Weekly Notes: legal news from ICLR – 28 November 2016
Posted on 28th Nov 2016 in Weekly Notes
This week’s roundup of legal news and comment is mostly about sentencing for the crime of murder. It’s been a grim week for that sort of thing. We also keep an eye on legal developments abroad, where starvation, persecution and oppression leave their mark.
Are too many imprisoned?
There is no doubt about the need to imprison serious criminals such as murderers, as the items below attest. But do we imprison too many people for lesser offences? In a recent blogpost Penelope Gibbs of Transform Justice discusses comments by the Lord Chief Justice, Lord Thomas of Cwmgiedd, appearing before the select committee on justice this week, implying that too many people were imprisoned and that the solution to reducing prison numbers was tougher community punishments. He also favours what are known as “problem-solving courts” which take a holistic approach to sentencing and rehabilitation of offenders.
Gibbs notes that sentence lengths have increased in recent years and the system as a whole is unable to cope. But the problem, she says, is that judges are not aware of the community sentencing options or their likely effectiveness.
I think that the average magistrate or Crown Court judge knows less now about the reality of community sentences than they did ten years ago. There are now no well funded experiential training programmes, no probation liaison committees, and no community justice forums (apart from police and crime panels) which judges are allowed to be members of. So I’m concerned that the Lord Chief Justice and his colleagues may have a perception of community sentences that does not square with the reality.”
R v Mair (Thomas)
The killer of Jo Cox MP was sentenced to life imprisonment, following his trial and conviction for murder. Sentencing remarks of Mr Justice Wilkie have now been published. He noted that Cox’s death was “both a personal tragedy and a crime with great public significance”. He said she was the true patriot, and that he, her killer, was not; for, while giving “lip service” to patriotism,
“It is clear from your internet and other researches that your inspiration is not love of country or your fellow citizens, it is an admiration for Nazism, and similar anti democratic white supremacist creeds where democracy and political persuasion are supplanted by violence towards and intimidation of opponents and those who, in whatever ways, are thought to be different and, for that reason, open to persecution.”
Having regard to the seriousness of the offence, the judge said the only proper sentence was a whole life sentence, ie one without a minimum term.
The trial took place in the Central Criminal Court, in London, rather than in Yorkshire, where the murder happened, apparently on the grounds that it involved terrorism, and yet he does not appear to have been charged with any (statutory) terrorist offences, only the common law offence of murder. However, the Crown told the jury that its case was that the murder had been politically or ideologically motivated, and the CPS said afterwards that Mair had been convicted of the “terrorist murder of Jo Cox”.
Having pleaded not guilty, Mair did not give evidence, nor did he attempt to advance any defence of diminished responsibility despite discussion in the press, at the time of his arrest, about his mental health (among other things).
There has been quite a bit of commentary on this case, including:
- Matthew Scott, as Barrister Blogger, Some footnotes to the conviction of Thomas Mair
- The Secret Barrister (blog), Louise Mensch’s claims that Thomas Mair had an unfair trial are unsupported and wildly dangerous
R v Port (Stephen)
Sentencing remarks of Mr Justice Openshaw dated 25 November 2016 have been published in the case of a serial killer who preyed on young homosexual men. It’s been in the news because of allegations that the police, knowing what they knew at the time, failed to spot a pattern of behaviour (including the surreptitious administering of incapacitating drugs prior to sexual penetration, and the mode of disposal of victim’s corpses) and could, had they acted sooner, have prevented one or more of the subsequent deaths. Serious sexual assaults on seven other victims were taken into account in imposing, inter alia, a whole-life term of imprisonment for the four murders committed by the 41-year-old defendant.
In passing sentence, the judge said this about the way the successive deaths were investigated:
It is not to me to say whether the seeming bizarre coincidence of these three gay young men being found dead so close together might have given rise to suspicions that these deaths were not the result of ordinary self‐administered drug overdoses but that is how their deaths, including Jack Taylor’s death, was treated at the time; the competence and adequacy of the investigation will later be examined by others, as I have said.
