Law and Rights
The Lord Chief Justice (LCJ) held his annual Press Conference on Thursday 27th September. It lasted 45 minutes and, quite properly, specific cases could not be discussed. A transcript of the conference is available via the Judiciary website and some of the items touched upon have already given the media some soundbites!
Long court appeals a 'source of real fury', says Lord Chief Justice - The Guardian 27th September
Burglary is offence against person as well as property, says senior judge - The Guardian 27th September
Hamza farce is a source of real fury to me: Lord Chief Justice hits out at European Court over endless extradition delays - Daily Mail 27th September.
Let us take a closer look at some of the questions and answers.
Lengthy cases:
MARTIN BENTHAM (EVENING STANDARD): You are not going to comment on the details for all the reasons that have just been said, but when people look at cases like the Hamza case and so on -- I think it's taken eight years to go through the whole process; not just here but everywhere else and it is still going to come back on again -- when you are looking at the length of time that extradition cases of that sort, for example, take, and the fact that it's not in anybody's interests, whether the individuals themselves, or the public's, and so on, what message do you think the public get, and does it concern you that people will get the message that the judicial system works in a tremendously slow fashion, which cannot be necessarily a good thing, and is there a way to address that and make it more speedy.
THE LORD CHIEF JUSTICE: I am not going to comment about an individual case, but any case that takes eight years through a whole series of judicial processes to come to a conclusion -- and you make the point that it has not yet come to a conclusion -- is a source of real fury to me. We really cannot have cases taking that long to reach a solution. It is not fair to anybody. It is not right. That is really all I can say about it. As to what will happen to this particular case, I know the hearing is fixed for Tuesday of next week. It cannot be quicker. I do not think, if you go through the processes, you will discover that the delays in that particular case, or in many like it, are actually to be levelled at the doors of the courts here. I cannot remember when -- I was one of the judges who decided that case in the extradition proceedings. Was it 2007? So far as we were concerned, that was the end of it. That is really all I can say.
A little later in the conference
DANNY SHAW (BBC): Can I just return to your fury about eight years to resolve a legal case? I think actually the case of Khalid Al Fawaz has actually taken fourteen years since he was first detained.
What could you do, if you were asked to advise on streamlining the process and speeding up these cases, what practical steps do you think could be taken to do that, and do you think there is a point at which you actually have to limit the number of appeals -- you actually have to say: "You can go to the Court of Appeal, but no further"?
THE LORD CHIEF JUSTICE: Well, there is a limit on the number of appeals. The problem is not that there is not a limit on the number of appeals; the problem is that new points keep coming up. New points are taken and then they go through the process. What you need is a process in which all the points that need to be addressed are addressed once, then there is an appeal process, and then it comes to an end. Any case that takes eight years -- I was not actually focusing on that particular case -- any case that takes eight years -
unless there is some extraordinary explanation, like the parties do not want it, they are not in a hurry and so on -- is unacceptable. People have to live their lives, and they have to live their lives knowing where they stand. In those sort of cases -- alleged terrorist cases -- well, actually there is a great public interest in disposing of them, fairly, justly, but with speed.
Comment - An interesting question is - How will such a process be achieved? The LCJ did not say how.
Burglary:
DANNY SHAW: There have been a couple of high profile cases in the news recently. There was a case yesterday in which a judge when sentencing said, in effect, to the burglars who were wounded, "That is the risk you take if you burgle someone's house". I know you won't comment on the cases, but do you echo those sentiments? I know that you have issued directions before that have been quite tough on burglars.
THE LORD CHIEF JUSTICE: I am very happy to say what I have said time and time again. I take a very serious view about an offence of burglary. Burglary of a home -- whether it is a grand mansion or a very modest one-up, one-down -- is always an offence against property; but, more important, it is an offence against the person. It is not a matter of being sentimental; it is a matter of how people feel. When you are at home, you want to feel safe; and in my view you are entitled to feel safe and secure. You want the streets about your home to be safe obviously, but I think that your home is (to use words which have been used by judges for hundreds of years now) -- this is your haven, this is your refuge. This is where you have the right to be safe. The burglar takes your property. But even if you are not at home when he takes very little property, there is a sense of violation and it destroys peace of mind; and if your peace of mind in your home is destroyed, you have lost something immensely precious. That is why burglary is always serious. We have said for years -- a predecessor of mine 400 years ago said that your home is your castle. That is what he is reflecting: this is the place where you pull up the drawbridge and the moat makes you safe. Some of you will remember William Pitt (the elder) talking about the poor man in his frail cottage. The roof may leak. It shakes. The wind can blow through it. The rain will come in. The storm will come in. But even the King of England cannot enter. That is the King of England entering. That is not the King of England entering as a burglar. Your home is your safe place, and so burglary is always serious. If your home is burgled and you are in there, you have the right to get rid of the burglar. Then, of course, it all depends on what it is that you are facing and what you fear. The other feature that we have to remember is that I know -- and I am not talking about individual cases, but I know of cases, and I do read the newspapers occasionally it looks as though the householder is the criminal. Well, the householder is not in a position to exercise calm, cool judgment. I suspect if any of you have come home to find a burglar in your home, or have been in bed at night -- or indeed having an afternoon snooze and found a burglar in your home -- you are not calmly detached. You are probably very cross and you are probably very frightened -- a mixture of both -- and your judgment of precisely what you should or should not do in the circumstances cannot, as another predecessor of mine (Lord Lane) said, you cannot measure it in a jeweller's scale. You have to face the reality of how people are and how people react to these situations -- and justifiably react. I am saying no more than I have said for years now. I will add to it. When I started at the Bar, which is more years ago than I care to remember, a lot of media correspondents -- and I do not mean reporters, but pundits -- used to write long articles about "judges defend property rights when they send people to prison for committing burglary, and they really should not pass such long sentences for burglary". I have never regarded it -- and judges never regarded it -- as an offence against property only. It is an offence against the person. That is how we have to approach these offences.
DANNY SHAW: Do you think the law provides adequate protection for the householder in those situations where they are disturbed by an intruder?
THE LORD CHIEF JUSTICE: Yes. I think you can phrase the law in all sorts of different ways, but the reality will end up being that the householder is entitled to use reasonable force to get rid of the burglar and that in measuring whether the force is reasonable or not, you are not doing a paper exercise six months later. You have to put yourself in the position of the man or woman who has reacted to the presence of a burglar and has reacted with fury, with anxiety, with fear, and with all the various different emotions which will be generated, and who has no time for calm reflection. I could go on, but if I went on we would have nothing else to talk about.
Comment - The LCJ has certainly emphasised that burglary has serious impact on individuals. It is far from being merely an offence against property even though the definition of the offence is in the Theft Act 1968. The LCJ was almost repeating the words he used three years ago in R v Saw and others [2009] EWCA Crim 1 - "The starting point must always ? we emphasise, always - be that burglary of a home is a serious criminal offence. The principle which must be grasped is that when we speak of dwelling house burglary, we are considering not only an offence against property, which it is, but also, and often more alarmingly and distressingly, an offence against the person. There is a longstanding, almost intuitive, belief that our homes should be our castles. .... etc"
The LCJ's views on householders using force are interesting. There have been some attempts to "recalibrate" the law relating to reasonable force (e.g. Criminal Justice and Immigration Act 2008) but here the LCJ is saying that however the law is phrased, the reality is that one always ends up with "reasonable force" in the formula.
Indeterminate Imprisonment:
FRANCES GIBB (THE TIMES): Can I ask you about the indeterminate sentences for public protection? I wondered whether you thought something was needed in its place. Also can you say how concerned you are about the number of prisoners who are now in prison, who have served their tariffs and cannot be let out, and what should be done about them?
THE LORD CHIEF JUSTICE: Well, the sentence of imprisonment for public protection sounded very much better than it was because there were various problems with the legislation, like an automatic assumption that such-and-such would follow. But let us ignore that for this purpose. The imprisonment for public protection was designed -- and John Halliday was the person who suggested it; part of his proposal was: "Yes, they are dangerous to the public. They must not be released until they are safe. But there must be a system in prison to make sure that they are trained, educated -- whatever it is -- receive the necessary treatment to address the reasons why they present a danger to the public". What happened was that we got the IPP, but the Prison Service never got the resources. So you ended up with a system in which people were sentenced to -- for the sake of argument, in those days it could be very short sentences -- 28 days for spying on a couple having sex, followed by an IPP, because the statutory presumptions applied, and then staying in custody for a year, two years, three years. So we then got rid of bits of it -ie, it had to be a sentence of not less than four years. Nevertheless, people stayed in custody long after the expiry of the time which represented the punishment for the crime they had committed, and was designed to deal with the safety issue. I do not think it is satisfactory to have a system in which we keep people in prison, unless they are seriously dangerous -- obviously that is a completely different matter and you still have the life sentence, and it is a life sentence which has to be part of the sentencing armoury. But as to IPPs, we seem, at last, to be getting them into better shape.
FRANCES GIBB: But do you think -- I mean, they are going to get rid of that provision -- do you need another sanction to deal with those kinds of prisoners?
THE LORD CHIEF JUSTICE: No, because if you commit a serious offence, particularly an offence of violence -- and that includes sexual violence, of course, -- the sentence ought to be a very heavy sentence. If there is evidence that, having committed this serious offence perhaps for a second time, that actually you are a serious danger to the public, the court is then left with the life sentence option. Then you pass that sentence.
Judicial Pensions:
NICK HILBORNE (SOLICITORS JOURNAL): I just wanted to ask you, do you think you can come to an agreement with Chris Grayling about judges' pensions?
THE LORD CHIEF JUSTICE: Well, I hope so. There is no reason why we should not. But he was appointed last week -- or the week before last now. The proposals from the Lord Chancellor about judicial pensions came to us in July and there has to be a long conversation about it. I hope you will understand why I think it would be totally inappropriate and indeed somehow rather disrespectful if I now conducted a negotiation with the Lord Chancellor in the course of the Lord Chief Justice's press conference. But the answer to your question is: I see no reason at all why we should not have a sensible discussion about these issues.
Comment - This was all very courteous but the question of judicial pensions is problematic. Without good pensions, would lawyers of the highest calibre be attracted to judicial posts? Many members of the public - including many who have lost out badly on pensions - will wonder why the judges should be somewhat cossetted. It will be a problem which Chris Grayling (the new Secretary of State for Justice) may wish he had not inherited. Joshua Rozenberg discusses this in The Guardian.
Comment - IPP has been a difficult topic and has been looked at on this blog recently - here. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 will remove IPP and new provisions are enacted - see LASPO 2012 Part 3 Chapter 5. Interestingly, the LCJ avoided answering Frances Gibb's point as to what is to be done about those prisoners currently serving IPP.
It was an interesting press conference and touched on several more topics such as social media, diversity in the judiciary, cameras in the courtroom, funding for Queen's Counsel at trials, weekend courts etc. The full transcript merits a full reading.
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Burglary causes considerable fear especially where the home is occupied. Suppose that a burglar is confronted by the house owner. Unknown to the burglar, the owner (an elderly lady) has a medical condition involving weakened blood vessels...
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Law and Rights
The Lord Chief Justice's Press Conference
Long court appeals a 'source of real fury', says Lord Chief Justice - The Guardian 27th September
Burglary is offence against person as well as property, says senior judge - The Guardian 27th September
Hamza farce is a source of real fury to me: Lord Chief Justice hits out at European Court over endless extradition delays - Daily Mail 27th September.
Let us take a closer look at some of the questions and answers.
Lengthy cases:
MARTIN BENTHAM (EVENING STANDARD): You are not going to comment on the details for all the reasons that have just been said, but when people look at cases like the Hamza case and so on -- I think it's taken eight years to go through the whole process; not just here but everywhere else and it is still going to come back on again -- when you are looking at the length of time that extradition cases of that sort, for example, take, and the fact that it's not in anybody's interests, whether the individuals themselves, or the public's, and so on, what message do you think the public get, and does it concern you that people will get the message that the judicial system works in a tremendously slow fashion, which cannot be necessarily a good thing, and is there a way to address that and make it more speedy.
THE LORD CHIEF JUSTICE: I am not going to comment about an individual case, but any case that takes eight years through a whole series of judicial processes to come to a conclusion -- and you make the point that it has not yet come to a conclusion -- is a source of real fury to me. We really cannot have cases taking that long to reach a solution. It is not fair to anybody. It is not right. That is really all I can say about it. As to what will happen to this particular case, I know the hearing is fixed for Tuesday of next week. It cannot be quicker. I do not think, if you go through the processes, you will discover that the delays in that particular case, or in many like it, are actually to be levelled at the doors of the courts here. I cannot remember when -- I was one of the judges who decided that case in the extradition proceedings. Was it 2007? So far as we were concerned, that was the end of it. That is really all I can say.
A little later in the conference
DANNY SHAW (BBC): Can I just return to your fury about eight years to resolve a legal case? I think actually the case of Khalid Al Fawaz has actually taken fourteen years since he was first detained.
What could you do, if you were asked to advise on streamlining the process and speeding up these cases, what practical steps do you think could be taken to do that, and do you think there is a point at which you actually have to limit the number of appeals -- you actually have to say: "You can go to the Court of Appeal, but no further"?
THE LORD CHIEF JUSTICE: Well, there is a limit on the number of appeals. The problem is not that there is not a limit on the number of appeals; the problem is that new points keep coming up. New points are taken and then they go through the process. What you need is a process in which all the points that need to be addressed are addressed once, then there is an appeal process, and then it comes to an end. Any case that takes eight years -- I was not actually focusing on that particular case -- any case that takes eight years -
unless there is some extraordinary explanation, like the parties do not want it, they are not in a hurry and so on -- is unacceptable. People have to live their lives, and they have to live their lives knowing where they stand. In those sort of cases -- alleged terrorist cases -- well, actually there is a great public interest in disposing of them, fairly, justly, but with speed.
Comment - An interesting question is - How will such a process be achieved? The LCJ did not say how.
Burglary:
DANNY SHAW: There have been a couple of high profile cases in the news recently. There was a case yesterday in which a judge when sentencing said, in effect, to the burglars who were wounded, "That is the risk you take if you burgle someone's house". I know you won't comment on the cases, but do you echo those sentiments? I know that you have issued directions before that have been quite tough on burglars.
