Saturday, 25 May 2013

Terrorism and the Sensationalism of Crime

It is unsurprising that, following coverage of Wednesday's seemingly unprovoked attack in Woolwich which resulted in the death of a young soldier, the country is in a state of uproar. Despite the fact that this incident only happened on Wednesday, it seems that the nation is already in possession of 'all the facts', with both local and national media footage of the aftermath of the incident and proclamations by the same of this being an act of terrorism; a view, it would seem, that is shared by the Prime Minister and the Home Secretary. Witnesses were being interviewed almost immediately, not just by the police but by local radio stations and the national media. I heard this morning a lady giving an account to the radio host of how she approached one of the suspects whose hands were bloody and who was carrying a 'machete'. She attempted to find out what had happened and tried to convince the man to hand over 'what was in his hand'. Indeed, lying next to my laptop is a copy of Thursday's 'The Times' which, on the front page, pictures one of the suspects with bloodied hands carrying a meat cleaver. In the background, we see the young soldier lying near the middle of the road with a number of onlookers close by. The headline reads 'Soldier hacked to death in London terror attack' with the lead paragraph stating 'A soldier was hacked to death on a street in London yesterday in an Islamist terrorist attack'. The main article (on pages 6 and 7) goes into greater detail, providing further pictures and quotes from the suspects and some of the witnesses. Last night, the young soldier was named and a statement from his family was read out.

There are a number of things that could be said about what has happened so far as regards the investigation of this matter and the way in which it has been handled both by the media, the government and the security services. However, the focus of this brief post is on the way in which this incident has been classified as an act of terrorism and why I consider that to be an irresponsible and potentially inaccurate way to deal with the matter; the repercussions of which could be, and I would in fact suggest already have been, considerable.

First and foremost, murder is a crime. It is an offence which has been known to the common law for many years. Sadly, it is committed all too often with terrible repercussions not just for the victim but for the families and society as a whole. Murder is not, however, synonymous with terrorism. Sometimes, it is true, the two go hand in hand but most acts of murder which are committed in the UK have nothing whatsoever to do with 'terrorism' in the sense in which the word is widely used. When looking at whether an act of murder is also an act of terrorism, the critical feature is often considered to be the reason behind the murder, i.e. the motive. Why was this person (or people) killed? It may very well be the case (and some may argue demonstrably so given the footage that has been shown repeatedly by the press) that Wednesday's killing was motivated by some misguided politico-religious belief. It may well be accurate to describe it as 'an act of terror'. However, here is why I suggest horrific acts such as these should not be so classified:

1. The offence of murder, carrying with it a mandatory sentence of life imprisonment upon conviction, is a crime. It does not require to be labelled as a terrorist act in order to make it so;

2. Let us assume that an individual commits a killing which is said to be in the name of religion or political belief. He does so because he wishes to make a statement. He wants the publicity and, quite often, is prepared to die in support of his cause. By seizing upon the incident, as the press and some members of the government have done in Wednesday's case, as an act of terrorism, the killer achieves his purpose. He has killed, his message has been delivered (in this case globally) and others, perhaps, are motivated to act in a like-minded way.

3. A national panic ensues. When a murder is reported, people completely unconnected with the case and the deceased often feel upset. They feel upset because they recognise the horrific nature of the crime, they empathise/sympathise with the friends and family of the victim, and they want to see justice for the crime that has been committed. However, when a murder is described as an act of terrorism, whilst people may go through the same emotions as described above, the overwhelming sense is one of fear. They worry about what will happen next. Will there be further attacks? If so, when? Where? What form will they take? Whilst there is nothing wrong with a vigilant society, achieving vigilance through fear is not the way forward.

4. Reprisals. After Wednesday's killing, the English Defence League were out in force with reports that they threw bottles at police. In addition, mosques were attacked with arrests having been made for racially aggravated criminal damage, possession of an offensive weapon and attempted arson. These are just the reported matters. It goes without saying, although is worth noting, that these 'reprisals' are not against the suspects (who are both in hospital having been shot by police) but are against innocent people, including the police.

5. Religion and Culture. Attacks such as Wednesday's, widely reported as having been committed 'in the name of religion', deepen cultural and religious divisions. The ill-informed condemn Islam and, as noted above, sometimes go as far as to physically attack religious buildings. The Muslim Council of Britain feel obliged to make a statement to the press condemning the attack fearing, no doubt, that if they remain silent they will somehow be considered complicit. A caller to LBC Radio who identified himself as a 'black Muslim' stated that he felt frightened after what had happened for fear of a backlash against Muslims in general, a sentiment expressed by others according to the BBC.

No doubt there will be a lot more to come about this horrific incident, particularly in relation to what the security services already knew about these two men. At some point, after the press, the government and the general public have already determined what happened and why, and the men are out of hospital, the matter will finally get to Court.

I would not wish to leave this post without congratulating Boris Johnson, a man whom I have never before said a positive word about. However, in an interview, he commented as follows:

"This is not a question now of blaming the religion of Islam, it is certainly not a question of blaming any aspect of British foreign policy or what our troops do in operations abroad when they risk their lives...the fault for this lies exclusively, wholly and entirely in the minds of those who were responsible for this crime and they are going to be brought to justice."

Quite so.

One final thought. Nothing in this brief post suggests that a single act of murder, committed in circumstances such as Wednesday's attack, cannot necessarily be characterised as an act of terrorism. The question is whether it is right to do so and what the consequences of doing so may be.

Thursday, 7 February 2013

Attempted Battery; R v Gary Nelson [2013] EWCA Crim 30

The idea that the offence of Attempted Battery is an offence known to the law of England and Wales would cause most lawyers to laugh (sad I know). But the reason for this is straightforward. Section 1(1) of the Criminal Attempts Act 1981 provides as follows:

"If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence." (Emphasis added)

Section 1(4) sets out, in clear terms, those offences to which the section applies:

"This section applies to any offence which, if it were completed, would be triable in England and Wales as an indictable offence, other than-
(a) conspiracy (at common law or under section 1 of the Criminal Law Act 1977);
(b) aiding, abetting, counselling, procuring or suborning the commission of an offence;
(c) offences under section 4(1) (assisting offenders) or 5(1) (accepting or agreeing to accept consideration for not disclosing information about a relevant offence) of the Criminal Law Act 1967." (Emphasis added)

Archbold and Blackstone's each make similar points about the ambit of section 1. Blackstone's states categorically "Where an offence is triable only summarily, it cannot be the object of a criminal attempt under s.1". This is hardly surprising. Section 4(1) of the 1981 Act provides as follows:

"A person guilty by virtue of section 1 above of attempting to commit an offence shall:

(a) if the offence attempted is murder or any other offence the sentence for which is fixed by law, be liable on conviction on indictment to imprisonment for life; and

(b) if the offence attempted is indictable but does not fall within paragraph (a) above, be liable on conviction on indictment to any penalty to which he would have been liable on conviction on indictment of that offence; and

(c) if the offence attempted is triable either way, be liable on summary conviction to any penalty to which he would have been liable on summary conviction of that offence."

