RSS Feed

Tag Archives: Chris Grayling

Criminal Court Charges: a return to pre-Victorian values

Posted on

We need a tougher justice regime in these austere times – so why not bring back Dickensian-style debtors’ prisons? We’re not there yet, but we’re several steps along the way thanks to the UK Government’s Criminal Court Charges.

Magistrates have become concerned that they are obliged to impose these new charges – and potentially to jail offenders if they fail to pay them. In contrast to imprisonment for defaulting on fines, the Criminal Court Charges are not discharged by serving time in jail. There are set maximum levels for time in jail according to the amounts outstanding. So, if the Charge comes on top of other fines and payments, it can mean longer periods in jail for each defaulter.

The Debtors Act 1869 abolished imprisonment for contractual debt in England and Wales. Parts of the Act are still in force and make clear imprisonment is still available for “Default in payment of any sum recoverable summarily before a justice or justices of the peace” meaning fines, compensation and costs. The Government has in effect created a new category of imprisonable debt. Prison may be used only when the individual is “guilty of wilful refusal or culpable neglect” in failing to pay – the same wording used in guidance regarding the Criminal Court Charge. The potential term of imprisonment depends on the level of the amounts due (See Schedule 4 to the Magistrates Courts Act and notes below). The failure to pay the maximum £1,200 Criminal Court Charge could be penalised by up to 45 days in prison – at a cost of about £90 a day – more than three times the Charge itself.
Read the rest of this entry

Jeremy Wright’s rule of law: Justice shall not be sold – unless the price is right

Posted on

Dicey? Bingham? Or perhaps you prefer the Wrightean doctrine of the Rule of Law as it operates in the UK? For Jeremy Wright (the Attorney General for those who’ve forgotten – or perhaps never knew) has given us his thoughts on this complex and contested legal principle.

Generally “the rule of law” might be boiled down to a simple phrase: No one is above the law – even the Government. This though, is not the quite message Mr Wright wishes to get across. His speech “on the UK’s long commitment to the Rule of Law” was delivered at the London Law Expo in the City of London. The Expo is a sort of legal/business fest with, this year, Dragons’ Den man James Caan as keynote speaker. Wright’s intended audience, therefore, was the business community – specifically the international business community. What excites Wright is less Britain’s commitment to the rule of law, forged through revolts and rebellions and the slow painful birth of a democratic society. No, what excites him is this: that

“the numbers show just how successful the legal services sector has been: in 2012 it was worth over £20 billion, or 1.5% of UK GDP and contributed some £4 billion in export value. There were over 300,000 people employed in our legal services sector with over 200 foreign law firms operating in London and elsewhere in the country”.

Britain, for these reasons, is not just a place to do business. It is a place to do law. So the point of  the rule of law is: it’s good for business. “Our long commitment to the rule of law I believe, is of central importance to the British economy”. For Wright has very little interests in the philosophy or practice of the rule of law; rather he is concerned to established Britain’s (or perhaps only London’s) unique selling point: “All companies know that they will be judged by clear rules applied in accordance with the law.” The rest of the speech is a promotion of UK plc’s legal services. Somehow he even manages to spin the Libor scandal as a “good” story: Read the rest of this entry

A question of standing: Grayling’s new attack on Judicial Review

Posted on

How do you decide what is in the public interest? Just ask the government. That, apparently, is UK Justice Secretary Chris Grayling’s view in his latest proposals to curb judicial review.

There have been too many judicial reviews in the public interest, is what his argument amounts to. In the latest consultation on curbing JRs he says: “The concern is based on the principle that Parliament and the elected Government are best placed to determine what is in the public interest.” It doesn’t need judges, organisations or even ordinary people to do the job for them. “L’intérêt public, c’est moi”.

Among the matters in the public interest that Grayling draws attention to, one assumes because he would rather not have seen them brought to court, was an issue of whether Taliban suspects should have been transferred from the British authorities in Afghanistan to the Afghan government – putting them at risk of severe abuse. Grayling complains that their case was brought by a peace activist, Maya Evans, who was not a member of the Taliban nor a prisoner in Afghanistan – and so had no direct interest in the matter at all.

The judge in the case allowed her to bring it (in other words gave her standing) because of her expertise in such issues of human rights and the fact that Britain’s treatment of prisoners abroad is a matter of public interest.

But that is not good enough for Grayling. He suggests only people with a “direct” interest be allowed to bring such cases – the Taliban prisoners themselves perhaps. Read the rest of this entry

Kenneth Clarke says stab a burglar. Is that reasonable?

Posted on

David Cameron is a reasonable man. So we know that if, with evil intent, we were to get past the policeman at the door of 10 Downing Street and find ourselves confronting the prime minister on the stairs, he would use no more than reasonable force to deal with us.

But he seems to feel that others, notably judges, are less clear than he about what reasonable force would be. Can you bash a burglar? Can you stab a burglar? Can you kill a burglar as he rifles through your treasures?

Mr Cameron seems to know the answer and has said: “We will put beyond doubt that homeowners and small shopkeepers who use reasonable force to defend themselves or their properties will not be prosecuted.”

