0 A new facet of child protection: London Borough of Tower Hamlets v B

By Unknown | At 5:52 PM | Label : | 0 Comments

London Borough of Tower Hamlets v B [2015] EWHC 2491 (Fam)- Heydon J.

B is an "intelligent, educated and ambitious" 16 year old who has been subjected to serious emotional harm, and, at the very least, continues to be at risk of such in her parent's care.  She was prevented by the Police from departing to Syria where she would have involved herself with Islamic State.  The emotional harm arose from material (found at her home) of a disturbing nature including video of beheadings and "smiling corpses."  B's parents had, at first, seemed to be a protective force but the reality proved to be something altogether different.  Heydon J noted at paragraphs 4 and 5:

1. This case comes before me consecutively with a number of other cases within the Borough of Tower Hamlets, each of which involves intelligent young girls, highly motivated academically, each of whom has, to some and greatly varying degrees, been either radicalised or exposed to extreme ideology promulgated by those subscribing to the values of the self-styled Islamic State.


2. Within the context of child protection these courts frequently, though not exclusively, see children whose advantages and opportunities in life are limited and circumscribed from the very beginning. In each of these cases however these young women have boundless opportunities, comfortable homes and carers who undoubtedly love them, but they have been captured, seduced, by a belief that travelling to Syria to become what is known as 'Jihadi brides' is somehow romantic and honourable both to them and to their families. There is no doubt, to my mind, that young women here have been specifically targeted, in addition to young men of course, but for different purposes. The reality is that the future for such girls as we know, holds only exploitation, degradation and risk of death; in other words these children with whose future I have been concerned, have been at risk of really serious harm and as such the State is properly obligated to protect them. As capacitous adults they will, of course, be free to join whatever cause they wish, however ignoble others may regard it as being.

at para 28 the learned judge said:

"I have no hesitation in concluding that B has been subjected to serious emotional harm, and, at the very least, continues to be at risk of such in her parent's care. I can see no way in which her psychological, emotional and intellectual integrity can be protected by her remaining in this household. The farrago of sophisticated dishonesty displayed by her parents makes such
a placement entirely unsustainable."

and, consequently, at para 30 the judge said:

"What she needs, I find, is to be provided with an opportunity in which she can, in a peaceful and safe situation, be afforded the chance for her strong and lively mind to reassert its own independence. An environment in which there are the kind of vile images that I have described and the extreme polemic I have outlined, can only be deleterious to her emotional welfare. I hope she can be provided with an opportunity where her thoughts might turn to healthier and I hope happier issues."

Other observations:

B's case is one of a number of such cases coming before the Family Court and they raise a "new facet of child protection where there is, as yet, limited professional experience or, for that matter, available training." 

Interestingly, the judge found the Guardian to be in an "invidious position" [para 25] -

"She was only appointed a few days ago. She has not had any opportunity to meet the children at all. She has an inevitably incomplete knowledge of the background of the case, and virtually no understanding of the wider issues, having, as she told me, never been involved in a case of this nature before. She is in an entirely invidious position. I am sympathetic to her and I do not intend these simple statements of facts to be construed by her in any way as a criticism. They are not."

Heydon J, by way of contrast, found that the  social worker had "deep, well informed and intelligent understanding of the issues."

A further observation related to the Local Authority's plans for B.  At para 30 the judge said:

"I have no doubt, as has been impressed upon me by her counsel, that she will find separation from her parents, particularly her siblings, to be distressing, though I note she was prepared to leave them to go to Syria. I do not doubt that the social worker will struggle to find a placement which meets the full panoply of her welfare needs which has been emphasised on behalf of the guardian, but I entirely see why the Local Authority plans or proposals are, of necessity, only general in outline and, to some extent, inevitably inchoate. However, I am entirely satisfied that this social worker will make every effort to ensure the best possible option is achieved for B. That is the Local Authority's responsibility."

Links:

UK Human Rights Blog - ISIL child brides: a big care problem for the Family Court?  Rosalind English 27th August.

0 Imprisonment in England and Wales

By Unknown | At 2:45 PM | Label : | 0 Comments

The Howard League has published interesting data about the Prison Population in England and Wales at week ending 28th August 2015- Howard League Prison Watch

There are disturbing aspects to the figures.  For example, the fact that 4,614 people are held on the now abolished indeterminate IPP sentences, of whom 3,532 (77 per cent) have passed their tariff expiry date.  Also, the number of deaths in custody continues to be high.