Note, that whilst there is reference to an indictable offence and an offence which is triable either way, there is no reference to a summary offence. Again, hardly surprising.

That Battery is a summary offence is illustrated by s.39 of the Criminal Justice Act 1988:

"Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both."

So, why go in to all this detail simply to state the obvious? The reason follows the extraordinary decision of the Court of Appeal in the recent case of R v Gary Nelson [2013] EWCA Crim 30 where the Court concluded that the offence of Attempted Battery is one which is known to the law.

The facts of the case are largely unimportant albeit that the Crown Court falls into error by leaving to the jury consideration of the offence of Common Assault as an alternative to the offence of Battery which it was not entitled to do for the reasons given by the Court of Appeal. On that basis, the appeal should have been allowed (indeed it ultimately was) and no more should have been said about it. Unfortunately, the Court of Appeal decided to undertake an exploratory exercise as to whether or not a person, in the position of the Appellant, could be guilty of the offence of Attempted Battery. Had the exploratory exercise amounted to more than three short paragraphs, the Court may have come to a different conclusion. As it was, this is what the Court said at paragraphs 10-12 of its Judgment:

"But that is not quite the end of the story. When the Full Court granted the appellant leave to appeal, it raised the question whether the appellant would have had any defence to a charge of attempted battery. It had in mind, of course, the Court of Appeal's power under section 3 of the Criminal Appeal Act 1968 to substitute a verdict of guilty for a different offence from the one on which an appellant was convicted if the jury must have been satisfied of those facts which would have proved him guilty of the different offence. The prosecution have decided to run with that ball. They now ask for the court to take that course, and instead of allowing the appeal, to substitute for the appellant's conviction for the offence of common assault a conviction for an offence of attempted battery.

The difficulty here is that section 1(4) of the Criminal Attempts Act 1981 provides that a defendant can only be guilty of attempting to commit an offence where the offence, if it had been completed, "would be triable in England and Wales as an indictable offence", subject to certain exceptions, none of which are relevant here. The question therefore is whether the offence of battery would be triable in England and Wales as an indictable offence. The answer, at first blush, is "no": section 39 of the 1988 Act made the offence of battery a summary offence. But although it is a summary offence, there is at least one situation in which it may be tried on indictment. Section 40(1) of the 1988 Act provides that an offence of "common assault", which the Court of Appeal in Lynsey [1995] 2 Cr App R 667 said should be construed as including an offence of battery, "may be included in an indictment if the charge … (b) is part of a series of offences of the same or similar character as an indictable offence which is also charged …". There then follows a proviso which is not material to the present case.

In our opinion, an offence of battery in relation to Mr Hammond would have been part of a series of offences of a similar character as the indictable offence of assault on Mr Goldthorpe occasioning him actually bodily harm with which the appellant was charged. It follows that the offence of battery was one which was triable in England and Wales as an indictable offence, and it is open to the court to substitute a conviction for the offence of attempted battery for the conviction for the offence of common assault."

Ultimately, the Court of Appeal concluded that it would not be just, on the facts of this case, to substitute an offence of Attempted Battery and so they did not. However, does their reasoning as regards the existence of such an offence stand up to scrutiny? I would suggest that it does not.

The Court acknowledges the wording of section 1(4) of the 1981 Act and section 39 of the 1988 Act. However, it seizes upon the phraseology contained within section 40(1) of the 1988 Act, the relevant part of which provides as follows:

"A count charging a person with a summary offence to which this section applies may be included in an indictment if the charge:

(a) is founded on the same facts or evidence as a count charging an indictable offence; or

(b) is part of a series of offences of the same or similar character as an indictable offence which is also charged" (Emphasis Added)

The Court of Appeal determined that, once the Battery featured on the indictment, it became an offence which was "triable as an indictable offence" and therefore subject to the provisions of section 1 of the 1981 Act.

It seems to me that the Court has failed to distinguish between an offence which is "triable as an indictable offence" (section 1(1) of the 1981 Act) and an offence which "may be included in an indictment" (section 40(1) of the 1988 Act). Section 40(1) of the 1988 Act makes clear that it applies to a count charging a person with a summary offence, of which the offence of Attempted Battery is not as it does not exist as a summary offence in its own right. Thus, and following the Court of Appeal's reasoning, you could never have a state of affairs where a Defendant was charged with the single offence of Attempted Battery before a magistrates' court. The only way the offence could ever manifest itself is in the circumstance where the Defendant faced trial on indictment, a Battery was included as a count (providing, of course, that it satisfied the test in s.40(1) of the 1988 Act), then, once it was in the Crown Court, an offence of Attempted Battery was substituted or left as an alternative.

That would be an extraordinary state of affairs indeed. It could not possibly have been the intention of Parliament that the offence of Attempted Battery can only arise in the situation described above. Nor, I would suggest, is that the outcome of a literal reading of the existing law.

There is one argument the Court of Appeal could have mustered to support its conclusion but it did not do so. Section 40(2) of the 1988 Act provides as follows:

"Where a count charging an offence to which this section applies is included in an indictment, the offence shall be tried in the same manner as if it were an indictable offence; but the Crown Court may only deal with the offender in respect of it in a manner in which a magistrates' court could have dealt with him."

It could be argued that this section bolsters the Court of Appeal's reasoning that the presence of the summary only offence on the indictment transformed it into an indictable offence. But a careful analysis of this section would show that to be incorrect. First, the phrase "as if it were an indictable offence" makes it very clear that the presence of a summary only offence on an indictment does not turn it into an indictable offence, it simply allows it to be tried in the same manner as if it were. Does this mean you can therefore turn it into an attempt? I suggest not. The section makes it clear that when dealing with the offender (i.e. if it came to sentencing him or her) the Crown Court could only do so in a manner in which a magistrates' court could have done so. A magistrates' court would have had no power to deal with an offender for the offence of Attempted Battery as, even if one accepts the reasoning of the Court of Appeal, the offence could only manifest itself as part of an indictment!

What is particularly frustrating about this 'development' is that it was needless. The Court of Appeal allowed the appeal and should have just left it at that. Now we are left in a peculiar state of affairs and I rather suspect that the matter will need to be argued again at the first available opportunity.

I am particularly interested in views on this topic so I encourage people to share their thoughts!

Friday, 25 January 2013

The Unexpected Hazard of a Football Match

Football. Many people love it, lots of people hate it, some people are just indifferent towards it. However, misbehaviour on the pitch (alleged or otherwise) is likely to get the whole nation talking. Why? Because high profile matches are watched by thousands and covered by most of the major news and sports channels; everybody hears about what is alleged to have happened whether they are interested or not. And, for the most part, everyone has an opinion on it.

This week saw Swansea City play Chelsea. It was a scoreless draw, the ramifications being that Swansea City are through to the final following a 2-0 aggregate win. The game will be remembered for one reason and one reason only- the sending off of Eden Hazard after he 'appeared' to kick a ball boy. I have watched the footage from three different angles. I have no doubt, reasonable or otherwise, as to what happened. Let's not dwell on that though. Let us instead consider the undisputed facts.

1. The ball went out of play.
2. Mr Hazard went after it.
3. The ball boy also goes for the ball and there is some physical contact between Mr Hazard and the boy.
4. The ball boy goes to the floor, lying on top of the ball in the process.
5. Mr Hazard reaches down to the boy in order (it can be safely inferred) to retrieve the ball. He is unsuccessful.
6. Having failed to retrieve the ball (and whilst the ball boy is still lying on the ground with the ball underneath him) Mr Hazard lifts his right leg back and kicks in the direction of the underside of the ball boy.
7. The ball boy rolls over on to his back and Mr Hazard picks up the ball.
8. There then follows remonstrations from the ball boy who is still on the ground. Other players go over to him.
9. Mr Hazard is given a red card and off he goes.

Now, if one watches the footage, I would suggest that it is determinative of whether or not Mr Hazard's foot makes contact with the boy. I will let others make up their own mind.

The police have issued a statement to say that they have interviewed Master Morgan (the ball boy), in the presence of his father, and that no complaint has been made. Thus, no further action has been taken by the police. End of story. Or is it? No, is the short answer. We are now in the stage where the nation (perhaps that's a slight exaggeration) is debating the rights and wrongs of what is said (and seen) to have happened. I have noticed a great plethora of press reporting that goes along the lines of 'well the boy hasn't pressed charges, so that's the end of the matter'. No it isn't. In a case such as this, I would venture to suggest that the evidence of the boy is neither here nor there. The 'best evidence' comes from the television footage. Indeed, I would suggest that if Mr Hazard was charged with Common Assault (in its manifestation as a Battery), the Crown would not need the evidence of Master Morgan in order to secure a conviction. A Tribunal that was in an extremely generous mood may, for example, conclude that Mr Hazard did not intentionally assault Master Morgan, but nevertheless conclude that his actions in kicking out (which he undoubtedly did) whilst Master Morgan was lying on the floor constituted reckless behaviour on his part. It is difficult to envisage what the defence could possibly be if a charge was laid, other than "I did not make contact with him". At this point, I again refer readers to the footage.

Some of my colleagues have said that because there was no injury sustained and because the behaviour of the ball boy was itself questionable, there is no public interest in prosecuting the matter. I do not agree. We all know that thousands of Common Assaults are prosecuted each year where there was no injury sustained by the complainant/victim. I tend to agree that cases where the complainant is said to have been 'pushed' should not generally be before the courts (although they frequently are) but this was not a push. If Mr Hazard was convicted of an offence of Common Assault, there would be some serious aggravating features:

1. This was a kick;
2. There was a significant degree of force used (the footage shows Mr Hazard raise his foot back before effecting the kick)
3. The kick was intentional (unless you have a generous Tribunal who conclude it was reckless);
3. The victim was lying on the ground at the time;
4. The victim was only 17; and
5. The Defendant is a professional footballer, considered as a role model by many, and committed this offence in front of thousands of people.

Some argue that the conduct of the ball boy would provide strong mitigation. I'd be inclined to disagree. A professional footballer such as Mr Hazard should be able to control himself. If the ball boy was being obstructive, the matter was one for the officials to deal with, not Mr Hazard.

We wait to see whether or not the FA take action. They may well do so. According to the BBC, the police have received complaints from members of the public about the incident. It's unlikely that they will take action now though having issued the statement they did following the interview with Master Morgan. The public may have to settle for 'FA justice' instead.

Friday, 19 October 2012

There's nothing as queer as evidence

Sad as it may be, we all have 'favourite' judges. Whether it's because we particularly like them or whether it's because it is simply better to appear before them than their colleagues, I'm not sure. Either way, I appeared before one of my favourites recently. He's a favourite because I am yet to lose a trial in front of him. I have no doubt that it's just a coincidence but it's a coincidence that I happen to like.

Recently, however, I thought the game was up. Some months prior I had attended the Crown Court to represent a gentlemen at his PCMH. The charge was one of dangerous driving. The evidence appeared overwhelming. The story goes like this- it was about 23:30 and a police car was making its way along a (not very busy) main road. The occupants comprised the driver and his colleague who was sitting in the front passenger seat. Their "attention was drawn" to "two flashy sports cars" that were travelling, one just behind the other, in the opposite direction to the police car. As the cars passed the police car, the police officers both noticed that the drivers "seemed very young to be driving such expensive cars" (one was a Porsche which was being driven by my client, the other was a BMW being driven by the Co-Defendant). The police car turned around in order "to follow them to see what they were up to". The suggestion then was that both officers witnessed the BMW pull up alongside the Porsche (the BMW now being on the wrong side of the road) and the two cars "began to race". The officers said that the police car was doing "at least 60mph" at one stage along the main road but was unable to catch up with the cars. One officer alleged that there was "a near fatal" collision with a bus at one point. (There was no evidence from the bus driver). The police radioed their colleagues and fortunately for them there were two police cars nearby. One was parked at the top of the main road near a roundabout. The other was travelling down another road which led on to the roundabout (from the opposite direction of the main road). There were two officers sitting in the car which was parked near the roundabout. They both said in their statements that the Porsche and the BMW approached the roundabout at "excessive speeds" (the speed limit being 30mph) and that the BMW went the wrong way around the roundabout. The Porsche "went over the top of it" and stopped (as did the BMW) when they was "flashed" by the third police car that was approaching the roundabout from the opposite direction. Both of the drivers were arrested and both denied driving dangerously in their respective interviews. They said that they were observing the speed limit at all times, they were not racing, there was no driving on the wrong side of the road, they did not pass a bus, and they stopped when required to do so by the police.

