What’s Your Verdict?

Our perception of justice is coloured by many factors, no matter how objective we try to be. The media, social background, the moral rights and wrongs of actions are just a few of the influences that can affect how we view justice. In the field of criminal justice, the media takes a great interest especially if there is a sensational aspect to a case. How do you think this influences jurors? Does it influence the public’s perception of a case and its eventual outcome?

We decided to put this to the test by designing a short interactive to test how people responded to various factors. Why not have a go at this? You can find the interactive here (it will take you about 20 minutes to complete):

http://www.open.edu/openlearn/society/the-law/criminology/whats-your-verdict

There is no “right” or “wrong” answer regarding the verdict. The outcome of the interactive can change depending on your answers to the questions you are posed as you work through it.

Remember this is not an entirely accurate portrayal of a Crown Court trial, but merely a simulation. It would much longer than 20 minutes to hear all of the evidence in an average trial in a Court setting!

I hope you enjoy it.

Peter Ward
The Open University

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Death penalty USA – News from Texas; the Rodrigo Hernandez case

Written by Mike Farrell in collaboration with Juliette Frangos.

This week on Thursday 26th January after 6 p.m. the state of Texas is scheduled to execute Rodrigo Hernandez by lethal injection, the first execution in Texas this year that looks likely to go ahead pending last minute appeal.

Case Background
Hernandez was convicted in 2004 of the 1994 kidnap, rape and murder of Susan Verstegen, an act following which he attempted to conceal the victims body in a 50 gallon drum.

Unfortunately during the original investigation a lack of evidence meant that the case went cold, remaining in limbo for 8 years. However when Hernandez was later imprisoned in Michigan for an unconnected offence, and on release in 2002 legally compelled to give a DNA sample for the national DNA database, his sample was matched with unidentified DNA samples recovered from the Verstegen case also on the database. Hernandez was then arrested and charged with murder.
On questioning he gave a detailed confession to the murder claiming to have been under the influence of drugs and alcohol at the time. He was subsequently found guilty on trial in Bexar County, Texas, and sentenced to death in April 2004, allegedly showing no remorse. He has been on death row since.

In light of the confession, DNA and the absence of any evidence that the trial was flawed, there is nothing suggesting the conviction was unsafe, and it is therefore not in question, Hernandez deserves to be punished. Only the capital sentence is in question here.

Since conviction, Hernandez has made numerous appeals against sentence, including applying for a writ of habeus corpus to the Texas State Criminal Appeals Court and the Supreme Court, all of which have been rejected. Appeals continued this month up until the 23rd January, again without success (A full procedural history is here).

Therefore pending any further appeals or last minute stays between now and Thursday night, sentence is on course to be carried out..

Capital punishment – Texas
Texas is far and away the most prolific proponent of capital punishment in the USA (see also here), averaging more than one execution per month, more than twice the rate of any other state. Texas has also conducted 477 executions since 1976, more than 4 times that of the next most prolific states, Virginia and Oklahoma.

These are extraordinary figures, especially considered against other states such as California which has a much larger death row population, and yet has undertaken only 13 executions since 1976.

The high number of executions in Texas may of course largely be explained by the republican / conservative background of that state, a political outlook which traditionally leans to capital punishment. There may be other reasons some of which can be considered here which relate to the history and constitutional makeup of the state with regard to elected appellate judicial office. Whatever the reason, the figures appear excessive, and regardless of public or political support capital punishment is rightly becoming more unacceptable as indicated by the recent positive moratorium on capital punishment issued by the Governor of The state of Oregon. In addition, Texas is not the only republican state in the USA, so something or someone else may be responsible.

The Governor
In the ten years that he has held office, Rick Perry as Governor of Texas has authorised and overseen the largest number of executions in the history of the USA for a single Governor, more than 230 executions in the last decade, almost half the number of executions that have occurred over the last 35 years in Texas, indicating a marked and certainly questionable acceleration of capital punishment over a decade. He is known for radical views on capital punishment, gun ownership, same sex relationships and religion and has in the past vetoed a ban on the death penalty for mentally retarded inmates.