See earlier posts on IPP sentences - 27th October 2011- 20th September 2012 - 11th October 2012 and 11th December 2014 -

 Ministry of Justice statistics show that on 30 June 2015 there were:

• 11,785 men, women and children are held on remand in prison
• 6,279 people are serving short sentences (less than 12 months)
• 4,614 people are held on the now abolished indeterminate IPP sentences, of whom 3,532 (77 per cent) have passed their tariff expiry date

And that between January and March 2015:

• There were 25,555 first receptions into custody
• 10,641 people were sent to prison to serve a short sentence (less than 12 months)

Deaths in custody:

In the first six months of 2015 there were 123 deaths in custody:

• 70 people died of natural causes
• 43 deaths were self-inflicted
• 5 homicides
• 5 deaths are yet to be classified

Report on deaths in custody in 2014

The Howard League routinely monitors all deaths in prisons. The Leagure has joined with a number of organisations to sign a letter to the Prime Minister, led by the charity Sense in Science, to raise awareness about the late registration of cause of death following a death requiring an inquest; there are still some deaths in prison dating back to 2010.

Earlier post on Deaths in Prisons - 10th March 2015.

0 Magistrates under attack !

By Unknown | At 1:47 PM | Label : | 0 Comments

"The Secret Barrister" makes out a case for the abolition of "lay magistrates" - Why this 70p Mars Bar shows we should abolish magistrates  In this post I offer brief comment only.

The author points to the case of Louisa Sewell:

Thursday August 6^th 2015, Louisa Sewell appeared at Halesowen magistrates’ court and immediately pleaded guilty to stealing a pack of Mars bars valued at 75p. In mitigation, it was submitted on her behalf that, due to her state benefits having been sanctioned, the Defendant had been left penniless and, having not eaten for four days, stole “the cheapest item in the shop” to eat. Due to the date of the commission of this offence, the Criminal Court Charge applied, meaning the magistrates were obliged to charge £150, on top of the discretionary punishment of a £73 fine, £85 prosecution costs, £20 victim surcharge and, with no hint of irony, 75p compensation for the shop. So, the headline ran, a £328.75 bill for a Mars bar.

The author rightly condemns
the Criminal Court Charge and this blog has also done so and continues to do so.  It is an iniquitous charge imposed regardless of the defendant's ability to pay and there is some evidence that it has resulted in the resignations of a number of magistrates.  It would have to be ordered against a church mouse!  Matters such as the fine, costs and "victim surcharge" (properly called a "surcharge") are not mandatory and the means of the defendant must be given due weight.  There are also alternative ways of dealing with minor offending such as this.  For example, a conditional discharge could have been imposed thereby avoiding the fine.  However, we do not know the record (if any) of this particular defendant and that has also to be taken into account when sentencing.

The article goes on to name the Chairman of the particular court before which Sewell appeared.  Whether that Chairman (or his Bench) were offered the chance to comment is unclear.  I suspect not.  The author observes that the Chairman may be - " ... of the same disposition and temperament as some of the magistrates in front of whom I have had the professional misfortune to appear.  I cannot rule out the possibility he is a closed-minded, self-righteous, vindictive and gonad-grindingly pig-thick cockwomble whose incapacity for compassion or deductive reasoning represents a regrettable blight on the institution of summary justice."  There is more!

The solution, in the author's opinion, would be to replace lay magistrates with Judges.  Over the last 10 years or so there has certainly been a growth in District Judge (Magistrates' Courts) appointments and many lay magistrates have long suspected an agenda to professionalise the Magistrates' Court judiciary.  This has usually been denied by successive governments.  (Each DJ has a salary in excess of £100k pa).  Apart from their lack of professional legal qualification, an argument put by the author for their replacement is that "they are entirely unrepresentative of those in respect of whom they sit in judgment, in age, social background, culture, ethnicity and class."  An interesting observation!  If the lay magistracy is unrepresentative then how would a bench of judges recruited from solicitors and barristers be any more representative?  As diversity in the legal profession currently stands, if anything it would be markedly less so.