At the PCMH, I gave fairly strong advice to my client. In short, there were 5 police officers who were going to give damaging evidence against him at trial. They all alleged that he was travelling over the speed limit, two alleged that he was "clearly racing" on a main road where there were other road users, one alleged that he nearly collided with a bus, and another two said he approached the roundabout at an excessive speed (one added "in a dangerous manner"). Believe me when I say that the totality of what was contained within the witness statements was far from good. However, the client was adamant that he had done nothing wrong. That was good enough for me. A not guilty plea would be entered and we would let the jury decide who was right.

The following weekend I decided to go and have a look at the road in question, it being not too far away from where I live. I went at night in order to get a realistic impression of what it must have looked like to the participants involved. Two things were of interest- (i) there were CCTV cameras at various points along the road- I'd already made a request in my Defence Statement for any footage but now at least I knew that the area was 'covered'- and (ii) The road was littered with moderately high speed bumps- they were of the sort that you had to go over, there was no getting round them. How, I thought to myself, was my client supposed to have driven a Porsche of all cars at the speeds alleged without destroying the front of his car? I took some photographs, knowing that I wouldn't be able to use them in evidence, as an aide memoir. I would later ask my solicitor to take some more so that I could use them in evidence.

The trial was listed for three days. I shall not rehearse the entire evidence. On day one the two officers from car number one gave evidence. An extract from the cross examination of officer number one (the driver) is as follows-

Me- You said in your evidence that you were travelling at about 60mph?
Officer- Yes.
Me- How do you know that?
Officer- I looked at my speedometer.
Me- And you did that all the way along the main road?
Officer- Yes
Me- If you're correct about that, the Porsche and the Mercedes were travelling much faster?
Officer- I am correct about that and yes they were.
Me- Did you have them under constant observation along the main road?
Officer- Yes
Me- How did they manage to navigate the speed bumps at that speed?
Officer- Sorry?
Me- The speed bumps. How did the drivers manage to navigate them at such speeds?
Officer- There aren't any speed bumps on that road.
Me- Really? Are you sure about that?
Officer- 100% sure
Me- Take a look at these photographs please. That's the main road isn't it?
Officer- Yes
Me- What are all these (pointing at the speed bumps)?
Officer- They are obviously speed bumps.
Me- That's funny isn't it, because you just told the jury that there weren't any?
Officer- Sorry, I got that wrong.

The officer's credibility had been annihilated. There was no way that the cars could have been travelling at the speed he alleged. I knew it, he knew it, the judge knew it and the jury knew it. My Co-Defendant's Counsel, in preparation of officer number 2 coming along (who alleged the near collision with the bus), asked as follows-

Co-Def- Tell the jury please about the near collision with the bus?
Officer- I'm sorry?
Co-Def- You know, there was nearly a big accident between the cars and an on-coming bus.
Officer- No there wasn't.
Co-Def- Are you sure about that?
Officer- Yes. I would have remembered if there had been a near collision with a bus.

We were now able to sit back and relax while officer two gave his evidence. He of course talked about the "in excess of 60mph" speed and the "near collision with a bus". The members of the jury could not have looked less impressed. Neither, for that matter, could the Judge.

The two officers who were waiting near the roundabout did not take the Crown's case much further. They were stationary and could give no realistic estimate as to how fast the cars were travelling. One officer clarified that when she said the Porsche went "over the top" of the roundabout, she meant that it took the "straight ahead exit", not that it literally went over the top of it. My Co-Defendant still had some difficulties because two officers gave evidence that he had gone the wrong way round the roundabout.

What did the jury make of it all? I don't know. In relation to my client the Judge upheld a submission of no case to answer and so the case was withdrawn from the jury. The Co-Defendant remained and I'm not sure yet what has happened to him.

So the simple point to take from this tale is that sometimes witness statements can be deceptive. A case can look overwhelming on paper but that is not always borne out in court. And, this Judge still remains one of my favourites.

Saturday, 13 October 2012

Sureties and the trouble with the decision in Assange

On the 8th October 2012 the Chief Magistrate, Senior District Judge Howard Riddle, ordered 9 sureties to pay a total of £93,500 into court as a result of the failure of Julian Assange to surrender to the court as per the conditions of his bail. The decision of the Chief Magistrate so to do is, in my view, highly questionable.

What is the purpose of a surety? In short, a surety (or in this case sureties) is placed under an obligation to ensure that an accused person in criminal or extradition proceedings attends at court. If they fail in that duty then they risk having to pay a sum of money (the amount of which they have agreed prior to the grant of bail) into court. If the court granting bail considers that sureties are required, it follows that, without them, the court is fearful that there is a substantial risk of the accused person failing to appear at court. It is not, for example, the job of a surety to ensure that an accused person does not commit any offences whilst on bail or indeed interfere with any of the prosecuting authority's witnesses. Section 8(2) of the Bail Act 1976 details the sort of considerations that a court should have regard to when considering whether a proposed surety is suitable. Unsurprisingly, these include the character of the person proposed, the financial resources of that person and, importantly, the relationship between the surety and the accused. After all, the surety is supposed to be able to ensure that the accused attends court when required. Accordingly, a court should ask itself whether or not the proposed person/persons are going to be able to exert any degree of control over the accused in order to get him or her to attend court. If there is no relationship, or no close relationship, between the accused and the proposed surety, what is the point of accepting them? If the accused does not care one way or the other whether this person loses their money, the exercise is a pointless one (save that it might heighten the chances of the Government making some money out of the process).

