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Grenfell Tower: was the cladding really banned material?

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So, was London’s Grenfell Tower, scene of a horrific fire that killed dozens of people, covered in “banned” flammable cladding?   The  answer – worryingly – is probably no. And if that is the case, it exposes the shocking flaws in Britain’s regulatory system for high-rise developments.

The Department of Communities in initially answering this question – before any tests were made on the actual material – said this: “Cladding using a composite aluminium panel with a polyethylene core would be non-compliant with current Building Regulations guidance. This material should not be used as cladding on buildings over 18m in height.”

But this is not the case. Such cladding – described officially as “material of low combustibility” (MOLC) is lawful and recommended above 18 metres, as is the more fire-resistant cladding described officially as “non-combustible”. Composite aluminium panel with a polyethylene core may well meet the standard as MOLC. So, as long as the suppliers didn’t do some sort of substitution with inferior stuff, such panels are lawful. Read the rest of this entry

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Should veils be banned in court? It’s a question of evidence

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The issue of whether Muslim women should be allowed to wear the veil, niqab or burqa when giving evidence in court is a matter of tiny importance yet, seemingly, of great significance. Tiny because there are so few women in Britain wearing full face coverings for religious reasons, of whom even tinier numbers are likely to give evidence in court.

But court scenarios are where the arguments about veiling (whether or not part of a “national debate”, as per Liberal Democrat minister Jeremy Browne) seem to play well for the veil banners since they can tap into Britain’s great traditions of justice and notions of the fair trial. What they don’t tap into is any actual evidence about how or under what circumstances veil wearing might harm a fair trial.

Judge Peter Murphy has considered this issue in the case of R v D(R) (though stressing his view should not be part of the wider debate) and concluded a defendant should give evidence unveiled. (His full decision is here pdf)

There is some evidence (see below) that doesn’t necessarily support the view that juries pick up important clues from watching the facial features of witnesses, but first the context. Read the rest of this entry

Did Stuart Hall ‘attempt to influence jurors’ in sex abuse case?

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The Lord Chief Justice has left the media, high profile alleged sex abusers and their lawyers in something of a quandary following the up-rating of UK broadcaster Stuart Hall’s prison sentence for 14 sex offences.

Lord Judge in the Court of Appeal criticised a “manipulative” Hall for attempting to influence potential jurors in his public comments reported in the media denying the charges before his eventual admissions in court.

Lord Judge is reported as saying: “Whatever legal advice the offender has been given, he knew the truth. He knew he was guilty of molesting these girls … This deliberate falsehood was a serious aggravating feature because here was an expert in the ways of the media, fully alert to the possible advantage of manipulating the media, at that point hoping to escape justice. He was attempting to use the media for the purpose of possibly influencing a potential juror.”

There has been a long tradition of people accused of offences denying in no uncertain terms any guilt before they come to trial and a tradition of full media reports of those denials – even though pre-trial reporting is, in law if not in practice, severely restricted by sub judice rules (broadly speaking to items such as name of accused, age, address and the charges – but not evidence, confessions). Indeed the media tends to make a practice of ensuring such denials are reported when they are made, even if only tacked to the end of the article. Read the rest of this entry

Iain Duncan Smith needs to put on a new benefits thinking cap

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It seems that Britain’s Work and Pensions Secretary Iain Duncan Smith has solved a conundrum that has baffled and befuddled philosophers for millenia: how do we know what we know? He has cut through the Kant and ditched Descartes for this elegantly simple formulation: “I think, therefore it is”.

This, in sum, is his view of how his welfare changes will pan out; they will pan out just as he thinks they will pan out. Thus, when the Office for National Statistics suggested the figures did not bear out his assertion that the benefit cap of £26,000 would encourage people into work he told John Humphrys on the BBC Today programme: “Yes, but by the way, you can’t disprove what I said either” – a classic response of the sceptic school of epistemology. He went on: “I believe this to be right; I believe that we are already seeing people going back to work who were not going to go back to work.”

He has no evidence; indeed he has been told that the evidence he thought he had was not in fact evidence; but he believes he is right so he must be right.

