"intelligent and useful posts on many of the key legal issues"

- Adam Wagner, UK Human Rights Blog

Monday, 26 September 2011

English riots - appropriate sentences

A short comment on sentencing the rioters, published on Halsbury's Law Exchange 

Sentencing rioters will take place against a backdrop of public anger and media outrage. In any such instance it is important that the rule of law applies and the court is not swayed simply by the unpopularity of the offender or offenders before it. 

That said, two factors come into play as part of the application of the law. First, it is a normal part of the sentencing process to weigh aggravating and mitigating factors. In the case of the rioters, taking advantage of the police being overstretched will not tell in an offender's favour, though it might be a mitigating factor if one could argue that an offender was normally a law abiding person who acted spontaneously, rather than a career criminal. 

Secondly, deterrence is a legitimate sentencing objective, and discouraging the public from starting civil unrest or taking advantage of it for criminal purposes is a factor not present in ordinary theft cases. On that basis, rather than the more crude goal of retribution, longer sentences for rioters can arguably be justified. (Not that retribution is wholly irrelevant to sentencing.)

One other aspect that the rioters give rise to is the cost and other resources associated with a large increase in offenders.  It will be tempting for more lenient sentences to be passed, and a greater proportion to be non-custodial, simply on the basis that the country is struggling to accommodate prisoners as it is.  Of course in theory this should have no impact.  One wonders if it will be the same in practice.  

Friday, 23 September 2011

The delight of everyone

I have been published in the current issue of the New Law Journal, on Lord Denning's most perfectly crafted judgment.  It can be found online in the NLJ blog under The delight of everyone

Sunday, 18 September 2011

No freedom of speech

Published in Criminal Law & Justice Weekly, Vol 175, September 10, 2011, p 527

When discussing religion and the law in this journal and elsewhere, I have consistently argued for free speech and for a complete separation of church and state. The counterpoint that others have expressed is that religion has been subordinated to other rights such as gender and sexual orientation.

I would maintain that the approach I have advocated is equally applicable to defending religion. I have been asked for some examples in support of that proposition. One obvious one concerns the sad tale of Harry Hammond’s street protest in Bournemouth in October 2001. It also provides a classic illustration of freedom of speech in the context of religion.

Continue reading here

Wednesday, 7 September 2011

Court on Camera

Published on Halsbury's Law Exchange here.

The ban on filming in courts is to be overturned in part, according to an announcement by Justice Secretary Ken Clarke. (Mr Clarke is also Lord Chancellor, though in the modern watered-down version of that office he does not call himself Lord Clarke and does not sit in the House of Lords. The resultant incongruity should be a lesson to those who attempt constitutional reform in haste, or even at leisure.)

At present filming is only allowed in the Supreme Court. Under the new measures broadcasting will initially be confined to the Court of Appeal, with the Crown Court to follow. The changes will require modification of the relevant statutory provisions, namely s 41 of the Criminal Justice Act 1925 and s 9 of the Contempt of Court Act 1981.

Filming of the Crown Court will be restricted to judges’ summary remarks, with victims, witnesses, offenders and jurors excluded (who do not feature in the Court of Appeal anyway).

I have long been in favour of allowing television in court, for the simple but compelling reason that justice has to be seen to be done. It is one of the cornerstones of English justice that any member of the public can attend court and observe proceedings, subject to only a few narrow exceptions where the interests of justice require the public’s exclusion (sex abuse or child cases being the obvious examples, though the family courts have become more open of late, to some controversy in both directions). There is no difference in principle between sitting in the public gallery watching proceedings and watching them on television. If one is a fundamental right then it is an uphill battle to justify the prohibition of the other.

On the UK Human Rights Blog Adam Wagner observes:

The success of Supreme Court Live has made it difficult to argue that Court of Appeal hearings, which are similar in that they do not generally involve live witness evidence, should not also be broadcast. Given that there are many more hearings than in the Supreme Court, which tends to hear 1 or at most 2 cases at a time, it is to be hoped that the Ministry of Justice will consider allowing hearings to be watched after the event as is the case on the Parliament Live TV website.

I would respectfully agree. I am no technical expert but it does not seem to me that with modern technology it ought to be overly expensive or otherwise difficult for hearings to be recorded and archived, and indeed to be made available online free of charge thereafter.

Of more substance are the concerns which Mr Wagner has about criminal trials:

There are other arguments against broadcasting criminal trials which I have dealt with in a previous post. They are, in summary,

1. Televised justice leads to soundbites and sensationalism, and edited highlights of a case lose the subtlety of legal argument

2. Television fosters disrespect for the court

3. Cameras pervert the trial process as juries become star struck and lawyers grandstand

4. Victims and witnesses are intimidated and can be less safe as a result

These are serious points deserving of a much greater response, but my initial thoughts are as follows:

1. This is true, but no more so than any other form of case reporting. Extracts from written judgments are often taken out of context, and reports of witness or other aspects of court proceedings are often written in a sensationalist fashion. If there was a central record of the full proceedings on an accessible website then anyone concerned about a news report could watch the whole proceedings and decide for themselves.

2. Potentially, but not certainly, if editors behave themselves and there is a full-length unadorned archive version for anyone serious about forming an opinion. Moreover, once again there is no real difference from other forms of media reporting of courts and proceedings.

3. This is a proper concern. OJ Simpson is the obvious example of television perverting a trial, but as the Fatty Arbuckle scandal shows, “yellow journalism” has been perverting court proceedings for as long as there has been such a thing as the media (even if the right result was eventually reached in Arbuckle’s case).

More recently, the tabloids were sharply brought to book for their antics with the initial suspect in the Joanna Yeates murder, as I have written about for a forthcoming issue of Criminal Law & Justice Weekly. But there is no question that judges will have a serious task in trying to ensure that neither lawyers nor jurors are influenced by the fact of the proceedings being broadcast on television, especially in high profile cases.

4. This is also a proper concern, hence Mr Clarke’s announcement that filming in the Crown Court will be restricted, at least initially, to judges’ summary remarks. If it is made clear that witnesses will not be broadcast, or perhaps not without anonymisation by pixellation and voice-altering, then the concerns should mostly be met.

With the caveat that each of the four issues will require further consideration, I remain of the view that none of them are insurmountable and that the principle of open justice should prevail. Mr Clarke’s announcement is therefore an important step in the right direction.