March 2010 articles archive:

Keir Starmer takes into account new guidelines: Caractacus Downes

In the first case in which the public interest factors outlined in the new guidelines published in February have been taken into account, Keir Starmer has announced that the son of the conductor Sir Edward Downes will not be prosecuted.

This is the first time that the public interest factors set out in the new guidelines to clarify the rules on assisted suicide have been applied.

Apparently there would have been sufficient evidence to charge Mr Downes under the Suicide Act 1961 with an offence of assisting suicide.  Despite this the Director of Public Prosecutions has spoken out to make it clear that he did not think it was in the public's interest to proceed with such a prosecution.  Mr Downe's father, Sir Edward, and his wife, Lady Joan Downes, died last year at the dignitas clinic in Switzerland.

Mr Starmer seems satisfied that in helping the couple, their son, Caractacus Downes, was 'wholly motivated by compassion.'

Starmer has been reported as saying: "Having decided there is sufficient evidence to charge Mr Downes, it has been necessary to consider whether a prosecution is required in the public interest.

"The factor tending in favour of prosecution is that it is clear that both Sir Edward and Lady Downes were able to book the hotel room themselves and that, nevertheless, Mr Downes undertook that act.  However, the available evidence indicates that Mr Downes's parents had reached a voluntary, clear, settled and informed decision to take their own lives and in assisting them, Mr Downes was wholly motivated by compassion.

"Although his parents' wills show that Mr Downes stood to gain substantial benefit upon the death of his parents, there is no evidence to indicate that he was motivated by this prospect."

Another notable feature of the case was the minor role played by the son.  In addition the police had been informed and full co-operation with the police had been given.

Common assault or self defence: the case of Sgt Delroy Smellie

Will the case of Sgt Delroy Smellie help with our understanding of how the courts approach the use of force by police officers?

You may remember that it was Sgt Delroy Smellie who allegedly struck a woman with his police baton during the G20 protests in London in April 2009. Sgt Delroy Smellie who is a member of the Metropolitan Police has been charged with common assault on Nicola Fisher. The incident was caught on video at the time and posted on YouTube. The case is being heard by City of Westminster Magistrates. Sgt Smellie denies the charge.


The case illustrates that in the event of an allegation of criminal behaviour, such as assault by individual police officers possibly exceeding their powers, proceedings can be brought against the individual officers. Officer Smellie has told the court that he felt threatened and he has added that he was fearful that Ms Fisher may have been holding weapons in her hand. The court has learnt that Ms Fisher had been holding a carton of orange juice.


The difference in size between them has already been highlighted and Sgt Smellie acknowledged that he was aware that Ms Fisher was ‘ significantly smaller’ when he had been asked how hard he had hit Ms Fisher. The officer then went on to tell the court ‘However it had to be hard enough to achieve the object of negating the threat’. The officer could not remember hitting Ms Fisher a second time with his baton across the leg. Initially, Sgt Smellie had struck the woman across the face which in his words was a ‘clearance strike’.


Was the force used justified?  Will the court accept that an experienced police officer can feel threatened and isolated in such situations?  What was the mood of the protesters before the confrontation?  Was it fair to say the mood of the crowd changed and that they closed in causing the officer to feel isolated?  We must wait and see as the case continues but there is no doubt that the outcome will be of interest to individual police officers and Senior Officers alike as well as members of the public.


‘Quiet diplomacy’ in the EU does not seem to suit everyone: Baroness Ashton’s spokesman quits

Will the new post, called High Representative, give the EU more influence on the world stage?

‘Quiet diplomacy’ in the EU does not seem to suit everyone, at least not Lutz Guellner, spokesman for Baroness Ashton , who has quit his post.

Six weeks of quiet diplomacy with the EU’s High representative, Baroness Ashton, seems to have been too much for her chief spokesman, Lutz Guellner, who has resigned in order to take up another position within the EU. 

Heralded with much publicity and comparisons with other strong female leaders, such as Angela Merkel, Germany's Chancellor, many would argue that it remains to be seen whether Lady Ashton will ever make her mark in this role.

Mark Devereaux, HIV positive, is jailed. Remember Dica?

Mark Devereaux was HIV positive and knew it, but still continued to have unprotected sex with his girl friend. She became pregnant and infected with the virus.

It should be pointed out that the case was heard in Scotland.  Mark Devereaux has been jailed for 10 years.  The charges were of culpable and reckless conduct.  The basis of the charges was his reckless regard for his girlfriend.  Devereaux's  girlfriend found out he had infected her with HIV when she was pregnant.

The court were also told that Mark Devereaux also had unprotected sex with other women - apparently he had known he had the virus for nine years.

These sorts of cases are fortunately rare but some of you may recall the case of R v Dica.  Dica had infected two women with HIV after he persuaded them to have unprotected sex.  Dica did not tell either woman that he was infected.  Dica was charged with causing grievous bodily harm under section 20 of the Offences Against the Person Act 1861, and was sentenced to 8 years imprisonment.