He recently launched a presidential campaign, but withdrew in January 2012 following widespread criticism of a homophobic video that he released to ‘support’ his campaign.

With regards to capital punishment, Mr Perry claims not to lose much sleep over it, has stated that he has no problem authorising capital sentences to be carried out, and has never worried that Texas may ever have executed any innocent persons. This in itself is quite disturbing given the reported case of Cameron Todd Willingham, executed in 2004 for the alleged murder of his three daughters in what was claimed at the time to have been an act of arson on his own home. Following Willingham’s execution however it was discovered and reported that in fact there was no evidence of arson at all, bringing the entire trial, conviction and sentence sharply into question.

An investigation was carried out, but just prior to it reporting, the chair of the committee undertaking it was replaced by Perry, an act which effectively cancelled the inquest, and swept the entire affair under the carpet.

The question however remains; was an innocent man executed, and if so, wouldn’t this case have raised an irrefutable argument against continuing capital punishment in Texas? The possibility that it may well have been is argument enough to support an end to capital punishment in Texas and elsewhere. Instead however it appears that the Governor would rather bury the case in favour of his own personal political stance.

The Texan method
Texas like many other capital states of the USA currently advocates lethal injection as its preferred method of supposed humane executions of death row inmates. Please see link above for the full procedure, which in brief involves the following:

* Hernandez will be transported from his death row facility to the execution unit at Huntsville.
* He will undergo a strip and cavity search, before being confined in a holding cell.
* He may be allowed family visits during the morning.
* He will be offered a last meal but will have no choice in what is offered.
* After 6 p.m. he will be led to the execution chamber, prepared and secured to a gurney.
* Intravenous catheters shall be inserted into a suitable vein in his arm or elsewhere in his body.
* Witnesses will be brought in including victim witnesses, his own family if attending, and select
media representatives.
* The execution will be authorised to proceed.
* Hernandez will be allowed a brief final statement.
* The drug team will be instructed then to administer the sentence, with drugs being administered in sequence.
* The condemned would be expected to be confirmed as medically dead in about 7 minutes from the beginning of the injections.

This method of execution has long been considered humane by some, however it has generated much controversy, including:

– A scandal throughout the European Union where it was found that capital states having exhausted their own supplies of the death drugs used for capital sentences were illicitly importing large quantities from Europe, a practice the EU is now apparently seeking to prevent. Some companies took it upon themselves not to supply their products while they were being used for capital purposes.

– The fact that medical practitioners are barred from administering the drugs under the Hippocratic oath as well as showing a true hypocrisy regarding the ‘justice’ of the procedure, means that administering the sentence falls into the hands of prison employees. There have been alleged stories of incorrect dosages being used, and other instances where the convict has suffered greatly during the procedure. Consider for example the botched34 minute torture ofAngel Nieves Diaz in Florida, 2006.

– The ongoing search for a more humane form of execution in itself proves that deep down inside, we all know that killing another person is wrong. Someone will always have to have blood on their hands regardless of the method or justification, legal or otherwise.

Written by Mike Farrell in collaboration with Juliette Frango and reproduced here by kind permission of both authors.

Passive Smoking and the European Convention

In recent times, smoking has become an issue for the European Court of Human Rights when prisoners complained that being subjected to passive tobacco smoke infringed on their basic human rights. Although there is no automatic right to health under the European Convention of Human Rights, applicants can avail of the protections under Article 3 which prohibits torture and other inhuman and degrading treatment. In the two cases below, the applicants sought to challenge the legality of prison policy which permitted prisoners to be subjected to tobacco smoke.

In Florea v. Romania 1, the applicant was detained in prison from March 2002 and February 2005. He spent three days in a hospital whilst under custody during this time. At the time of the applicant’s imprisonment he suffered from chronic hepatitis and arterial hypertension. In prison he had to share a cell for approximately eight or nine months with between 110 and 120 other prisoners. According to the applicant, 90% of his cellmates were smokers. He was also in the company of smokers whilst in hospital. In April 2004, the applicant lodged a claim for compensation on account of the deterioration of his health. Relying on Article 3, the applicant complained in particular of overcrowding and poor hygiene conditions, including having been detained with smokers. His claim was dismissed by a County Court in 2006 on the grounds that no causal link had been established between the passive smoking and the applicant’s ill-health.

The applicant then took his case to the European Court of Human Rights. The Court distinguished the case from the earlier European case of Aparicio Benito v. Spain2 where the Court had not found a violation of Article 3 as the applicant in Aparicio Benito could use an individual cell to get respite from passive smoking. However, the Court was unwilling to say with certainty whether passive smoking on its own would constitute a violation – the Court considered that the applicant had been held in cramped conditions, with personal space falling below the European standard, and additionally based their decision on this.

In the 2011 case of Elefteriadis v Romaniasup>3, the applicant, a Romanian national, was serving life imprisonment for murder. When the applicant entered prison in 1992, he was declared clinically fit. During his time in prison, the applicant made various requests to be transferred to cells where he would not be subjected to smoke. These failed to produce results until 1999 where he was placed in a smoke free cell. In the same year the applicant was diagnosed with pulmonary fibrosis4. In February 2005, the applicant was placed in a cell with two prisoners who smoked for nine months but was transferred after requests. The applicant was also transported on several occasions between the prisons and court where he was held in cramped conditions, with little ventilation, where he alleged he was also subjected to passive smoking. In 2008, the applicant was diagnosed with grade two chronic obstructive bronchopneumopathy5. The applicant took proceedings against the prison on the basis that the respiratory diseases that he suffered from were caused by subjection to passive smoking. The prison disputed the applicant’s claims and argued that it was impossible to separate smokers from non-smokers in prison. The domestic court accepted the prison’s argument and rejected the applicant’s complaint, further finding that the applicant had not provided proof of the alleged damage.

The European Court in this case held that, because the applicant suffered from chronic pulmonary fibrosis, the authorities were under an obligation to take measures to safeguard his health by separating him from prisoners who smoked. The European Court highlighted that the conditions of transportation to and from the domestic court had been contrary to the doctors’ advice to avoid exposure to tobacco smoke. The Court further held that the onus was not on the applicant to prove that passive smoking had led to the deterioration of his health, and stated that the prison had not proven beyond a reasonable doubt that the applicant’s ill-health was not caused by passive smoking. As such, the Court held that there had been a violation of Article 3.

What is clear is that the European Court now views serious forced exposure to passive smoking which results in medical problems to constitute a violation of Article 3, at least when the passive smoking takes place in prisons. The cases do raise some interesting questions concerning the potential that subjection to passive smoking could lead to findings of violations of Article 3 outside of prisons6. Could the decisions in Florea and Elefteriadis be the starting point of for the European Court to develop jurisprudence which might lead to the banning of passive smoking in other public places?

For the mean time, it appears that the jurisprudence is confined to prisons and to have a successful claim applicants will have to demonstrate that adequate precautions were not taken to protect them from passive smoking, and subsequent ill-health. It should also be pointed out that, in prison, detainees are held by the state and therefore entitled to more interventionist state action to protect their health. As well as this, as claims are taken and dealt with by the European Court under Article 3 the level of suffering endured by the applicant must be proven to be severe to be considered to be ‘inhuman or degrading’ and fall within the ambit of the substantive provision. However, it might be suggested, in light of the above, that individuals who have not been adequately safeguarded from the effects of passive smoking by other public authorities could potentially challenge the state on the issue if they demonstrate that their health has deteriorated due to subjection to passive smoking. If they were to do so, the onus will be on the member state to prove that there was no causal link between the passive smoking and the applicant’s ill-health. Potentially, therefore, there is a possibility that it may not be long before an applicant takes a case to the European Court, and is successful in challenging a state for not enforcing a smoking ban in public places. This could have wide ranging implications across Europe for those who are subjected to passive smoking on a regular basis. In Russia, for example, a full smoking ban is not in force and smoking is permitted in bars and restaurants7. This is similar in other European states including Slovakia8 and the Czech Republic9. In Albania, a smoking ban is in place, but is largely ignored10.

Neil Graffin
PhD Candidate
Queen’s University of Belfast

References:

1 Florea v. Romania, (Application no. 37186/03), Judgment of 14 September 2010 (2010); This case is only available in French, however, a summary can be found on the page below, or through the press release on HUDOC. http://sim.law.uu.nl/sim/caselaw/Hof.nsf/1d4d0dd240bfee7ec12568490035df05/83ff6f5c75014d78c1257797002d1151?OpenDocument
2 Aparicio Benito v. Spain, (Application no. 36150/03), Judgment of 13 November 2006, (2006)
3 Elefteriadis v Romania, (Application no. 38427/05), Judgment of 25th January 2011, (2011); this Judgment is in French only, but a summary of the case can be found in the press release through HUDOC or at the link below:
http://sim.law.uu.nl/sim/caselaw/Hof.nsf/1d4d0dd240bfee7ec12568490035df05/98bd79380a81192fc125782200522e97?OpenDocument
4 Pulmonary fibrosis means scarring (thickening) of the tissue of the lung.
Scarring is part of the body’s repair process and can help to heal injured areas. However, scar tissue that forms in the lungs can stop them working properly, making them less efficient at transporting oxygen into the blood and removing carbon dioxide. This often leads to breathing difficulties, which can be brought on by simple activities such as walking and talking. (See: http://www.nhs.uk/conditions/pulmonary-fibrosis/Pages/Introduction.aspx)
5 Disease of the bronchi and lung tissue. (See, http://medical-dictionary.thefreedictionary.com/bronchopneumopathy, accessed 14/09/2011)
6 For discussion concerning this, see: Eva Brems, ‘Forced exposure to passive smoking violates human rights’ Available at:
http://strasbourgobservers.com/2010/09/24/forced-exposure-to-passive-smoking-violates-human-rights/
7 http://www.usatoday.com/news/world/2007-05-25-smoking_N.htm (Accessed 14/09/2011)
8 http://spectator.sme.sk/articles/view/20568 (Accessed 14/09/2011)
9 http://www.praguepost.com/opinion/7561-petition-pushes-for-czech-smoking-ban.html (Accessed 14/09/2011)
10 http://www.balkaninsight.com/en/article/albania-urged-to-enforce-smoking-ban (Accessed 14/09/2011)

Reflections on Cherie Booth’s Lecture.

In her inaugural lecture as Visiting Professor of the Open University, Cherie Booth QC spoke eloquently on the struggle for women’s rights across the world and highlighted a wide range of issues, from the sentence of lashings given this week to a Saudi woman caught driving to the low number of women in boardrooms. Nobody can doubt the massive impact Cherie’s campaigning has had across the world and particularly in the developing countries where her foundation has helped open doors for women to be active in politics and community building. But looking at the situation closer to home I can’t help thinking that she, along with may other women’s rights campaigners, is barking up the wrong tree!

The focus of those campaigning for better representation of women in the higher ranks of business generally focuses on flexible working and legislation to force companies not to discriminate against women with caring responsibilities. I’m not going to argue against that plan but if you want true equality we should also be campaigning for the right of men who take time out of work to fulfil caring duties. Whilst it is socially acceptable for women to take a career break to bring up baby, there is a problem for men who choose to take on the caring role and they frequently find it even harder to re-enter the workplace. I suspect the only reason we don’t hear about that much is that there aren’t many of them nd therein lies the problem.

If we really want a society where women are treated equally it is just as important to ensure that men are treated equally. We need a cultural shift both in the workplace and at home to a situation where job work and home work tasks are divided by personal decisions and not set by cultural norms. In a society where it is equally likely that men or women take career breaks to fulfil the role of carer there would no longer be any reason to discriminate against women and the problem is solved.
Whilst campaigners focus on making workplaces accommodate the additional home work expectations placed on women we will not make true progress towards an equal society – the end result is that women take on high powered jobs in addition to most of the home work so effectively having two jobs.

There is no question that Cherie has had an amazing journey from her working class routes to being the very successful lawyer she is today. I am in complete awe of her achievements and pleased that she is there to stand up for women’s rights, including my rights. But the amazing thing is that she has managed that at the same time as supporting her family. I can’t help wondering what else she would have done if the social norm had been for Tony to be responsible for changing the nappies!

Things are slowly changing but we can’t hope to get equality in women’s careers without a parallel change to having equality in our homes. The new age man who “helps around the house” is a step in the right direction but we need to go further. It’s time for men to take responsibility within our homes and societies and to play a full part in the world outside the workplace. And in return women can no longer expect their male partners to be the breadwinners.

It’s not just because I want some help with the washing, I genuinely believe that men have a lot to offer and a lot to gain from us all rebalancing our job work and home work. Unfortunately I don’t expect such a cultural shift within my lifetime but I am hopeful for the next generation. In the meantime I’ll gratefully accept a little “help around the house” and put up with the imbalance of money and home work that my partner and I bring to our household.

Linda Robson
The Open University

Is the Government being weak by refusing to consider reform of cohabitation laws?

Last week the government announced that they had no plans during this parliament to implement the Law Commission’s 2007 proposals regarding the consequences of relationship breakdown for cohabiting couples. Perhaps this is not surprising given the reactions of (generally) right wing commentators who fear that giving legal rights and responsibilities to cohabiting couples will de-value marriage. A quick internet search of commentaries at the time of the passing of the Civil Partnership Act 2004 (when Lord Lester initially proposed allowing heterosexual couples to register their partnership – this proposal did not proceed and the Act only applies to same sex couples) and when the Law Commission report was published in 2007 demonstrates the depth of feeling and wide divergence of views concerning this issue.

Despite a common belief in the myth of the “common law husband or wife”, there are no specific laws in England and Wales at the present time giving legal status, rights or protection to couples who live together outside of marriage (or civil partnership for same sex couples). In Scotland, a scheme for cohabiting couples was introduced by the Family Law (Scotland) Act 2006. In England and Wales, when a relationship ends, whether by separation or death, any dispute relating to property or finance is dealt with under general land and trust law or the intestacy rules. In general terms this means that individuals retain the property in their own name and will have no claim upon property or belongings owned by the other, unless they can establish a claim using complicated land and trust law concepts. This causes most difficulties and hardship where the couple have lived together for years in a house which is legally owned by only one of the couple. Upon separation, the other will have no claim upon the property, regardless of the number of years they have lived together, whether they have children or the contributions the non-owning partner has made to the household expenses.

Other problems arise when one of the couple dies and there is no will, for under the intestacy rules there is no provision for the surviving partner to inherit unless they can establish their dependency upon their late partner. Any property or belongings will therefore go to the nearest family member. This contrasts with the legal rules for spouses, where on separation and divorce the courts are able to consider all property owned by either spouse (whether in joint names or sole name) and distribute the assets between the individuals. On death under the intestacy rules spouses have an automatic right to inherit some of the assets left by the other.

This is a “marmite” issue – on the one hand, it is argued that this lack of specific legal provision for cohabiting couples reflects the fact that those who live together have chosen not to get married, and therefore reflects a lesser commitment to the relationship. They also point to the fact that those living together can protect themselves through measures such as placing property in joint names, entering into a cohabitation agreement and making a will.

Others argue that this ignores the reality of family life today. An increasing number of people are living together rather than marrying, and there are many children born to cohabiting couples rather than married ones. Many who live together believe that they have rights as cohabitants, and the first time they realise this is not the case is when the relationship breaks down or their partner does. Even if they understand that there is no such things as a common law spouse, consideration of what will happen when the relationship ends is far from their minds when they start living together. Research commissioned in 2006 by the Ministry of Justice into the behaviour and attitudes of a group of ‘legally aware’ cohabitants showed that while a significant number stated that they intended to take action to protect their position as cohabitants, few if any had actually done so by the end of the project for a variety of different reasons.

The Law Commission’s report in 2007 concluded that cohabitants should not be given the same rights as married couples and civil partners in the event of their separation. However they recommended a new scheme of financial remedies available for those couples who had a child together or who lived together for a minimum period of time (to be agreed by Parliament). There would be the possibility of couples agreeing to opt out of the scheme. These proposals attracted equally strong praise and condemnation.

At the present time the government has no immediate plans to look at these proposals or to give them parliamentary time. Whilst the reasons for this is not clear, it is easy to speculate that a conservative government has little appetite to confront the claims that any changes will damage marriage and “traditional” family life. However this ignores the hardship to individuals and children and the injustice that can result from the current law and the public’s ignorance of their legal status. Whether the Law Commission’s specific proposals are adopted or not, given social attitudes and behaviour in the 21st century it is hard to escape the conclusion that the law is outdated and does not deal adequately with the issues arising from the breakdown of relationships today. Governments are elected to deal with difficult issues, and I hope that any delay in looking further at these proposals will not be long.

Liz Hardie
The Open University Law School

Crime, War and Radio 4

I heard Tony Blair on the Today Programme this morning, talking about the world after 9/11 and the War on Terror. His central argument seemed to be that Islamic terrorism stems from a flawed ideology and we cannot stop terrorism until we defeat that ideology. He said this could take a generation.

Contrast this with Liberty’s Shami Chakrabarti who argues that terrorism is a crime and should be treated as such. Reflecting on 10 years at the head of the organisation, she writes that the phrase ‘War on Terror’ simply encourages terrorists to consider themselves soldiers and allows governments to infringe civil liberties in the name of national security.

Whilst I broadly agree with her position, the compelling counter-argument is that the criminal law cannot provide effective mechanisms for stopping terrorism. This argument is stronger for international terrorism rather than the home grown kind. For example, it would have been impossible for the Americans to ask the Pakistani police to knock on Osama Bin Laden’s door and ask him a few searching questions about what he knew about 9/11.

However, if we do accept that the fight against terror is a war, it is not irresistible that we have to subscribe to Tony Blair’s argument that the enemy is a flawed ideology rather than a bunch of angry men. You can hate terror without telling those who might become terrorists that everything they believe in is a lie. My prediction is that we will be at war with the terrorists for as long as people like Tony Blair profess to understand the Koran and the concept of jihad better than they do.

A.Salsbury
Undergraduate Law Student, The Open University

Riots v Rights

 

The August Riots in England will of course provide fertile ground for a lot of commentary. Perhaps some commentary will point to a degrading ‘Broken Britain’ as a consequence of 30 years of individualism and profit seeking that has made poverty commonplace yet dishonourable.

 This comment is aimed however at more immediate concerns. It has been said that a good crisis should not go to waste. Our government has proved adept in making the best use of crises so far to pursue its ideological agenda. It should however be prevented from capturing the debate relating to the riots.

 The Conservative party has a stated desire to ‘amend’ the Human Rights Act. Based partly on misunderstanding and partly on covert strategy, it sees human rights as an impediment to effective social control. In an ironic way this mirrors the behaviour of New Labour that preached human rights while at the same time significantly undermined civil liberties.

 The replacement of the Human Rights Act with a charter of rights and responsibilities will be a massive retrograde step for Britain on two fronts. First, human rights are an anti-state discourse whereby the rights of the individual are asserted against intrusion by the state. This is incompatible with the idea of ‘responsibilities’ as hinted by the government. Secondly, amending the enabling legislation of the European Convention of Human Rights is likely to cause significant constitutional problems, considering that the ECHR is a matter of domestic law via EU law, as well as a matter of international law.

 Dreadful examples of social disintegration like the August riots need to be met by improving standards of human decency and civil cooperation. Allowing an anti-libertarian agenda to benefit from the thoughtless works of bands of criminals will do as much to prevent fixing ‘Broken Britain’ as the acts of vandalism themselves.

Dr. Ioannis Glinavos
Associate Lecturer, The Open University

The Legal Aid, Sentencing and Punishment of Offenders Bill. Commentary by Chris Hodge.

The long awaited and much debated Legal Aid and Sentencing Bill was announced on 2nd July 2011, with a very last minute adjustment, the name.  The name at the 11th hour was amended to include ‘Punishment of Offenders’.   Already the Bill has been accused of  “economic cleansing” by JUSTICE, and with many more showing their concerns that it leaves those who need it the most uncovered. This article does not aim to cover the whole Bill, if it did, we could be here until next week discussing it. Instead it offers an overview of some of the aspects of the Bill.

Despite the delays and the last minute tweaks the Bill still seems far from being complete with a mandatory sentence for repeat serious violent and sex offenders missing and the provision stating the delay of the release of such offenders until they are two thirds of the way through their sentence is also missing. Further missing are the proposals to criminalise squatting and provide a new safeguard for householders and others who apprehend burglars. This would lend to the suggestion that these measures were only agreed in the dying moments before the publication of the Bill. I wonder just how much thought and detail has gone in to these provisions, are they ready for the scrutiny about to come at them?

With huge cuts in legal aid clearly evident, Anthony Hurndall, founder of the Centre for Justice told The Guardian today that “This is a further erosion of one of the three central pillars of the welfare state – free access to justice. It is reported that more than 500,000 people will no longer qualify for legal aid under the proposed changes and it will be abandoned all together in areas that have long been assumed as safe from attack.” Mr Hurndall also went on to suggest it would negatively impact the Big Society notion being pushed by the Prime Minister. Ken Clarke in his ministerial statement this morning tried to allay such fears as he announced that “Fundamental rights to access to justice will be protected through retention of certain areas of law within scope and a new exceptional funding scheme for excluded cases.”  How this works is still to be seen. The Current scheme may not have been flawless, but to many it gave the access to Justice they deserve.

In the criminal law scene, advice at a police station seems to be subject to an attempt to cut funding here.  Section 12 states that Initial advice and initial assistance are to be available to an individual who is arrested and held in custody at a police station, IF he passes the section 20 financial resources test but in particular the Director MUST have regard to the interests of justice test. This has in a narrow reading, removed the free advice everyone is entitled to at a police station. However one could give it a wider reading, with the interests of justice test clearly taking priority, surely it is always in the interests of justice to be given legal advice at the police station, even if only by CDS Direct. It concerns me that such a key part of the system could be cut like this if on a narrow reading, it would be a nightmare to work consistently over the country as well as creating havoc in the courts as provisions such as s34(2A) Criminal Justice and Public Order Act 1994 rely on the suspect having advice. I appreciate Ken Clarke has said that legal aid will be retained where life or liberty is at stake as well as special needs cases, but will this be the case in the narrow reading of s12 as it is?

In the same part of his speech he did disclose that legal aid is being withdrawn from most private family law cases and squatters. You can look this in a number of ways, and I know many have, why should a squatter get help to keep your Land? But who are we to hinder the squatter’s legal right? Moreover for a long time it has been said that Mediation should be the way to sort out family dispute, but removing legal aid can only add heat to a volatile situation, when children are involved is this fair? Is this fair regardless of the presence of children?

Other proposals include:

  • Drug free wings. It would be naive of me to suggest Jails are drug free and shall remain that way, but surely the whole prison should be drug free and we should be working to eradicate drugs. By the introduction of drug free wings we are admitting defeat in cleaning out our prisons.
  • Eradicating indeterminate sentences in favour of pushing the life sentence more.

What it seems to me, in this austerity drive that has engulfedEuropeis that we are desperate to make cuts to save pennies and pounds. In the process already damaging cuts have been made, including to crucial services such as the Citizens Advice Bureau. Now the biggest blow of them all in the face of cuts to Legal aid, the key cog in the access to justice, this on top of making Conditional Fee Agreements harder to get. The outcome is still to be seen, after all the Bill has not even been passed yet. It just concerns me, lawyers, journalists, bloggers and academics alike that the latest events will force justice out of the hands of those in needs, leading to greater injustices, and consequently higher legal bills. This Bill is late, incomplete and smacks of class inequalities.  For now many people will offer an opinion but we are at an early stage, I am sure as the process goes further and we get closer to the complete and final version, myself and many more will be able to give a more full and proper opinion and analysis, until then it is a waiting game with the life of millions in the balance.

The Bill can be viewed in full here

Chris Hodge, Trainee Solicitor

2nd July 2011

Postscript

Thank you to Chris for this excellent and informative piece. Chris has his own blog which can be found at: http//legalhodge.wordpress.com where this piece was originally posted and reproduced with kind permission for our blog.

Peter Ward, Open University

Whistleblowing – A lose, lose situation?

WHISTLEBLOWING – A LOSE, LOSE SITUATION?

When I was a child we had a dog who, from time to time, would take himself off on jaunts.   We would watch, with a mixture of amusement and frustration, as he would trot past the lounge window, his head turned firmly in the opposite direction, presumably in the vain hope that if he could not see us, we could not see him.

    It would appear, judging by the recent phone hacking scandal, that News International have been operating with the same level of blinkered denial – keep looking the wrong way and so will everyone else.  Unfortunately that policy is now crashing fairly spectacularly on the buffers. This is not due, however, to any whistle blowing (i.e. revelations of malpractice) by NI staff, but because, initially, of a fairly innocuous story about Prince William having a knee injury. 

     In a recent article by Nick Cohen in the Observer (he notes that not one member of NI’s staff challenged the management and wryly comments that had they done so, “their editor would have fired them and in all likelihood they would never have worked in the media again.”  This conclusion does not appear to be without foundation. Cohen points, for example, to the case of Paul Moore, a risk manager for HBOS, who raised concerns about the level of lending in advance of the banking crisis.  His reward was to be made redundant and to be ostracised by the banking community ever since. 

Cohen makes a plea for the ‘law to save whistleblowers, not silence them’, but theoretically the law does that already.  The Public Interest Disclosure Act 1998 (“PIDA”)offers protection for employees making qualifying disclosures from victimisation.  It has been recognised for some time that whistle blowing might have averted, for example, the Clapham rail crash or the Ziebrugge ferry disaster, and the enactment of PIDA was an attempt to empower and encourage constructive whistle blowing.  Efforts have also increasingly been directed at encouraging corporate bodies to develop transparent policies on whistle blowing and a culture which values early disclosure of malpractice

 Despite this, many employees appear to remain ignorant of the protection available and frightened of reprisals if they raise concerns, perhaps with good cause.  Public Concern at Work, (‘PCAW’) a charity set  up to advise potential whistleblowers and promote greater awareness of the role and value of whistle blowing, has recently published a report on its website assessing the effectiveness of whistle blowing in the Care Sector.  One of its key conclusions is that more proactive promotion of ‘best practice whistle blowing arrangements’ is required, with more transparency and clarity in the process to ensure that it is sufficiently safe and straightforward for employees.

According to Nick Cohen, the Commons Health Committee is suggesting a different emphasis – the imposition by the General Medical Council, and other regulators of the NHS, of punishment where clinicians have failed to speak out.  I wrote an article some years ago for the Veterinarian Nursing Journal on the implications of similar requirements under a proposed new Code of Conduct for their profession.  My conclusions then were that this could lead to employees being caught in a ‘damned if I do, damned if don’t’ situation: if they did not report suspected malpractice, they risked being in breach of their contracts and, if they did, they risked victimisation, both in the immediate and long term. 

Cohen views the need to consider obligatory measures as a sad indictment on a cowardly society, but I have some sympathy with those caught in such a predicament.  It seems to me that legal compulsion of care sector employees can only be justified if it is accompanied by clear and supportive guidance and protection for employees and a shift in the mindset of their employers towards whistle blowing.  I suspect this will only happen if further resources are invested in the activities of organisations, such as PCAW, to educate and inform.  Ideally employees should report concerns, not because they have to but because they feel empowered and encouraged to do so in a culture which values public interest disclosure and is not, like my dog, determined to look the other way.     

Kate Ritchie, Associate Lecturer, The Open University

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