Now it of course has to be right that the starting point, if an accused fails to attend court when required, is that the sureties must forfeit their 'pledged amount'. Otherwise, what is the point of the system? The court does, however, have a discretion to order that the sureties pay less than the sum they pledged or indeed pay nothing at all. Section 120(3) of the Magistrates' Court Act 1980 is drafted in clear terms:

"The court which declares the recognisance to be forfeited may, instead of adjudging any person to pay the whole sum in which he is bound, adjudge him to pay part only of the sum or remit the sum."

Thus in the present case, the Judge had three options open to him- (i) order payment of the whole sum, (ii) order part payment or (iii) remit the entire sum. The Judge here went for option (ii) which is interesting for reasons which I shall return to later. It will be noted, however, that even the order for part payment still required a very considerable amount of money to be paid into court.

It is also beyond doubt that the lack of any culpability, on behalf of the sureties, for the accused's failure to appear, is not of itself a reason not to require forfeiture of the relevant amounts- see for example Choudhry v Birmingham Crown Court (2008) 172 JP 33. However, as Lord Justice Parker observed in R v Reading Crown Court ex parte Bello [1992] 3 All ER 353, at 363,

"The failure of the accused to surrender when required triggers the power to forfeit but the court, before deciding what should be done, must enquire into the question of fault. If it is satisfied that the surety was blameless throughout it would then be proper to remit the whole of the amount of the recognisance and in exceptional circumstances this the only proper course."

Were the circumstances in the case of  Mr Assange exceptional? Surely, the answer must be yes. Unusually, although it appears to be happening more often than it used to, the District Judge gave written reasons for his ruling which can be viewed on the judicial website-
Accordingly, it is possible to clearly follow the rational of the Judge, so far as it exists, for his decision. We can ignore the lengthy procedural history of the case (which for the purposes of this post is of little relevance) and jump straight to page 6 where the Judge summarises the arguments of Counsel and the Sureties. He says this:
"Mr Blaxland helpfully made the following points before withdrawing. The court has wide discretion. This is a unique and genuinely wholly exceptional case. Mr Assange has not absconded – he has sought asylum with a country with diplomatic relations with this country. The sureties had been surprised by the length of time these proceedings had taken to resolve.

Mr Vaughan Smith then addressed the court. He had been asked by the nine (I think he meant eight) other sureties to speak on their behalf as well as his own. I will attach the full address to this judgment. He started by saying that the sureties "appreciate that the court wants to know what the sureties may have privately or publicly done to encourage Mr Assange to submit to the British police since he entered the Ecuadorian Embassy on 19 June." He referred to the lengthy extradition challenge; the controversial circumstances; attacks by US officials on Mr Assange personally and through Wikileaks. If the sureties publicly urged Mr Assange to abandon the embassy, "it would undermine Mr Assange but we don’t believe it would do anything to extract him from the Ecuadorian Embassy. It would certainly be a very public betrayal and in our view, importantly, it would also betray the public." The sureties visited Mr Assange the day before. They were told that the Ecuadorian Minister of Foreign Affairs had investigated and found that Mr Assange’s fears of persecution by the United States and others were not unreasonable. He had been granted political asylum. He explained the continuing threat to him emanating from the United States. Mr Assange is convinced he faces serious risks in US custody. The securities cannot disregard that risk. They believe the Ecuadorian government is negotiating with the Swedish and British authorities, looking for a solution, and they hope that those discussions will be fruitful. Mr Vaughan Smith then described the huge amount of effort the sureties have provided over an unexpectedly long period. He ended "in this unique, and this quite exceptional case, to comply with what this court seems to expect from us; to all publicly urge Mr Assange to abandon the sanctuary that he has found in the Ecuadorian Embassy, would see us acting against a man whom we and others judge to have understandable fears about his ultimate treatment in the United States if he abandons his asylum. That would render us
mercenary and contemptible individuals of great weakness of character. It cannot be the right thing for us to do."
As Counsel indicates, this case was indeed "wholly exceptional". Mr Assange has not absconded in the traditional interpretation of the word. He has not fled the jurisdiction. He is not 'on the run'. He has sought, and more importantly been granted, political asylum. He remains in the United Kingdom under the protection of the Ecuadorian Embassy. Everybody knows that he is there.
Mr Vaughn Smith makes the point that, in the circumstances of this case, the sureties felt unable to comply with the expectations of the court- in other words to try and convince him to abandon his asylum, notwithstanding the fact that there remain justifiable fears, so the Ecuadorian Embassy has found, regarding Mr Assange's treatment in the United States.
The Judge publicly acknowledges the position the sureties have taken at page 7 of his ruling:
"I say immediately that I have real respect for the way that the sureties have conducted themselves in difficult circumstances. I am satisfied that what they have said and written accurately reflects their genuine views. In declining to publicly (or as far as I know privately) urge Mr Assange to surrender himself they have acted against self-interest. They have acted on their beliefs and principles throughout. In what is sometimes considered to be a selfish age, that is admirable."

In fact, he does more than acknowledge. He states that he has "real respect" for the way in which they have conducted themselves and indeed calls them "admirable" whilst also acknowledging that the circumstances in the present case are "difficult" ones.

But then the Judge appears to turn his back on the unique facts of this particular case. Instead he recites the history of the importance of the obligations placed on sureties and the consequences that will follow in the event they fail to fulfil them. This allows him to express his 'public policy' concerns over what would happen if sureties were not obliged to forfeit their pledged sums of money when an accused fails to attend court. He says, at page 8, this:

"There is clearly an important point of public policy involved. If a person accepts the responsibility of a surety, and the defendant fails to surrender as required, then the starting point must be that the surety is forfeited in full. It would be unfortunate if this valuable method of allowing a defendant to remain at liberty were undermined. Courts would have less confidence in the efficacy of sureties. It would be particularly unfortunate if it became established that a defendant who absconded without in any way forewarning his sureties thereby releases them from some or all of their responsibilities. In this case Mr Assange told the sureties that "he did not tell us of his decision because to do so would have placed us in legal difficulty" (see the statement to the court of Mr Vaughan Smith). In short, even if a surety does his best, he remains liable for the full amount, except at the discretion of the court."

With the greatest of respect to the Judge, this public policy argument, in the context of this case, is misconceived. By refusing to forfeit the sums pledged, the Judge was not about to change the law on surety forfeiture. Nor would he have undermined the system. Nor would his decision impact upon the way in which other courts had confidence in the efficacy of sureties. To suggest otherwise is, in my view, nonsense. This case was wholly exceptional.

