January 2010 articles archive:

It's still murder - 'putting someone out of their misery'

Judge Barker told Frances Inglis: 'What you did was to take upon yourself what you thought your son's wishes would have been, to relieve him from what you described as a living hell...."

For those of you who may doubt whether it is wrong to take the law into your own hands and impose your wishes upon someone else, albeit your own son, then think again. Despite the emotionally charged difficulties of the charge of murder against Frances Inglis, this was not an assisted suicide which fell within the parameters of the interim policy statement issued by Keir Starmer QC, the director of Public Prosecutions following the former House of Lord's declaration issued as a result of the case brought by Debbie Purdy.  There was no "clear settled and informed wish" to commit suicide as far as we can tell from the evidence.

Judge Brian Barker told Frances Inglis, herself a trainee nurse 'you cannot take the law into your hands' as he jailed her for life yesterday for giving her brain-damaged son a lethal heroin overdose.  Judge Brian Barker told Mrs Inglis: 'You cannot take away life, however compelling you think the reason.'

As many of you will already know, as the charge was one of murder the trial judge had no option but to impose a mandatory life sentence but the trial judge is allowed some discretion under the sentencing guidelines.  Judge Barker imposed a minimum jail term of nine years.  As Inglis has already served 423 days on remand, the period spent on remand will be deducted from her sentence - this could effectively mean that she could be eligible for parole in seven and a half years.

Mrs Inglis's son Thomas was left in a deep coma after hitting his head on the road when he plunged from a moving ambulance.  He was aged 21.

Judge Barker went on to say to the defendant: 'You were a devoted mother highly regarded for your work in the community'.

The trial judge will have set out what he will have considered the minimum sentence to be, having regard to sentencing guidelines.  In most cases the starting point is 15 years.  The judge then adds or subtracts years depending upon the seriousness of the killing.  The belief that the murder was an act of mercy is regarded as a mitigating factor.

The former Lord Chief Justice indicated, when he set the guidelines back in 2002, that the appropriate minimum term in the case of a mercy killing was 8 or 9 years.

The court heard that there was the possibility of an application being made to the High Court for a declaration allowing the doctors to stop treating Thomas but such an application had not been made.  We now know that if such an application is made then the family of the person concerned would have been involved in that legal process in accordance with the principles set down in the case of AirdaleNHS Trust v Bland (1993).

Update: have-a-go-Munir Hussain has his sentence reduced

The recent case of Munir Hussain who was sent to prison for 30 months for inflicting violent vengeance on a particularly vicious burglar has had his application for his sentence to be reduced heard by the Court of Appeal.

The Court of Appeal, in refusing Munir Hussain's application to grant leave to appeal against his conviction for grievous bodily harm with intent has clearly signalled that it does not see fit to upset the law in relation to self defence.  Mr Hussain's conviction was in respect of his attack on his assailant Walid Salem with a cricket bat back in September last year. The conviction will stand but the matter did not end there for it was followed by an application to have the sentence reviewed.  On Wednesday 20 January 2010 the Court of Appeal gave it's answer.

Munir Hussain's jail term was reduced to 12 months suspended for two years.  A supervision requirement for the two years was also added.

The appeal had been heard by Lord Chief Justice Lord Judge, sitting with two other judges.  Lord Judge said he had shown "mercy" to Hussain.

Mr Hussain's brother, Tokeer Hussain, who was also jailed for causing grievous bodily harm with intent, was less successful and had his 39-month jail term reduced to two years.

Mr Hussain's family were tied up but Mr Hussain escaped and enlisted his brother's help and chased the offenders down the street, bringing one of them to the ground.

The pair left Walid Salem with what has been described as a permanent brain injury after hitting him with a cricket bat so hard that it broke the bat into three pieces.

Lord Judge made it clear that he was not altering the law in relation to self defence and what amounted to reasonable force. 

Lord Judge added: "This trial had nothing to do with the right of the householder to defend themselves or their families or their homes. The burglary was over and the burglars had gone. No one was in any further danger from them".  Lord Judge went on to say the case was one of "true exceptionality".