Now the UK justice secretary, Kenneth Clarke, transformed from Hush Puppy to Rottweiler after the unpleasantness over halving of prison sentences, has bared his teeth.

We will make it quite clear you can hit a burglar with a poker if he’s in your house and you have a perfect defence when you do so,” he has said. “If an old lady finds she’s got an 18-year-old burgling her house and she picks up a kitchen knife and sticks it in him, she has not committed a criminal offence, and we will make that clear.”

One assumes that No 10 and doubtless the lord chancellor’s residence do indeed possess such retro items as pokers. Most modern centrally heated homes do not. The preferred means of self-defence in the contemporary Englishman’s castle is an American baseball bat hidden under the bed.

In the case of Lee Gapper who used just such a baseball bat on a burglar, he and his lodger were held and questioned for a time when the burglar alleged assault against them. Ultimately no charges were brought against the pair and the judge sentencing the burglar told him he had got what he deserved.

But it is a grey area since a baseball bat, particularly one under a bed, has little purpose within the United Kingdom jurisdiction but to hit people (burglars themselves sometimes use them). Will Mr Clarke’s new law stretch to allowing the keeping of offensive weapons about the place on the off-chance of a burglar’s visit?

What of the feisty old lady, simply resorting to kitchen implements for her defence against that most reviled of human being, an 18-year-old? Will the new law also sanction a 21-stone muscles-in-his-spit bruiser, perhaps also aged 18 or thereabouts, reaching for the cutlery canteen for his weapon of choice?

Those demanding tougher laws (or should that be weaker laws? It depends which way you look at it) may be surprised that current law does answer these and other questions – and generally falls down on the side of the householder, though not regarding the keeping of offensive weapons.

A householder has the right of self defence (and defence of another person) under common law and also some right to defend his property since reasonable force is acceptable to prevent a crime.

The statute law is in the Criminal Justice and Immigration Act 2008 Section 76 This builds on the common law of self defence – that reasonable force can be used against a potential attacker. You can even use such force if you are mistaken about the threat to yourself. The 18-year-old might be a wretched coward who would run for the door at the sight even of a little old lady, but if she genuinely thinks he is a danger, she can defend herself.

We are assuming the lady is not drunk. If her mistaken belief is “attributable to intoxication that was voluntarily induced” (too many port and lemons before bedtime) she would lose the defence against a wimp, though not against an actual vicious brute.

A person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose. S.76 (7)(b)

Although you must use only reasonable force, you are not expected to make a perfect surgical strike, enough only to temporarily disable your attacker rather than maim or kill. It is accepted “that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action” S76 (7)(a).

The bruiser is also covered. If, rather than a timid old lady, you are just the sort of person who is up for a fight and might relish the ingress of villains to practise your pugilistic skills, you will still have a good legal defence against allegations of assault assuming you act reasonably given an honest belief about the threat you are under.

However, once you have struck a disabling blow or one sufficient to send the burglar scuttling, you cannot follow it up with further beating or stabbing just because you are so angry at the burglar or the state of the law that you simply want to get revenge. Hence the case of Munir and Tokeer Hussain, jailed for chasing a burglar, dragging him back and subjecting him to a “dreadful violent attack”. You do not have a right to kill or maim someone just because that person has burgled you or even threatened you with death (as had the burglars in this case).

Much is made of the Tony Martin case by those calling for “clarification” of the law. If there was ever a bad case (potentially) making bad law then this is it. The farmer was in illegal possession of a shotgun. He became aware of intruders and armed himself with the gun to confront them. He told the court he had been coming down stairs, was blinded by a flashlight, feared whoever was holding it and fired three times. He denied hearing the burglars before they entered his home, arming himself and lying in wait downstairs with intent to shoot them. Forensic evidence, however, suggested two shots could not have been fired from the stairs, though the fatal one might have been. Any self defence claim rested on Martin having come down the stairs, not his being ready downstairs for the intruders.

Ultimately a murder verdict in the Tony Martin case was changed on appeal to manslaughter by reason of diminished responsibility. Martin’s depression “exacerbated his paranoid personality disorder”. It follows that he did not act “reasonably” to defend himself – far from it.

We know that a clarification of the law is coming because the government keeps saying it is coming. This clarification may be in the new justice bill – or not; Downing Street is being unclear on the matter. But, short of a law saying that “anything goes” within the home, nothing is likely to avoid debates in criminal courts and beyond about the reasonableness of a defensive action. Certainly nothing said by Cameron or Clarke should encourage little old ladies or anyone else to tool up ready to waste anyone found on the wrong side of the door.

Note: Since publication of this piece, the government has produced new self defence legislation, discussed here: After Trayvon Martin, Britain’s ‘stand your ground law’

The new Justice Secretary, Chris Grayling, has also had his two penn’orth and is saying he will tighten the law further to allow “disproportionate” force to be used against burglars as long as the householder acts “honestly and instinctively”. This, on the face of it, is exactly the state of the law at present on the basis of the “can’t be expected to judge to a nicety” doctrine on the level of response necessary.

Here is a brief but clear statement of the law from a criminal QC: Self-defence, an idiot’s guide

%d bloggers like this: