October 2009 articles archive:

Police powers – ‘reasonable response’ – Exceeding powers? – IPCC

Male apparently tasered and punched by police in Nottingham.

The police may not be used to finding themselves in the spotlight but they have to get used to the idea. Maybe the public’s dissatisfaction with how the government and Westminster are operating has some bearing on the public’s willingness to challenge and question police behaviour.


Those of you who are looking for an example to debate the issue of 'reasonable response' may need to look no further than You Tube and the case of the 40 year old man seen, apparently in some agony, on the floor as police officers use a stun gun or ‘taser’ whilst trying to arrest him in Nottingham city centre. The taser is used more than once and another officer appears to punch the suspect several times around the head or shoulder. Some argue that the officer was trying to hit the suspects hands in order to get him to comply with putting on cuffs. The issue seems to be whether the man was resisting arrest.


The IPCC is to investigate this incident which has already generated a lot of interest.


Assistant Chief Constable Peter Davies said: "The public's trust and confidence is very important for us, which is why we have referred this matter for an objective investigation to the IPCC. We are pro-actively looking at other CCTV in the area to ensure we have a clear picture of events leading up to the arrest."


Political parties appear indignant and Chris Huhne, the Liberal Democrat home affairs spokesman, said: "This shocking footage calls into question the wisdom of issuing more and more police officers with Tasers. These are dangerous weapons that have killed 334 people in the United States, yet the Home Office seems to be treating them as standard issue for routine matters. We must not slide down the slippery slope towards fully-armed, US-style policing."


Amnesty International UK have been reported as saying: "While we do not know the specifics of the case, from what we can see from the footage, Amnesty International has serious concerns about the way in which the Taser was used in this incident. "


The suspect in question was subsequently arrested on suspicion of causing grievous bodily harm and has since been bailed. The incident followed complaints made by door staff at a city centre nightclub.


Criminal courts – Sentencing – Appeals from the Crown Court – by the prosecution

A lot has already been said about the death of Baby Peter but a lot more will be said. With feelings running understandably high we must not lose sight of what is right and fair.

One aspect that will be discussed for some time will be the rights and wrongs of the indefinite sentences handed out to those responsible.  Provisions of this kind have their origins in America and are intended to enable the courts to hand out appropriate sentences for persons who are not just first time offenders, but persistent or repeat offenders, and where the circumstances are serious.

We now learn that Jason Owen, brother of Steven Barker, will serve less than six years for his part in the death of Baby Peter.  Yesterday the Court of Appeal overturned his indeterminate sentence. 

Jason Owen, 37, was a lodger in the house in Haringey where the 17-month-old toddler Peter Connelly was tortured and battered to death. 

Earlier this year, Owen was given an indeterminate sentence with a minimum term of three years.

Lord Justice Hughes, when quashing the indeterminate sentence, said: “His present offence is deeply unpleasant because a completely innocent child whom he could have protected was not protected by him against harm by others. He displays a willingness to deceive ... which is unattractive, but to translate that into a significant risk that he will himself in the future commit offences involving death or serious personal injury to the public is ... simply a step too far.”

Lord Justice Hughes added that the important issue was “whether there was a demonstrated risk of future death or serious injury at his hands, which is what had to be shown to justify the imposition of an indeterminate sentence, which was akin to a life sentence”.

Individuals convicted of a second violent or sexual offence will normally receive a sentence of Indefinite Detention for Public Protection (IPP). This was introduced in April 2005 and replaced the automatic life sentence which could be imposed following a second serious conviction.

The use of the automatic life sentence was extremely controversial and it seems as though the use of indeterminate sentences may invite yet more controversy.

The issue of public protection and what amounts to a danger to the public is difficult to quantify and is subjective. Such debates also seem to distract us away from the loss suffered by the victim’s family.

Some of you may recall the well-publicised cases of David Walker and Nicholas Wells. The two prisoners, a sex offender and a man convicted of attempted robbery, won landmark challenges to the system of indeterminate sentences. Indeterminate sentences have no fixed end-dates.

Both were able to argue that they could not demonstrate their eligibility for release, as offending behaviour courses were not provided at the jails where they are held.

As at the end of February 2008, there were 4,000 offenders serving indeterminate sentences for public protection (IPPs) in prison establishments in England and Wales. The trends are that the figures are increasing. The figure towards the end of 2009 is now believed to be closer to 4,600 prisoners.

The court ruling against the Government and the Parole Board could leave the government with funding problems if they are expected to provide treatment programmes.

David Walker, was given an indeterminate sentence after being convicted of sexual assault. Nicholas Wells, whose 12-month minimum term for attempted robbery expired last September, both challenged their sentences.

