Vera Baird DBE KC

Chair Criminal Cases Review Commission. Member Women’s Justice Bd.
Ex Victims’ Commissioner, Solicitor Gen & PCC. Fellow St Hilda’s Oxford. Writer. Labour Party

Author: VBoffice

  • Salford Case

    Vera’s briefing on the controversial bail case of Police vs Hookway
    Salford case of Hookway and Police (Detention and Bail) Bill 2011
    Police and Criminal Evidence Act 1984
    1.What happened in Hookway case?
    He was arrested on suspicion of murder and detained from 12 40pm on 7th November 2010.
    (Note detention after arrest is in S37. If there is evidence sufficient to charge that he must be charged but;
    S37(2) PACE If the custody officer determines that he does not have such evidence before him the person arrested shall be released either on bail or without bail unless the custody officer has reasonable grounds for believing that his detention without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him
    S37(3) If the custody officer has grounds for so believing he may authorise the person arrested to be kept in police detention.
    S.41 of allows detention for max 24hours without being charged to start from “the relevant time” i.e the time of arrival at the police station, in this case 12 40pm 7th Nov 2010
    S.42 allows a Superintendent to extend detention beyond 24 hours (for similar reasons to those justifying original detention) “for a period expiring at or before 36 hours after the relevant time.”
    This was done
    S.43 allows application to the court for a warrant of further detention thereafter (WoFD), which has to be made before the expiry of 36 hours from the relevant time and can extend detention a further 36 hours.
    This was done.
    The timing was such that Hookway could have been kept until 6.22am on 10th November but he was bailed at 22.19 on 9th, leaving a balance of unexpired detention time of 8 hours and 3 minutes. He was required to return to the police station to answer to his bail and did so on 11th Nov, 18th Nov,8thJan 2011,13th Jan 2011 and 9th February 2011 and finally on 5th April.

    On 5th April the custody officer authorised his further detention. The police believed that they could use up to the unexpired detention time (authorised by the warrant under S43 in November 2010) of 8 hours and 3 minutes.
    As Mr Justice McCombe said in the judgement:
    “This proceeds upon the assumption that upon release following the issue of a warrant, if the period of the extension has not expired, that period remains in suspension until used up by later periods of detention”
    Further, the police applied to Salford Magistrates Court for an extension of the WoFD to keep Hookway beyond that 8hrs 3 minutes. S.44 allows such an application for an extension to a WoFD, to take the  total detention up to an absolute and final maximum of 96 hours from “the relevant time”.
    This is the application the Magistrate refused saying that he could not extend a warrant which had expired. The November warrant was dated 8.11.10 and said:
    “You, the constables of Greater Manchester Police Force are hereby authorised to keep the above named defendant in police detention for 36 hours from the time of the issue of this warrant”
    Mr Justice McCombe agreed that the warrant had expired and no extension was possible and also looked at the earlier periods of detention.
    He decided that:
    •    All the sections which relate to police detention without charge refer to timing the detention from “the relevant time”
    •    That means that there is a maximum of 96 hours, supposing all possible extensions are obtained which runs from “the relevant time”
    •    “The relevant time” in this case was 12 40pm on 7th November 2010
    •    Therefore the assumption set out above was incorrect, despite being used for many years. No unexpired balance of detention could remain once  96 hours had passed after “the relevant time”.

    Counsel for the police showed him S 47(6) of PACE which says:
    “Where a person who has been granted bail under this part and either has attended at the police station in accordance with the grant of bail or has been arrested under S46A (this is arrest for failing so to attend) any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls to be calculated under this Part of the Act”

    But McCombe rejected that as an answer saying:
    “I am afraid that I am unable to see how that subsection can operate to push back the date laid down expressly as the end date for any period of extension or warrant of further detention that has been set out in S44 (3) It simply provides that if a suspect had been released on bail the time in detention must count in any period which “falls to be calculated under this part of the Act” If a period has expired it no longer falls to be calculated at all.”

    Thus he found it determinative that the provisions of PACE all require that detention time is counted from “the relevant time”

    Professor Zander THE authority on PACE) thinks he is wrong and so do I. The case is poorly decided because he looked only at the specific provisions and not at their purpose or their history.

    The Law
    S47(7) of PACE says “Where a person who was released on bail under this part subject to a duty to attend at a police station is re-arrested the provisions of this part of the Act shall apply to him as they apply to a person arrested for the first time but this subsection does not apply to a person who is arrested under S46A (for failing to attend in accordance with the grant of bail) or has attended at a police station in accordance with the grant of bail and who is accordingly by section 34(7) deemed to have been arrested for an offence”

    This means where someone is re-arrested because there is new evidence, the PACE detention clock starts again and all the periods of extension etc are available as if he were being “arrested for the first time”. But the second part of 47(6) says that that is not the case for someone either arrested for not failing to attend in accordance with the grant of bail or for someone who actually attends at a police station in accordance with his bail.

    So if the PACE “detention clock” does not start again for people in those second two categories what does happen when they attend the police station later?

