Law Weblog

Law & Justice – Miscarriages – Cooper & McMahon

The significance of this case is that the miscarriage of justice survived for over 30 years.
1970 Patrick Colin Murphy, Michael Graham McMahon and David Cooper were convicted of the murder of Reginald Stevens at Luton during a bungled post office robbery in 1969.

Sequence of appeals:
1971 appeal dismissed by C of A.
1973 the Home Secretary referred the case of Murphy to the C of A who allowed his appeal.
1975 the Home Secretary referred the cases of Cooper and McMahon, but their appeals were dismissed.
1976 a second reference was again dismissed.
1978 the C of A declined to receive fresh evidence tendered by McMahon following a further reference by the Home Secretary.
1980 Cooper and McMahon were released from prison by order of the Home Secretary, because of the “widely felt sense of unease” about the safety of their convictions.
1995 Cooper died.
1999 McMahon died.
2001 the Criminal Cases Review Commission referred their cases to the C of A.
31st July 2003, their appeals were allowed. In part because of a discredited police officer; credibility of witnesses; non-disclosure and disquiet as to what happened to reward money (kept by a corrupt police officer?).
Whole case, here

More on Restorative Justice

Restorative Justice – bringing victims and offenders into contact – offers victims in particular, things which traditional justice can’t:

A chance to speak directly to the offender, and tell them the real impact of their offending

A chance to receive an apology

The opportunity to get answers to questions – like ‘why me – why did this happen to me?’

And the opportunity to get reparation from the offender – to themselves, or to the community if that is what they want.

Lord Chancellor’s speech, here

Compensation culture – evil

The House of Lords said the growing compensation culture is “evil” after ruling against John Tomlinson who sued Congleton Borough Council after breaking his neck when he dived into a flooded gravel pit in 1995; they said he had been reckless.

There were clear ‘No Swimming’ signs around the pit, but Tomlinson claimed the council should have taken better measures to prevent people from swimming, which they regularly did, ignoring the signs.

They said, “When you invite somebody into your house to use the staircase you do not invite them to slide down the banister.”

They said, “The pursuit of an unrestrained culture of blame and compensation has many evil consequences and one is the interference with the liberty of a citizen.

“There is some risk of accidents arising out of the joie de vivre of the young, but it is no reason to impose a grey and dull safety regime on everyone”.

“It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors.”

“The fact that such people take no notice of warnings cannot create a duty to take steps to protect them.”

Government set an example with ADR

The government has made a Pledge to resolve disputes by the use of ADR (unless inappropriate) Departments will provide appropriate clauses in their standard procurement contracts on the use of ADR techniques to settle their disputes.
Cases not suitable for settlement through ADR: intentional wrongdoing, abuse of power, public law, Human Rights and vexatious litigants, where a precedent is needed to clarify the law, or where it would be contrary to the public interest to settle.
Full details here

The death of Dr David Kelly.
Role of judges
“Independent judicial inquiries”.
Such enquiries are criticised as the weakest form of inquiry which a government can establish.
This was the reaction when the Scott inquiry into the arms-for-Iraq affair was set up in 1992.
The Denning inquiry into the Profumo spy scandal in the early 1960s was attacked – by Denning himself – for lacking the powers to require witnesses to give evidence on oath.
Statutory enquiries.
By contrast, an inquiry such as the Bloody Sunday tribunal, currently sitting, has full judicial powers because it was set up under the Tribunals of Inquiry Evidence Act 1921, as were the Lynskey tribunal in 1948, which investigated the bribery of a junior minister in the Labour Government and the Aberfan disaster in 1967.
It will be for Lord Hutton former Lord Chief Justice of Northern Ireland to determine how wide-ranging that examination needs to be to get at the truth.
Some of the material Lord Hutton may well wish to see is sensitive intelligence data and there will inevitably be tussles behind the scenes with Whitehall about what is appropriate to disclose.
Lord Scott’s inquiry into arms to Iraq caused misery for the Tories.
The Vassall Tribunal in 1963, set up to examine a homosexual spy scandal involving naval intelligence officer, John Vassall required journalists to give evidence and two Fleet Street reporters were jailed for refusing to reveal their sources.

GHB Outlawed

GHB has been outlawed, with dealers facing up to five years in jail.

Gammahydroxybutrate (GHB) is now a controlled under the Misuse of Drugs Act 1971.

Drugs Minister, Caroline Flint:

“GHB has been used in numerous drug assisted rapes and sexual assaults [… ] It’s very important that we get the message across to club goers that this is a dangerous drug. People can pass out after just a few drops in an alcoholic drink, and an overdose could result in a coma. The strength of the liquid varies, so a user is often unaware how much they are taking.

GHB is a drug developed as an anaesthetic. It is produced as a white powder, which is dissolved into water. In small doses it acts as an ‘upper’. In larger doses the anaesthetic effect takes hold and can lead to respiratory problems. It is potentially lethal when mixed with other substances, for example alcohol.

Development of the law of Duress

R v Safi and others (CA) 6 June 2003
[Duress – D need only show he reasonably believed there was a threat]
DD hijacked an aeroplane, imprisoned crew and passengers, possessed a firearm with intent, and possessed explosives. They were escaping from a brutal regime in Afghanistan.

Held: LONGMORE LJ,
The first element requires that DD reasonably believed a threat existed.
R v Graham [1982] continued to be the law.
There was no need for there to be a threat it is sufficient that DD reasonably believed there was a threat. This is similar to the requirements of provocation and self-defence, where a defendant was entitled to rely on facts as he believed them to be.
So, if a defendant committed a crime because a gun was pointed at him, the defence would succeed if the gun was not loaded and therefore there was no threat in fact.
The courts have repeatedly emphasised the urgent need for legislation to define duress, and it would be possible, for example, to make hijacking an absolute offence; but Parliament appeared content to leave the development of the applicable law to judicial decision.

New Department of Constitutional Affairs: Lord Chancellor

*The Prime Minister transferred the administrative functions of Lord Chancellor to a new Department of Constitutional Affairs. The new Lord Chancellor is Lord Falconer who is also the Secretary of State for Constitutional Affairs. (Lord Falconer is an old university friend of Tony Blair).
*The Lord Chancellor no longer sits as a judge nor Speaker of the House of Lords.
*An independent Appointments Commission will appoint judges, but details are uncertain.
*There is to be consultation on whether there should be a new Supreme Court to replace the Judicial Committee of the House of Lords.
*The reasons for the changes appear to be to separate the judiciary the legislature and the executive.
*The consultation and any amending legislation will probably take three years.
*For the period of transition, Lord Falconer will exercise all the functions of Lord Chancellor as necessary. However, Lord Falconer does not intend to sit as a judge in the House of Lords before the new Supreme Court is established.
Justice – case for a Supreme Court (PDF file)
Lord Bingham’s speech (PDF file)
Bar Council reaction
Political reaction Continue reading New Department of Constitutional Affairs: Lord Chancellor…

General Comments

This is where you can post general comments