One could go with further criticisms of the article.  I won't.  Lay magistrates are advised on law and practice by their legal advisers.  Almost everything a Magistrates' Court does can be appealed (usually to the Crown Court) though there are obviously cost implications to that.  There are also complaint mechanisms.  The magistracy handles thousands of very minor cases every year and, to be fair, it does so fairly, responsibly and sensibly in the vast majority of cases.  Perhaps THE main problem in the Magistrates' Courts is the lack of legal aid since BOTH a means test and interests of justice test have to be met in order to qualify.  Wouldn't improved legal representation make things better?  I venture to think so.

The learned author promises to write more.  I await it with interest but, with the greatest respect, I would like to see a fair and reasoned case put forward without the use of unnecessary invective.

Finally, since anecdotal evidence seems to be admissible, I can recall that solicitors tried to manoeuvre their cases to get them before the lay benches in  order to avoid a certain somewhat draconian Stipendiary Magistrate.  They knew that the said "Stipe" was much more likely to bang up their client.

Link added 30th August:

Transform Justice 26th August - How did the criminal court charge get through Parliament?

Criminal Law and Justice - Costs payable by convicted defendant

The order for settlement of monetary orders is Compensation, Surcharge ("Victim"), Fines, Prosecution costs and Court Charge.
 

!! Pay the Court Fee or Else !!

0 Action by lawyers over criminal legal aid and two-tier contracts

By Unknown | At 10:34 PM | Label : | 0 Comments

Mark Fenhalls QC (Chairman-elect of the Criminal Bar Association has announced that "no returns" is suspended with immediate effect and there is no reason why barristers should not accept any fresh instructions.  This announcement follows on from solicitor's organisations suspending their action pending further discussions with the Secretary of State and his officials.

Read the complete announcement

0 Chief Constables and Police Discipline

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The Police and Crime Commissioner for Avon and Somerset (Sue Mountstevens) has commenced the process under the Police Reform and Social Responsibility Act 2011 section 38(3) to require the Chief Constable of the Force - Mr Nick Gargan QPM - to "retire or resign" - see Avon and Somerset PCC 19th August 2015.  This follows an independent misconduct panel which found against Mr Gargan on 8 counts of breaching of standards of professional behaviour contrary to Schedule 2 of the Police (Conduct) Regulations 2012 .

The Commissioner's website provides links to a number of documents including the misconduct panel report (the panel hearing was in private) and the Independent Police Complaints Commission (IPCC) report.   The IPCC acted on a referral from the Commissioner.




The power to remove:

Sections 38(3) and 38(4) state:

(3)  The police and crime commissioner for a police area may call upon the chief constable of the police force for that area to resign or retire.

(4)  The chief constable must retire or resign if called upon to do so by the relevant police and crime commissioner in accordance with subsection 3.

Schedule 8 Part 2  deals with the suspension and removal of chief constables. It requires a police and crime commissioner to notify the police and crime panel if he suspends the chief constable. In relation to removals, it requires the police and crime commissioner to give the chief constable a written explanation of the grounds for wishing to remove him, and allows the chief constable to make written representations which the police and crime commissioner must consider. The police and crime commissioner must also inform the police and crime panel of the proposed removal, and the panel must consider the matter at a hearing. The chief constable has the right to attend and make representations at the hearing. The panel may also consult the chief inspector of constabulary. The panel must make a recommendation to the police and crime commissioner in relation to the proposed removal, which the commissioner must consider.

Police and Crime panels derive their role from the 2011 Act section 28.  Avon and Somerset Police and Crime Panel

Criticism of the power:

The House of Commons Home Affairs Committee examined the power of PCCs to remove Chief Constables - report of 20th July 2013.   This report noted that:

' ... the role of the panel is purely advisory. The final decision to dismiss a chief constable rests with the commissioner alone, ...'

The committee referred to a number of cases where there had been problems between Commissioners and Chief Constables:

'It should not have come as any surprise that the election of Police and Crime Commissioners was followed by a number of high-profile clashes between Commissioners and Chief Constables. Within a few days of the election, Avon and Somerset Chief Constable Colin Port declined to re-apply for his job after the incoming Commissioner,Sue Mountstevens, indicated that she wanted to recruit a new Chief Constable whose tenure would cover her entire term of office. In Lincolnshire, Chief Constable Neil Rhodes was suspended by Police and Crime Commissioner Alan Hardwick—who also referred him to the IPCC—but was reinstated following a High Court judgment. In Gwent, Commissioner Ian Johnston invited Chief Constable Carmel Napier to retire, indicating that he was prepared to initiate the statutory process for her removal if she did not do so.'