    S 34(7) says “For the purposes of this part of the Act a person who
    •    returns to a police station to answer to bail granted under this part
    Is to be treated as arrested for an offence and that offence is the offence in connection with which he was granted bail.

    So he is treated as arrested for the original offence and s47(6) applies so that
    “ any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls to be calculated under this part of the Act”

    In a simple case if someone is detained 10 hours of the original 24 available, then bailed to return to the police station, when he attends he is treated as arrested for the original offence – s34(7)-  and via s47(6) the 10 hours he has already been detained is deducted from the 24 so that he can only be detained again for 14 more.

    The Hookway case was just more complicated because of all the extensions

    It is not good if legislation requires you  to look for obscure bits of it to make sense but S 47 was originally a lot clearer. It used to have a subsection (5) which was removed by the 1994 Criminal Justice and Public Order Act when it introduced a power of arrest for failing to surrender to bail. Prior to that S47 (5)and(6) said:

    S47(5) where a person arrested for an offence who was released on bail subject to a duty to attend at a police station so attends, he may be detained without charge in connection with that offence if the custody officer at the police station has reasonable grounds for believing ( it lists the ordinary grounds for detention)
    S47(6)where a person is detained under subsection (5) above any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls to be calculated under this part of the Act”
    Now there is no subsection (5) and (6) stands says
    S.47(6) Where a person who has been granted bail under this part and either has attended  at the police station in accordance with the grant of bail or has been arrested under S46A ( this is arrest for failing to attend in accordance with the grant of bail) any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls    to be calculated under this Part of the Act”
    The earlier version was much clearer and makes explicit that the unexpired balance of detention was intended to be available as an absolute rule, irrespective of whether the attendance at the police station in accordance with bail, occurs on a date after the expiry of the maximum of 96 hours from the “relevant time” at which the person was first detained.
    The New Bill

    The new Bill further amends S47(6)

    S.47(6) Where a person who has been granted bail under this part and either has attended  at the police station in accordance with the grant of bail or has been arrested under S46A ( this is arrest for failing to attend in accordance with the grant of bail)

    any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls    to be calculated under this Part of the Act”
    By adding “and any time during which he was on bail shall not be so included”
    This is to deal with McCombe’s finding that “any period which falls to be calculated under this part of the Act” (from 24 hours in the first instance through extensions to a maximum of 96 hours) has to run from “the relevant time” and expires as soon as that time passes chronologically whether the person is in custody or on bail during that time.
    The Bill says in effect you only count the time in custody “from the relevant time” not a continuous period because you exclude the periods when he is on bail.
    What was envisaged in 1984 was a continuous period of custody, starting from “the relevant time” and going to a maximum of 96 hours without charge but with the express provision, in the old s47(5) and (6) that if a person were released on bail during any of the authorised periods, the” detention clock” would not re-start from the beginning when he surrendered to bail . He would get a “credit” for the period he had already been in detention.
    PACE has been extensively amended over the years, by all Governments and is now, as typified by section 47 less clear as a consequence.
    The trend over the years has been to bail people for long periods and it is likely to be a dislike of police abusing their power under PACE  in this way, often putting  people on prohibitive bail terms for months and months that made Mr Justice McCombe sympathetic to an otherwise poor argument. In this case Hookway was on bail for 6 months, reporting to police repeatedly  AND they wanted to detain him afresh for an extra 36 hours on top of the unexpired balance of detention they had, when they ultimately re-detained him The suspect Mr Jefferies in the Joanna Yeates murder was on conditional  bail without for about three months, long after the culprit had admitted killing her.
    It is a shame that neither was McCombe asked to suspend the order nor  the Supreme Court asked to expedite the Appeal. SC said yesterday that they were unsure they could suspend the order themselves and were persuaded against it by the imminence of legislation and the delay from MY 19TH. It is notable that Professor Zander wrote an critique of the judgement published in Criminal Law and Justice Weekly  18th June edition, when the Coalition says it only received the judgment that day 18th June.

    A Better New Law
    A clearer way of clarifying the law which is not well-drafted after all the amendments would be to put S47(5) back in roughly as below and amend S47(6)to match.
    However, the politics of it is all for you!

    S47(5) where a person arrested for an offence who was released on bail subject to a duty to attend at a police station so attends, or has been arrested under S46A and is brought to a police station(irrespective of when this happens in relation to the “relevant time” from when his original detention started) he may be detained without charge in connection with that offence if the custody officer at the police station has reasonable grounds for believing that his detention without charge is necessary to secure or preserve evidence relating to the offence for which he is under arrest or to obtain such evidence by questioning him
    S47(6)where a person is detained under subsection (5) above any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls to be calculated under this part of the Act”

  • Ken Clarkes 50% sentence discounts

    Vera appeared on the Today programme on the 18th of June and wrote this follow up to her comments on Ken Clarke\’s proposed 50% sentence discounts.

    Ken Clarke’s comments on rape were not “ a factual statement” that some rapes are more serious than others, as he pretended when doorstepped by TV cameras on Friday.  Crimes vary in gravity, of course, but  in his interview with Victoria Derbyshire he contrasted “classic rape” or “proper rape” which he described as a man jumping out of a bush and raping someone,  with “date rape” for purposes of suggesting that a five year sentence was not the standard for the far more serious first kind. This was his blustering response to being confronted with the reality that rapists may serve only 15 months in prison if his plan to halve sentences for guilty pleas is adopted.
    It is that contrast which has provoked the wrath and despair of women campaigners who for years have worked to  overcome the prejudice that by consenting to be in a man’s company or having had an earlier relationship with him, women somehow half-imply consent to sex so that any rape that follows is not a “proper rape”.  Since 80% of rapes are committed by people known to the victim, there are a lot of women who have suffered the consequences of this kind of attack and of the “well what do you expect” tendency in public opinion and criminal justice. This kind of prejudice is a big reason why only about one in ten women who are raped complain to the authorities at all. The rest keep well away, expecting to be greeted by a Ken Clarke-like figure who belittles their suffering by believing that they haven’t been properly raped.
    Rape is mostly done by former partners or friends. There is abundant psychological research to show that “acquaintance rape” can have worse consequences on the survivor than “out of a bush rape” because it makes the victim call into question her own judgment for being with the man whilst leaving her with the overall trauma any kind of rape invariably leaves.  The Sentencing Guidelines make clear that acquaintance rape is just as serious as stranger rape but Mr Clarke shares the public prejudices to the contrary. For the record, the starting point for a sentence for any kind of rape is precisely 5 years and defendants serve only have of that in custody so that halving five years will produce a period to serve of the 15 months Mr Clarke got himself in trouble trying to deny.  Don’t take it from me – the Council of Circuit Judges was in the Mail last Wednesday morning saying so.
    Thus far Mr Clarke doesn’t know that he is out of date in counting stranger rape more serious than other rape and thinks the sentence for rape is more than five years when it isn’t. His stupidity was brought on by  junior minister, Crispin Blunt who specifically asserted that halving sentences was just the job for rape complainants who would not have to testify since their assailants would be induced to stop” messing about” as Mr Clarke put it and plead guilty. I should think Downing Street is furious with Blunt for focussing the measure on the least suitable crime.
    A defendant does not plead guilty and take a discounted sentence for any other reason but that he strongly expects to be found guilty and given an undiscounted one. Of rape cases which are reported 7.5% produce a guilty verdict or plea of guilty in the end. Who will plead guilty when he has at that stage, a 92.5% chance of being acquitted? Try thinking sometimes Mr Clarke.

  • Feminism in London Conference

    Vera’s address to the seminar on: Feminism in violence against women policy
    The emergence of a feminist understanding, at first of the hidden crime of domestic violence, impacted hugely on policy on violence against women in the longer run.

    •    It was essentially the Refuge Movement that first counted the figures and demonstrated that DV was not something that was done by a few cruel and unusual men.
    •    That violence in the home was as to more than 90%, by men on women
    •    That its prevalence was astonishing

    Until then, domestic violence was seen not only as a private matter, but also as quite ordinary, if unfortunate. It was what happened in households when marriages were under stress – she nags, he hits. – the two battle forms of women and men. That is certainly what the police always thought and I am not sure that they do not think that sometimes now.

    BUT

    There was a limited adoption into policy of the emerging feminist understanding that this was a state matter not a private matter.
    There were two policy points
    •    To give her a remedy that would stop him from hitting her
    •    To get domestic violence recognised as a specific wrong, not just part of the ups and downs of domestic life

    The first appearance of violence against women in Parliamentary politics was in 1976 when Jo Richardson, Labour MP for Barking, introduced a Bill to give women who suffered from domestic violence the right to apply for an injunction.

    Prior to that a few women had brought applications to the court which had to be brought under the law of tort.  Although assault is a criminal wrong it is also a tort, something for which a victim can sue for damages. A woman had to sue for damages for assault and apply for an injunction ordering him not to hit her again, as an interim order while the case for damages was getting to court. This was really a legal fiction because no DV sufferer was going to sue for damages. I did some of these cases when a young barrister.

    Jo’s Bill gave a special right to ask just for an injunction to victims of domestic violence, cutting out the legal fiction but still leaving the initiative to the woman.
    It was a private law remedy. She had to sue rather than the State prosecuting him.

    The Wilson Government took up Jo Richardson’s Bill and it became law.

    Injunctions could be to order him
    (1) to  stop hitting her and/or  (2)  Leave the house.
    Rare to get an “ouster” injunction telling him to go
    Judges thought that the man would be paying the rent and was entitled to live in “his own home” and to be with his children,

    Injunctions are granted “on the balance of convenience” That means that it is wiser to grant it than not and Judges at least thought it better to give her the protection of ordering him not to hit her.

    But it was also rare to get a power of arrest attached to an order not to hit her, though it was available in the legislation.
    That meant that injunctions were registered with the police and if the perpetrator started to assault her, she could call the police who would execute the injunction power of arrest.

    Judges worried that having a power of arrest would give her too much power over the perpetrator.
    If they had an argument, she could threaten to have him arrested and make the police into her accomplices in their domestic battles.
    What she had to do instead was to go back to court and issue further papers to ask for him to be convicted of contempt of court for breaking the injunction not to hit her.
    That would not be much use as a deterrent compared to the intervention of a police officer when the perpetrator is beating her up.
    Jo was a great woman. She made the first ever policy and legislative progress for domestic violence victims. Though it was small progress.

    The Heilbron Report on rape was instigated by feminist protest about the case of R v Morgan in 1976. That case upheld the rule that if a woman had suffered forced sex but the man believed she was consenting, however unreasonable that belief was, then he was not guilty. The requirement that there could be no defence unless that belief was reasonable was not brought into the law until 2003 but Heilbron recommended that the rape complainants should be kept anonymous because of the intimate nature of the evidence they had to give. Another partial victory for feminism; and a tribute to another woman ahead of her time, Mrs Justice Rose Heilbron and a tribute to the then Labour Home Secretary, Roy Jenkins who implemented her recommendation.

    These first faltering policy steps disappeared totally from policy during the intervening years of Conservative Government. When I went into Parliament I searched Hansard for any reference to domestic violence after Jo’s Bill and found a couple of mentions by Labour women with no response from the Government.

    However, as Jill Radford described in her talk to you, feminism gave rise to refuges, rape crisis and other women’s services during that period and though they frequently struggled for funding, they were supported and championed by many active political women. Feminists outside and inside the Labour Party pursued the need for more women MPs so as to make policy advance in these areas again. Labour adopted the policy of All Women Shortlists, in which certain constituencies were allowed to choose their Parliamentary candidate only from women applicants, thus guaranteeing an increase in numbers of women. In the 1997 General Election over a hundred women MPs were elected, most of them Labour. At least a handful had been actively involved in violence against women issues outside Parliament and they determined that more policy progress would be made.

    In 1997 there were All Party Groups of MPs with an interest in beer, in whisky, in cider and in a lot of Indian Ocean Islands it was nice to visit, but no All Party Group on Domestic Violence Against Women. These women set one up, campaigned for support, lobbied Ministers, won a White Paper then a Strategy on Domestic Violence, some cash for refuges and RCCs, and promoted the idea that Domestic Violence is criminal.

    Continuing to work with feminist colleagues outside Parliament, they put  violence against women – in the form of rape and domestic violence – onto the  mainstream agenda. There was no need for a private members Bill this time, Government introduced Bills on both sexual and Domestic violence.

    There were still ideological issues to work out as we moved into policy formation

    It was necessary to re visit the issue of private enforcement v public enforcement by the State.

    Giving women the right to get injunction still inferred this violence was a private issue on which she needed to take private action – in principle it should be public issue like other crime

    However we wanted to empower women by showing them that if they can tell someone what is happening, there will be a refuge there; the court will support them; there will be sympathetic police and lawyers who will take the case forward and make them safe; they can get a new home if they have to leave, or oust him; they can keep their kids and have a power of arrest so that they have meaningful protection in an emergency.
    That led us to believe that we should keep the response to domestic violence in the area of private law, empower her to take the initiative and surround her with help.
    Another factor is that many women do not want to send their erstwhile partner to jail through reporting to the police, they just want the violence to stop.

    But the contrary principle is that domestic violence ought not to be something for a private citizen to be obliged to act upon; in which either a victim of violent crime takes a private initiative or nothing happens.

    It should be dealt with like any other crime of violence and oppression
    But it is worse than other violence
    It is worse than violence on the streets from which a victim can escape to a safe home
    It is also of epidemic proportions. It is a tool of social control over women. The State has a duty to intervene on behalf of one half of the population who are potentially oppressed by the other half.
    So we should oblige the public authorities to act
    Make the police arrest, the CPS prosecute, the Courts convict and sentence. Declare domestic violence to be a serious crime and thereby send out a deterrent message.

    In the end we tried to do both –
    There are now trained police and CPS, Independent DV Advisers to befriend and support and Special Domestic Violence Courts. The public sphere is stronger for her
    Women understand that it can be a serial offence and for the sake of other women too it has to be criminalised. Police and CPS will now sometimes prosecute, even if she doesn’t want it.

    However we also preserved the right for an individual to take out a private law injunction and to enforce it either through taking him back to court for contempt, as before or by ringing the police, since we made breach of such an injunction into a criminal offence in itself.

    To go back to rape after Heilbron, there was progress there too, across the law, evidence and support, again driven by the feminist influence inside Parliament buttressed by campaigning women outside.

    We introduced Independent Sexual Violence Advisers to befriend and support survivors of sexual assault, specially trained police and CPS  and we asked the judiciary to look at their directions to juries in rape trials to ensure that they embodied uptodate understandings and not myths and outdated stereotypes about women – so they became more specialist courts.

    In a nutshell, (since this is a short address) at some stage the clouds lifted and we saw that we were implementing similar measures to protect the two kinds of survivor. We were also campaigning about FGM, forced marriage, trafficking and prostitution. All are violence against women and they need to be tackled as what they are, perhaps hate crime against women, but certainly against women.

    In 2009 we carried out an extensive nationwide consultation to formulate a Violence Against Women and Girls Strategy.

    However, the last election has brought a new government who will not implement that strategy. They intend to produce a strategic narrative in November and to produce a strategy in the spring.
    However it will be based on localism for services with no data monitoring, scrutiny or targets and there will be massive public sector cuts so that the future looks bleak. Nobody in central Government either understands or champions this sector. I cannot see a feminist anywhere.

    Feminism has influenced policy deeply in the last decade but I suspect it won’t any more for quite a while.

  • DNA and Rape an article for Progress Online

    Vera’s article written for progress online about the proposed destruction of DNA by the coalition. Also available on the Progress Online website.

    Here we are again

    The Coalition’s proposals to destroy DNA currently held on the national database will be disastrous for the future of rape convictions. They must reverse the policy as they did on their equally misconceived plans to give anonymity to defendants and to halve sentences for guilty pleas, in rape.
    They show overall a pitiful understanding of justice for women. That is not surprising from a government of millionaire men who have deliberately unpicked those parts of the Equality Act 2010 which required all public authorities to screen proposals against their gender impact and therefore have nothing with which to correct their dominant male culture-based perceptions. There will soon be a case for a national women’s demonstration to make clear that contrary to their views, women will not take the brunt of the cuts and go quietly back, impoverished and dependant, into domestic life.
    They intend to destroy valuable evidence, in DNA samples, that will and already does help to advance justice for rape victims.
    At most, 7.5% of rape complaints made to police result in a conviction, though if a case gets as far as court, convictions are 55%.  Most complaints drop out during the police investigation or when the case is in CPS hands, prior to charge. It happens for a variety of reasons. Many cases fail then through loss of confidence by the complainant who knows she has to give evidence on intimate facts; will be put on trial herself and may not be sure that police and CPS are on her side. These factors do not necessarily relate to the quality of the case against the defendant. Potentially successful rape prosecutions, in which the evidence is good, are lost through these confidence issues, at an early stage.
    It is now well-documented that rape is often a serial offence. It is committed to exert power over women. Perpetrators with this mindset offend until they are convicted. Some significant recent prosecutions have reinforced this –notably that of the taxi driver Worboys and of Craig Reid who terrorized many women over many years.
    To destroy  DNA which has been lawfully taken from a suspect in a rape case flies in the face of the sense made  by these facts when understood together. Many guilty rapist go free because both women and men complainants are still  insufficiently supported by the justice system and do not have the confidence to go as far as court.
    Parliamentary Questions ought to be asked about how many rapists have been convicted through DNA matches with those from earlier cases in which the prosecution failed. How many serial rapists have eventually been run to ground in this way?
    When DNA from an earlier case is matched to a current case, the earlier victim can frequently be persuaded to give evidence. She will realize that her testimony is no longer just important for justice for herself, but also for the protection of other women, including the current victim and potential future ones. Women who have lost self esteem through their violation feel that justice for themselves is not very important, not worth the additional humiliation they expect in court. However they will testify  when they see the need to help another victim and to protect others from the trauma they have sustained themselves.

    Additionally, it is obvious that two allegations of rape by two different women, heard together,  present a significantly stronger case before a jury than a single allegation made by one victim. The conviction rate in multiple cases is higher and many defendants faced with multiple accusers will accept the inevitable and plead guilty.
    Hence DNA matches can help to build strong cases in a field of investigation and prosecution which has historically produced poor results.  Additionally, this process plays a significant role both in the ongoing encouragement of women to take their rape case to court and the continuing informing of the public as jurors that rapists are dangerous men.
    In this context, retention of DNA is a relatively minor interference in personal privacy. DNA testing is so accurate that it is highly unlikely that it will produce false allegations. The legal process described above will only apply if the match is a true one and it is that situation which brings the balance down  in favour of preserving potential future evidence, even though innocent DNA will also bekept.  This is simple and clear. Surely even a Coalition which devalues the lives of women in most of their policy proposals can see that.

  • Covert Policing

    Vera’s article written for Left Foot Forward on the covert policing of Mark Kennedy. Also available on the Left Foot Forward website

    Failure to disclose evidence reminiscent of the dark days of miscarriages of justice

    Policing climate change protesters by embedding undercover officer Mark Kennedy with them for seven years looks out of all proportion to the risk they present to the public. Crazier still and seemingly far more wicked is the subsequent attempt to convict many of them by suppressing the very intelligence Kennedy’s sleuthing had disclosed.
    Twenty six protesters were charged with conspiracy to occupy Ratcliffe on Soar power station though police had a covert tape from Kennedy making clear that the meeting where they were arrested was merely to outline the plan and request volunteers. They knew, therefore, that many of those arrested were not involved but were hearing of the plan for the first time. Nonetheless six of them were prosecuted and the tape that could have acquitted them was kept back. Last January the CPS, having apparently just discovered the truth, dropped the case at the door of the court.
    Twenty others arrested at the same meeting had already been convicted, in a trial in which judge, jury and defendants had been kept totally unaware both of Kennedy and the tape. The 20 had agreed to  occupy the plant but justified it as a minor crime to prevent the greater crime of carbon pollution, a defence which the meeting tape might have supported. After the acquittal of the six and when journalists were circling CPS wrote to solicitors for the 20 asking them to appeal

