Weekly Notes: legal news from ICLR — 19 December 2016

Posted on 18th Dec 2016 in Weekly Notes

This last roundup of the year includes legal news and commentary about prisons and sentencing, an Irish sidewind on Brexit, the latest on the CSA inquiry and a selection of legal tales, good and bad, from foreign parts. 

Prisons

Riot, rehabilitation and reform

This week saw yet another major prison riot, possibly the worst in a recent series of serious prison incidents. HMP Birmingham, which is managed by outsourcing security giant G4S, erupted into violence on Friday, as prisoners ran amok and set fires. The Guardian reports that

The trouble started at about 9am on Friday and spread from two to four wings by the evening, according to sources, with reports of prisoners burning and destroying their files. It is understood that about 260 prisoners were involved. One prisoner is understood to have received a broken jaw during the disturbances.

The disturbances were eventually brought under control by specialist riot squads after about 12 hours. Dogs and helicopters were deployed in quelling the rebellion.

The person where the buck may be said to stop is the Secretary of State for Justice, aka the Lord Chancellor, Liz Truss MP, who said 

I want to pay tribute to the bravery and dedication of the prison officers who resolved this disturbance … Violence in our prisons will not be tolerated and those responsible will face the full force of the law.”

Arguably the reason why the inmates were in the prison in the first place was because the “full force of the law” had already been applied to them, so it’s hard to see what can be done other than more of the same. Which is really the problem.

The prison at Birmingham, a Victorian institution formerly known as Winson Green, is one of the country’s biggest jails, with a capacity of 1,450 prisoners. Aside from the question of outsourcing the management (it was the first to be handed over to the private sector, in 2011), and the consequences of understaffing and low morale, there is also the question of the suitability of imprisonment itself in so many of the cases where it is being both used and increased.

For some insight into the problem of prison stress and overcrowding, see a recent post on Transform Justice, The Mystery of Sentence Inflation, which begins:

It is clear that prisons are full to bursting, and that it would be good to reduce prison numbers.  But the number of those going to prison has been falling; it just that once people are in, they are there for longer.  Prison sentences have increased by three months in the last six years.  It doesn’t sound a lot, but for every person in prison to stay on average that much longer amounts to a huge amount more time, and more prisoners.

More of the same

Robert Neill, the Conservative chairman of the Commons justice committee, told Channel 4 News that his committee had warned the government that a “time bomb was ticking” because prisons were in crisis.

This is a problem which has happened both in privately and publicly run systems, so it applies across the piece. I think that does indicate that we have got a situation where, if people are locked down 22, 23 hours a day, as we have discovered, that breeds tension, that breeds violence, and, as you rightly say, we are not actually keeping prisons secure enough to stop contraband getting in.”

Only last month, the BBC reported another major disturbance, this time at Bedford as up to 200 prisoners were said to have taken over parts of the prison there.

Later that month two prisoners escaped from HMP Pentonville, after confusing officers with mannequins in their beds and using diamond-tipped cutting equipment break out.  They were later caught, and one of them, who was awaiting sentence at the time, has since been given a life sentence for attempted murder.

November was also the month in which prison officers were forced back to work after the High Court granted an injunction to stop their 24-hour protest strike. The BBC reported the Prison Officers Association as having said the attempted stoppage achieved its aim of securing an urgent meeting with Justice Secretary Liz Truss.

All this trouble has come since, at the beginning of November, the MOJ issued a white paper on Prison Safety and Reform (Cm 9350). Introducing it, Liz Truss said:

We will never be able to address the issue of re-offending if we do not address the current level of violence and safety issues in our prisons. That is why I am determined to make prisons work.

Fine words. But as Lord Chancellor she is fourth in a series of Conservative ministers who have attempted to resolve the conundrum of deterrence and rehabilitation. Her predecessors are Kenneth Clarke (liberal, preferring alternative sentencing where possible), Chris Grayling (hawkish, banning books as part of a more-stick-than-carrot “rehabilitation revolution”), and Michael Gove (more liberal again, who spoke promisingly of the “treasure in the heart of man” but then got distracted and destroyed by Brexit). Can she succeed where they have failed?

