore breach article 3 of the European Convention on Human Rights (ECHR), because there is no option for them to be reviewed and so no possibility of release for the offender. For more information on the Court’s judgment, see this article.

The case in the Court of Appeal concerns two individuals. The first is Ian McLoughlin, 55, a convicted double killer. McLoughlin was not given a whole life sentence when he was sentenced for his second murder last year because of the European Court’s ruling. Instead, he was given a life sentence with a minimum term of 40 years (for more information on sentences for murder, see this article). The Attorney General, Dominic Grieve, is appealing this sentence, arguing that the sentence passed was ‘unduly lenient’ under section 36 of the Criminal Justice Act 1988 and that a whole life order should have been imposed. He argued that the European Court’s ruling does not prevent whole life sentences being ordered.

The second individual is Lee Newell, 45, also a convicted double killer. He is appealing against a whole life sentence imposed in him last year, arguing that it was unlawful because of the European Court’s ruling.

It is for the Court of Appeal to determine whether whole life sentences remain justified. The appeal was heard on Friday (the 24^th).

The Government’s Argument

The Government argued that whole life orders do not breach article 3, despite the European Court’s ruling, because of section 30 of the Crime (Sentences) Act 1997. This provides that the secretary of state may release a life prisoner if there are exceptional circumstances to justify the release on compassionate grounds. The Government argued that whole life prisoners could use this section to apply for their release because, for example, they have rehabilitated. This would then lead to the review that the European Court has said is necessary to avoid breaching article 3.

It might be thought surprising if this argument is successful: it was rejected by the European Court in Vinter. It was rejected because the power in section 30 is only exercised in restricted circumstances. Prison Service Order 4700, chapter 12, provides the power of release will only be used where, amongst other things, a prisoner is suffering from a terminal illness or is bedridden or similarly incapacitated. Therefore the European Court was not satisfied that this provided a general right of review where a prisoner was claiming that their imprisonment was no longer justified because, for example, they had rehabilitated. This is seemingly powerful reasoning.

However, it is open to the Court of Appeal to read section 30 in a way that requires a general review where a prisoner is claiming there are no longer any grounds – such as punishment or deterrence – to justify their continued imprisonment, so that English law is compatible with article 3. It is entitled to do this under section 3 of the Human Rights Act 1998, which requires all legislation to be read compatibly with the ECHR so far as it is possible to do so. The Court of Appeal has previously contemplated this option, in a case called R v Bieber (2008).

An Alternative Argument

An alternative argument for the Government, and one which I believe was more appealing, was simply to contend the judgment in Vinter was wrong and that in those exceptional circumstances our courts should decline to follow it, an approach adopted in R v Horncastle (2009), a case concerning hearsay evidence.

Why was the decision wrong? In Vinter the European Court of Human Rights considered that reviews were necessary because it would violate human dignity not to allow an individual the chance to rehabilitate. However, as I pointed out in this article, this missed the point. Whole life sentences in England and Wales are imposed when the seriousness of an offence is exceptionally high. We have adopted the policy that some offences are so serious that the only suitable punishment is imprisonment for the remainder of the offender’s life; the offender forfeits their right to rehabilitate. Punishment of the offender and, to a lesser extent, deterring others from committing similar crimes justifies the sentence alone. There is no issue of rehabilitation since we have determined that the severity of some offences warrants a punishment where there is no prospect of rehabilitation. The real issue, then, is whether that approach is justified.

Whether that approach is correct or not – whether punishment and deterrence should trump rehabilitation – is not, I do not believe, a question suited to determination by a court. It is an unresolved philosophical question which legislators should decide until society is settled on how far punishment can justify prison sentences. If the Court of Appeal takes this option, and rules that whole life sentences can continue to be imposed on the basis that the judgment in Vinter misunderstood the nature of English law, then the issue can doubtlessly be revisited in due course by the European Court of Human Rights.

Conclusion

This is an important case. It was heard by five judges rather than the normal three: the Lord Chief Justice, Lord Thomas, sat alongside Lord Justice Leveson, president of Queen's Bench Division; Lady Justice Hallett; Lord Justice Treacy, who heads the sentencing council; and Mr Justice Burnett. If the Government loses the appeal it will strain the United Kingdom’s relations with the European Court even further.

Mairead Philpott Loses Appeal Against Sentence

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

Background Facts

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

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

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

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

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

The Appeal: Procedure

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

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

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

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

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

The Appeal: Arguments and Judgement

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

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

Conclusion

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

What are your views?

Further Arguments on Cameras in Courts

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

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

An Argument Against Broadcasting Trials

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

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

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

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

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

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

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

Conclusion

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

What are your thoughts?

Cameras in the Court of Appeal

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

A Change in the Law

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

The First Case

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

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

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

Final Thoughts

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

What are your thoughts on televised proceedings?

Cameras in Courts: to be Welcomed?

Today, the Government has confirmed that it will allow filming in the courts from October.

Initially, filming will be allowed in the Court of Appeal and broadcasters will be permitted to show pictures of the lawyers involved and the judges. The Government hopes to then extend filming to the Crown Court, where images of judges passing sentence would be allowed to be broadcast. The Government says broadcasting court proceedings will make the justice system more transparent and will build trust in the justice system.

So is broadcasting court proceedings a good idea? I shall now summarise some of the main arguments for and against filming in the courts.

Arguments in favour of filming in court 

1) Filming court proceedings would make the justice system more transparent and build trust in the justice system because the public could see justice in action.