    Police now say that far from CPS acting promptly on discovering the truth, they knew about Kennedy and the tape from the start and were advising, impliedly, against police better judgment, that they should not be disclosed. This conflict echoes scenes before a recent Commons Committee when Deputy Police Commissioner John Yates and Keir Starmer, head of the CPS blamed each other for the poor quality of the original phone hacking inquiry.
    This dispiriting case thrusts the criminal justice system back into the dark days of the Birmingham 6 and  Guildford 4, when the prosecution hid material, apparently driven by public clamour to convict someone for terrorist killings. Even that wholly unpalatable  justification for injustice is absent here.

    The law is clear. The prosecution must disclose all material that may undermine their own case or assist the defence. Any claim to keep any of it secret – and none was made here – has to be decided by a judge.
    Danny, one of the “6” told me of the stress and worry he and his family suffered between his charge and his acquittal, afraid that he would be wrongly convicted.

    If the public sees this as an attempt to pervert the course of justice, people like Danny will not be the only victims. In the miners’ strike hundreds were charged with picketing offences by police to break the morale of Thatcher’s “Enemy within”. For years thereafter, in counties like Durham, where every family had a mining link, no jury would ever convict a defendant on the word of police, because everyone knew a story of police misconduct.  This case could have a similarly chilling effect.  What better Get out of Jail card could any criminal on trial have than public suspicion that the prosecuting agencies sometimes deceive the courts.

    The inquiry which has been announced must be speedy, relentless and above all, independent. If it finds that the powers that be tried to justify the huge cost to the public of Kennedy’s work by stage managing mass convictions, the implications in an atmosphere of huge cuts in police funding will go further again than even the obviously serious consequences of this case.

  • Countering Lynn Featherstones equalities column

    In Lynne Featherstone’s column of 18th November she described herself as someone who “spends every day fighting for equality”

    She wasn’t last Tuesday when Fiona MacTaggart MP asked, in the Commons why her Coalition has scrapped the duty in the Equality Act 2010 for public authorities to assess the impact of their policies on the poor.  This, in sections 1-3, is called “the socio-economic duty”

    “This legislation is just words” Ms Featherstone told a startled House of Commons, saying how fully she supported the repeal.

    Last year, in the passage of the Equality Act itself, Lynne Featherstone said:

    “The Liberal Democrats think the socio-economic duty is a good and important thing “  We fully support its aims (Hansard 11.6.09 Col 131-2)

    “It is one of the most important elements of the Bill” (Hansard 11.6.09 Col 132)

    And she presented amendments (many accepted) to increase the number of public bodies which would be subject to “one of the most important element of the Bill”. (Hansard 11.6.09 Col 131)
    She was right. The socio-economic duty was good.  It would have helped to weaken inequality by protecting the poor from the adverse impact of public policies. But it won’t protect them now, torn from the statute book, by Featherstone and friends, despite her praising it as “a good and important thing” only a year ago. Chancellor Osborne is being sued, by Fawcett, for breach of a similar duty to protect gender. This is for the disproportionate impact on women of his spending cuts. So, the Tories do not want another enforceable duty, especially one on socio-economic equality that they would fail repeatedly. Their welfare and housing benefit cuts, probably tuition fees and, one predicts, many measures yet to come would make them fail it. It is impossible to tell a Court that you have had regard to reducing socio- economic inequality when you are systematically increasing it.
    If Ms Featherstone was genuine when she said last year  “Socio-economic disadvantage is the greatest inequality there is and it would have been negligent for the Government to leave (this duty) out (of the Equality Act) (Hansard 11.6.09 Col 129)
    How would she then have described a Government Minister who took the duty out? Not, I think, as “someone who spends every day fighting for equality”

  • Bill of Rights – Solicitors Journal

    Vera’s comment piece for the Solicitors Journal on the Human Right’s Commission. Also available to subscribers on the Solicitors Journal website.

    Prepare for Battle
    The Coalition Government’s  ” Independent Commission to investigate the case for a British Bill of Rights” is  about politics not law. Backwoods Tories may bay for an end to Foreigners making us give rights to nasty people, but their majority comes from the Liberal party, which has demanded human rights since the days of Jo Grimond. This obliqueness of purpose grows clearer as one recalls that we have a perfectly good British Bill of Rights already.

    Many Tories are uninterested in human rights and none of their nominees is an expert.  QCs Martin Howe, Anthony Speaight and Jonathan Fisher are eminent men but in construction, business law and intellectual property. One senior Tory described Mr Howe as anti-Europe; Mr Fisher thinks the ECHR is “fundamentally flawed and lop-sided” and from delivering last year’s Bindman’s Lecture with Tony Speaight I understand his message to be that British commonsense could do a lot better.  They have each written a Tory paper on rights and a very quick, not intentionally disrespectful, tour suggests that each has written essentially the same paper.  The fourth Conservative nominee, Mr Pinto-Duschinsky has more recently again written the intellectual case against the Court but it is really against the  HRA. He sees British law or Parliamentary sovereignty made subservient to an expansionist unaccountable Strasbourg  run by judges, from micro-states  like Andorra or doubtful ones like Albania. At the very least it gives too little regard to the margin of appreciation – the way British society should implement abstract Convention Rights. On the whole he thinks it should be abandoned but that would take us out of the Convention, out of the Council of Europe and probably out of the EU as well.

