R v G (2002)

English Criminal Law

R v G and R
‘Racing with Fire’ by Andrea Banjac

Reckless culpability and the innocence of youth cross swords in a case that both rewrote the powers of legislation and allowed subjective reasoning to prevail, when two young boys aged eleven and twelve spent the night outside before playing in the rear storage yard of a Co-operative store.

What began as tomfoolery with matches and newspaper, wound up as criminal damage and arson totalling over £1m in damages, however with equal consideration of English criminal law and precedent relating to the facts, it also became a matter destined to reach the House of Lords.

Having decided to camp out underneath the stars, the two appellants trespassed into the refuse area of the store and began reading discarded newspapers, after which they set alight to a bundle of newspapers before placing them beneath a large plastic dustbin. Without staying to watch the flames extinguish, the defendants later left the yard and presumably returned home. 

Unfortunately as is the nature of fire, the flames ignited the bin, which subsequently ignited the adjacent bin until the fire spread to the roof and beyond, and so when first heard at trial the judge rightly relied upon the exacting terms of s.1(1) of the Criminal Damage Act 1971, which reads that:

“A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an off­ence.”

While the term ‘reckless’ remains subjectively difficult to ascertain, the application of this measure failed to discriminate between the range of comprehension created through age, disability, or intelligence. This absence of evaluation forced the jury to determine the boys’ guilt on the objective reasoning of an adult, as established in R v Caldwell and earlier in R v Cunningham (albeit a case more reliant upon maliciousness than ignorance).

In Caldwell the defendant had been intoxicated prior to choosing to set fire to his employer’s hotel, thereby putting the guests and staff in great danger while noting that he had paid little mind to the consequences when starting the fire, while it was this case that led to an objective reasoning test that whilst applicable to most mature adults, offered little consideration for children or vulnerable adults in similar circumstances.

Having deliberated on the certainty of a fair conviction, the judge and jury were left finding guilt, although not without concern for the limitations of the  1971 Act, and so with their challenge dismissed by the Court of Appeal, the appellants were granted leave to present to the House of Lords, where greater attention was placed upon the disparity of the Criminal Law Act 2003 and art.40(1) of the European Convention on Human Rights (Public hearings and access to documents), which expressed that:

“States parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”

It was then with appreciation of the narrowness that recklessness previously enjoyed, that the House examined the relevance of continuing to broaden the scope of reckless behaviour, so as to avoid the need for deliberate and considered forethought to the mindset of those accused.

Upon revisitation of the case history preceding the Criminal Damage Act 1971, it became clear that overlooking the objective test had prevented fair and reasoned judgment, and that this particular case was the perfect vehicle upon which to amend that error, thus  the House (by majority) declared the boys’ innocence and upheld the appeal, while clarifying that:

“[I]f the law is to operate with the concept of recklessness, then it may properly treat as reckless the man who acts without even troubling to give his mind to a risk that would have been obvious to him if he had thought about it.”

Re S (Care Order: Implementation of Care Plan) (2002)

English Family Law

S A Care Plan
‘Tell Me There’s A Heaven’ by Paul Lovering

Re S (Care Order: Implementation of Care Plan)

In this conjoined appeal case there were two matters in need of address, and both involved a local authority and the issuing of final care orders for families in need of reunion. The first was re S (Minors) (Care Order: Implementation of Care Plan) and the second re W (Minors) (Care Order: Adequacy of Care Plan) as shown below:

Re S (Minors) (Care Order: Implementation of Care Plan) 

As the mother of three children aged fourteen, eleven and ten, to two fathers, the oldest of them was raised by the father of his younger siblings, and over a course of almost a decade became subject to both emotional, physical and sexual abuse on an almost routine basis.

Having run away from his home the victim explained his suffering and was subsequently placed into foster care, whereupon the stepfather denied all allegations with the full support of the victim’s mother, yet when challenged he displayed threatening behaviour before the local authority and was later sentenced to community service.

In light of those events the two younger children were also placed into foster care, while the parents separated in order to obtain their return to the family home despite recommendations by professional experts that the father remained an unacceptable risk to the children.