Following publication of the Home Affairs Committee report, Sir Hugh Orde (President of ACPO) called upon the Home Secretary to review the power given to PCCs - BBC 14th June 2013 but the government defended the present position - BBC 20th July 2013

Home Affairs Committee and Police and Crime Commissioners:

The 16th report of the Home Affairs Committee was published in May 2014. The report recommended amendment of the PCC powers to suspend/remove so that the grounds on which the power may be exercised were stipulated.  The committee was also concerned that PCCs could "side-step" the scrutiny process set out in Schedule 8.  These recommendations have not been  implemented.  It may be that, in an appropriate case, the process of removal will come to be tested in the courts.

: A little legal history :

At common law, the development of the rules of natural justice had an interesting history with the important House of Lords decision in Ridge v Baldwin extending rules of natural justice to certain administrative decision-making including the removal of a Chief Constable. 

Ridge v Baldwin [1964] AC 40: Following acquittal in a trial on corruption charges in which the judge criticised him, a Chief of Police (Ridge) was sacked without a hearing.  After reconsideration by the Police Authority and an unsuccessful appeal to the Home Secretary, Ridge brought an action for a declaration that the dismissal was unlawful.  The House of Lords granted the declaration.  In cases of dismissal on grounds of neglect of duty, a hearing was required. Neither the reconsideration nor the appeal to the Home Secretary cured the original defect in the decision, as both failed to give Ridge an opportunity to contest the material on which the decision was based.  In any event, the original decision was a nullity, so that it could not be rendered valid by the appeal to the Home Secretary, nor did this appeal exclude recourse to the courts.    Lord Reid dismissed the Police Authority’s claim that because it was implementing a policy, the principles of natural justice did not apply.   For a good article by S A deSmith on Ridge v Baldwin see Online Library.  The House of Lords composition for Ridge v Baldwin was particularly eminent:  Lords Reid, Evershed, Morris of Borth-y-Gest, Hodson, Devlin.  Lord Evershed dissented.

0 Stop and Search ~ concerns being addressed

By Unknown | At 5:14 PM | Label : | 0 Comments

Updated 19th August

Stop and Search powers:

Parliament has - rightly - given the Police "stop and search" powers.  As with any police power they must be exercised responsibly and lawfully.   Lawful exercise includes avoidance of unlawful discrimination - see Equality Act 2010 s.149.

The Police and Criminal Evidence Act 1984 Part 1 (Stop and Search) is an important general stop and search power.  Code of Practice A is applicable.  There are further powers granted to the Police by other legislation - see the details set out in Code A.

The use of Stop and Search powers has often been controversial.   One article (The Independent 6th August 2015 - Stop and Search: Can transparency end this abuse of Police powers?) states that: "The excessive and discriminatory use of stop-and-search powers is among the sorriest episodes in the history of the police over the past 30 years."
  

Recently, the use of the various powers has been the subject of two critical reports from HM Inspector of Constabulary:

Stop and Search Powers: Are the Police using them effectively and fairly?  July 2013 - this report, found that police use of stop and search powers was too often ineffective in tackling crime and procedurally incorrect, thereby threatening the legitimacy of the police.

Stop and Search Powers 2: Are the Police using them effectively and fairly?  March 2015

For some of the interesting history of this subject see Parliament Standard Note SN/HA/3878 (23rd January 2014) Police stop and search powers and the references therein to Lord Scarman's report on the 1981 Brixton Riots (2981: Cmnd 8427) and the Stephen Lawrence Inquiry of 1999: Cmnd 4262.

May the power to stop and search be removed from a constable?

The Guardian 18th August reports that Northamptonshire Police has agreed to "strip officers’ right to stop and search suspects if they are deemed to have abused the controversial law-enforcement tactic."  This appears to be a policy introduced by the force's Police and Crime Commissioner who is reported as saying: "officers would have their stop-and-search powers removed if they had conducted searches that were deemed inappropriate on three occasions."  The Guardian article indicates that eight police officers have been banned from being able to use the power on the streets.  Six of the officers have seen their powers reinstated after completing additional training, while two remain unable to conduct searches.

