Law Weblog

Powers of arrest: community support officers

From 23 December 2004 the chief officers of all forces in England and Wales will be able to designate community support officers with all the powers of detention under paragraphs 2, 3 and 4 of Schedule 4 of the Police Reform Act 2002.

Community support officers designated with these powers will be able to require the name and address of a person who they have reason to believe has committed a relevant offence under paragraph 2(6)  (offences for which they can issue a fixed penalty ticket) or who is acting in an anti-social manner. If a person fails to give their name and address or gives a one which the community support officer believes to be false then the community support officer may detain the person for up to 30 minutes until the arrival of a constable. Alternatively a person may choose, if asked by the community support officer, to accompany the community support officer to a police station. A community support officer may use reasonable force to detain a person and to prevent a detained person from making off.

It is an offence to fail to give a community support officer a name and address when required or to make off during a detention. A person guilty of such an offence shall be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

Belmarsh detainees: decision by the House of Lords. A, X & Ors v Secretary of State for the Home Department [2004] HL

The “Rule of Law” operates to protect citizens from arbitrary government decisions; it is part of the delicate balance of our constitution and this has been brought into sharp focus by the decisions of the law lords in the Belmarsh detainees’ case, and the resignation of Ian Macdonald QC from the Belmarsh prisoners’ defence team. We are reminded by the law lords that the courts are a restraint on executive arrogance and stand alone against the Government.

The Belmarsh detainees are not UK subjects and they are strongly suspected of terrorist activity. They can not be repatriated because they face torture at home, and no friendly country will receive them. The Home Office allowed them to choose to leave this country or face indefinite detention; their detention has been described as being in a prison with three walls. By a majority of eight to one, the House of Lords concluded that the Government was wrong to detain them without trial; the rights of the detainees had been overridden.

The detainees successfully argued that their detention infringed the right to liberty which is found in Article 5 of the European Convention on Human Rights. Although the state can derogate (withdraw) from Article 5 “In time of war or other emergency threatening the life of the nation … ” it may not go beyond what is “… strictly required … “. Indefinite detention of suspects without charge or trial exceeds what is “… strictly required …” and so infringes the convention. Lord Hoffmann said that the real threat to the life of the nation and its collective values comes “not from terrorism but from laws such as these”.

Charles Clarke – backed by Tony Blair – responded by saying that he would go back to the Commons in the New Year and extend the law to detain the suspects and perhaps to make changes to get round the ruling of the law lords. Until the Human Rights Act 1998, the question of whether the threat to the nation was sufficient to justify suspension of habeas corpus or the introduction of powers of detention could not have been the subject of judicial decision. There could be no basis for questioning an Act of Parliament by court proceedings.

The problem which Lord Hoffman identifies is that the government’s attitude leaves the “Rule of Law” without the bulwark of the Human Rights Act and subject to an arbitrary executive supported by a compliant House of Commons.

R v Kumar (2004) CA: Court of Appeal on Strict Liability

[Strict liability offences – statutory offences require mens rea unless specifically excluded or if it is “compellingly clear”, “truly necessary” and free from ambiguity to do so]
D, a doctor had consensual sex with a boy aged 14 believing him to be over 16, they had met in an over 18’s club.

Held: In B (A Minor) v DPP HL Lord Nicholls said: “The common law presumes that, unless Parliament indicated otherwise, the appropriate mental element is an unexpressed ingredient of every statutory offence.”
Sweet v Parsley (1969) : “…there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blame-worthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea …it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary.”
In R v K the same issue arose and all the speeches in endorse the principle of the presumption that a mental element is required in a statutory offence unless expressly excluded or the contrary is shown by necessary implication. From these two decisions we conclude firstly that in all statutory offences whenever a section is silent as to mens rea there is a presumption that the mental element is an essential ingredient of the offence. Secondly, in the absence of express statutory provision the presumption of the mental element can only be excluded if the necessary implication is “compellingly clear”, “truly necessary” and free from ambiguity. Further, the presumption must not involve an internal inconsistency.

Not Guilty
Comment: D would now be charged under section 9 of the Sexual Offences Act 2003, on the admitted facts he might then have had a complete defence to the charge provided by section 9(1)(C)(i).