Following a hearing in the local court the father was found guilty of sexually abusing the eldest child, while both parents were held to have been physically and emotionally abusive towards all three children, with particular regard to the eldest sibling, while the local authority responded by seeking care orders for the three children.

While it was agreed that the eldest was to remain in foster care, the younger children were designated a care plan involving their return to the mother, however there was a degree of anxiety surrounding the absolute power of local authority decisions in such circumstances, and so mention was made of the potential human rights violation should the mother and children not retain a tenable relationship, along with the proposal of interim care orders so as to provide assurances to the family.

At the hearing the judge granted final care orders for all three children, and yet over time the promises of the social workers and appointed guardians dissolved into disappointment after none of the proposed programmes materialised.

Having been presented to the Court of Appeal, it was held that the local authority had abjectly failed on its promise to provide care, but was acquitted under arguments of monetary cuts and a reduction in public resources, whereupon the mother contended that the court had erred in not considering her suggestions for interim care orders and the children’s guardian sought relief under ss.6 (Acts of public authorities) and 7 (Proceedings) of the Human Rights Act 1998 (HRA), however both arguments were dismissed.

Re W (Minors) (Care Order: Adequacy of Care Plan)

In this instance the welfare of two boys aged ten and twelve years of age rested upon the intervention of the mother’s grandparents, who themselves resided in the United States of America.

Having met overseas, the parents returned to live in the United Kingdom in order to marry before starting a family, however during the course of their childhood the boys had been subjected to numerous separations and reconciliations, and also spent considerable time living apart from one another while remaining in contact with both parents.

This chaotic existence had later given rise to questions concerning the ability of the parents to meet the needs of the children, in large part due to the deteriorating mental health of the mother, who had made insubstantial allegations against the father prior to the local authority applying for an emergency protection and interim care order.

Having established a care plan it was agreed by the County Court that the two boys would be placed into foster care before the arrival of the American grandparents, who planned to live with them in the United Kingdom despite reservations by the judge that their migration would materialise, and that the proposed therapy and marital management programmes would succeed, with particular emphasis on the mother’s diagnosed imbalances.

Upon challenge by the local authority in the Court of Appeal it was held that the care plan had been prematurely executed, and so the final care order was replaced with an interim order, while referring the case back to the awarding judge, an alteration which instigated reluctance by the grandparents to assume care of the boys unless under definite conditions. This prompted the reissue of a final care order with the full support of the parents, albeit in argument that they would apply to have the order discharged if their reunion was not provided in due course.

For clarity, under s.33 of the Children Act 1989 an acting local authority is granted parental responsibility (PR) for the duration of the assigned care order and can therefore determine the rights of the parents in relation to their children, while under s.100, the courts are expressly denied interference with those powers, however, s.6 of the HRA 1998 prevents a public authority from acting in a way that proves incompatible with a Convention right, while s.7 allows those victim of such actions, to bring proceedings against them.

S.8 (Judicial remedies) further enables the court to decide how best to provide legal remedy, or issue powers appropriate to its jurisdiction, which translates that where a local authority infringes art.8 of the HRA 1998 (Right to respect for private and family life) the deciding court can lawfully grant relief to those affected. 

More interestingly, under the Review of Children’s Cases Regulations 1991 a local authority is required to consider the possible discharge of a care order on a six-monthly basis (subject to the views and consideration of the child(ren) and parents) while s.3(1) of the Children Act 1989 provides that parents retain the same rights, duties, powers and parental responsibilities as before an order was made, therefore their civil rights are affected, but not wholly compromised.

Finally, s.38 of the Children Act 1989 provides the court with powers to issue interim care orders in order to provide safety and security for vulnerable children for a determined period.

With both cases put before the House of Lords it became evident that in the first case the Court of Appeal had introduced a ‘starring’ mechanism as a means of preventing failure to implement care plans, whereby each plan was marked with progressive indicators that when not reached in the agreed period triggered automatic rights to reactivate the consultation process in order to avoid missed or overlooked public body requirements.

In the second case no such mechanism had been used, which had prompted intervention by the Secretary of State for Health, who received claims that ss.31, 33(3),38 and 100 of the Children Act 1989 were incompatible with existing Convention rights, while the local authority had appealed against the alteration of the care order and the broadening of judicial powers to award interim orders.