The family of Jack Taylor, his last victim, are said to be planning to sue the Metropolitan Police over their failure to link the series of deaths, and the Independent Police Complaints Commission is apparently also investigating the Met’s response, including whether “discrimination played any part in actions and decisions”, according to the Guardian.
Unduly lenient life sentences referred to AG
The 20-year minimum terms imposed in respect of their life sentences for murder following the conviction of the two teenage killers of mother and daughter victims Elizabeth and Katie Edwards in Spalding, Lincs earlier this year, have been referred to the Attorney General’s office under the “unduly lenient sentence” scheme, reports the Daily Telegraph.
Sentencing them at Nottingham Crown Court earlier this month, Mr Justice Haddon-Cave described the 14-year-olds’ conduct as “grotesque” and the killings as “brutal”. After killing the school dinner lady and her daughter, they had sex, shared a bath and watched vampire movies. The case is obviously a horrible one and the children dreadfully wicked.
However, they are still children and in 20 years’ time they will be 34 and will have spent most of their lives in some form of detention. They will grow up and grow old in any event. If there is any prospect of rehabilitation, there must also be hope of its bringing some benefit.
New head of HMCTS
Susan Acland-Hood has taken up post as Chief Executive of HM Courts & Tribunals Service, the Ministry of Justice has announced. Kevin Sadler will be her Deputy Chief Executive. On starting her new role, Ackland-Hood said:
I’m starting in the Ministry of Justice at a time when we have a remarkable opportunity to make a difference. The programme of root and branch change that Ministers, the judiciary and my HMCTS predecessors have developed together is one of the boldest plans in Government. And it is a plan whose time has come. With the Treasury prepared to back it to the tune of a billion pounds, we can deliver what is probably the biggest change to the system in modern times. By building what we do around the experience of those who use the system we can make justice so much better for the millions who rely on it.
It isn’t clear (to me at least) whether she is in charge of the whole process, or only of ensuring that the Courts Service does its bit to cooperate with the various bodies and committees who are bringing this magnificent new vision into reality. Either way, she needs to bear two simple words in mind, that some lesser mortals seem to have overlooked in the rush to digital: they are “open” and “justice”.
Law (and injustice) from around the world
Right to starve?
We tend to think of America as the land of plenty and the home of obesity, but a recent court case has confirmed the idea (not perhaps founded in strict Hohfeldian analysis) of a “right to starve”. At all events, the Washington Post reports that “Anorexic woman weighing 69 pounds has a right to starve, court rules”:
Earlier this month, after spending nearly two years in a New Jersey psychiatric hospital, the 29-year-old woman with a bone density of a 92-year-old told a court that she refused to eat any food, and wished to enter palliative care instead, which focuses on the comfort of the seriously or terminally ill.
A Superior Court judge ruled Monday that she cannot be fed against her will, and it is in her best interest to be transferred to a palliative care unit.
A previous court order had required her to be fed artificially but this was proving “cruel and torturous” her psychiatrist said.
Morris County Judge Paul Armstrong called the woman’s testimony, “forthright, responsive, knowing, intelligent, voluntary, steadfast and credible,” the Wall Street Journal reported. Therefore, he ruled, the woman, referred to only as A.G., has the mental capacity to choose not to accept nutrition.
The jurisdiction being exercised seems similar to that which would be exercised in this country in the Court of Protection, including the test of a patient’s “best interests”.
Chronic death foretold
Fidel Castro, the iconic cigar-toting president of Cuba, after a long illness during which he eventually gave up the reigns of government to his brother Raul, has finally died. He was 90.