THE LORD CHIEF JUSTICE: I am very happy to say what I have said time and time again. I take a very serious view about an offence of burglary. Burglary of a home -- whether it is a grand mansion or a very modest one-up, one-down -- is always an offence against property; but, more important, it is an offence against the person. It is not a matter of being sentimental; it is a matter of how people feel. When you are at home, you want to feel safe; and in my view you are entitled to feel safe and secure. You want the streets about your home to be safe obviously, but I think that your home is (to use words which have been used by judges for hundreds of years now) -- this is your haven, this is your refuge. This is where you have the right to be safe. The burglar takes your property. But even if you are not at home when he takes very little property, there is a sense of violation and it destroys peace of mind; and if your peace of mind in your home is destroyed, you have lost something immensely precious. That is why burglary is always serious. We have said for years -- a predecessor of mine 400 years ago said that your home is your castle. That is what he is reflecting: this is the place where you pull up the drawbridge and the moat makes you safe. Some of you will remember William Pitt (the elder) talking about the poor man in his frail cottage. The roof may leak. It shakes. The wind can blow through it. The rain will come in. The storm will come in. But even the King of England cannot enter. That is the King of England entering. That is not the King of England entering as a burglar. Your home is your safe place, and so burglary is always serious. If your home is burgled and you are in there, you have the right to get rid of the burglar. Then, of course, it all depends on what it is that you are facing and what you fear. The other feature that we have to remember is that I know -- and I am not talking about individual cases, but I know of cases, and I do read the newspapers occasionally it looks as though the householder is the criminal. Well, the householder is not in a position to exercise calm, cool judgment. I suspect if any of you have come home to find a burglar in your home, or have been in bed at night -- or indeed having an afternoon snooze and found a burglar in your home -- you are not calmly detached. You are probably very cross and you are probably very frightened -- a mixture of both -- and your judgment of precisely what you should or should not do in the circumstances cannot, as another predecessor of mine (Lord Lane) said, you cannot measure it in a jeweller's scale. You have to face the reality of how people are and how people react to these situations -- and justifiably react. I am saying no more than I have said for years now. I will add to it. When I started at the Bar, which is more years ago than I care to remember, a lot of media correspondents -- and I do not mean reporters, but pundits -- used to write long articles about "judges defend property rights when they send people to prison for committing burglary, and they really should not pass such long sentences for burglary". I have never regarded it -- and judges never regarded it -- as an offence against property only. It is an offence against the person. That is how we have to approach these offences.
DANNY SHAW: Do you think the law provides adequate protection for the householder in those situations where they are disturbed by an intruder?
THE LORD CHIEF JUSTICE: Yes. I think you can phrase the law in all sorts of different ways, but the reality will end up being that the householder is entitled to use reasonable force to get rid of the burglar and that in measuring whether the force is reasonable or not, you are not doing a paper exercise six months later. You have to put yourself in the position of the man or woman who has reacted to the presence of a burglar and has reacted with fury, with anxiety, with fear, and with all the various different emotions which will be generated, and who has no time for calm reflection. I could go on, but if I went on we would have nothing else to talk about.
Comment - The LCJ has certainly emphasised that burglary has serious impact on individuals. It is far from being merely an offence against property even though the definition of the offence is in the Theft Act 1968. The LCJ was almost repeating the words he used three years ago in R v Saw and others [2009] EWCA Crim 1 - "The starting point must always ? we emphasise, always - be that burglary of a home is a serious criminal offence. The principle which must be grasped is that when we speak of dwelling house burglary, we are considering not only an offence against property, which it is, but also, and often more alarmingly and distressingly, an offence against the person. There is a longstanding, almost intuitive, belief that our homes should be our castles. .... etc"
The LCJ's views on householders using force are interesting. There have been some attempts to "recalibrate" the law relating to reasonable force (e.g. Criminal Justice and Immigration Act 2008) but here the LCJ is saying that however the law is phrased, the reality is that one always ends up with "reasonable force" in the formula.
Indeterminate Imprisonment:
FRANCES GIBB (THE TIMES): Can I ask you about the indeterminate sentences for public protection? I wondered whether you thought something was needed in its place. Also can you say how concerned you are about the number of prisoners who are now in prison, who have served their tariffs and cannot be let out, and what should be done about them?
THE LORD CHIEF JUSTICE: Well, the sentence of imprisonment for public protection sounded very much better than it was because there were various problems with the legislation, like an automatic assumption that such-and-such would follow. But let us ignore that for this purpose. The imprisonment for public protection was designed -- and John Halliday was the person who suggested it; part of his proposal was: "Yes, they are dangerous to the public. They must not be released until they are safe. But there must be a system in prison to make sure that they are trained, educated -- whatever it is -- receive the necessary treatment to address the reasons why they present a danger to the public". What happened was that we got the IPP, but the Prison Service never got the resources. So you ended up with a system in which people were sentenced to -- for the sake of argument, in those days it could be very short sentences -- 28 days for spying on a couple having sex, followed by an IPP, because the statutory presumptions applied, and then staying in custody for a year, two years, three years. So we then got rid of bits of it -ie, it had to be a sentence of not less than four years. Nevertheless, people stayed in custody long after the expiry of the time which represented the punishment for the crime they had committed, and was designed to deal with the safety issue. I do not think it is satisfactory to have a system in which we keep people in prison, unless they are seriously dangerous -- obviously that is a completely different matter and you still have the life sentence, and it is a life sentence which has to be part of the sentencing armoury. But as to IPPs, we seem, at last, to be getting them into better shape.