Examination of the Children Act 1989 and suggested incompatibility with Convention rights after the introduction of ‘starring’ drew immediate reference to the overlapping rights of courts when care orders are in effect, and while the House appreciated that the inventive use of rudimentary measures was a decision privy to Parliament, and that while there was stark evidence to support legislative reform, it was simply ultra vires for the Appeal Court to act without restraint. 

An so with regard to the overextension of the interim care orders when faced with an ill-prepared care plan, the House upheld the appeals bought by both a ministerial and public body, while taking time to remind the parties that:

“Where a care order is made the responsibility for the child’s care is with the authority rather than the court. The court retains no supervisory role, monitoring the authority’s discharge of its responsibilities. That was the intention of Parliament.”

 

UK Human Rights law

UK Human Rights law

Human Rights
‘Cuardernos de África” by Miquel Barceló

Human Rights Law

Access to Justice

Insight | March 2017

Access to Justice
Image: ‘Lady Justice’ by Eraclis Aristidou

What exactly is ‘access to justice’, and why do we need to preserve it? To answer that we need to first understand how the phrase came about, and then why it may be in danger of becoming a legal bygone.

‘Access to Justice’ was a phrase used by Lord Woolf in 1996, when attempting to streamline the litigation processes attached to personal injury claims suffered by everyday people in the United Kingdom. Largely based upon the combined incentives of Alternative Dispute Resolution (ADR) and part36 (early offers strategies), it was suggested that by expediting claims, there would by default, become a lesser chance of spiralling legal costs, and reluctance of the poor seeking recovery for damages sustained in events beyond their control.

While from a superficial slant this ‘quickening’ of justice appears to embrace those without the means of representation and the legal acumen to work alone, it is now suggested that in fact the contrary has become true. With the collective impact of legal aid cuts, increased court fees and numerous court closures, the resulting options take on a less attractive sheen, in lieu of the growing hesitance to seek legal reparation. This gross misdirection translates as a more cloaked prevention, over the illusion of equitability, and to date there are now many activists campaigning for a dramatic change in policy.

As was discussed in my own academic paper, the dangers inherent to early offers far outweigh the genuine reward for pursuance of authentic remedy, but unless fiscally challenged claimants are determined enough to transcend the aggressive manoeuvres of defendant representatives, the odds will by majority, remain stacked against them. This in effect, strangulates the innate purpose of accessible justice, and places far greater value upon the currency of industry; therefore while far from helping the weak, it runs a calculable risk of leaving them powerless and unable to fight back.

Legal Aid

In a report published in October 2016, Amnesty International summarised that three key groups were directly affected by arbitrary cuts to legal aid support, namely (i) the vulnerable, (ii) the transitory and (iii) the disabled. And while taking great strides to illustrate the far-reaching consequences of such inconsiderate narrowness, the message was quite simply that:

“Amnesty International is therefore calling on the UK government to urgently fulfil its promise to review the impact of the cuts and take steps to ensure the right of the most disadvantaged sectors of society to access justice is adequately protected.”

 Writing as a father of a special needs child, the first and third groups possess immediate implications for families similar to my own, who for one reason or another, might find themselves facing legal action, whether through public body frustrations, or simple damages-based incidents. Yet knowing that in the first instance there is no legal counsel, and no validation of a right to claim without parallel concerns of costs, there remains only the stark realisation that the price of justice now relies upon the roll of a loaded dice.

Legal Costs

Interestingly, while this area of discussion might prove hard to quantify with any  degree of exactness, the Legal Ombudsmen publication ‘Ten Questions to ask your Lawyer about Costs‘, proves instantly invaluable when evaluating the merits of private law claims.  More notably, recent changes to the fixed fees threshold within litigation, has to some extent, appeased the fears of those predominantly affected by previous reforms; yet the issue remains that claimants subject to a deprivation of counsel (pro-bono or otherwise), might still think twice before filling out their CNF forms. This is a frank but cautious sentiment echoed by Jonathan Smithers of The Law Society, who remarked:

“A single approach for all cases, regardless of complexity, will lead to many cases being economically unviable to pursue which undermines the principle of justice delivering fairness for all.”

