Right to Die Campaigners Lose Appeal at Supreme Court

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

More to follow.

A Right to Die – Part 1: The Background

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

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

The Issue

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

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

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

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

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

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

Previous Cases

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

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

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

The Current Case

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

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

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

Thoughts on the Case

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

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

What are your thoughts? Should we allow assisted suicide?

Supreme Court Confirms CRB Checks Breach Human Rights

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

Background

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

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

Article 8

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

These arguments required the Supreme Court to determine three issues:

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

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

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

I will discuss each of the issues in turn.

Interference

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

In Accordance with the Law

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

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

Necessary in a Democratic Society

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

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

Comment

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

What are your thoughts?

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

Introduction

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

Children

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

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

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

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

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

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

Sexual Offences

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

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

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

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

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

Name and Other Matters

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

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

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

Conclusion

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

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

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?

Teenager Will Not be Retried for Terror Offences

A teenager who was allegedly plotting to carry out a ‘Columbine-style’ terror attack will not face a retrial for terror offences after a jury was unable to reach a verdict.

Michael Piggin, 18, from Loughborough, was charged with possessing items for the purpose of terrorism and with possessing a document containing information likely to be useful for a person committing or preparing an act of terrorism. He had earlier pleaded guilty to possessing explosives and possessing a knife in a public place.

It was the second time the teenager had faced the charges after another jury failed to reach a verdict in November 2013, when Piggin was 17 and could not be named because of his age.

The prosecution had alleged that the teenager was planning a ‘Columbine-style’ attack in his home town, after air rifles, component parts of pipe bombs, a crossbow and swastika flag were found in his bedroom. Videos were shown of him making Neo-Nazi salutes, shouting ‘EDL’ outside a mosque, writing racist graffiti on a wall and throwing petrol bombs behind a leisure centre.

Piggin, who was diagnosed with Asperger’s syndrome after his arrest in February 2013, said he wrote about attacks to cope with bullying. He said he tested explosives ‘for entertainment’. He denied possessing a Mujahideen Poisons Handbook. Throughout the trial he denied having any real plan for attacks and said it had ‘just been in his head’. Further, he said he ‘didn’t have a problem with Muslims in general’ and described his racist comments as ‘banter’.

He will be sentenced on 13 June for the offences he pleaded guilty to.

What is the law on the offences Piggin was charged with?

Terrorist Offence: Possessing Items for Terrorist Purposes

The offence of possessing items for terrorist purposes is located in section 57(1) of the Terrorism Act 2000. It provides that a person is guilty of an offence if they possesses an article in circumstances which cause reasonable suspicion that the possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.

Section 1 of the Terrorism Act 2000 defines ‘terrorism’ as:

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

‘Action’ includes:

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

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

Under section 57(3) of the 2000 Act, if it is proved that an article was at the same premises as the defendant, or at premises they occupied or habitually used (except for public places), the court may assume the defendant possessed the article unless the defendant proves they did not know of the presence of the article or had no control over it.

Under section 57(2) of the 2000 Act, it is a defence for a person to prove that the article was possessed for a reason unconnected with terrorism.

The maximum penalty on conviction is 15 years’ imprisonment: section 57(4) of the 2000 Act.

Terrorist Offence: Documents Likely to be Useful to Terrorists

The offence of possessing a document containing information likely to be useful for a person committing or preparing an act of terrorism is found in section 58(1) of the Terrorism Act 2000. It provides that a person is guilty of an offence if he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or if they possess a document or record containing information of that kind.

Section 58(2) of the 2000 Act makes it a defence for a person to prove they had a reasonable excuse for their action or possession.

The maximum penalty on conviction is 10 years’ imprisonment: section 58(4).

Possessing Explosives

Under section 4(1) of the Explosive Substances Act 1883, a person who makes or knowingly has in their possession (or under their control) any explosive substance in circumstances causing reasonable suspicion that they are not making or possessing them for lawful reasons shall be guilty of an offence, unless they can show it was made or possessed for a lawful reason.

The maximum penalty on conviction is 14 years’ imprisonment, and the explosives must be forfeited: section 4(1) of the 1883 Act.

A prosecution for this offence may only be brought with the consent of the Attorney General: section 7(1) of the 1883 Act.

Possession of a Knife in a Public Place

It is an offence under section 139 of the Criminal Justice Act 1988 for a person to have with them in a public place a blade or sharply pointed objected, unless it is a folding knife with a blade of less than three inches.

It is a defence under section 139(4) of the 1988 Act for a person to prove they had a good reason or lawful authority for having the article in a public place, or that they had it with them for use at work, religious reasons, or as part of any national costume.

The maximum penalty on conviction is four years’ imprisonment under section 139(6) of the 1988 Act.

It is also worth noting that carrying a knife in public can be charged as possession of an offensive weapon, under section 1 of the Prevention of Crime Act 1953.

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?