 

Brexitology

The Irish question

Brexit – not just about Westminster

Funding has been raised via Crowdjustice for another case, promoted by Jolyon Maugham QC, to answer two questions not already determined or likely to be determined in the existing Brexit litigation.

First, can a notification under article 50 of the Lisbon Treaty be revoked? This, he says, is crucial to ensuring that Parliament, which has been promised an opportunity to scrutinise and approve whatever plan the government has for a deal with the rest of the EU, can “fulfil its obligation to deliver a Brexit for the 100%.” If the UK’s notification under art 50 can be withdrawn, then parliament can reject any deal struck, and so hold the government to account. Otherwise, the UK would be stuck with whatever deal existed when the 2-year noticed period expired.

Second, if the UK leaves the EU does it also leave the EEA? The referendum question did not ask this, it merely referred to the EU. So remaining within the European Economic Area is still one of the options available in delivering an exit from the European Union.

Proceedings to determine these issues are to be launched in the Irish courts. Why?

The case is being brought in Ireland because the Irish Government has, we say, colluded in a breach of the EU Treaties by wrongly excluding the UK from meetings of the EU Council. We can only make that claim in the courts of Ireland.

Ireland also has a major stake in whether the UK remains in the EU or EEA. We came into the Single Market together, if we leave it alone there will be enormous economic and social disruption to both Ireland and Northern Ireland.”

Not everyone agrees with the idea. In the FT David Allen Green on Why the Dublin Article 50 challenge is misconceived:

If the proposed litigation succeeds, a court in Dublin will refer to a court in Luxembourg a question which is posed only because of a referendum in the UK and has practical application only in respect of the UK. […] Such a significant decision should require the full involvement of the UK courts and UK respondents. This proposed case, however, seeks to sidestep the UK almost completely. […] This cannot be a sensible approach to obtaining the answer to an important question. The litigation seems artificial and contrived. Any answer which emerges from it will not carry the legitimacy that would come from litigation pursued in a UK court against a UK respondent.”

For these reasons he considers the case to lack “legitimacy”.

Jolyon Maugham responds to some of the other criticism of his proposal on his own blog, Waiting for Godot, Why Dublin is Right.

 

Further commentary on the Miller case

While we await the judgment of the Supreme Court in the case ofR (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) ; [2016] WLR(D) 564  the learned commentary on the issues discussed in it has not abated.

 

Inquiries

CSA Inquiry update

The Independent Inquiry into the Child Sexual Abuse, which this year has been mired in controversy and bogged down by loss and reshuffling of personnel, has this week published an Internal Review into its work, which it says will be pursued with “renewed vigour”. According to the launch announcement:

The Review refocuses the Inquiry and lays out a detailed schedule of work for 2017. It recognises that the Inquiry has two equally important tasks: unravelling institutional failures of the past and making meaningful recommendations to keep children safe today and in the future.  It concludes that the Inquiry’s work needed rebalancing to make sure sufficient attention was paid to making recommendations for the future. The Truth Project, research and analysis and public hearings remain central to the Inquiry’s work and its terms of reference also remain the same. All 13 of the existing investigations will continue.

You can read the review (PDF) here.

The inquiry has also published, via Twitter, a somewhat fluorescent infographic timeline of plans for 2017.

Law (and injustice) from around the world

America

Death penalty in Delaware

A ruling by the Delaware Supreme Court earlier this year, declaring the state’s death penalty law unconstitutional, has been held by the court this week to have retrospective effect, according to the Washington Post.

In August a majority of the justices ruled (in Rauf v State, 145 A 3d 430 (Del 2016)) that Delaware’s death penalty law was unconstitutional because it allowed judges too much discretion in sentencing and did not require that a jury find unanimously and beyond a reasonable doubt that a defendant deserved execution. The ruling followed one by the US Supreme Court (Hurst v Florida,136 S.Ct. 616 (2016)) declaring unconstitutional Florida’s death penalty, which also gave judges the final say. Alabama is the only other state that allows judges to override jury decisions on whether an offender should get life in prison or the death penalty.

