Law Weblog

C-u-in-crt – Courts could chase criminals by text

We hav n idea wot DIS iz 2 do w yor syllabus, bt we c%d not resist it. 2 cr8 DIS txt we Usd d transl8r @ www.transl8it.com whch wiL transl8 it bak 4 U.

Magistrates’ courts across England and Wales could soon text fine evaders demanding they pay up, after the initiative was successfully used in the Midlands recently.

Courts are also looking at sending automated reminders by text, email or phone to fine evaders, offenders who don’t do their community service and those who fail to attend court. The planned new offensive would ensure offenders comply with orders of the court, and provide an additional enforcement tool when they ignore their legal obligation.

Courts aim to use modern technology to speed up debt collection, compensate crime victims and ensure justice is done. It also sends a message to criminals that the justice system is one step ahead of them and it won’t tolerate failure to respect the courts.

The hi-tech way of chasing persistent offenders was used recently in Staffordshire during the national fines blitz, Operation Payback 3. Staffordshire magistrates’ court set up an automatic system for contacting offenders. It involved sending a “pay up or get locked up” message to about 150 fine evaders’ mobile phones.

It worked! The element of surprise frightened about three quarters of the offenders into paying up immediately. Because it was so successful, it may form part of the National Enforcement Service (NES) which will be tested next April and come into effect a year later

Badger v Ministry of Defence [2005] QBD

[Tort – contributory negligence]
D employed the deceased as a boiler maker. During the course of his employment, he had been exposed to asbestos, which caused him to develop asbestosis he developed lung cancer which eventually killed him. D smoked and so contributed to the negligence that caused his death.  

Held: D did not take reasonable care for his own safety. Continuing to smoke amounted to contributory negligence which was causative of lung cancer. A reasonably prudent man, warned that there was a substantial risk that smoking would seriously damage his health, would stop smoking.  

C won damages reduced by 20%

Home Office Statistical Bulletin December 2005

58.5 per cent of offenders convicted in 2002 were convicted of a further offence within the following two-years; up on the reoffending rate for the year 2000 which was 57.6 per cent.
The youngest offenders in the sample being considerably more likely to re-offend. A typical profile of a thief was male (77%) aged 27.
Of the various disposals there was only minor difference in reoffending rates between those sentenced to Drug Treatment and Testing Order, Community Sentences or Prison.
Black and Asian offenders numbered 4,759 white offenders 37,540.
HO Bulletin here

Role of civil courts and criminal courts

Property baron Nicholas van Hoogstraten has been held responsible by the High Court for the killing of businessman Mohammed Raja. BBC report here

Defences – use of force – self-defence when D is the aggressor

Rashford, R v (2005) CA
D stabbed V in the chest following an argument over a trivial matter. D said it was an accident. D and (two others) visited the V to “teach him a lesson”. The judge directed the jury that D had taken violence to the scene.

Held: If D started violence by provoking it or by entering into it willingly he could still rely on self-defence if his victim had retaliated, but not on the facts of this case.

A defendant can rely on self-defence if faced with violence that makes him think he was in immediate danger from which he had no other means of escape (using no more violence than was necessary to protect himself). The defendant had been the aggressor *throughout* the incident, it could not follow that he had acted in lawful self-defence. It followed that the judge’s direction was defective.

Guilty
Comment: It was puzzling in the light of the evidence and the nature of the defendant’s principal defence that a direction as to self-defence had been given at all. It was impossible, for practical purposes, for self-defence to have succeeded on the evidence.

New PACE Codes of Practice

The PACE Codes of Practice cleared Parliament last week and will come into effect after Midnight on the 31 December 2005. They cleared the House of Commons on 30 November and the House of Lords on 9 December. The changes primarily reflect amendments to PACE in the Serious Organised Crime and Police Act (SOCAP) 2005 and the Drugs Act 2005.

Judiciary -v- Executive

On 15 December 2005 the executive bowed to pressure from the judiciary by dropping the controversial Judicial Pensions Bill which now means the judges will not be subject to the threatened £1.5m cap on tax-free money in a pension fund.

It was believed that some High Court judges threatened to resign over the Bill, and one group had instructed leading counsel at Wilberforce Chambers.

Judges will have to pay income tax on pensions contributions just like everyone else, but they will receive a long service award on retirement which reflects the judge’s grade and years of service.

The move is seen to protect the principle of judicial independence and to not discourage suitable candidates from applying to be judges which usually means a considerable drop in salary for practising barristers and solicitors on elevation to the bench.

Statutory interpretation – words given their ordinary meaning – intrinsic aids – other sections of the same legislation

Deep Vein Thrombosis and Air Travel Group Litigation [2005] HL
D the airline companies. The claimants suffered the effects of deep vein thrombosis which occurred during otherwise uneventful long flights. The only issue was whether the illness amounted to an “accident” under the Warsaw Convention 1929; if it did then those effected would be entitled to compensation.

Held: The language of the Convention itself must always be the starting point. The “accident” which causes the injury must be something other than the injury itself. The word “accident” had to be contrasted with the word “occurrence” found in other sections of the treaty.

C lost

Separation of powers – evidence obtained by torture not admissible in any UK court – government arrangements not lawful

A and others v Secretary of State for the Home Department [2005] HL
D the Home Secretary who had allowed evidence obtained outside the UK by torture to be used as evidence at a hearing of the Special Immigration Appeals Commission (SIAC). The evidence was used to detain, without trial, 8 men at Belmarsh prison. The argument against the government was that the European Convention forbids torture and therefore any such evidence obtained through such treatment of anyone cannot be admissible in a British court.

Held: Unanimously, the common law developed over centuries should take precedence over SIAC’s practices. Lord Bingham: “But the English common law has regarded torture and its fruits with abhorrence for over 500 years, and that abhorrence is now shared by over 140 countries which have acceded to the Torture Convention. I am startled, even a little dismayed, at the suggestion (and the acceptance by the Court of Appeal majority) that this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden by a statute and a procedural rule which make no mention of torture at all.”

D lost
Comment: The law has existed for hundreds of years that evidence obtained under torture was unable to be used in court. The question was whether such evidence was admissible in a Special Immigration Appeals Commission case. It is not.

The ruling will require Home Secretary to review all other cases where evidence used to convict terror suspects was obtained from sources kept secret.

This is a huge embarrassment for the Government for the second time in a year the Judiciary has ruled against the Government’s approach to terrorism. The Home Secretary Charles Clarke has tried to play down the significance of the ruling. The previous humiliation was over the indefinite detention of foreign nationals; such detention was found to be illegal and it forced ministers to draw up fresh legislation to replace it.

Statutory interpretation: a “wet bike” is not a “ship”.

To suggest a jet ski – a “wet bike” called a Waverunner – was a ship was worthy of comic fiction, so held the Court of Appeal today (R v Goodwin [2005] CA).

On 5 July a jet ski had been held to be a “ship”.

The Court of Appeal considered the question and determined that it was neither used in navigation nor was it sea-going. On none of the points did it find the jet ski was a “ship”. Nor they said could it be described as a vessel. Even though they said that the suggestion that the Waverunner was a sea-going ship is worthy of A.P.Herbert, the matter is to be allowed to go to the Lords.