Following his conviction, Dica won an appeal against conviction before the Court of Appeal.  The appeal turned on the issue of the direction by the trial judge on the matter of consent.  The issue of whether HIV infection could amount to GBH was not the issue at the appeal and it has since become known as biological GBH. There was considerable concern over the question of whether either woman could be said to have consented when the consent was not fully informed in that they had not been told of the risk of infection to themselves and the consequent serious risk of harm to themselves.

The Court of Appeal ruled that the original trial judge ought to have allowed the jury the opportunity of considering consent as a defence.

Dica was retried, convicted and jailed.

However not everyone is happy with the the way in which the matter has been dealt with claiming that there may be other issues involved.

Roy Kilpatrick, Chief Executive of HIV Scotland, has been reported as saying: "We are particularly worried about the fact that prosecutions were brought in this case in respect of three sexual partners of Mr Devereaux who had not contracted HIV.

"We recognise that the primary motivation for bringing this prosecution must have been the actual transmission of HIV and that the prosecution would have felt it necessary to put the full context before the court.

"However, it would be alarming if the charges brought in this case open the door for future prosecutions in cases where no harm has been caused."

In the event that there is no actual transmission then one could argue that there was no grievous bodily harm or biological harm.  Even so there may be some who might argue that such good fortune should not enable someone to escape the law for what might otherwise appear to be irresponsible and reckless behaviour.  There is also the matter of psychological harm and the issue of consent as identified by the Court of Appeal.

Age of criminal responsibility of children: Maggie Atkinson

A lot of people think that the Children’s Commissioner, Maggie Atkinson, could have chosen a better time to suggest the possibility of raising the age of criminal responsibility.

Many of you may find yourself researching this subject and reporting on the age of criminal responsibility in other countries.

The age of criminal responsibility has been the subject of reform in the recent past but in current times it would be very brave of the government to even hint at considering raising the age of criminal responsibility.  In recent years and following consideration of the point by the former House of Lords when the House preferred to leave the matter to Parliament The Crime and Disorder Act 1998  abolished the presumption that under-14s in England and Wales did not know the difference between right and wrong.

Until the 1998 Act, those aged between 10 and 14 could only be brought before a criminal court when prosecutors could show the children knew their actions were wrong.
The Ministry of Justice has made it’s position clear by saying "We do not intend to raise the age of criminal responsibility. It is not in the interests of justice, of victims or the young people themselves to prevent serious offending being challenged.
"Custody for under-18s is always a last resort and is only used for the most serious, persistent and violent offenders.
"Only 3% of young offenders who admit or are convicted of an offence receive a custodial sentence and the government has expanded the range and intensity of community sentences available for young people, as an alternative to detention."
The Children's Commissioner for England, Dr Atkinson,believes th at children who commit criminal offences need to be dealt with differently than adult criminals. In addition she asserts that the age may need to be raised to 12 as most criminals under 12 do not, or may not, fully understand their actions. What happens in other countries? Well, the age of criminal responsibility in a number of our European neighbours is higher – and ranges from between 14 and 16. In Scotland, the government there have introduced legislation to raise the level from 8 to 12.
You may find it interesting to consider the age set in some other countries in ascending order from 7 to 18 around the world as follows:
Ages of Criminal Responsibility
 7  - Switzerland, Nigeria, S Africa
 8  - Scotland, Sri Lanka
10 - England, Wales, Northern Ireland, Australia, New Zealand
12 - The Netherlands, Canada, Greece, Turkey
13 - France
14 - Italy, Germany, Bulgaria, Romania, China
15 - Denmark, Sweden, Norway, Finland, Czech Republic, New York (US), South Carolina (USA)
16 - Spain, Japan, Texas (US), Poland
18 - Belgium, Luxembourg, in most US states

Dr Atkinson has told the Times that "The age of criminal responsibility in England is one the lowest in Europe.
"The statistics show that we are in danger of criminalising too many children and young people by locking them up for committing far less serious crimes."
Dominic Grieve, the Shadow Justice Secretary, seems to think that changing the age of criminal responsibility was not the answer.’ Mr Grieve wants to see more done to address the problem of offending by children saying We need fundamental reform to address the causes of offending by children, including family breakdown, poverty, gang culture and school discipline."
When considered in the cold light of day and putting to one side the tragic case of James Bulger, it seems that others also seem to agree with the sentiments expressed by Maggie Atkinson.
The Prison Reform Trust, through its Director Juliet Lyon, said it "would be wise to review the age of criminal responsibility, taking into account standards set by the UN Convention and international comparisons".
A former Chairman of the Youth Justice Board, Professor Rod Morgan, said: "In no other country in Western Europe would Jon Venables have been prosecuted.
"A welfare approach with very young children offers a much greater range of opportunities and much better outcomes than is the case if we take a wholly criminal justice response."
Prof Morgan went on to explain what should happen instead, saying - the child would be subjected to family court proceedings and would probably be taken into care.  This is assuming that we do not have any problems with such systems including the role of social services and their intervention.  Unfortunately we have learnt through some very disturbing cases that such intervention comes too late for some children at risk - how can we feel any more confident that the sorts of cases where there is a risk to others will be dealt with in time.



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The latest posts from the blog archives.

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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.