In the meantime, Metropolitan Police Commissioner, Sir Paul Stephenson, has entered the debate by suggesting that people who tackle criminals "make our society worthwhile".  Sir Paul has also been reported as saying "I have worried on occasions that we have got the advice slightly wrong. People have to make reasonable judgements, but actively discouraging people from being active citizens seems to me to be wrong. Our first response should not be to discourage people from doing it. It should be to applaud their bravery and courage. Our first response should be to express gratitude that we have got citizens who would do that thing."

Others may also feel that it is only right to acknowledge an individual's bravery and courage in tackling offenders but this does not make it any easier for the families of such have-a-go-heroes.

What is perhaps surprising is that Sir Paul's remarks have been made at a time when concerns have been raised after three people have been killed in recent weeks, in London alone, after intervening in difficult and risky situations.

Sukhwinder Singh 31, died.  He was stabbed after chasing muggers who had snatched a woman's handbag in Barking, East London.

Frazer Bradshaw , 33, died after suffering fatal head injuries.  Frazer had tried to break up a brawl outside a pub in Uxbridge, West London.

David Joslin , 23, died as a result of fatal injuries sustained as a result of trying to break up a fight between two groups in Chingford, East London.

Something tells me this debate will continue.

 

 

 

 

 

 

 

Stop and search under Terrorism Act 2000-and the European Court of Human Rights ruling

The police tactic of using the stop and search powers contained within Section 44 of the Terrorism Act 2000 against peace protesters and photographers and the odd tourist has taken a battering in a crucial ruling by the European Court of Human Rights.

The provisions of the Terrorism Act 2000 authorise police officers to stop and search anyone in a designated area without the need for reasonable suspicion for such actions.  Many of you will think that this a sensible provision given the terrorist threat.  Now, however, such stops have reached epidemic proportions and some 256,000 stops were made in the year 2008/2009.  There were, by comparison, some 33,177 stops in 2004. Under the policy, it has been alleged that the police are abusing the power in order to gain some advantage in terms of what this may show statistically.  Has anyone stopped to think what effect this may have in terms of any real terrorist threat? 

Did any one inside or outside of Parliament really expect such powers to be used in such an indiscriminate way?  We are, after all, talking about individual freedoms and rights of expression and protest.  Section 44 of the Terrorism Act 2000 is about looking for articles which may be used in connection with terrorism and this ruling raises the question of whether it is sufficient justification to stop individuals just because they are present and protesting and taking pictures.  Is that the reason why the legislation was passed?

Lord Carlile, the Liberal Democrat peer and QC, spoke out about the wrongful use of Section 44 of the Terrorism Act 2000 as long ago as June 2009 in his annual report on anti-terror laws.  

Lord Carlile, the government's watchdog and independent reviewer of anti-terrorism laws, challenged the correctness of cases where suspects were stopped by officers even though there was no evidence against them.  Lord Carlile warned that police were wasting public resources by carrying out "self-evidently unmerited searches" which were an invasion of civil liberties and "almost certainly unlawful".

Where was Alan Johnson, the Home Secretary, when Lord Carlile pointed out and went to great pains to say: "I have evidence of cases where the person stopped is so obviously far from any known terrorism profile that, realistically, there is not the slightest possibility of him/her being a terrorist, and no other feature to justify the stop. In one situation the basis of the stops was numerical only, which is almost certainly unlawful and in no way an intelligent use of the procedure. I believe it is totally wrong for any person to be stopped in order to produce a racial balance in the Section 44 statistics. There is ample anecdotal evidence this is happening. I can well understand the concerns of the police that they should be free from allegations of prejudice, but it is not a good use of precious resources if they waste them on self-evidently unmerited searches. It is also an invasion of the civil liberties of the person who has been stopped, simply to 'balance' the statistics. The criteria for section 44 stops should be objectively based, irrespective of racial considerations: if an objective basis happens to produce an ethnic imbalance, that may have to be regarded as a proportional consequence of operational policing."

The European Court of Human Rights (ECHR) sitting in Strasbourg has ruled that it was unlawful for police to use the powers, under Section 44 of the Terrorism Act 2000, to stop and search people as at the present the law does not need any grounds for suspicion.  The ruling states that not only the use of the counter-terror powers is found wanting, but also the way they were authorised or sanctioned left a lot to be desired in that they were "neither sufficiently circumscribed, nor subject to adequate legal safeguards against abuse".

The case was brought to the ECHR by Kevin Gillan and Pennie Quinton.  The pair were stopped by police while on their way to a demonstration outside the annual arms fair at London's Docklands, in September 2003.