However, when all is said and done, it is unlikely that both the practice industry and public interest will ever read from the same page, but that should never encourage the marginalisation of legal support in a world that is only becoming more crowded and prone to collisions of priority.

The Courts

While there is understandable anger at the gradient closure of almost 90 courts across the country, the promise of a heavily invested tech and user-friendly system, could prove the one positive in this tempering of justice, and so it would be remiss to level accusations of deliberate prevention, when the suggestion of ‘pop-up’ courts is peddled through various forms of digital media.

There is however, cause for concern when terms such as ‘makeshift’ and ‘public houses’ are used in the same context as the ‘fair’ and ‘reasoned’ dispensation of justice, within  an (albeit shrinking) framework of purpose built environments, before calm and attentive audiences. In fact, one might go so far as suggest that legal discourse is becoming diluted, by virtue of the fact that ‘quickie’ courts will themselves, overlook the precision of judicial application in favour of higher case turnover. Contrastingly, the option to pursue legal ends through online portals would seem to proffer greater structure, less chance for media intrusion and a significant cost saving, as was shown during Gary Linker’s recent divorce.

In closing, the point in greatest need of clarification, is that the true meaning of ‘access to justice’ is not one of quick fixes to complex problems. Rather it is about an equal right to a domestic jurisprudence generations in the making. By weakening the fabric of reparation in favour of mass appeasement, the English judicial system will only prove itself counter-productive and rushed; and so it is crucial that any consideration for public interest, and those employed to serve them, must be delicately balanced, rather than a mere continuance of treating every legal problem like a nail.

Global Law

Insight | February 2017

Global Law
Image: ‘Unity’ by Unknown Artist

The idea of a ratified ‘global law’ is a concept that once seemed fantastical, and yet by all accounts, appears now like the primary ingredient to social, industrial and civil equilibrium.

But how does this happen, and what steps might be needed to preserve the needs of the many from the wants of the few? To date, the concept of a single law is more convincing than any suggestion that genuine efforts are being taken to construct a jurisdiction without physical bounds, however it fails to prevent visionaries from imagining such a world, or pondering what form that framework might take.

Giuliana Ziccardi Capaldo, Full Professor of International Law at the University of Salerno Italy, discussed her idea of global law in 2015, and chose to use a web-like hierarchy to describe how each individual player would forge alliance with the next, because in her opinion:

“Global law is elastic enough to integrate the heterogeneous elements of the various and different legal orders into a unitary framework. It is up to the community of international legal scholars/lawyers to manage the complexity in the unit of the web of the global law system; the unitary framework retains the flexibility to allow for respecting the diversity of the plurality of embodied legal orders.”

Yet regardless of how one might perceive an ideology, the sheer scale of expectation asked of legal mega-firms and governmental bodies still seems disproportionate to the discipline required to undertake it. Having investigated current online debate, the results are discouraging to say the least, and when the world’s highest grossing law firm Latham & Watkins LLP offers no visible research, or even discussion of a unitary law, it suggests that perhaps the practice industry think-tanks are predisposed to monitoring investment strategies, over any notion that we may well be walking headlong into dispensation of justice from a centralised platform.

On a smaller scale, the benefits of a singular jurisdiction were recently implemented in October 2016 within Northern Ireland, and while not exactly a transcontinental shift, the objectives become evident, even if only from an administrative level, as was explained in a document published by the Northern Ireland Courts and Tribunal Service (NICTS), which said:

“There will no longer be County Court Divisions or Petty Sessions Districts and all relevant court documents have been amended to reflect this. The words “County Court Division of….” And “Petty Sessions District of……”will no longer appear on any court order or other documentation as court templates have been adapted.”

Whereas in the United Kingdom, we have a groundswell of opposition to the presence of Sharia laws, and if there was ever a reason for the unification of law, this concept would surely warrant a compelling body of evidence against the secular nature of unregulated doctrine.