Others who contradict him, such as Haringey Council in London, are “politically motivated”, whereas Iain Duncan Smith, Tory member for Chingford and Woodford Green and one time leader of the Conservative Party is, of course, not politically motivated.

All this is good news, not least because IDS has also said that his welfare changes won’t lead to people becoming homeless or being driven out of London. He has said it; he presumably believes it; and hence, cogito ergo est: it must be true.

Which is odd, because some of those on whom people rely for their homes, the housing associations of England and Wales, have in effect contradicted Duncan Smith’s position. They certainly believe that the welfare changes will lead them to evict their tenants, and they believe they may have to do it using the much criticised and draconian Ground 8 possession procedure. Read the rest of this entry

Theresa May and the European Arrest Warrant: Assange awaits her decision

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British Tory MPs are furious that the Home Secretary Theresa May has gone soft on the European Arrest Warrant. Among others also annoyed at the UK Government’s U-turn, backing a new version of the EAW, will be Julian Assange – one of the victims of the measure that makes it easier to extradite alleged criminals without too much legal protection in their host countries. Assange, as explained below, might have benefited from a more nationalistic, less Eurocentric extradition regime.

The EAW is one of the 133 European Union law and order measures in the European Union Lisbon Treaty that May opted out of – and also one of 35 she wants to opt right back into, though in a reformed version. The EAW is one of those strange areas in which Conservatives and others on the Eurosceptic right are deeply concerned by human rights issues. Enfield North MP Nick de Bois for example, has summed up the EAW issue by saying “cooperation and expediency must not take precedence at the expense of fundamental judicial fairness, fairness and human rights”. (Nick de Bois MP pdf)

Gerard Batten, UKIP MEP calls the EAW “a tick-box defendant transfer form-filling exercise that neuters the discretion any national judge may have had over extradition to European Union countries”.

So what exactly are the perceived problems with the European Arrest Warrant? Read the rest of this entry

Saatchi and Nigella: Exactly what offence has been admitted?

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The pictures show Charles Saatchi’s hand around his wife Nigella Lawson’s neck. He has accepted a caution for common assault, but what exactly has Saatchi actually admitted to?

The text books are clear: assault, in law, is not an offence that involves any physical attack on a person or even physical contact. It is a common law offence, sometimes called “psychic assault”, consisting of “an act which causes another person to apprehend the infliction of immediate, unlawful force on his person; a battery is the actual infliction of unlawful force on another person”. Collins v Willcock (1984)

More recent case law would seem to agree: “A defendant committed common assault when he did something of a physical kind which caused someone else to apprehend that they were about to be struck.” R v Nelson (Gary) 2013.

This was a case where a punch was thrown but the jury were uncertain that it had landed. The issue was whether a finding of common assault (where no contact can be inferred) could be substituted for the offence of assault by beating. The important point was that the victim apprehended an immediate beating, though fortunately it didn’t occur.

Yet police, prosecutors and presumably victims seem to treat “common assault” as being able to include battery – in other words as if the word assault has the commonly understood dictionary meaning of some sort of physical violence.

The CPS charging standards makes the distinction thus:

An assault is committed when a person intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force.

A battery is committed when a person intentionally and recklessly applies unlawful force to another.”

But it also says this: “An offence of Common Assault is committed when a person either assaults another person or commits a battery.” It notes that the only distinction between common assault and causing actual bodily harm (under section 47 of the Offences against the Person Act 1861) is the degree of injury.

Statute, while not defining common assault, distinguishes it from battery (unlawful application of “force” including mere touching) in 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.”

But even in the statute there is confusion as to whether S.39’s distinction applied to S.40(3)(a), where the words “common assault” were used apparently to include battery. In R v Lynsey [1995] 3 All ER 654 it was decided by the Court of Appeal that, indeed, the statute was inconsistent and in effect it was intended (in legal terms) to be inconsistent.

Henry LJ says: “Where the narrow meaning of the phrase ‘common assault’ makes no sense in its context in s.40 and cannot possibly reflect any rational policy, it is entirely permissible as a matter of construction [by the judge], in our view, to prefer the wider meaning of the same phrase, which makes good sense and reflects a rational policy. Draftsmen after all sometimes make mistakes.”