Evidence of bad character to be disclosed to juries

From today, evidence of a defendant’s previous convictions and other misconduct will be admissible in criminal trials provided it is relevant, will throw new light on the case, and is not likely to make the trial unfair. This reverses the current position, where evidence of a defendant’s bad character is generally not admitted in criminal proceedings.

Better for old to kill themselves than be a burden, says Warnock.

Britain’s leading medical ethics expert, Baroness Warnock, has suggested that the frail and elderly should consider suicide to stop them becoming a financial burden on their families and society.
Sunday Times article here

Police Powers: Stop and Search

R (on the application of Laporte) v Chief Constable of Gloucestershire Constabulary (CA) (2004)
[Police powers – detention – breach of the peace – police not entitled to send coach containing protesters back to London]
D, the police stopped and searched under s 60 of the Criminal Justice and Public Order Act 1994 the coach in which the claimant was travelling to a US air base to demonstrate against the war in Iraq. The police feared a breach of the peace at the destination. The coaches were returned to London with a police escort, which prevented them from stopping or leaving the motorway. C applied for judicial review.

Held: Forcibly returning the claimant to London was unlawful, but the decision to prevent the claimant from proceeding to the airbase was not unlawful. To have delayed taking action until the coach passengers had reached the air base could have provoked the very disturbance which the preventive action was intended to avoid, and in some situations, preventing a breach of the peace would only be possible if action were taken which risked affecting a wholly innocent individual. But forcibly returning the claimant to London was disproportionate and was not justifiable at common law.

Executing probate can now be carried out by non-solicitors

New providers can now offer probate services for a fee.  Until today only a solicitor, barrister or duly certified notary public could charge for providing probate services.
The provider must be a member of a body that have been approved by the Secretary of State for Constitutional Affairs will be able to offer these services to the public. The Legal Services Ombudsman will have an oversight role for bodies authorised by the Secretary of State to offer probate services and members of the public will be able to take a complaint to the Ombudsman after going through the complaints procedures established by the Department for Constitutional Affairs. Effective by s55 of the Courts and Legal Services Act 1990 although ahead of Sir David Clementi’s review into the regulatory framework governing legal services.

Probate is: When a person dies their estate (money, property and possessions) has to be deal with by collecting in all monies, paying any debts and distributing what is left to those people legally entitled to it. In order for a person (or persons) to get the required authority to do this, they usually need to obtain a legal document called a Grant of Representation (either a Grant of Probate or a Grant of Letters of Administration) from the Probate Registry. While most probate transactions are carried out by solicitors, it is possible for a person to carry this out on their own behalf. They are not allowed to do the work for payment.

Role of Lord Chancellor to stay, House of Lords Appellate Committee to be revised sometime in the future

The role of the Lord Chancellor will be reformed rather than abolished. Lord Falconer wanted to axe the 1,400-year-old post but yesterday (3-12-04) he bowed to opposition from the House of Lords. It will not now be necessary to amend the many statutes that refer to the Lord Chancellor, the oldest office in the government apart from the crown. Debates on the Constitutional Reform Bill continue in the House of Lords on Tuesday. The Bill is intended to replace the House of Lords’ judicial functions with a Supreme Court and create a Judicial Appointments Commission, ending the Lord Chancellor’s role as head of the judiciary, but this may be some years away.

Legal aid available across the EU

Legal aid for civil cases will be available across all EU member states following the European Legal Aid Directive and regulations that came into force on 1 December 2004.
Citizens from the UK and other EU country seeking legal aid in the UK will have to qualify under rules laid out in the UK domestic scheme and in the Directive. Legal aid will not be available to those people who can afford to pay for a lawyer, who have travel insurance that covers legal expenses or other means of paying for a lawyer for example if the claimant could use a conditional fee agreement. Cases that have little chance of success will not be funded.
A measure to simplify the mutual recognition of civil judgements and cross-border enforcement is under negotiation.

To smack or not to smack moves to the House of Lords

This week in the House of Lords:
A group of teachers and parents representing independent schools in Merseyside spearheaded by Phil Williamson, head teacher of a Liverpool school will challenge the Court of Appeal ruling a year ago that ruled against the resurrection of corporal punishment. The gourp claim it is the philosophy of the Bible to sanction the smacking of children who misbehave. The Court of Appeal said there was “a significant degree of unclarity as to the basis upon which corporal punishment is inflicted and disagreement as to its implementation in practice.”