Formed as part of this resistance, the website onelawforall.org.uk, is built upon a collective determination to remove the propagation of inequality through religious laws, in hope of the reestablishment of democratic values. This growing objection has been defined through a powerful rhetoric, claiming simply that:

“Sharia law is discriminatory and unjust, particularly against women and children.
Sharia courts in Britain are a quick and cheap route to injustice and do nothing to promote minority rights and social cohesion.”

It is suggested that the oppressive effects of this ancient law have been felt through gender specificity, which is not an ideology that could ever hope to find its way into the annals of any ‘new world’ law; and yet because there is no such codification, legal splinter factions are left free to flourish within the confines of domestic legislature.

In India, the application of a single industry law appears to provide huge benefits to small-scale factory owners, desperately trying to navigate the legal loopholes that strangle economic growth and preserve monopolisation.

With the design of improving manufacturing processes, the labor ministry created new legislation in order to overcome the problems faced by the nations entrepreneurs and workers alike, as explained by Mahendra Singhi, in her article for the Times of India:

“At present, small units have to comply with 44 Central labour laws and over 100 state laws…which discourages them to hire workers from the organized sector, and thus denying them basic rights…the government hopes that a single unified law will ensure less cost to the owner and better minimum wages, bonus and maternity benefits to the workers.”

It would seem for now at least, that while unitary rule and governance is constitutionally, commercially and quasi-socially acceptable, the thought of, or preclusion to, entrustment of a law written to serve a race of people, is both a bridge too far and paradoxically swept from the agenda; which while sounding trite in its definition, ought not mislead readers into believing a world law of some kind is not too far beyond our horizon.

This then raises the question of were a unitary law to become a reality, then how would those changes begin to materialise? Will a spark of legal renaissance ignite from within the people, or will the centralisation of power emanate from the core of contributory states?

Contrastingly, does commerce now helm the wheel of judicial evolution, or is politics driving that bus? In the latter event, it seems that the lines frequently blur, so recipients of information inevitably become less concerned with socio-political commentary than the motives underlying it, although whichever sector pushes first for answers, the time for such legal reimagining is overly ripe for discourse.

 

 

Birth of the Human Rights Act 1998

Insight | February 2017

Birth of the Human Rights Act 1998
Image: ‘Against Forgetting’ by Marcia Bushnell

The Human Rights Act was brought into being as a consequence of the European Convention on Human Rights (ECHR), which was first formulated by the Council of Europe in 1950.

Founded upon the Universal Declaration of Human Rights (as used by the United Nations), ten countries first rallied for its formation, including Belgium, Denmark, France, Ireland Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom. The Convention took effect in September 1953, with the primary directive of protecting specific fundamental rights among Member States of the Council of Europe, while the core values of the UK constitution enjoyed presumptions of liberty, representative government and the rule of law.

Before the ECHR became intrinsic to domestic law, Ministers often found themselves abusing discretionary powers, which amounted to a constitution largely beyond reproach, relying instead upon collective political norms for enforcement. This protracted period of neglect gave rise to an increase in administrative jurisdiction, and during the 1980s the courts began to adopt a more concrete conception of the rule of law, preferring instead to propagate such values as ‘freedom of expression’ ‘equality’ and ‘freedom from destitution’. However, presumptions followed that common law infringement upon these values would deem statute intervention unlawful, and it soon became conventional thinking; particularly in the well known R v Secretary of State for the Home Department ex parte Brind, where the domestic courts held that as the ECHR was not part of English law, the government was able to restrict media coverage of Irish extremist groups, despite clear encroachment upon the right to freedom of expression, and a sadly failed appeal by the journalists fiercely defending that right.

In fact, it wasn’t until 1998 that the British constitution accepted that using convention as a means of entrusting civil liberties could no longer be tolerated, and so on 9 November 1998, the Human Rights Act 1998 was enacted by Royal assent. From 2 October 2000 onward, all rights and freedoms previously safeguard by the ECHR were now directly enforceable though UK common law, and the sovereignty of Parliament was agreed.

This upheaval in institutional law was particularly significant, in that for the first time English judicial authority was awarded greater scope for case interpretation, where historically such matters were determined through ministerial debate. This was however, a change that was not without its detractors, nor ignorant of an entrenched inclination to overlook common law in lieu of political fervour.