They could not be released because their prisons did not have necessary rehabilitation courses.

Lord Justice Laws, sitting with Mr Justice Mitting, said: "To the extent that the prisoner remains incarcerated after tariff expiry without any current and effective assessment of the danger he does or does not pose, his detention cannot in reason be justified. It is therefore unlawful."

The Ministry of Justice, which is to complete a review of the operation of the sentences this month, was granted a stay on the ruling pending an appeal.

There are some who argue that indefinite sentences are being used in cases where shorter custodial sentences would seem to raise the issue of appropriateness and public protection. Between April 2005 and March 2006 collected valid tariff information on 685 of the total 707 IPPs, showed that (a) 280 had a tariff of two years or less; (b) 195 had a tariff of over two years up to three years; (c) 107 had a tariff of over three years up to four years; (d) 46 had a tariff of over four years up to five years; and (e) 57 had a tariff of over five years. 

There are also concerns about mental health issues. The Sainsbury Centre for Mental Health, a charity, claims prisoners with mental health problems, who have no automatic right to release, are not getting the support they need to leave jail.

According to Corin Williams for Community Care, the charity (i.e. the Sainsbury Centre) uncovered a high rate of mental illness among people given an Imprisonment for Public Protection (IPP) sentence. It was found that of around 4,600 IPP prisoners in England and Wales, just 31 had been released in the last year”.

Corin went on to explain “IPP is an indeterminate sentence for offenders whose crimes are not serious enough for life imprisonment, but who are considered by the court to be potentially dangerous. Offenders can only be released once the Parole Board is satisfied they no longer pose a risk to the public”.

In the meantime, Owen's time spent on remand prior to his trial will count towards his sentence, so it is estimated that he will be eligible for release in less than two years.  Many will argue that this is hardly justice for Baby Peter.

Sir Ludovic Kennedy dies at the age of 89

Sir Ludovic Kennedy has been described as the man who put an end to capital punishment.

Sir Ludovic Kennedy, a distinguished broadcaster and author, has died at the age of 89.

Sir Ludovic published a steady stream of books from 1961 about crime, the law and miscarriages of justice. He held strong convictions and believed the main problem in nearly all these cases was the "extremely childish" British system of adversarial justice in which "each side does its best to vanquish the other and truth falls by the wayside"

Some of you may think that some of the problems associated with our legal system are new.  Not so, it was Sir Ludovic who identified some of these concerns many years ago.  He, like many others, found it difficult to understand why we did not have a separate government Department having responsibility for our legal system.  For many years he advocated for the establishment of a Ministry of Justice including a change to a system more like the French inquisitorial system.  

Although we have not adopted such a procedure, it could be said that with the modern trend of very elaborate comprehensive disclosures of evidence and trials with members of the jury often visiting crime scenes, we have moved towards a system where there is a search for the truth, as opposed to an approach where a successful prosecution must be achieved at any price.

Sir Ludovic's career, in which he championed the cause of the wrongly convicted, began after 18-year-old Derek Bentley, the last man in Britain to be hanged,  was sentenced for shooting dead a policeman even though someone else pulled the trigger.  Sir Ludovic and the survivors of the Bentley family were eventually rewarded with a posthumous pardon for Derek Bentley, who had been hanged in 1953 for the murder of the policeman, even though he was being restrained by police when an accomplice shot dead PC Sidney Miles.

10 Rillington Place, was probably his most famous book and caused some notoriety when Sir Ludovic argued in his work that another executed man,Timothy Evans, did not murder his baby daughter.

Sir Ludovic maintained that the serial killer John Christie, was responsible.  A police inquiry was held and as a result of the inquiry, Evans was granted a posthumous pardon.  Sir Ludovic's book was turned into a film starring John Hurt in 1970.

Sir Ludovic's open letter to The Times back in January 1961 has been archived and may be viewed as a link to this article.  It is fascinating to note Sir Ludovic's direct and eloquent language when he wrote 'this is the story of two men: the one an ex-police officer who became a necrophiliac strangler; the other, a 25-year-old youth with a 10 1/2 year-old brain, and of the unique and terrible thing that happened to him'.

The article reminds us that Sir Ludovic firmly declared to the then Home Secretary 'I myself am wholly convinced of Evan's innocence' having seen nearly all the people connected with the case who were still alive.   It was not until years later that a pattern of events could be found with miscarriages of justice, namely, damning confessions, subsequently withdrawn, followed by protests of innocence, the presence of new forensic evidence which was not available at the trial and the lack of any real attempt by the police to challenge and continue with investigations after they had thought they had got their man.