The rule in Delaware appears to have been that it was sufficient for the jury to find “on a preponderance of the evidence” (ie balance of probabilities) that a convicted defendant deserved the death penalty for a recommendation to the court which the judge could take into account, together with other aggravating factors, in applying the death penalty in a particular case.

That was the rule that was declared unconstitutional in Rauf, and now the Rauf ruling has been applied retrospectively in the case of Derrick Powell v State of Delaware (No 310 of 2016). It was based on an exception to the US Supreme Court decision in Teague v Lane, 489 US 288 (1989) according to which constitutional rulings were non-retrospective unless they constituted a new “watershed rule of criminal procedure” that was “central to an accurate determination that death is a legally appropriate punishment”.

Read the opinion in Powell.

 

Canada

Google and the law

According to Hugh Stephens’ blog (Should Google Search be subject to the Rule of Law? Absolutely! (Google v Equustek)):

In Google Inc v Equustek Solutions, the Court is hearing an appeal by Google of a ruling by the Supreme Court in British Columbia (B.C.), upheld on appeal in the B.C. Court of Appeal, that issued an interim injunction requiring Google to de-index or delist (i.e. not return search results for) the website of a firm (Datalink Gateways) that was marketing goods online based on the theft of trade secrets from Equustek, a Vancouver, B.C., based hi-tech firm that makes sophisticated industrial equipment.

Google’s objection to this seem to be mainly based on the issue of extraterritoriality – ie the fact that the provincial courts were seeking to govern internet activity outside the jurisdiction by requiring a worldwide ban on the listing and that this would “break the internet”. Various other parties have sought to intervene and have their say.

Hugh Stephens explains why he thinks Google is wrong. The case will certainly be interesting, but in the context of things like the European right to be forgotten, by no means unique. Pesky thing, the rule of law.

 

China

Police confirm detention of human rights lawyer

Police in China have confirmed that a respected human rights lawyer was detained, nearly a month after he disappeared under mysterious circumstances amid a widening crackdown on lawyers and activists, according to the Guardian. Jiang Tianyong was last heard from as he prepared to board a train on the night of 21 November and friends and family worried he was held in secret custody because of his work defending Tibetan protesters, fellow human rights lawyers and Falun Gong practitioners.

Police in the central city of Changsha told Jiang’s lawyer that they detained him for nine days starting on 21 November, accusing him of using IDs belonging to someone else to buy train tickets. Police said he was then released, according to his lawyer Qin Chenshou.

Apparently it is fairly common for human rights activists to use someone else’s ID to buy train tickets to evade scrutiny of the authorities when meeting, eg, representatives of the UN or other activists. Jiang’s disappearance and detention may be a reprisal for meeting with UN rights officials in August, according to Philip Alston, the UN special rapporteur on extreme poverty and human rights and a member of the expert panel.

 

 

Spain

Competition law and Uber

A Spanish court has referred to the European Court of Justice the question whether Uber is a transport service provider, information society service provider, or a combination of both.

The question of Uber’s status was considered by an English employment tribunal in a ruling in October on the “worker” status of Uber drivers, when the tribunal chair referred to the “fictions, twisted language and even brand new terminology” used by the company to describe itself as other than a regular employer of drivers. (See Weekly Notes, 31 October 2016.)

The present reference arises from a claim brought by Spanish taxi drivers association Asociación Profesional Élite Taxi (APET) against Uber in Spain, according to Pinsent Masons’ Out-Law blog.

APET has claimed that Uber is in breach of Spanish competition laws on the basis that it provides transport services in Spain without having the authorisations necessary under Spanish law to do so. Uber, however, has argued that it is not a transport service provider. Instead, Uber has claimed that it is a provider of information society services.

Anyone who has read the English tribunal ruling’s para 87 will no doubt find this amusing. But the issue is an important one, given the importance of the so-called “gig economy” and its “disruption” of traditional corporate and employment law models.

 

That’s it for now. This is the last Weekly Notes for 2016. Michaelmas Term ends this week. The ICLR office will be closed from noon on Friday 23 December 2016 until Tuesday 3 January 2017. Support will continue to be provided for users of ICLR Online by phone and email, but response times may be less than alacritous.

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.

 

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