Archive for ‘Courts’

May 23, 2014

Important new guidance on defences to homicide? – A view from the Joanna Simpson Foundation

I am delighted and honoured for my first guest blogger to be Hetti Barkworth-Nanton, Chair of the Joanna Simpson Foundation (www.joannasimpsonfoundation.org.uk ).  She writes:

“Last week saw the publication of new legal guidance by the CPS on prosecuting Domestic Homicide.  An important step, brought about by extensive discussions with us, the family and friends of Joanna Simpson who was killed by her estranged husband in 2010.  Despite preparing a grave beforehand, her killer could be acquitted of murder due to diminished responsibility.

What are the changes and why are they important?

This guidance requires far more extensive understanding and consideration of the history of domestic abuse, and critically a thorough investigation into the character of the defendant and the victim.  It guards against acceptance of manslaughter pleas using the partial defences of diminished responsibility and loss of self-control.  And it requires prosecutors to engage with expert witnesses (typically psychiatrists) on the broader profile of the defendant rather than just the psychiatric assessment of the defendant through interview.

If properly adopted this will have a significant impact on the quality of convictions in these crimes.  Partial defences are commonly used in domestic homicide (our research showed it being used in 50% of cases).  We talk a great deal about there being no excuses for domestic abuse, and yet when the worst happens the law provides exactly that.  Of course, there are some great examples of prosecutions where past history and character has been very carefully and effectively considered.  There are also examples where circumstances are such that a partial defence is entirely appropriate.   This new guidance is designed to ensure those strong examples become the norm, and that partial defences are only used by the most deserving cases.

Partial defences run on the basis that the offender is not somehow responsible, and offenders who use it typically show little remorse and are in fact running a defence which says it was either because of their state of mind or the circumstances, often citing the character and actions of the victim as the reason for that.  A claim of this kind is accepted at plea without a trial in just fewer than 50% of cases.  Successful or not, victims families have to suffer trials or plea acceptance which often assassinate the character of the victim, poorly challenged by the prosecution.  Where successful they are left with the incomprehensible sense that their loved one has not had a fair trial and the perpetrator has literally got away with murder.  Our research showed that ¼ of all convicted offenders was successful in a defence of this kind.

And what of disposal?  The discount in tariff can be substantial and it is not unusual for those convicted of manslaughter to be released from custody within 5 years of the crime.  Sometimes they get a hospital order and come under the mental health tribunal process, and again it is not unusual for them to be released within 3 years.  It is notable to understand that where the perpetrator is the parent of bereaved children, they still retain parental rights.  The repercussions continue when the family courts look on access requests more favorably where the offender was found not guilty to murder.

So tightening the criminal justice system through this guidance to avoid exploitation of the loopholes in homicide is fundamental if we believe we should send the message that domestic abuse is unacceptable, if we want to give victims’ families the chance to find a way forward, and critically if we want to protect the innocent child victims who live in fear of a violent perpetrator and deserve time to grow and repair in peace.

 

May 13, 2012

It’s time a defendant’s right to freedom was superseded by the victim’s right to safety”

I spent a few days in the North West last week and was lucky to have dinner with Penny and John Clough, parents of Jane Clough who was murdered by her ex-partner Jonathan Vass in 2010.  The title of this post comes from her father’s words – spoken after the House of Lords debate on their proposed change to the bail laws.  Last week’s Queen’s Speech brought closure to one part of their campaign – to give the prosecution the right to appeal bail decisions to the High Court in Crown Court cases.  Some of you will have heard them speak and I am sure will share my respect at their courage and dignity in striving to make things better for other women who might find themselves in Jane’s position in future.  If there was ever any doubt why we do our work, dinners like this remove it.  This is a potentially important change to the law and so all IDVA’s should be aware of it.

Their achievement has been quite extraordinary – to campaign for a change in the bail laws and see it get onto the statute books within 2 years of the death of their daughter reflects both the need for the change, and their extraordinary courage and determination in not taking no for an answer.  They are an inspiring couple.

After Jane’s death, they found her diary which predicted what would happen if Vass was released on bail.  She explains very eloquently her thoughts and you can watch them reading from Jane’s diary at http://www.bbc.co.uk/news/uk-11709694

You can follow their campaign at http://www.justiceforjane.co.uk

I have included below an excerpt from the ObiterJ blog (www.obiterj.blogspot.com ) which gives the technical details of the changes.  They are one of the few good things in the Legal Aid Act (LASPO).

Chapter 2 – Bail – comprises section 90 which will bring into force Schedule 11.  This brings about various amendments to legislation dealing with bail.  The result is that the Bail Act 1976 becomes even more convoluted than it already is.  Surely, it is time for a new Act addressing bail.  A fresh start so-to-speak ! 

It was the Bail (Amendment) Act 1993 which introduced prosecution appeals (to the Crown Court) against grants of bail (by Magistrates’ Courts) to defendants.  The 1993 Act will be amended so that where a judge of the Crown Court grants bail to a person who is charged with, or convicted of, an offence punishable by imprisonment, the prosecution may appeal to the High Court against the granting of bail.  However,  an appeal may not be made where a judge of the Crown Court has granted bail on an appeal.

As originally enacted, the Criminal Justice and Public Order Act 1994 section 25 prevented courts granting bail at all for defendants charged with or convicted of homicide or rape after previous conviction for such offences.  However, the original enactment was not compliant with the European Convention on Human Rights and the section was amended so as to permit courts to grant bail where the court “is satisfied” that there are exceptional circumstances.  A further amendment – in LASPO Schedule 11 – will replace the words “is satisfied” with “is of the opinion.”  The new wording is preferable but will perhaps make little practical difference.

February 19, 2012

Reflections from the Centre for Court Innovation

In view of the current discussion about reducing the age for recognising domestic abuse to 16, or even lower, I thought that this email from Greg Berman at the Centre for Court Innovation was interesting and relevant, as we are likely to be finding more perpetrators of domestic abuse who are also under 18.  This example relates to drug offences, but perhaps some of the same considerations need to be taken into account for domestic abuse.

Dear Friends:
At his annual state of the judiciary address, New York State Chief Judge Jonathan Lippman unveiled a plan to re-engineer how the court system handles 16- and 17-year-old youths charged with minor offenses.Judge Lippman called for a hybrid approach to these cases that would combine the advantages of Family Court with the due process protections of Criminal Court. “This approach puts first and foremost an emphasis on rehabilitation for adolescents, rather than incarceration,” Judge Lippman said. “The present punitive approach turns children into hardened criminals and must be changed.”

To demonstrate the kind of change Judge Lippman hopes to achieve statewide, the court system has created pilot adolescent diversion courts in nine counties, including all five boroughs of New York City.

read more »

January 12, 2012

Not great if you are in a hurry…

See below for the latest statistics from the Ministry of Justice about the length of time taken by different types of cases and their wider comments on plans to reduce these.  Not great if you are in a hurry…

Ministy of Justice Logo

The Ministry of Justice has today published court statistics, which for the first time show the average duration of civil and family cases at every County Court.  These statistics, which support the case for a comprehensive reform programme across the justice system, also show the duration of criminal cases at every Crown Court and local magistrates’ court group.  This will enable the public to see how quickly cases are handled at their local court, and to compare it to other courts across England and Wales.

The new timeliness statistics showed that in July to September 2011, on average:

  • Care proceedings took 55 weeks.
  • Hearings for small claims (under £5,000) in civil courts took place 30 weeks after the claim was originally made. The figure was 57 weeks for higher value cases, which are dealt with by a different process.
  • Criminal cases were completed 152 days after the offence.

Ministers have already committed to a series of reforms to speed up the justice process. Measures include improved technology, more use of mediation to solve civil and family disputes, and simplifying processes to reduce delays and frustration for victims and witnesses of crime.

The Government’s reform programme extends across the family, civil and criminal justice systems.  For example, on family justice,  the Government will introduce a six month time limit for care cases to be completed, so that the system provides the best service to those at the heart of the system – children.  On civil justice, one of the measures in the Government’s proposals that were published last year was to give thousands more people the opportunity to consider telephone-based mediation as a simpler, quicker way to resolve their differences rather than going to court.  And on criminal justice, the Government has set out its intentions to abolish unnecessary committal hearings for ‘either way’ crimes to help save thousands of hours of court time each year.

The Government will publish its full response to the Family Justice Review and civil justice consultation shortly.

November 8, 2011

Social Services have both statutory and common law duty to protect children from abuse

Interesting judgement highlighted by the UK Human Rights blog.  Note that the local authority should take steps to safeguard a child’s welfare where they suspect that the child is at risk  – where it is ‘reasonably practicable’ to do so.  So does highlighting the risks at a MARAC constitute making it ‘reasonably practicable’.

 

Social Services have both statutory and common law duty to protect children from abuse

ABB & Ors v Milton Keynes Council [2011] EWHC 2745 (QB)- read judgment

Justin Levinson of 1 Crown Office Row acted for the claimants in this case. He is not the author of this post.

This case concerned the entitlement to compensation for the years of abuse the claimants, three brothers a sister, the youngest, who had suffered at the hands of their father. The older claimants had both suffered regular abuse from an early age until late teens. The third claimant escaped the prolonged abuse suffered by his brothers. The fourth claimant, who was conceived after the defendant social services became aware of the situation, nevertheless endured abuse for five or six years.

The father’s abuse of the older boys came to light in 1992 when the first three claimants were placed on the child protection register and the father moved out of the family home. However charges against him were subsequently dropped and he returned home. The names were removed from the register but the abuse continued.

The facts were not disputed but the principal issue between the parties was that of the quality of social work practice adopted by the defendants’ employees and whether this fell below a reasonable standard.

Statutory and common law negligence

The statutory basis of the defendants’ duties is set out in Section 47 of the Children Act 1989.  Put simply, that section requires any local authority, which suspects that a child in its area is at risk, should take steps to safeguard the child’s welfare. However this duty only arises if it is within the authority’s power and it is “reasonably practicable”  for them to do so. The section does not, in itself, provide a civil cause of action for those who assert that the duty has not been complied with.  There is in addition to the statutory duty a common law – or judge-made – basis for the duty of care in the event of suspected child abuse is to be found in  D and others v East Berkshire Community Health [2003] EWCA Civ 1151.

Read the full post at Social Services have both statutory and common law duty to protect children from abuse « UK Human Rights Blog.

 

November 3, 2011

Great Video from the WI on impact of Legal Aid cuts

A first for this not very techy blog…a really good video about the proposed legal aid cuts from the WI  – click here to watch

November 3, 2011

Family Justice Review published

I haven’t had time to read it yet but here are the official headlines……will give you my views in the next couple of days. Please let me know what you think of it.

The Family Justice Review panel today published its final report which announces a package of recommendations aimed at tackling delays in the family justice system and to make sure that children and families are given the service they deserve.

The key recommendations are:

  • A new six month time limit in care cases so delays are significantly reduced.
  • Enabling people to make their own arrangements for their children when they separate, and only use courts when necessary.
  • Overhauling the family justice system so that agencies and professionals work together with greater coherence to improve the experience and outcomes for children and families.
    read more »

July 20, 2011

Good news from Rights of Women on Legal Aid

I received this email from Rights of Women who have done a great job of advocating for change in the legal aid proposals in relation to cases brought under the Domestic Violence rule.

Dear all,

I write with excellent news that the Government has agreed to bring cases brought under the domestic violence rule back into the scope of legal aid within the proposals set out in the Legal Aid, Sentencing and Punishment of Offenders Bill. The statement from the Legal Aid Minister, Jonathan Djanogly MP, was made yesterday 19 July during the sixth sitting of the Public Bill Committee in response to a question raised by the Conservative Party MP, Ben Gummer:

read more »

July 12, 2011

Will the Sex Offenders’ Register “Review Mechanism” breach human rights law?