2) Filming court proceedings would improve understanding of the justice system.

3) It would allow the public to see the very important work of legal professionals and the court system, and encourage appreciation of them.

4) Finally, and related to the third point, the public would support a fully funded court and legal aid system because it would see the value of them.

Arguments against filming in court

1) Filming in the courts would not necessarily build trust in the justice system. For example, televising MPs in Parliament has not made the public trust politicians any more.

2) Televising the courts would not necessarily improve public understanding. The public sees Parliament on television but does not seem to understand it much better. Moreover, it could positively cause misunderstanding. If only part of the proceedings are televised it might mislead the public as to the true nature of a case.

3) Seeing the work of the courts would not inevitably mean that the public appreciates it any more. The public sees Parliament in action but does not appreciate it any more.

4) The public would not support more funding for the courts and legal aid simply because proceedings are televised. Once again, Parliament is televised but the public certainly does not support a salary increase for politicians.

5) Filming court proceedings could affect the behaviour of those involved. Witnesses and, to a lesser extent, lawyers may ‘act up’ for the cameras.

All of these arguments do not deal with the issue of whether the public would even find televised court proceedings interesting. For example, the appeal courts almost exclusively deal with questions of law, they do not deal with the facts of a crime. Would the public be that interested in listening to, often complex, legal arguments? That said, proceedings in the Supreme Court (the highest court in the land), which also deal with complex legal arguments, are televised already (see here) and apparently have 90,000 daily viewers.

What are your thoughts? Do you think televising court is a good idea? Would you find it interesting?

CRB Checks to be Relaxed

The Home Office has today announced plans to relax CRB checks. Thousands of job applicants will consequently no longer have their criminal past disclosed to employers.

The announcement follows a Court of Appeal ruling in January that blanket checks for certain positions did not comply with human rights laws. It was initially thought that the government would appeal the ruling.

Criminal record checks are carried out on new employees for certain positions by the Disclosure and Barring Service (DBS), previously known as the Criminal Records Bureau. For particular positions, such as those involving work with children and vulnerable adults, all of an individual’s previous convictions must always be declared, even if they are very old, very minor and irrelevant to the individual’s new job.

It was this part of the law that the Court of Appeal found incompatible with human rights. It held that the checks were incompatible with an individual’s right to a private life under Article 8 of the European Convention on Human Rights. For the original article on the Court of Appeal ruling, see here.

Under the proposed legislation, convictions resulting in a non-custodial sentence will be filtered from CRB checks after 11 years for adults. For young offenders the period will be five and a half years. Cautions will be filtered from CRB checks after 6 years for adults and 2 years for young offenders.

However, serious violent and sexual offences and those offences resulting in a custodial sentence will always be disclosed as part of a criminal record check. A previous conviction will also not be filtered if an individual has other previous convictions.

The new system is expected to be implemented within weeks.

The Home Office article on the new changes can be read here.

The Law and CRB Checks

The Rehabilitation of Offenders Act 1974 (and other laws) creates a system which allows an individual to treat certain convictions and warnings as ‘spent’. That is to say after a certain amount of time an individual can treat themselves as having never committed an offence. They do not need to tell most employers about their offending and cannot be refused employment because of it. A ‘standard CRB check’ would not show spent convictions.

However, for certain positions, many of which involve working with children and vulnerable adults, the law requires all previous offences and warnings to be declared. For these positions a conviction never becomes spent. An ‘enhanced CRB check’ would show all previous convictions, cautions and warnings. It was this part of the law that the Court of Appeal found incompatible with human rights. When the new law is in force, certain convictions and cautions will be filtered from all CRB checks (including enhanced checks), as detailed above, so that the concerns raised by the Court of Appeal are answered.

Attorney General Rejects Call to Refer Huhne and Pryce Sentences

The sentences imposed on Chris Huhne and Vicky Pryce will not be referred to the Court of Appeal, the Attorney General has confirmed.

In a letter to David Burrowes MP, the Attorney General, Dominic Grieve, rejected the MP’s call to refer the sentences to the Court of Appeal for being ‘unduly lenient’.

Huhne and Pryce were sentenced to eight months each in prison, following their convictions for perverting the course of justice after swapping speeding points. Further details on the sentences and the convictions can be found in this article.

The MP had asked the Attorney General to use his power to refer cases to the Court of Appeal where it is thought the sentence is unduly lenient. The Court of Appeal can then increase the sentence if it agrees.

In his response the Attorney General explained that his power to refer cases was ‘exceptional’ and to be used only where the sentencing judge falls into ‘gross error’. The Attorney General concluded, after reference to the sentences given in similar cases, that the sentences passed on Huhne and Pryce were not ‘characteristic of the gross error required’ for a referral to the Court of Appeal. The sentences will therefore remain the same.

The Attorney General’s letter can be read here.

For the original article on the referral by David Burrowes MP, see here.

The Law on Appealing Unduly Lenient Sentences

Sections 35 and 36 of the Criminal Justice Act 1988 allow the Attorney General to refer certain sentences to the Court of Appeal (Criminal Division) if he or she thinks a sentence is ‘unduly lenient’. The Attorney General must obtain the leave (permission) of the Court of Appeal to make a reference to it. Leave must be applied for within 28 days of the sentence being passed. If the Court of Appeal grants leave it will then review then sentence. It can then pass a sentence that it regards as appropriate, extending it if necessary.