    His sub-text is that the British Judiciary has in turn become too bold and we should pull back from Strasbourg , curb its bad influence and block them from intruding further into Parliamentary territory on economic and social issues. It is probably a unique reason for wanting a Bill of Rights that it should take power away from the courts and give it to Parliament – a.k.a the majority government.

    The Lib-Dem nominees- Labour peer Helena Kennedy, Philippe Sands and Anthony Lester are undoubted experts in the rights area – Professor Sands is an international lawyer but one with a well-known and strong human rights bias. And all, so far as I am aware, if they felt the need of another  Bill at all, would want it for the opposite reason, to empower the citizen and further protect him from the over-weaning state.
    So these eminent people are not going to agree.  On the face of it the Commission Tories are hand-picked to be right of the mainstream and perhaps that shows there is no strong  political pressure for  change.  Perhaps they are there to assuage the remnants of the Nasty Party and to keep public opinion at bay on prisoners votes and sex offender rights. However nothing can be ceded. Implementation would be second term task, and any second term would be likely to lack the leavening influence of the Liberals.

    If I were the Tory Commissioners I would have a concerted attempt to drive the liberals backwards or split them to achieve a majority for regressing rights. If I were the liberals I would find it easy to stand intellectually firm but would go for a boost to our meagre array of semi-entrenched rights. After that they’ll all be friends and their huge intellectual power could tackle the 120000 case backlog at Strasbourg and narrow the courts admission criteria. There is a big case for this practical reform. There is a big case too for keeping Strasbourg, the international guarantee for our sometimes unpopular human rights.

  • Abortion: Leaving well enough alone

    What possible point could there be to Nadine Dorries legislative amendment excluding abortion clinics from ever giving advice to pregnant women if it isn’t to limit abortions?

    In what many commentators have called a dishonest article in the Mail last week, Ms Dorries MP asserted that the point of her proposed change to the Health and Social Care Bill is that she supports a woman’s right to choose. Her opening paragraphs disclose the real reason by graphically describing a late abortion she alleges she witnessed.

    How is this personal horror story relevant to an amendment on who should give advice to women with an unwanted pregnancy?  It isn’t.  It is anti-abortion propaganda.

    So called “pro life” campaigners know that they cannot turn the clock back far enough to reverse the 43 year old Abortion Act. Instead, they seize on every Health Bill as an opportunity to put an obstacle in its way.

    Hence Dorries supported cutting the time limit from 24 to 20 weeks despite blanket medical opinion that no scientific advance required such a cut.

    Similarly, all the evidence is that the current pregnancy advice system works well. Dorries allegation, in the Mail, that “thousands of women”are conveyor belted into abortions quotes no source and no basis in fact. Frank Field who supports her amendment for his own reasons, has made clear that he has no criticisms of advisers.

    David Steel, the architect of the Abortion Act, told The Observer today

    \”The Department of Health has complete power over licensing and de-licensing clinics. If there were any evidence of failure to carry out proper counselling of patients, they can close clinics. More positively there is nothing to stop them issuing guidelines on counselling if they think that necessary\”

    Women who find they are pregnant go to their GP or to a sexual health clinic and simply register for ante-natal treatment unless they don’t want a pregnancy or have doubts. In either of those cases, their first discussion of other options will be with their own clinician.

    Both women who are pleased to be pregnant and those who are not deserve expert advice.  Ms Dorries says that she wants this advice to be “independent” of those who offer abortion. That is a very odd idea. By definition, a woman who is looking for something other than ante-natal help is considering abortion.  Secondly, it is a strange stance for someone who supports “the right to choose”, unless that right to choose is the right to be advised to choose anything but an abortion.

    The experts in this field are the British Pregnancy Advisory Service and Marie Stopes, both of whose focus is rightly on preventing unwanted pregnancies. They both certainly provide abortions but both their websites make the case for other ways forward as well.

    They offer a template to help women to think the issue through and to evaluate their emotions. Twenty per cent of women who go to them for face to face advice intent on an abortion, change their minds and continue their pregnancy to full term.

    It is worth remembering that an abortion is only lawful in the UK if two medical practitioners certify that terminating a pregnancy will be less damaging to a woman’s physical or mental health than completing it.

    Even David Cameron has now seen that there is no case for preventing these tried and tested organisations from advising. He will vote against the amendment and it is believed has written to his backbenchers encouraging them to do the same. Yet another somersault, though Ms Dorries said in the Mail that she expects him to change his mind again.