As part of the stop and search Quinton, a journalist, was ordered to stop filming the protest.  This was despite the fact that she showed her press card, which is usually enough to establish that the holder is a member of the press.  In the case of Gillan, who was riding his bicycle, he was only allowed to go on his way after 20 minutes.  An award of €33,850 (£30,400) in costs and expenses was made.  It is quite possible that other challenges could be made alleging abuse under the stop and search measures.

The ruling issued last week is quite critical of the police policy.  In particular the ECHR were clear in their view that the power to search a person's clothing and belongings in public included an element of humiliation and embarrassment and amounted to a clear interference with the right to privacy.  The judges were also critical of the finding that there is no requirement that the powers be considered "necessary" only "expedient".

The ECHR were also damning of the practice of continuous renewal sought by way of confirmation from the Home Secretary.

The European court also said there was no real check on authorisations by parliament or the courts.

Probably, most embarrassingly, bearing in mind the pains to which Parliament has gone to in approving comprehensive Codes of Practice under the Police and Criminal Evidence Act 1984 was the ECHR's finding that stop and search under Section 44 of the Terrorist Act 2000 was "based exclusively on the 'hunch' or 'professional intuition' of the police officer".

M/s Quinton has been reported as saying she was delighted with the judgement, adding: "There has to be a balance between private life and security. The court has shown that section 44 is an invasion of people's right to liberty and privacy. Hopefully the government will have to put a fairer law in place to protect us."

Liberty who supported the parties were equally forthright indicating that "Liberty has consistently warned the government about the dangers of stop and search without suspicion and actively campaigned for the tightening up of the infamous section 44 power. The public, police and court of human rights all share our concerns for privacy, protest, race equality and community solidarity that come with this sloppy law. In the coming weeks parliamentarians must finally sort out this mess".

Let's hope the Home Secretary will be big enough to admit that its not enough to say that the Home Office is disappointed with the ruling!

 

 

 

 

 

 

 

 

No jury trial - update

The first no jury Crown court criminal trial started on the 12 January 2010. This follows Lord Judge's ruling last June to allow such a trial due to the risk of jury tampering, at the same time ackowledging the "hallowed principle" of jury trials.

The first crown court criminal trial to be held without a jury in England and Wales for more than 350 years commenced at the Royal Courts of Justice on Tuesday 12 January 2010.  

The case concerns four men accused of a £1.75m armed robbery at a cash depot at Heathrow Airport, in 2004.

Last June, Lord Chief Justice Lord Judge made legal history by allowing the trial to be heard by a judge alone as he feared jury "tampering".

Sam Stein QC, representing one of the men, pointed out: "We are breaking history. This is the first time that a court has started a jury-less trial." 

 

The trial is the fourth in this troubled robbery case.

Not everyone is happy with Lord Judges's ruling. 

Roger Smith, Director of the law reform and human rights group Justice, has been reported as saying: "The worry is that this is the thin end of the wedge and that it is likely to be expanded. As one senior judge (referring to Mr Justice Calvert-Smith who turned down an earlier application) looked at this and thought it should be safely tried with a jury, it should have been."

According to Paul Mendelle QC of the Criminal Bar Association "Some principles of justice are beyond price - trial by your peers is one of them".  No doubt the debate about holding a criminal trial without jury will continue.

However, the principle has now been limited by Parliament under the Criminal Justice Act 2003.

It came into force in 2007 and provides for trial without jury if there is a 'real and present' danger that jury tampering would take place, in circumstances where any measures to protect the jurors are considered to be inadequate.

For those legal historians amongst us, trial by jury is a fundamental principle of our criminal justice system and traces its roots back to the signing of Magna Carta by King John in 1215.  People in this country have not been tried for serious criminal offences on indictment in the absence of a jury, since 1641 and the abolition of the notorious Court of Star Chamber, favoured by monarchs and royalists.
However, the principle has now limited approval by Parliament under the Criminal Justice Act 2003.  The measure came into force in 2007 and provides for trial without jury provided there is a 'real and present' danger that jury tampering would take place, in circumstances where any measures to protect the jurors are considered to be inadequate.