Hence common law assault could be charged as if S.40 applied even though S.39 would seem to restrict the term to to the narrow legal definition of “psychic” assault.

Henry LJ notes: “In the courts, assault has generally become synonymous with battery, that is to say when the word ‘assault’ was used it normally meant the intentional use of unlawful force to another’s person without his consent” – ie the classic legal definition of battery, not assault. The accused was charged with common assault yet he had spat at a police officer – on the face of it a classic battery with unlawful physical (albeit indirect) contact but no particular injury.”

Common assault has therefore become a sort of hybrid offence. “In practice, a common assault applies to an assault, a battery (or both) where relatively slight injury has been caused to the victim, or, depending on the circumstances of the case, where no physical harm at all has been sustained,” according to an article in the Justice of the Peace journal. (Leonard Jason-Lloyd (2004) 168 JPN 748)

‘Most, if not all, practitioners and commentators agree that the law concerning non-fatal offences against the person is in urgent need of comprehensive reform to simplify it, rationalise it and make it trap-free’ – Henry LJ

So how do we establish what Saatchi has admitted and what he has not? We have seen he had his hand to Nigella’s throat. He said it was “playful” and one might think that couples in intimate relationships might do and consent to such things. But even so his wife might have “apprehended” something less playful, the application of unlawful force without consent. Saatchi would have been guilty of orthodox textbook “psychic” assault.

But if the hand to the throat was the actual act of battery (unlawful, unwanted but not producing injury) then he has conceded to “common assault” in its wider meaning as encompassing the physical act, not just the “psychic” effect. In this case the apprehension came a split second before the clutching at her throat. It was the hybrid “common assault” consisting of assault plus battery rolled into one.

Does any of this confusion matter? If we believe the law should be clear, then yes. One need not worry too much about Charles Saatchi. He had the option of defending himself in court with the finest legal brains money can buy. They could have made much of the assault/battery distinction, about issues of consent or apprehension. But he just wanted to get the press off his back.

But what about all the other people in police custody suites who are being persuaded to accept a caution for “common assault”. Such an acceptance is not a conviction as such, but it boosts police clear-up rates very nicely without too much trouble. Throw into the mix the new “Eddie Stobart law” legal aid system in which franchised legal teams will also have an incentive to see cases off their books as quickly as possible and there is a likelihood of rather a lot of this sort of thing: persuading people to agree they’ve committed an offence the existence and definition of which remains vague and which the courts, the lawyers and the statutes cannot agree on.

Henry LJ said in Lynsey: “Most, if not all, practitioners and commentators agree that the law concerning non-fatal offences against the person is in urgent need of comprehensive reform to simplify it, rationalise it and make it trap-free.” It hasn’t happened yet but clearly should have happened by now.

Twitter: alrich0660

Background notes Read the rest of this entry

Anti-squatting law and the death of Daniel Gauntlett

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It is six months or so since the passing of a law criminalising trespassing in Britain and already there is – apparently – a tragic victim and – certainly – a nasty political row. The victim is Daniel Gauntlett, a 35-year-old unemployed man who died in the bitter cold on the step of an empty boarded up bungalow in Aylesford, Kent. Reports suggested police had been involved in preventing him breaking in to the house some time previously – “and so Mr Gauntlett, had taken the fatal decision to abide by the law,” according to news service KentOnline.

Campaigners against Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which criminalised squatting in residential property, believe the new law may be responsible for Mr Gauntlett’s death.

Some go further and are pinning the blame directly on MP Mike Weatherley, who introduced the anti-squatting legislation into the House of Commons, a suggestion pursued with unpleasant vigour – hence the controversy.

The claim against him is that he insists squatters are generally young, politically motivated leftists whose aim is to undermine notions of property, whereas here was a bona fide homeless man who died as a result of the new law.

In answer Mr Weatherley told the Kent Argus: “It is true that some of those who are homeless have squatted but this does not make them squatters. Read the rest of this entry

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