    On Friday, Louise Mensch MP made a bid for a share of the limelight as an honest broker. She tabled a different  amendment which serves only to add a further layer of unnecessary muddle.  She wants an option for advice to be available that is “independent” both of abortion providers and of faith groups.

    Firstly, that is an insult to some excellent faith groups, many of whom give welcome support to women who choose abortion.

    Secondly, BPAS and Stopes are both prepared to counsel every option. They are not correctly seen as zealots on the other side of an ideological coin from groups like LIFE who reject abortion in all circumstances.

    Thirdly, any woman already has the “option” of advice from all of these and an array of further pregnancy advice groups.  The problem with Dorries proposal is that it compels the exclusion of abortion providers and compels the taking of advice from others.

    There is every need to prevent that and no need to put options already on offer into law.

    This issue does not merit debate. It distracts from the need to fight, tooth and nail, the Health and Social Care Bill which will open our National Health Service to competition and ensure that the title \”National\” no longer applies.

  • No blanket sentencing: Comment is free 18th August

    Also available on the Guardian website.

    National revulsion and popular demand for punishment are dangerous things. They licensed the rule-bending that miscarried justice in the 80s, for the Birmingham Six and Guildford Four. In the miners’ strike, once Margaret Thatcher had called the NUM “the enemy within”,it was next to impossible to get them honestly policed or fairly tried.

    How far from that danger re-emerging are we now when David Cameron asserts that everyone involved with rioting, however peripherally, should expect to go to jail; 100,000 sign a petition for those convicted to lose their benefits and councils intend to evict people who live in the same house as culprits, just for being their brother, sister or grandparent?

    The Guardian reported this week that magistrates\’ clerks had \”instructions\” from a \”senior clerk\” to advise the bench to disregard all sentencing guidelines and jail every riot defendant. This is apparently a policy directive from the courts service, the government department that administers the courts. It is not from the higher judiciary, who speedily distanced themselves from it.

    We are only aware of it because the chair of Camberwell Green magistrates, Novello Noades, blurted it out. She called it a \”directive\” but retracted the description later when presumably somebody reminded her that she is supposed to be an independent member of the judiciary.

    Although the Ministry of Justice denies responsibility, the directive represents the hostility of much of the public, amplified by government spokespeople, directed specifically to influence the courts. When the community is rightly angry it is the duty of the courts to punish more severely. Serious custodial sentences must follow for \”rioters\” but, whatever the prime minister says, the judiciary\’s role is to dispense individual justice. Magistrates must distinguish the professional criminal from the easily led and every shade of culpability in between – and make the punishment fit the criminal.

    This \”directive\”, taken at its fullest, is an attempt to stop that. It, in effect it says that fines and community penalties are abolished for rioters and suspends the carefully constructed sentencing process comprised in the guidelines, which would inevitably result in some non-custodial penalties.

    There is ample sentencing allowance in all of the guidelines for the most serious case. Some of the most relevant were formed after the Bradford riots in 2001. They are promulgated by the sentencing council whose president is the lord chief justice. It is made up of judicial, practitioner and academic experts. It sets out to be comprehensive and to bring consistency while maintaining the independence of the judiciary.

    Furthermore, its definitive guidelines are binding. For instance, for handling stolen goods of less than £1,000 the usual starting point is a fine or low-level community penalty. Those options widen to include 12 weeks\’ custody if aggravated by the way the goods were obtained. Here they were mainly got through extremely serious and violent burglary. Harm done and personal culpability are the watchwords followed by looking carefully at any mitigation. An early guilty plea, showing remorse and saving trial costs, can justify a discount of up to a third.

    Step by step, this carefully guided analysis produces a sentence compatible with legislation and appropriate to the five purposes of sentencing: punishment, protection of the public, deterrence, reform and rehabilitation and reparation to the public.

    It seems sinister that there was an attempt to dislodge the lawful process in these cases and substitute blanket imprisonment.

    If the separation of powers means anything, it is that the courts are independent of government. Excessive sentences over the past few days – including five months\’ imprisonment for a single mother for handling a pair of stolen shorts, six months\’ for a father receiving two tennis rackets and many children sent into custody – make clear that the directive has had its effect. Serious crime requires serious punishment, but that is always the case.

    Indeed, the first crown court sentences have been predictably severe. Perhaps it is important to make a point, even if defendants such as those likely to be known as the Facebook Two win on appeal. The less harsh sentences came from the Manchester judge who announced, possibly in solidarity, that he too was exceeding the guideline.

    So what are the prospects of future contested trials being fairly considered in this context of some malleable lay magistrates apparently being prepared to accede to secret agendas? Public craving for convictions will be an open secret. The historic miscarriages of justice were caused by just such an impulse and there is another lesson from history.

    During the miners\’ strike it was very difficult to get fair acquittals for strikers at the magistrates\’ court. After the strike, it was hard to get juries from some mining areas to convict. The latter was the community\’s revenge for the former – what it saw as dishonest policing and a biased judiciary.

    Although the riots brought a terrifying glimpse of physical chaos, injustice is almost as frightening.

  • Huffington Post

    What the House of Commons should discuss on the Riots: Article for Huffington Post website.

    Available here