 

 

 Daniel New (left) and Brian O'Callaghan
Supporters of the defendants protested outside court

 

Self-defence and the issue of reasonable force

The recent case of Munir Hussain who was sent to prison for inflicting violent vengeance on a particularly vicious burglar has reopened the debate on whether the law on self defence strikes the right balance?

Before we consider these latest outbursts by the political parties at such an outrage we should remind ourselves briefly about the law. 

The law of self-defence embraces not only acts which are needed to defend oneself from attack, but has been supplemented by statutory law to cover actions taken to defend another or to prevent crime.  The statutory provisions can be found in Section 3 (1) of the Criminal law Act 1967 which provides that:

" A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large." 

Section 76 of the Criminal Justice and Immigration Act 2008 now codifies the law.

Can the defence of self-defence be raised as a defence to any crime?  Yes it can be a defence to any crime, including murder.  The essence of the defence is that the defendant is justifying the use of force.

The defence involves the concept of reasonableness and commensurate force.  The force used to defend oneself or another must be reasonable in all the circumstances.  The law allows the victim to use force but the force must not be excessive.  If excessive force is used then the defence will fail and this includes the use of force after any danger from the assailant has ceased.  In such situations the defence is not available and this touches upon the particular circumstances in which Munir Hussain pursued and attacked his assailant.

So what do the political parties say?

Chris Grayling, shadow home secretary for the conservatives, says he wants to tear up the reasonable force test and argues that such a test restricts self-defence.

Chris Grayling has been reported as saying that the Conservatives would make it harder for people who tackle burglars to be prosecuted.

Mr Grayling wants to change the law so that people are only prosecuted in cases where their actions are judged to have been "grossly disproportionate".

The debate has been triggered following the conviction of Munir Hussain, who was jailed for beating a burglar who tied up his family in their home.

The Home Secretary, Alan Johnson, on the other hand, is reported as saying that the law has been strengthened to protect the householder against intrusion and seems to agree with the way in which the trial judge took issue with Hussain over the matter of whether the attack was proportionate. He has, however, hinted that the law may be reviewed again to ensure that it protects the householder.

The Liberal Democrats seem to take yet a different view and do not think that the law needs to be changed.  Charles Kennedy, the Former Liberal Democrat leader, has said that he did not believe the law needed to be changed, adding "My own personal feeling is that it is best left to the courts. I think there is sufficient discretion in the existing legislation for the courts to judge each case on its individual circumstances. But there is no doubt that there is a considerable public head of steam about this."

So what were the circumstances surrounding the attack?

Walid Salem, a criminal with more than 50 convictions, was handed a two-year supervision order for his role in the break-in.

Walid Salem was one of three men who ambushed Mr Hussain, his wife and children as they returned to their home in High Wycombe, Bucks, in September 2008.  They had been attending Ramadan prayers at their local mosque.

Their hands were tied behind their backs. As a result they were forced to crawl from room to room before being made to lie down in the living room.

Mr Hussain’s teenage son managed to escape and raise the alarm.  Mr Hussain seized his chance and turned on his captors.

While two of them got away, Salem was cornered in a neighbour’s front garden.  Helped by his brother, Tokeer, 35, who lived nearby, Hussain set upon him with a metal pole and a cricket bat.

Apparently he was struck so hard that the bat broke and he suffered a fractured skull. He was later deemed not fit to plead to charges of false imprisonment and given a supervision order.

Munir Hussain and his brother Tokeer Hussain were found guilty of causing grievous bodily harm with intent. 

We will leave the last word to the trial judge, Judge John Reddihough.  He told the brothers it was his “public duty” to jail Munir Hussain for 30 months and his brother for 39 months.

"It may be that some members of the public, or media commentators, will assert that the man Salem deserved what happened to him ... and that you should not have been prosecuted and need not be punished,” he said.

"However, if persons were permitted to take the law into their own hands and inflict their own instant and violent punishment on an apprehended offender rather than letting justice take its course, then the rule of law and our system of criminal justice, which are the hallmarks of a civilised society, would collapse."

He said it was necessary to “make it absolutely clear that, whatever the circumstances, persons cannot take the law into their own hands, or carry out revenge attacks upon a person who has offended them”.

I will be surprised if this is the last word!

 

 

Attempted murder or assisted suicide?

In stark contrast to the case of Frances Inglis who administered a dose of heroin to her son Tom and who is now serving a life sentence, Mrs Bridget Gilderdale has, earlier this week, been cleared of the attempted murder of her daughter Lynn.

Jurors at Lewes Crown Court returned a unanimous 'not guilty' verdict against Mrs Gilderdale who had been charged with attempted murder of her daughter Lynn who died in December 2008.  Lynn suffered from the chronic fatigue illness, ME, and had fought against the condition for some 17 years.  Over a period of time Lynn had become paralysed and found it difficult to swallow.  The court was told that after Lynn made a failed suicide bid her mother crushed up pills with a pestle and mortar and fed them to her through her nasal tube, Mrs Gilderdale also handed her morphine and injected three syringes of air into her vein.

It is not necessary for either the jury or the trial judge to defend the verdict, but after the jury had delivered its verdict in this case, Mr Justice Bean said: "I do not normally comment on the verdicts of juries but in this case their decision, if I may say so, shows common sense, decency and humanity which makes jury trials so important in a case of this kind. There is no dispute that you were a caring and loving mother and that you considered that you were acting in the best interests of your daughter."

Mr Justice Bean was obviously sufficiently concerned about the merits of the case as he asked the Crown Prosecution Service's prosecutor "why it was considered to be in the public interest" to pursue Gilderdale on the attempted murder charge when she had pleaded guilty to aiding and abetting suicide. 

Following her earlier admission of aiding and abetting the suicide of her 31-year-old daughter, Mrs Gilderdale was given a 12-month conditional discharge.

The Crown Prosecution Service told the court that the decision to prosecute was taken at "the highest level".  Apparently this was after Mrs Gilderdale had told her GP and police she had given her daughter an air embolism (injected three syringes of air into her vein) with the intent to end her life.

A post-mortem examination found that Miss Gilderdale had died of a morphine overdose which she had taken herself before asking for her mother's help to end the pain, and as a result of which Mrs Gilderdale was not charged with murder but with attempted murder.

Following the verdict the Gilderdale family, through her son Steve, read out a statement on the steps of the court. Steve, flanked by his mother and father, praised the verdict.

The statement read: "We believe this not guilty verdict properly reflects the selfless actions my mother took on finding that Lynn had decided to take her own life, to make her daughter's final moments as peaceful and painless as possible. These actions exhibit the same qualities of dedication, love and care that mum demonstrated throughout the 17 years of Lynn's illness. I'm very proud of her and I hope she will be afforded the peace that she deserves to rebuild her life and finally grieve for the death of her daughter."

The case is sure to attract attention and trigger further debate and argument about the adequacy of the law over assisted suicide.

Ironically the jurors were told that Mrs Gilderdale was a loving and devoted mother who gave round-the-clock care during her daughter's battle with ME.

Similar words were used to describe Mrs Inglis when she was sentenced to life for her part in the murder of her son.  In the case of Mrs Inglis, she seemed intent on acting to end her son's life regardless of his wishes, whereas the case of Mrs Gilderdale's daughter Lyn seems to be distinguishable as there was a settled and clear intention of dying.

Apparently Lynn had attempted suicide in the past.  There was also a 'Do Not Resuscitate' note on her medical records and Lynn had even considered ending her life at Swiss-based assisted suicide organisation Dignitas.

Other interested parties have already let their views be known, adding to the debate. 

Sarah Wootton, Chief Executive of the charity Dignity in Dying, said the law made little distinction between the act of murder, euthanasia, assisted dying and assisted suicide.

Sarah Wootton added: "Given that Lynn Gilderdale was mentally competent, made persistent requests to die and had an Advance Decision stating that she did not want to be kept alive, it seems that [Bridget] Kay Gilderdale's actions should have been investigated under the Suicide Act, rather than under murder law. Ultimately, the government needs to review the law in this area, as this case highlights at present the law is a mess."

In the meantime, the Scottish Parliament is set later this year to debate the End-of-Life Assistance Bill, introduced by MSP Margo Macdonald who herself suffers from Parkinson's disease.  The Bill proposes to legalise suicide and allows terminally ill people to seek help to die.

Apparently a survey of two-thirds of MSPs showed 17 supported the bill, 53 said they were against and 20 were undecided.  The survey was conducted by BBC Scotland's Politics Show and is based upon 90 replies out of 129 MSPs.

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