Law Weblog

Charles Clarke responds to Lords’ ruling in A (FC) and others v Secretary of State for the Home Department (2004) HL (The Belmarsh Detainees)

The Home Secretary Charles Clarke has made a statement in the House of Commons in response to the Law Lords’ ruling in December. The Law Lords criticised the executive for detaining 12 men without trial because they were not UK nationals and could not be deported. The evidence against them is secret intelligence information which it is too sensitive to disclose to the suspects.
Clarke’s response is to promise a change in legislation that means that not only non nationals can be detained, and that the 12 might be subject to “Control Orders” – effectively house arrest – limits to access to others by phone or the internet – and tagging.
This announcement will be met with astonishment and condemnation from lawyers and civil libertarians alike. Of the 701 persons arrested since 11th September 2001 17 have been convicted. It is as though the government has taken no account of history and this announcement could backfire as did similar powers taken to deal with Northern Ireland terrorism in the 1970’s.
The UK remains the only country that has derogated from the ECHR in the aftermath of 11 September 2001.

Background
The House of Lords Appellate committee advised that the 12 Belmarsh detainees who are subjected to indefinite detention without charge and without prospect of trial are unlawfully detained. The 12 foreign nationals – who cannot be deported – are detained on suspicion of terrorist acts and because they pose a threat to national security. The Lords advised that the Home Secretary’s detention was discriminatory and disproportionate, and incompatible with the Human Rights Act and the Convention. In order to detain the suspects under Part 4 of Anti-Terrorism, Crime and Security Act 2001, the government derogated from Article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms and from Article 9 of the International Convention on Civil and Political Rights.

Lord Justice Potter will be the new President of the Family Division.

Lord Justice Potter, an Appeal Court judge and former commercial barrister, will be the new President of the Family Division when Dame Elizabeth Butler Sloss retires on 6 April this year). Lord Justice Thorpe, also an Appeal Court judge with many years of family experience, becomes Deputy Head of Family Justice and Head of International Family Law; this is a new post.

The president of the family division is appointed by the Queen on the recommendation of the prime minister, but is, in effect, chosen by the Lord Chancellor.

The appointment has lead to cries of cronyism; Lord Justice Potter, 67, was a pupil of Lord Falconer at commercial chambers Fountain Court. Lord Goldsmith the attorney general was another of Lord Falconer’s pupils. Lord Falconer use to share a flat with Tony Blair. Lord Falconer was appointed as Lord Chancellor by Tony Blair. Tony Blair was the pupil of Derry Irvine whom he also promoted to Lord Chancellor.
In 2003 the Tories accused the government of “rampant cronyism” when Ken Macdonald QC was named new director of public prosecution. Mr Macdonald had been in the same law firm as Cherie Blair.

All four “heads of division” including Lord Woolf, had wanted as head of the family division Sir Mathew Thorpe, who will now be the deputy. An anonymous member of the bar told the Guardian newspaper that Potter “Is universally liked, a man obviously of wisdom and integrity, who is quite exceptionally good in his field.”

Whether such an appointment would be made under the planned new judicial appointments system is not known, but there were similar cries of cronyism when Dame Elizabeth’s was promoted from divorce court registrar, and she turned out to be an inspired choice. Her brother is Michael Havers who was attorney general and later Lord Chancellor.

More on juries. Consultation on investigation into jury deliberations. Jurors protected against being sacked for doing jury service.

From 6th April the new Employment Relations Act 2004 makes it illegal to sack someone because they have been summoned for, or completed jury service.
Government officials are aware of two cases where employees had been dismissed because of jury service.
Whilst most employers recognise and respect jury service as an important civic duty, these reforms are necessary to protect staff, particularly those with less than a year in their current employment, and increase public confidence in the jury system.

In addition, a consultation paper on Jury Research and Impropriety has been published. The consultation paper covers allegations of juror impropriety that could include discrimination, trying to influence a verdict and deliberately ignoring evidence. Any of these could result in a trial collapsing or a conviction being appealed, with enormous emotional and financial consequences for all involved, especially the victim.

In October 2001 Sir Robin Auld recommended that Section 8 of the Contempt of Court Act should be amended to permit, where appropriate, enquiry by the trial judge and/or the Court of Appeal into alleged impropriety by a jury, whether in the course of its deliberations or otherwise. This was recommended as part of his Review of the Criminal Justice System.

In 2003 the Home Affairs Select Committee, in its report on the Criminal Justice Bill, invited the Government to consider the merits of repealing Section 8 of the Contempt of Court Act 1981 to permit research into how the jury system operates.

Evidence of bad character

Many thanks to Andrew Keogh who tells us “The case of R v Bradley was reported in The Times 17 January 2005 giving guidance on implementation of bad character.” A summary of Bradley is available, here.

Andrew’s website and forum is written for legal practitioners and is an excellent read. He is the author of “Criminal Justice Act 2003. A Guide to the New Law“ and he has now produced an authoritative amendment on the law relating to admissibility of bad character, it is here.

“Guide to the Criminal Justice Act 2003” is available here.

R v Richardson, [2004] CA

[Juries – disqualified juror does not on its own render conviction unsafe]
D was convicted by a jury consisting of a disqualified juror – disqualified (s1 and SchI Juries Act 1974) because of a conviction for sex offences – of six counts of rape and one count of indecent assault.

Held: A conviction was not unsafe due to the fact that a juror who was disqualified from acting did so act. There must either be some evidence that the verdict is unsafe.

Guilty

R v Barnes (2004) CA

[Assault – exceeding rules of game not always an assault]
D caused a serious leg injury during a tackle during an amateur football match. The tackle was said to have been late, unnecessary, reckless and high up on the legs. D stated that that whilst the tackle may well have been ‘hard’, it was a fair sliding tackle in the course of play, resulting in unintended accidental injury. 

Held: Criminal proceedings should be reserved for those situations where the conduct was sufficiently grave properly to be categorised as criminal. Most sports had their own disciplinary procedures that would cater for improper behaviour on pitch. Physical injury was an inevitable risk of sport, and those participating consented to such injury. Even conduct outside of the rules of the game may not be criminal. An instinctive error, reaction or misjudgement in the heat of a game was not to be equated with criminal activity.

Not guilty