FRANCES GIBB: But do you think -- I mean, they are going to get rid of that provision -- do you need another sanction to deal with those kinds of prisoners?
THE LORD CHIEF JUSTICE: No, because if you commit a serious offence, particularly an offence of violence -- and that includes sexual violence, of course, -- the sentence ought to be a very heavy sentence. If there is evidence that, having committed this serious offence perhaps for a second time, that actually you are a serious danger to the public, the court is then left with the life sentence option. Then you pass that sentence.
Judicial Pensions:
NICK HILBORNE (SOLICITORS JOURNAL): I just wanted to ask you, do you think you can come to an agreement with Chris Grayling about judges' pensions?
THE LORD CHIEF JUSTICE: Well, I hope so. There is no reason why we should not. But he was appointed last week -- or the week before last now. The proposals from the Lord Chancellor about judicial pensions came to us in July and there has to be a long conversation about it. I hope you will understand why I think it would be totally inappropriate and indeed somehow rather disrespectful if I now conducted a negotiation with the Lord Chancellor in the course of the Lord Chief Justice's press conference. But the answer to your question is: I see no reason at all why we should not have a sensible discussion about these issues.
Comment - This was all very courteous but the question of judicial pensions is problematic. Without good pensions, would lawyers of the highest calibre be attracted to judicial posts? Many members of the public - including many who have lost out badly on pensions - will wonder why the judges should be somewhat cossetted. It will be a problem which Chris Grayling (the new Secretary of State for Justice) may wish he had not inherited. Joshua Rozenberg discusses this in The Guardian.
Comment - IPP has been a difficult topic and has been looked at on this blog recently - here. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 will remove IPP and new provisions are enacted - see LASPO 2012 Part 3 Chapter 5. Interestingly, the LCJ avoided answering Frances Gibb's point as to what is to be done about those prisoners currently serving IPP.
It was an interesting press conference and touched on several more topics such as social media, diversity in the judiciary, cameras in the courtroom, funding for Queen's Counsel at trials, weekend courts etc. The full transcript merits a full reading.
- Should Imprisonment Be Abolished For Pure Property Offences?
Professor Andrew Ashworth is the Vinerian Professor of English Law at Oxford University. In a pamphlet published by the Howard League for Penal Reform, Professor Ashworth expresses the view that imprisonment should be reserved for those who commit crimes...
- From The Party Conferences No.2 ~ Dangerous Offenders
Here are the conference speeches of Labour's "Shadow" Justice Secretary (Mr Sadiq Khan MP) and the present Lord Chancellor and Secretary of State for Justice - Mr Chris Grayling MP. Mr Sadiq Khan ...
- The Court Of Appeal Speaks On August Disorder Sentencing
The Court of Appeal (Criminal Division) has issued judgment in relation to ten appeals against sentences imposed for convictions arising from the August disorder -R v Blackshaw and others [2011] EWCA Crim 2312. On 20th August, in a post related...
- Burglars And Liability For Manslaughter
Burglary causes considerable fear especially where the home is occupied. Suppose that a burglar is confronted by the house owner. Unknown to the burglar, the owner (an elderly lady) has a medical condition involving weakened blood vessels...
- Sentencing Guidelines For Burglary
Hot on the heels of sentencing guideline consultations for assault and drug offences, the Sentencing Council has issued a consultation on sentencing for burglary. The consultation is open to public comment up to 4th August 2011 ? see Professional...