When people fail to attend court, it is usually for one of the following reasons:

(i)    They have a reasonable excuse (e.g they have been admitted to hospital);
(ii)   They have forgotten that they have a court hearing;
(iii)  They simply can't be bothered to go to court; or
(iv)  They are in custody having been arrested on suspicion of committing another crime.

People do not, generally speaking, fail to attend court because they have been granted political asylum within an Embassy based on-shore in the United Kingdom. That is most unusual (if not unique). Therefore, a decision not to forfeit the sureties in this case would have had no greater consequences than to acknowledge the exceptional circumstances surrounding this particular case.

As noted above, the Judge did not, however, adopt this course. Nor did he require them to pay the full amount. Instead, he ordered part payment. This path was an interesting one to take. In some instances, it was as a result of a means inquiry. But not all. The Judge observed, at page 11 of his ruling, that

"Having seen and heard from the sureties, I cannot avoid taking some account of their integrity.

I approach this decision on the basis that I should forfeit no more than is necessary, in public policy, to maintain the integrity and confidence of taking sureties so that a person may be released on bail"

This conclusion is, to my mind, extraordinary. First, he accepts that the sureties acted with integrity and indeed commends them, as noted, earlier on in his ruling. Yet he nevertheless orders them to pay substantial sums of money into court for their failures to perform their "basic duty". Furthermore, he goes on to state that his decision so to do is based upon grounds of public policy. As observed earlier, this ground is, it is respectfully submitted, misconceived. Public policy was not going to be affected as a result of refusing to seek forfeiture in the highly unusual circumstances of this case. It is fair to say that the Judge exercised his discretion in favour of the sureties but, in my opinion, he did not do so far enough.

Related Thoughts

Anxious that my post is already long enough, there is one, hypothetical situation, that is worth considering. Imagine that Mr Assange decides to leave the Embassy and voluntarily attends (or, as is more likely given that a warrant has been issued, is arrested and escorted to) court. It will be put to him that he failed to attend court when required to do so. Mr Assange will no doubt respond by saying that, pursuant to s.6 of the Bail Act 1976, he has a reasonable excuse for failing to do so. His excuse would be-

"I was granted political asylum at the Ecuadorian Embassy on the grounds that the government of Ecuador believed that I may become a victim of political persecution, as a result of my dedicated defense of freedom of expression and freedom of press as well as my repudiation of the abuses of power in certain countries, and that these facts suggested that I could at any moment find myself in a situation likely to endanger life, safety or personal integrity."

An impressive response to a charge of absconding one may think. If a court found that Mr Assange did have a reasonable excuse for failing to attend, what would happen to the forfeited sureties? The Judge touched upon the issue at page 5 of his ruling when he said-

"However I was not prepared to adjourn until such time, if any, when Mr Assange appears before the court. It is not the usual practice. The possibility that Mr Assange has a defence of reasonable cause to the allegation of failure to surrender cannot be excluded. The same applies when any defendant apparently absconds. For example it may later be discovered that the defendant had been critically injured, or perhaps kidnapped, or in some other way prevented from attending and prevented from communicating. If that happens, then any security or securities estreated would no doubt be returned."

The provision for returning the estreated amounts was not identified by the Judge. Perhaps it just has to be put down to a matter of common sense or 'discretion'. True enough, if a court found that an accused had a reasonable excuse but refused to return any sums forfeited from a surety, I suspect the matter would end up before the High Court. The references by the Judge to defendants who may be discovered to be ill, have been kidnapped, and so on, is, one may think, unhelpful. In those sorts of cases, one does not discover the reason for the defendant's failure to attend court until such a time as he has been arrested. In this case, the Judge was well aware of the reasons why Mr Assange was not present- he was in the Embassy.

It will be interesting to see what happens if and when Mr Assange does appear back before the Magistrates' Court. One thing is for sure, this tale has not yet concluded.


Wednesday, 29 August 2012

Financial Penalties- Part II

I often blog about things I have experienced whilst at court. One such post related to the conduct of two lay benches when it came to the imposition and collection of financial penalties (see my post of the 14th August 2012). Although doing no more than reciting my experiences, the post attracted written criticism from some- with one JP saying "There is no way, ever ever, that a Bench will behave in this loathsome manner" and that "unrepresented defendants are treated with deference, respect and kid gloves without exception".

Yesterday I was emailed a case which I read with considerable interest. It is called R (on the application of Evans) v North Somerset Magistrates' Court [2012] EWHC 2382 (Admin). It is worth a read.

The case concerned the decision of the Magistrates' Court to commit the Claimant to prison for a period of 12 months in respect of the non-payment of an outstanding compensation order. You know that the case if going to be worth a read when Lord Justice Moses observes in the first paragraph that "What went on leading up to that committal seems to me a matter of considerable concern".

On the 13th March 2009, the Claimant had pleaded guilty, before the Crown Court at Bristol, to offences of theft and false accounting. She was sentenced to a term of 8 months' imprisonment. Confiscation proceedings were commenced and, on the 7th April 2010, the Crown Court made a confiscation order pursuant to s.6 of the Proceeds of Crime Act 2002 (POCA), assessing the criminal benefit as £56,039 and that the available amount was £27,771.29. That available amount was calculated by reference to the fact that the Claimant had a 100% interest in the equity of a dwelling house (valued at £25,771.29) and a car (valued at £2,000). The total sum was to be paid as compensation to the victim of the crime (a rugby club) and was to be paid within 6 months.

Time for payment was subsequently extended (the property not having been sold within the 6 month period). On the 12th August 2011 the property (and car) were sold. Unfortunately, there had been a miscalculation of the amount of equity in the property for which the Claimant had a beneficial interest. A shortfall of approximately £18,600 remained. Accordingly, the Claimant applied to the Crown Court for a variation of the Order and, on the 1st September 2011, the amount of the Order was reduced to 'nil', the Crown Court being satisfied that there were no other available assets.

The Claimant, however, still had to deal with the question of compensation (the compensation issue being distinct from the confiscation order, notwithstanding that the order on its face designed the order to be deployed in satisfaction of compensation). Pursuant to section 133 of the Powers of Criminal Courts (Sentencing) Act 2000, the Magistrates' Court may:

"...On the application of the person against whom the compensation order was made, discharge the order or reduce the amount which remains to be paid; but this is subject to subsections (2) to (4) below."