By this time Sir Ludovic had the audacity to take on the FBI by opening up one of the most notorious cases in US criminal history.  Sir Ludovic advanced the argument that Bruno Richard Hauptmann, who was executed in 1936 for the kidnap and murder of the baby son of the aviator Charles Lindbergh, was innocent.

Sir Ludovic did not stop there but decided to go public and into print.  In 1985 he published The Airman and the Carpenter, in which he argued that Bruno Hauptmann was innocent of kidnapping and murdering Charles Lindbergh's baby.  The book was made into a film starring Isabella Rossellini in 1996.

Finally, returning to the point that we sometimes may be excused for thinking that some issues are a product of our own generation, Sir Ludovic was also a former president of the Voluntary Euthanasia Society.  Now there's an issue which has concentrated legal minds very recently, so much so as to require Keir Starmer QC to publish an interim statement as to the circumstances when someone assisting in the death of someone could expect to be prosecuted.

Sarah Wootton, Chief Executive of Dignity in Dying - as it is now known- has made it known that the organisation was saddened to hear of Sir Ludovic's death, adding 'He was a passionate advocate of assisted dying for terminally ill people, whose compassion and vigorous intellect were an asset to the organisation'.

We may not always agree with the views of others but hopefully there are others out there still searching for the truth.


Judicial review

Students looking for a memorable case where the claimant makes an application to the Queens Bench Divisional Court for a judicial review of a decision, may find the case of Ms Shoesmith, the former Head of Haringey Council's Child Care Services, helpful.

Sharon Shoesmith claims that she was was dismissed unfairly and unjustly in December 2008, following the political intervention of the Education Secretary, Ed Balls.  Ms Shoesmith's claim is that the Education Secretary breached the 'rules of natural justice' in the manner in which he dismissed her from her post.  Ms Shoesmith had been the head of children's services at Haringey Council in London.  The sacking was over the death of Baby Peter.

Ms Shoesmith made an application for a judicial review.  The proceedings are against her former employing authority, Ofsted, who have supervisory responsibilities, and Mr Ed Balls.  The application was made to the Queens Bench Divisional Court in effect requesting that the decision to dismiss is reviewed by the court.

There are a number of principles which must be followed according to the rules of natural justice.  Some of the more important ones are:

  • every one should know the nature of the case against them;
  • there is a duty to hear both sides before a decision is made;
  • no one should act as judge in their own cause.

You may wonder what possible justification there could be for challenging Ms Shoesmith's dismissal.  The dismissal followed not only the death of Baby Peter but the subsequent trial of his mother, Tracey Connelly, her partner, Steven Barker and Barker's brother, Jason Owen.  All three were jailed for their part in Peter's death.

Part of Ms Shoesmith's case is that she was unfairly and unjustly dismissed only after Mr Ed Balls allowed himself to be influenced by a 'media storm and a witch hunt' following the publication of details of what happened to Baby Peter.   The suggestion is that Mr Balls acted out of desperation after he realised that he may face continued embarrassment in the media if he were questioned about his Department's apparent lack of action over the matter.  Ms Shoesmith's lawyers drew attention to how pressure on Haringey Council to dismiss Ms Shoesmith came after a heated exchange about Baby Peter during Prime Ministers question time on November 12th 2008.  By this time it had become public knowledge (and presumably it ought to have been known to professionals directly involved) that Baby Peter had died in tragic circumstances which allegedly could have been prevented.  It is alleged that within a short time of the embarrassing exchange in the House of Commons, David Bell, the Permanent Secretary at the Department for Children, Schools and Families, and Beverley Hughes, the Children's Minister, had contacted senior officials at Haringey council 'seeking her dismissal'.

The allegations concerning Mr Balls, extend to his attempts to influence an official body having powers over child care services i.e. Ofsted.  The suggestion is that it was at about this time that he instructed Ofsted to go into Haringey and review its work. 

The Divisional court has announced that a reserved judgement will be made. We must await the outcome, but the case does serve as a timely reminder that, no matter how damning the matter seems to be, we may pay a heavy price for not following the rules of natural justice.

Whatever the outcome, it is extremely unlikely that, even if she wins her case and the decision to dismiss her is quashed and done away with, Ms Shoesmith could contemplate returning to her former place of work.  She is claiming damages.  In this regard it is perhaps worth reminding ourselves that the court's powers in such cases is quite specific.  The court has three 'prerogative' orders it may make when there has been a breach of natural justice.  The orders are:

  • 'Mandamus' a mandatory order.  This is addressed to the inferior court or tribunal (this will include an authority or Official under an obligation to act in a quasi judicial manner) to carry out a duty.  In this case to hear a case properly including hearing both sides;
  • a prohibition order, which effectively prevents the body concerned from dealing with a matter which it has no authority to hear or deal with;
  • a quashing order, which does away with the decision in the sense that it is quashed and therefore had no authority or effect.