This is interesting in the light of the proposed ‘right to know’ for victims of domestic abuse.

Will the Sex Offenders’ Register “Review Mechanism” breach human rights law? « UK Human Rights Blog.

July 6, 2011

Now this is getting really confusing…

More on the legal aid saga – see below for a Guardian article from last week (sorry – I missed it first time around) about a new fund of £20m to protect law centres from closure in the wake of the legal aid cutbacks.  Surely it would be better to think through the impact of the bill carefully – including the knock on effect on other departments’ budgets – and then work out how to respond.  I don’t see how £20m bridges the gap?

Ken Clarke announces £20m fund after criticism of legal aid cuts

Justice secretary says Lady Hale warned against cuts because she ‘misunderstood’ proposals on legal aid and sentencing

protesters ken clarke

Sound Off For Justice protests against Ken Clarke in Westminster on 29 June. Photograph: http://www.soundoffforjustice.org

A £20m fund is to be created to help law centres and advice services threatened by the government’s plan to cut legal aid, the justice secretary has announced.

This U-turn on funding came as Ken Clarke fought to defend proposals in his legal aid and sentencing bill at the second reading, including proposals to cut £350m out of the justice ministry’s annual £2.1bn legal aid budget.

Asked about criticism of his policy this week from Lady Hale, the supreme court justice, Clarke accused her of having “misunderstood the effect of our proposals”, and suggested he would meet her.

In a speech to the Law Society on Monday night, Lady Hale warned that cuts to legal aid would have a “disproportionate effect upon the poorest and most vulnerable in society”.

In the Commons, Clarke insisted he had a “high regard” for the only woman judge on the supreme court, but added: “I’m surprised by her response. I think … that the honourable lady has misunderstood the effect of the proposals or misunderstood why we are doing it.”

On Tuesday, the Law Centres Federation claimed that 18 out of 52 centres in England and Wales were likely to close as a result of cuts to legal aid.

Clarke’s promise of £20m this year to help “not-for-profit” neighbourhood advice and law centres appears to be a response to such fears. Many centres derived their income from other sources, Clarke insisted.

On clause 12 – the government’s plan to make entitlement to legal advice for those detained in police stations subject to a means test – Clarke suggested it would be reviewed during the passage of the bill.

The justice secretary also said he may consider banning referral fees paid by lawyers in car accident and personal injury cases.

Responding for Labour, the shadow justice secretary, Sadiq Khan, claimed the government’s proposals to cut legal aid would result in “the whole country becoming an advice desert”.

Criticising the proposals before the £20m fund was announced, Citizens Advice said: “The proposals will result in significant falls in the estimated income of Citizens Advice bureaux in England and Wales, and will be potentially destabilising to many bureaux.

“The scope changes, applied to existing arrangements, would reduce legal aid income from £25.7m to £5.4m, with the consequent loss of specialist services. However, our modelling also suggests that not-for-profit contracts would cease to be financially viable at this remaining level of funding.”

In the wake of the proposals, Citizans’ Advice chief executive, Gillan Guy, said: “We welcome the government’s recognition of the vital role advice agencies play in resolving problems that put people’s homes, jobs and livelihoods at risk.

But Citizens’ Advice remains very concerned about the legal aid bill. What’s left of civil legal aid will be inaccessible for too many people and unworkable for too many advice providers.”

Welcoming the decision to consider banning referral fees, John Spencer, a solicitor who has campaigned against them, said: “I am thrilled that many legislators have finally woken up to the fact that referral fees are the rotten core of dysfunction in the personal injury market in this country.

“Referral fees introduce perverse commercial incentives into the market and clearly open the door to potential profiteering, not only from introducers of work such as insurers and claims management companies, but also for ancillary services related to each claim such as medical and mobility services.”

• This article has been amended to update comments from the Citizens’ Advice Bureau

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