The case thus came before the Magistrates' Court on the 7th October 2011. They apparently heard evidence from the Claimant's partner, a Dean Evans, who although in employment, was due to be made redundant and to receive a redundancy payment, and also heard from representatives of the victim rugby club as to the disastrous effect on them of the dishonest behaviour of this claimant. The Magistrates adjourned those proceedings, ordering the Claimant to make a payment of £120 per month towards payment of the outstanding compensation order. The matter came before the Magistrates again on 2 December 2011. At that stage the Court heard that the Claimant's partner had indeed received a redundancy payment and apparently had heard that there was available, out of that redundancy payment, a sum of £3,000.

The Legal Advisor to the Magistrates provided the High Court (as part of the Judicial Review proceedings) with a document described as a 'statement of facts'. At paragraphs 10-11 of the Judgment, Lord Justice Moses observes that,

"In any event, on that hearing on 2 December, he [the Legal Advisor] says that the means enquiry was conducted with the Claimant on oath and the Claimant asserted that neither she nor her husband had the means to pay the compensation order and she indicated that her husband's redundancy payment had been used in full to set up a new business and thus the offer of payment out of that was withdrawn. It appears that she was asked about a holiday she had had, which she accepted, in Turkey earlier in the year, staying in a friend's villa, but there is no record of how much that cost or whether that was unreasonable expenditure in the context of the order made against her. She told the magistrates on that occasion, according to Mr Sims, that £7,500 remained out of redundancy money. The statement then goes on in quotation:

"The Justices adjudication was that the compensation should stand (...) The Justices were satisfied that the offer of payment from the redundancy money was made freely by the Claimant at the previous hearing and no good reason existed not to further consider this."

Accordingly, they ordered that she pay £3,000 within 14 days and to continue with the monthly payments of £120. There was a warning that she would go to prison for 12 months if she did not pay it. A review hearing was listed for 4 March 2012, once, so it is recorded, it became apparent by late December that the sum of £3,000 had not been paid. I then note with some disquiet that in this, "the Claimant had failed to contact the court to advise that she was unable to pay".

It seems, however, that the Claimant had not failed to contact the Court. At paragraph 13, his lordship continues-

"There was an acknowledgement on 22 December from L Guest, the administrative officer at North Somerset Court House, saying the hearing had been arranged for 3 January to allow the magistrates to read your letter. Those circumstances, are, as I have said, a matter of disquiet that it is asserted that she failed to contact the court. She did and there was a hearing on 3 January 2012 when she was, again, unrepresented. It is recorded that the £3,000 payment had not been made and the statement goes on:

"The claimant clearly told the justices that she did not see why she should have to pay the order. Her demeanour was belligerent during the hearing and she seemed unable to understand why she should have to pay the money outstanding to the compensatee. In effect she had already been punished. In answering the questions put to her by the justices the claimant expressed a palpable level of contempt for the court, claiming to appear unmoved by her compliance with the previous court order, made no offer of payment. A means enquiry followed. No offer was forthcoming and at this point the claimant's husband stood up in the public gallery and offered to pay £3,000 that day."

I turn now to the central part of the Judgment which is worth reciting in full. Paragraphs 15-21 of the Judgment read as follows:

"It was contended at a subsequent hearing by Mr Cameron on behalf of this claimant that that offer, apparently shouted out from the public gallery, was made when both the claimant and her husband felt under considerable pressure that if an order was not made she would go to prison. Mr Sims says that there was no pressure applied, that if payment were not made, imprisonment would occur. This is a surprising statement. Given the whole context of this case and the letter sent saying that the claimant was under severe depression and suicidal behaviour and that neither member of the household was working and that on more than one occasion she had been warned that if she did not pay it she would go to prison, it is startling to read from the legal adviser that no pressure was put on this claimant. The pressure arose from the circumstances, as anybody there must have appreciated.

Accordingly, following that date, the next hearing was a hearing on 3 February 2012. At that hearing, Mr Campbell did represent this claimant and evidence was given of the amount she received by way of employment support allowance of£67.50. The submissions fell on stony ground. The court, in giving its decision to send this claimant to prison, noted that the club had lost £56,000 and that£18,000 was still owed and it must be paid. It then recorded the history I have identified and the magistrates said the court entirely refutes any suggestion of improper pressure upon you on 3 January. The question is not whether there was improper pressure but whether the offer made by the husband was not plainly as a result of fear that were it not to be made the claimant ran a very real risk back in January of the very thing that occurred the month after, namely that, having already served one sentence of imprisonment, would go back there to serve even longer of the 12-month sentence. The magistrates said: "You are clearly in breach thereof of two court orders and the court finds culpable neglect."

The reasons were then expanded by the legal adviser who made it clear that the justices were satisfied that the claimant had exhibited culpable neglect in her approach to discharging compensation and particularly that no other method of obtaining the compensation was available. This is of significance to this claim because the magistrates went through the other possible sources of money to meet the compensation obligation. The legal adviser records that all other enforcement options were considered and were discounted as inappropriate or previously unsuccessful. A distress warrant was inappropriate because the claimant had no goods to distrain. A third party debt order was not appropriate because she had no savings. A money payments supervision order was inappropriate because other debts had been paid without such an order. An attachment of earnings order was inappropriate because she was not employed. A deduction from benefit order was inappropriate as the maximum amount was £10 per fortnight and it would take too long to pay. She was too old for an attendant sentence order. This is of considerable significance in this case. It demonstrates the magistrates' appreciation that there were no funds other than the paltry sum of £127 a month out of her benefit from which her own resources could meet the obligation to pay compensation. In those circumstances, it is necessary to identify on what basis it could be said that she had been guilty of any wilful refusal or culpable neglect. That was crucial to the order that the magistrates made. Absent such a finding, there was no basis for sending her to prison.

The only factual basis stemmed from the offer of the husband to use some of his money, and I emphasise, it was his money, which he had received by way of redundancy compensation to satisfy his wife's obligation. There was no obligation upon him to make the offer. As I have already sought to emphasise the circumstances in which he made it were perfectly plain: he did so to save his wife from going back to prison. The fact that he chose subsequently not to, whether for a good, bad or indifferent reason, did not in any way begin to establish a wilful refusal or culpable neglect on the part of his partner, this claimant.