The announcement, made shortly after midnight on Saturday, was greeted with jubilation in Miami, where so many of Cuba’s citizens have resettled after fleeing Castro’s economically stultifying one-party state communist regime. In Havana, the news was greeted more sombrely, as perhaps it was among some of the old dictator’s more rosy-spectacled left-wing supporters in the UK and Europe, for whom Cuba’s role as a thorn in America’s side was enough to earn it kudos. That and all that nostalgically shabby radical chic (Buena Vista!) Right wing commentators pointed out that Cuba’s progressive health and education system was largely supported by cash from Soviet Russia, whose attempt to plant nuclear warheads on Cuban soil nearly brought the world to nuclear war in 1962.
Castro’s record on human rights was not good, as Human Rights Watch reminds us: Cuba: Fidel Castro’s Record of Repression
During his nearly five decades of rule in Cuba, Fidel Castro built a repressive system that punished virtually all forms of dissent, a dark legacy that lives on even after his death. During Castro’s rule, thousands of Cubans were incarcerated in abysmal prisons, thousands more were harassed and intimidated, and entire generations were denied basic political freedoms. […] The repression was codified in law and enforced by security forces, groups of civilian sympathizers tied to the state, and a judiciary that lacked independence.”
The question now is whether the thawing in relations between America and Cuba brought about by the Obama government — which might improve the opportunities for freedom, prosperity and the rule of law — will be continued by the incoming Trump administration, notwithstanding Trump’s own cantankerous attitude towards the regime.
New York Times, Fidel Castro, Cuban Revolutionary Who Defied U.S., Dies at 90
Crackdown on Christians
Pakistan’s television regulatory body, Pakistan Electronic Media Regulatory Authority (PEMRA) has banned all 11 Christian TV channels, and arrested at least six cable operators for defying the order, according to the Christian Post.
The move to ban the stations leaves Pakistan’s Christian minority with no public media presence after 17 years of having been allowed to broadcast across the country, reports the Daily Express.
Pakistan is home to some 2.8million christians, but now they will have to watch religious programmes via the Internet rather than on TV.
Members of the local Christian community have also asked the government to revoke the measure, calling it an “act of intimidation” and an “attack to religious freedom”.
It sometimes seems that Erdogan’s freedom is his nation’s oppression. What will restrain him as he pushes at the boundaries of decency and law? Every week brings further reports of newspapers closed down, teachers rounded up, judges accused of being enemies of the people – sounds familiar?
His latest “development” of the law was to have involved a plan for those charged with child sex offences to be absolved of any crime if they were married to their victims. According to the Washington Post, it was intended
to redress “unfair treatment” of families where men were placed in jail for marrying girls under the age of 18 even if both parties and their parents consented. […]
The measure would have required men who were married to minors in Islamic ceremonies to formalize their union with civil marriages. Opponents argued that the bill amounted to a pardon for statutory rape and would disrupt efforts to prevent child marriages and sexual assault on children. They maintained that it would, for example legitimize the practice of men taking brides as young as 13 or 14.
Following protests, the Prime Minister withdrew the bill to “submit it to review”.
Accession to EU
Suspending Turkey’s bid for EU membership would only help to erode democratic values further in Europe’s closest Asian neighbour, says Laura Batalla Adam, secretary-general of the Friends of Turkey group in the European Parliament in EuroActiv.com Despite what some of the pro-Brexit alarmists have been saying, she reports that
accession negotiations have not moved an inch in the past decade. […] In 1959, Turkey applied for membership of the then European Economic Community and formal accession negotiations started only 46 years later. So far, Turkey’s journey towards joining the EU is the longest ever when compared to all the other candidate countries. […]
The EU-Turkey deal on migration reached in March this year was expected to reinvigorate stalled membership talks with Turkey. […]
While oppression in Turkey has reached unprecedented levels, cutting ties with Ankara now, when Turkey’s democracy is crumbling, would be a terrible mistake, […]
However, unless Turkey changes its course of action, the EU’s door will remain closed. “
So while we must not shut the door, the burden is on Turkey to want to open it further.
That’s it for now. Our thanks to all who flagged up stories, via their blogs (which we always try to acknowledge) and via Twitter (where useful tweets are retweeted).
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.
Sign up now for weekly email alerts from this blog. Just put your email address into the box on the left.