Police and Crime Commissioners were created by the Police Reform and Social Responsibility Act 2011.  Commissioners are elected and replaced the former Police Authorities.  The 2011 Act set out the "functions" of the Commissioners but retained "direction and control" of a force with the Chief Constable.  Section 2(3) states - "A police force, and the civilian staff of a police force, are under the direction and control of the chief constable of the force."

A Police Constable is an officer under the Crown and is personally responsible to the law for the conduct of his duties.  A Police Discipline system applies and this was the subject of a review that reported in 2014  and the Home Secretary promised a "shake up" of the system (The Guardian 18th November 2014).  Officers who misuse Police powers could be liable under this discipline process. 

Within any particular Police Force it is clearly open to the Chief Constable to deploy officers as he sees fit and, no doubt, this might include moving an officer to duties which would not involve stop and search but it does not seem that there is an actual legal power to "strip" a constable of any of his legal authority.  To that extent, the article in The Guardian 18th August 2015 is surely misleading.

Update 19th August:

Northamptonshire Police and Crime Commissioner - Stop and Search - One Year On.  In October 2014, the Force established a "Reasonable Grounds Panel" to examine records of each search and, if thought appropriate, to offer training to both officers and supervisors.  Since October 2014, 105 advisory emails have been sent to searching officers, 76 to supervisors.  9 searching officers and 10 supervisors have been suspended from undertaking stop and search until a development plan has been completed.

College of Policing 2015 - Definition of a fair and effective stop and search encounter

Martin Partington Blog - Use of stop and search by the Police: recent developments


Other reading:

Equality and Human Rights Commission March 2010 - Stop and Think

IPCC June 2009 - Stop and Search Policy Position

Government - Police powers to stop and search - Your Rights

 

0 Chilcot and the difficult question of fairness ~ Maxwellisation is not there 'to make a lawyer's holiday'

By Unknown | At 6:44 PM | Label : | 0 Comments

The Iraq Inquiry was set up in 2009 under the Chairmanship of Sir John Chilcot.  It is a committee of Privy Counsellors tasked with considering the period from the summer of 2001 to the end of July 2009, embracing the run-up to the conflict in Iraq, the military action and its aftermath.

February 2015:

Sir John gave evidence to the House of Commons Foreign Affairs Committee in February 2015 - view the session.  He explained that rigour was necessary in establishing the facts and producing the report.  The inquiry was of unprecedented scope (covering an 8 year period) and a reliable account was required.  Over 150 witnesses had given evidence and over 150,000 government documents had to be examined.  There had been difficulties with the release of some material, notably communications between Prime Minister Tony Blair and President G W Bush, but those matters had been dealt with by September 2014.  After that, the process known as "Maxwellisation" could begin and Sir John clearly saw this as an essential step in ensuring the rigour of the final report.  In his evidence to the committee, Sir John would not say how many individuals were involved in "Maxwellisation."  It was necessary to allow a "reasonable time" - but not indefinite time - to deal with this and the time scale might depend on the precise nature of criticisms addressed to individuals.  



June 2015:


On 15 June 2015, Sir John Chilcot wrote to the Prime Minister to update him on the Inquiry's progress.  Sir John said that a large proportion of the responses expected from individuals as part of the Maxwellisation process have been received.  They are constructive and a number have opened new issues. It is now essential that the Inquiry receives the remainder to allow the process to be completed. Only then will there be a realistic timetable to submission of the Inquiry's final report to the Prime Minister.   The Prime Minister replied to Sir John's letter on 17 June, and Sir John acknowledged his response on the same day.  The previous update on the Inquiry's progress can be found in Sir John's letter to the Prime Minister of 20 January 2015.

See also - 22nd July 2015  Sir John writes to the FAC  and 17th June 2015  Update on Inquiry progress - June 2015

Possible legal action:

It is reported that legal action is now under consideration to require Sir John to bring the inquiry to an end - BBC News 13th August - Iraq Inquiry: Soldiers' families threaten to sue Chilcot.  Lawyers for the soldiers' families claim he acted unlawfully by refusing to set a deadline for publication.  As yet, there is no response from Sir John to this development.