The magistrates appear, in my judgment, to have fallen into error in two significant respects. Firstly, they failed to have regard to the orders of the crown court by which it was accepted that she had no assets to meet the confiscation order and that the confiscation order was linked expressly on the face of the order to compensation. It was thus recognised by the crown court that she had no assets out of which to pay the compensation. The only basis upon which it would be right not to discharge the compensation order would be on the foundation of clear evidence that there were other resources by way, for example, of regular income from employment or some windfall subsequent to the discharge of the confiscation order out of which the compensation order could be made. No such finding was made by the magistrates. No such finding could be made because there was no such resource, there was merely the sum she received by way of benefit. The second error into which the magistrates fell arose out of their elision between the resources of her husband and her own resources. That elision could not, as a matter of law, arise out of the mere fact that her husband had made an offer of £3,000 in the circumstances I have described or indeed under any other circumstances; it was entirely open to him having made the offer to withdraw it and there was nothing to suggest that she had compelled him to do so.

The error was, in my view, a basic error of law in regarding his assets as the same as hers. If authority is needed that the two are not the same, it is to be found in the R v Charalambous 6 Cr App R (S) 385 and in Archbold, paragraph 5-405, the edition of 2004. Both were cited by Newman J in R v Patricia Engam [2004] EWCA Crim 1536. It is wrong in principle to impose a fine on the assumption that one person, for example a spouse, will pay another person's fine. In that case, the judge expressed the limitations of that principle where it was sensible to regard the assets of a household as joint income and assets. Apparently in this case there was clear evidence that the spouse before the court was not the principal earner but that she had available to her the income of her partner because the income was properly to be regarded as joint income (see paragraph 13). That situation is miles away from the case here where the redundancy money plainly did not belong to this claimant and to which she had no entitlement and which was not part of her assets. I have explained the circumstances in which the offer was made and that provided no basis in law or in fact as foundation for making the compensation order, still less for finding culpable neglect.

It is, in my view, a matter of regret that although proceedings were launched and permission speedily granted in writing, no interim relief granting this claimant bail was allowed. Of course, High Court judges are enjoined not to grant bail in criminal appeals on the basis that if it is a short sentence, the case can be heard very quickly and it is thoroughly undesirable that someone who has been sent to prison should be released on bail and then sent back shortly after. But a compensation case like this is wholly different and, I am afraid, sad to recall that three different High Court judges, as this case maundered on between 2 March 2012 and 4 April 2012, failed to take a sympathetic and merciful view and let this lady out as soon as possible. We granted bail over lunch because we had not reached a final conclusion. But for my part, in my view, she should never have been ordered to go to prison in default at all and the magistrates erred in serious measure in those two respects. I will quash the decision and I shall hear argument, if my Lord agrees with that conclusion, as to the form of the order we should make for the future."

That the Magistrates "erred in serious measure" is undoubtedly correct for the reasons the High Court gave. However, what interests me is the way in which the Magistrates seemingly conducted themselves throughout the various hearings. Once again, I refer the reader back to my earlier post of the 14th August and the comments made by some in relation to it. In particular, not only did the Magistrates make "a basic error of law", the way they appear to have treated the Claimant is deplorable. The very fact that an offer of payment was being shouted from the public gallery is, many may think, indicative of the same. Furthermore, and as the High Court acknowledged, the fact that the Magistrates had conducted the exercise they had (in relation to other enforcement options) should have set off a huge flashing red light that this lady did not have the means to pay. For some reason neither that exercise, nor the previous findings of the Crown Court, swayed them from what turned out to be one of the most troubling Magistrates' Court decisions I have read in recent months.

There are serious lessons to be learned from this case and I for one suggest that it should be circulated throughout Magistrates Courts up and down the country. I do not, for one moment, suggest that all Magistrates are as incompetent or uncompassionate as those in the present case. However, this Judgment does illustrate that incidents such as those recorded in my post of the 14th August are certainly not isolated ones.


Monday, 27 August 2012

Baby names and the law

Yesterday my sister had a baby. Big congratulations to her, her partner and the little one. Prior to the birth, I was chatting with my sister about possible baby names. "Are there any illegal baby names?" she asked me. I thought about it and then said "I don't know". I decided to conduct a little investigation...

I can find no legislation which directly prohibits certain names or types of name. A spokesman for the General Register Office has, however, previously stated that whilst there are no restrictions on the names that parents can give their children, "an official" could refuse to register a name, in an exceptional case, where the name could be deemed offensive. I do not, as at the time of writing, know what form the legislative basis for this proviso takes nor who and how the phrase "deemed offensive" is interpreted. What I do know, however, is that the General Register Office has, in recent years, been happy to register names such as "Superman", "Gandalf", "Gazza" and "Arsenal". It is, therefore, hardly surprising that celebrity parents have been permitted to give their children names such as "Harper Seven" and "Fifi Trixibelle"...

Is the rest of the world as liberal when it comes to the legality of baby names? It would seem not.

Countries such as Denmark, Spain, Germany and Argentina all publish lists of acceptable baby names from which the parents must select. The German authorities, for example, will not allow a baby to be called "Hitler" and have also refused specific requests that children be allowed to be named "Osama Bin Laden", "Stompie", "Woodstock" and "Grammophon".

The Department of Internal Affairs in New Zealand have rejected names such as "Christ" and "Lucifer" whilst also prohibiting parents from naming their children with symbols and numbers. In 2007, the BBC reported that a New Zealand couple had lost a legal battle to name their child "4Real" and so settled on "Superman" instead. A number of other sources I perused revealed that Judges in New Zealand have previously refused permission to name twins "Fish" and "Chips" although did permit the names "Number 16 Bus Shelter" and "Violence". Although my absolute favourite refusal by the New Zealand judiciary has to be for the request that a child be named "Talula Does The Hula From Hawaii."

Over in Malaysia, it seems that the Government had to ban the name "Chow Tow" which, when translated into English, means "Smelly Head", whilst a woman in Norway was apparently jailed for 2 days for giving her child an unapproved name.

Finally, a Judge in the United States refused to allow a man to change his name to "God" so the man settled on "I Am Who I Am".

So one thing is for sure. There is certainly no consistency when it comes to which names are permitted and which are not. Should parents be able to call their children anything they want? If not, who should make that decision and what criteria should be applied before a decision is reached?