The case is also relevant to the matter of 'ultra vires' in the sense that Ms Shoesmith's lawyers have argued that the events surrounding the dismissal were 'beyond the powers of the Secretary of State, as set out by s497A (4B) of the Education Act 1996'.

We must await the divisional courts judgement.




The Supreme Court

Will the setting up of the Supreme Court lead to a better understanding, on the part of the public, of the justice system and the role of the Supreme Court?

If you were one of the many studying law and embarrassingly did not know much about the House of Lords and its' work, or, like thousands of others did not even know where it was located, then do not despair.  Now that the House of Lords closed its doors for the last time in July 2009 in readiness for the opening of a brand new, grandly named, Supreme Court you can concentrate all your energies into finding out everything it's possible to know about the UK's Supreme Court.

Incidentally the Judicial Committee of the House of Lords, which was the part of the House which acted as the nation's highest court, carried out its business in some obscure part of the Palace of Westminster.  The new Supreme Court on the other hand has been located in a much more high profile and newly-refurbished building in Parliament Square.  The decision to locate the Supreme Court away from the House of Lords has been quite deliberate to counter any possible suggestion that the Court might be part of Parliament and therefore not completely independent.

Another new move means that for the first time in the highest court in the land, television cameras will be there to record its work.  Many of you who have visited courts as part of your studies will probably remember being warned by tutors about taking cameras and mobile phones into court as television cameras are banned from all other courts in England and Wales.  Contrary to countries like America where televised court proceedings seem to be part of everyday life.

The Court's new president, Lord Phillips of Worth Travers, is anxious for the public to understand the role of the Supreme Court and is clearly in favour of greater openness about the Court's work and has commented “One of the objects is to enhance public understanding of the justice system and the role of the Supreme Court.”  Lord Phillips hopes that these initiatives will work as he believes that the public did not 'really understand' the role of the former House of Lords and its judges.

The Court will consist of 12 Law Lords presided over by Lord Phillips. The Court has one vacancy at present, due to the standing down of one of the top judges, Lord Neuberger of Abbotsbury.  Lord Neuberger is to take over high judicial office as Master of the Rolls.

Lord Neuberger of Abbotsbury, some will say quite rightly, made public his views about the necessity for a new Court, saying that the court’s creation verged on 'frivolous tinkering with the constitution', which may have 'dangerous unintended consequences'.

The UK’s Supreme Court opens for business in October  2009 — and, for the first time, television cameras will be there to record the Supreme Court's  work, but will the subject matter be gripping enough?  This must be of some concern because the judges have deliberately chosen a case which will be about powers to freeze terrorist suspects' assets.  Lord Phillips has been reported as saying 'We wanted to start with a case of obvious public importance,” adding,  “....that seems an appropriate one.”

Well we will see!  In the meantime, you can have too much of a good thing so maybe we will leave things there for the moment. 

Lets hope Lord Phillips is right to be 'excited.'





Recent Posts

The latest posts from the lawmentor.co.uk blog archives.

Caparo three part test – revisited

In Robinson the Supreme Court laid to rest the proposition that there is a Caparo test which applies to all claims in the modern law of negligence.

Statutory interpretation - penal legislation is construed strictly

The Supreme Court reminded everyone per Lord Reed and Lord Hughes that 'Penal legislation is construed strictly, particularly where the penalty involves deprivation of liberty'.

Court of appeal gives judgment acknowledging unmarried woman's rights

The claim related to bereavement payments under the Fatal Accidents Act 1976 as amended.

European union law – in the case of conflict between national law and european law

Walker (Appellant) v Innospec Limited and others (Respondents) [2017] UKSC 47 On appeal from [2015] EWCA Civ 1000

Vicarious liability is alive and well

This decision extends the doctrine of vicarious liability in respect of foster carers for the fist time and it represents another example of the potential for the expansion of this form of liability.

Supreme court busy - make sure you are geared up for your course

The Supreme Court has been especially busy lately.

Gina miller v secretary of state for exiting the eu 2016 as an example of the importance of judicial independence

Law students are now required to take note of how the independence and work of the judiciary has been reformed

Policing and crime bill and provisions for bail after arrest but before charge

The clear intention is that decisions on pre-charge bail should come under scrutiny.