Maxwellisation:

The process takes its name from the late businessman Robert Maxwell.  Maxwell took issue against inspectors appointed to examine the affairs of one his limited companies.  The Inspectors acted under the Companies Act 1948 s.165 and reported critically about Maxwell.  After some judicial disagreement in the High Court, the Court of Appeal (Lord Denning MR, Orr and Lawson LJJ) unanimously held that in this form of inquiry:

"it was sufficient for the inspectors to put to witnesses what had been said against them by other persons or in documents to enable them to deal with those criticisms in the course of the inquiry; that it was not necessary for the inspectors to put their tentative conclusions to the witnesses in order to give them an opportunity to refute them and that the inspectors had not given any undertaking to do so in the present case; that the inspectors had acted with conspicuous fairness in their conduct of the investigation as a whole and had put to the plaintiff all the matters which appeared to call for an answer; and that as they had acted honestly and fairly their report was not to be impugned."

The "Maxwellisation" process is embedded in the psyche of those concerned with inquiries and it has been applied in subsequent inquiries such as the BCCI Inquiry (Chairman Lord Justice Bingham) and the Arms to Iraq Inquiry (Chairman Lord Justice Scott).  Essentially, it is basic principle of the common law that proceedings before courts, tribunals and inquiries are "fair."  Hence, those appearing before inquiries should be informed of any allegations made against them (see the Six Principles set out by Salmon LJ in his report into the Tribunals of Inquiry (Evidence) Act 1921).  Cases such as that involving Robert Maxwell have insisted on fairness to those against whom there may be critical findings but precisely what is required to achieve that fairness appears to depend on the circumstances.  The company inspectors merely had to put their tentative conclusions to Maxwell and give him an opportunity to refute them.

Inquiries Act 2005:

Sir John indicated to the Commons Committee that he had considered the Inquiries Act 2005 procedure as set out in the Inquiries Rules 2006 Rules 13-16.  The rules do not apply to the Iraq Inquiry since it is not being held under the Act.  Nevertheless, the rules are a statutory form of "maxwellisation" in that those likely to be criticised have to be informed etc.  No time limit is specified for this process.

What may happen next?

Certainly, Maxwellisation cannot be an open-ended process or an inquiry would never be able to report.  As Lord Denning put it in his judgment in the Maxwell case, the aim is not "to make a lawyer's holiday."

Ultimately, the question seems to be what is a "reasonable time" for the process.  That must, as Sir John indicated to the House of Commons, depend on the precise situation.  Who then is to judge that?  The answer must be those who have ALL the detail.  In other words, the inquiry itself.

It may be that the political process will bring sufficient pressure to bear to bring the process to an end but that might then be seen as risking the political independence of the inquiry and the Inquiry Team may not wish to place their signatures on a report which they somehow see as unsatisfactory.

It seems unlikely that the courts would wish to be seen as dictating the timetable though the court may choose to expand upon what the process of fairness requires.  Essentially it seems to require that individuals have the opportunity to address the substance or core of any criticism rather than to address "chapter and verse" all the detail as if there is some form of subsidiary "trial" relating to that witness.

Text:

Jason Beer QC - "Public Inquiries" - OUP 2011

See also the useful article in Law Quarterly Review - Procedures at Inquiries - the Duty to be Fair (1995) 111 LQR 596.

"To borrow from Shakespeare, he is not to have "all his faults observed, set in a notebook, learn'd, and conn'd by rote," to make a lawyer's holiday" - per Lord Denning MR in Maxwell v Department of Trade and Industry 1974.  The quotation is from Julius Caesar Act 4 Scene 3.

Media:

The Independent 20th August - Leading figures in British political establishment accused of plotting to discredit investigation into Iraq war

Daily Mail 21st August - Lord Morris. These tragic families of those killed in Iraq deserve better. the author is Lord Morris of Aberavon who was Attorney-General from 1997 to 1999.  Morris is critical of (a) the very wide terms of reference given to Chilcot; (b) the fact that the inquiry is not a statutory one led by a judge with counsel to conduct cross-examination and (c) Chilcot has "elevated Maxwellisation into a central feature of his inquiry."