Law Weblog

Law and justice

The pathologist who performed the post-mortem examinations on the two children of Sally Clark, who was wrongly convicted of their murder, bungled the examinations and has been found guilty of incompetence.

Full story in The Times, here

Loss of Time Order

About twice a year the Court of appeal makes a Loss of Time Order; this effectively adds to the time in prison for a defendant who wastes their time with an unmeritorious appeal. Such an order was made last month in R v Kuimba [2005] CA

R v Z [2005] HL

[Statutory interpretation – prevailing approach, purposive or mischief approach preferred]
D (Z) was convicted of being a member of a proscribed (banned) organisation. He appealed on the ground that the legislation proscribed the IRA but no the Real IRA.

Held: The reference to “the Irish Republican Army” (“the IRA”) in the list of proscribed organisations in the Terrorism Act 2000 had been intended to include breakaway groups and thus included the “Real Irish Republican Army”, even though the Real IRA was not, as such, listed.
Statutes enacted with the object of suppressing terrorism proscribed the IRA included all emanations, manifestations and representations of the IRA even thought they had never been listed by Parliament.

But the interpretation of a statute is a far from academic exercise. It is directed to a particular statute, enacted at a particular time, to address (almost invariably) a particular problem or mischief.

Lord Bingham believed that the historical context was of fundamental, and in the end conclusive, importance. He cited R (Quintavalle) v Secretary of State for Health [2003] HL: “The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.”

Attorney General v Scotcher [2005] HL

[Juries – to reveal deliberations is contempt of court]
D a juror wrote to the mother of two brothers convicted of drugs offences thereby disclosing the jury’s deliberations.

Held: His intention to expose an injustice was no defence to proceedings under s 8 of the Contempt of Court Act 1981. He could have written to the trial judge, Court of Appeal, the jury bailiff, defendant’s lawyer, or Citizens’ Advice Bureau.

Guilty

Comment: Options facing a juror concerned by a possible injustice were clarified in this case. The strict rule protecting the confidentiality of jury deliberations was upheld, but their Lordships agreed that if D had raised his concern with the trial judge, the appeal court, the jury bailiff or the defendant’s lawyer, or even sent a sealed letter to the court via an outside agency such as the Citizens Advice Bureau, he would have been safe from prosecution. By upholding the secrecy of the deliberations, it seems that there is little anyone can do even when they are alerted to an abuse of process.

Problem: If we tell you why the jury wanted to produce a quick verdict and whether they wanted to get off home, we would probably be in contempt of court. The House of Lords can’t be in contempt of itself so it is allowed to report the contents of the letter from Mr Scotcher in full. As we can’t tell you, you will have to read the whole case yourself; fortunately it is only one page long (a big page).

Full case here.

New offence to clarify and strengthen fraud law

A new offence of fraud, designed to strengthen the existing law and ease the prosecution process, is the main feature of the Government’s Fraud Bill, which is published today. The new offence, which would carry a maximum sentence of ten years, can be committed in three ways:

• By false representation. An example of the type of act covered by this offence would include “phishing”; or the act of disseminating an email to large groups of people falsely representing to be a legitimate financial institution in order to can gain access to others’ personal financial information.
• By failing to disclose information. For example, a solicitor who fails to share vital information with a client within the context of their work relationship, in order to make a gain from his client, would be committing an offence.
• By abuse of position. This offence would cover a situation where a person employed to care for the elderly or disabled, takes advantage of his position of access to their accounts in order to remove money.

The aim of the Bill is to clarify the current statutory offences, which are very specific and overlapping. This means it is not always clear which offence should be charged, and defendants have successfully argued that their particular deceptive behaviour did not fit the definition of the offence with which they had been charged.

The Fraud Bill will also introduce the new offences of:

• Obtaining services dishonestly. For example, a person who tenders an improperly obtained credit card to obtain services from the Internet would be committing a crime under this offence.
• Possessing articles or use in frauds. This would make it an offence to possess, manufacture or supply equipment, such as a computer programme that can generate genuine credit card numbers, to be used to commit or facilitate fraud.
• Participating in fraudulent business. This offence extends the existing offence of fraudulent trading by incorporated bodies to businesses other than companies.

Full details here. 

Legal aid reforms in the Magistrates’ Courts

Measures to reform legal aid in the magistrates’ courts in order to bring costs under better control and provide better value for money for the taxpayer were published today.

The Criminal Defence Service (CDS) Bill introduces a new means test for criminal cases in the magistrates’ courts, so that those convicted of offences there should pay for their defence if they can afford it.

The measures should produce savings of about £35 million a year, help redress the imbalance in the legal aid budget and make more funds available to be spent on civil cases.

Barristers on strike?

Barristers appear to be withholding their labour in Preston and Nottingham, where today the planned scheme to cut the length and cost of criminal trials have been halted.

The dispute is over fees for Pleas and Directions Hearings and what barristers consider to be inadequate funding.

Report by Frances Gibb, here.

Corporate Manslaughter Bill

The latest version of the Corporate Manslaughter Bill is different from previous government proposals. The new bill proposes an offence that would criminalize ‘senior managers’ who were responsible for a ‘gross breach of any duty of care’ where a person has died as a result. The aim is to retain main elements of the common law offence of Corporate Manslaughter but to remove the requirement to identify a ‘controlling mind’ of an organisation that has been personally grossly negligent. The new offence would not be subject to Crown immunity. Since 1992 there have been 34 prosecution cases for work-related manslaughter but only six, small, organisations have been convicted.

Full details here

Give us a break….

We are grateful to Lord Woolf who yesterday demanded a slow down in criminal legislation. Tony Blair’s government has created 1,018 new criminal offences since 1997, too much, Lord Woolf claimed, for the criminal justice system to absorb (law lecturers as well).
BBC news report here.

Role of Privy Council

This week the Judicial Committee of the Privy Council – which is made up of Law Lords sitting as the final court of appeal on devolution issues – quashed a Scottish conviction for the fist time.

Students should note that the Privy Council is the final court of appeal for criminal matters, whereas for civil matters cases can be heard by the House of Lords.

The two cases: Sinclair and Holland at the bottom of this page