On the right to silence, all the rhetoric is deafening

David Dixon | SMH | 16 August 2012

Premier Barry O'Farrell's announcement of plans to restrict the right to silence in NSW has set off another rhetorical joust between civil libertarians and critics of this ''right''.

While one side complains about the loss of liberty, the other claims change is necessary because organised criminals exploit the justice process. But both ignore key empirical and legal realities.

Much has been made of the fact that England introduced this change in 1994. However, it should be understood the change was the result of a sustained police campaign that was about politics, not about the reality of criminal investigation.

The right to silence had become a symbolic issue in determining who controlled criminal justice. Its restriction went against the recommendations of two royal commissions and a mass of empirical research (some of it by me).

This research showed that the supposed link between silence and organised criminals was exaggerated, with police sceptical about the effect of the 1994 law on such criminals.

It also showed that real police interviews are unlike those seen in Law and Order and The Bill, in which suspects either refuse to answer questions or skilful police interviewers shift them from denial to confession. In reality, most suspects confess immediately or maintain their denial, whatever tactics police use.

Where is the evidence that a change to the right to silence is necessary?

There has been very little research conducted in Australia. However, in 2006 I conducted a study of every recorded interview across NSW for an entire year, which found a situation very similar to that in England.

The fact is, people tend not to use the right to silence: it's hard not to answer questions and it's usually against your interest to refuse to do so. If police have significant evidence against you, it's best to co-operate.

In my research, the notable cases of failure to answer questions involved young, alienated men who refused to co-operate with police as a mark of honour, even though there was plenty of evidence against them. Their confessions weren't needed, and changing the laws of evidence wouldn't have changed their behaviour.

Best practice in criminal investigation would require police to interview suspects on the basis of evidence rather than relying on a confession. The problems of the latter approach - police malpractice and miscarriages of justice - are well known from a series of high-profile cases in England, Australia and the US.

English police interviewing techniques have substantially changed since the 1990s: they increasingly rely on evidence collected before interview. Australian police are adopting the English approach.

If our police need more resources and/or powers to use phone tap and intercept evidence, DNA and CCTV, in order to provide the evidence needed before interviewing suspects, that's a separate, and equally controversial, debate. We need to talk about how criminal investigation can and should be conducted, not spend time on exchanges of rhetoric about the right to silence. If Premier O'Farrell gets his way, it is likely to have consequences that his government won't welcome. The European Court of Human Rights has ruled that silence can be used as evidence against defendants only if they had received legal advice before being questioned: how otherwise is a lay person to know what might harm their defence in court if they don't mention it to police?

So if NSW changes its law and an appeal goes to the High Court, the Court is likely to find that using silence against a person who did not have legal advice denies them the right to a fair trial.

This means restricting the right to silence has a major and very expensive corollary: the government would have to fund free access to legal advice and organise duty solicitors to be on hand in police stations.

England has done so since the mid-1980s. In the latest research in England, 48 per cent of suspects interviewed in police custody had legal advice. By contrast, almost nobody does in NSW, because there is no public funding or organised system (except for juveniles and indigenous people).

Providing publicly-funded legal advice would be massively expensive, yet it is an inevitable consequence of restricting the right to silence.

The O'Farrell government needs to be very careful what it wishes for.

Professor David Dixon is Dean of Law at UNSW. His books Law in Policing and Interrogating Images report empirical research on police questioning of suspects in England and NSW.

Public opinion and sentencing reform

Stephen Whitehead | nef | 14 May 2012

New research reveals a public that is more open to reform than those who claim to speak for them.

The prospect of a new crime and justice bill, heralded by last week’s Queen’s speech, is likely to re-awaken debate around the coalition’s sentencing policy. While its latest proposals around community sentences are still at the consultation stage, the bill is another step in the coalition’s programme of cutting costs and increasing transparency in the justice system.

The community punishment reforms in the consultation, and those in this week’s speech, are much more cautious however, than those that Ken Clarke had in mind when he took office in 2010. The much vaunted rehabilitation revolution has crumbled under heavy fire, most of it from his own side. Tabloids and Tory back-benchers lambasted his plans as soft on crime and out-of-touch with public opinion.

One of the key attacks was made by Tory peer, former deputy party chairman and part-time citizen of Belize Lord Ashcroft. In a 2011 pamphlet entitled Crime, Punishment and the People Ashcroft argued that increased use of community sentences ‘command woefully little support’ amongst the public. A stark opinion poll outlined the public’s verdict – 81% thought that sentencing was too lenient, while only 3% thought it too harsh.

The argument, then, was clear: the British public demand tougher sentences and to ignore them was both politically inept and undemocratic. But a more sophisticated investigation of public opinion casts doubt on this analysis. Researchers from Oxford University and London’s Institute of Crime Policy Research investigated the way in which the public made their judgements about sentencing. They found that when asked to consider a range of mitigating circumstances, respondents would often consider a community sentence even for a crime which in the real world would almost always result in custody. When given the hypothetical case of a person convicted of a serious assault, 69% of respondents thought a community penalty would be appropriate if it was a first offense, 65% if the offender was caring for small children, and 64% if the offender was remorseful and apologised.

While the hangers and floggers in parliament or Fleet Street may whip up a storm about any proposal which seeks to reverse or even slow the unsustainable increase in our prison population, this research suggests that the public are more open to reform than those who claim to speak for them. The obstacle for reformers then, is not one of public sentiment but rather of bandwidth. If they can overcome the myths around crime and sentencing and engage the public in a serious debate about who really needs to be in prison, they may find more traction than they expect.

Kenneth Clarke to 'wipe slate clean' for hundreds of thousands of ex-offenders

Alan Travis and Owen Bowcot | guardian.co.uk | 2 February 2012

Justice secretary wants to dramatically reduce the length of time ex-offenders must declare their convictions


The reform of the 1974 Rehabilitation of Offenders Act will see the period of time under which the convictions of medium-term prisoners will be 'spent' reduced from 10 years to four. Photograph: Mark Harvey/Alamy

The justice secretary, Kenneth Clarke, is to "wipe the slate clean" for hundreds of thousands of offenders by dramatically shortening the period during which they are obliged to tell potential employers about their criminal past.

The radical reform of the 1974 Rehabilitation of Offenders Act will see the time after which the convictions of medium-term prisoners are "spent" reduced from 10 years to four.

The convictions of short-term prisoners, serving sentences up to six months, will be spent after two years instead of the current seven.

The proposed reform will also cover hundreds of thousands of people who have recently been fined or ordered to serve community sentences. They will no longer have to declare their criminal record after one year instead of the current five.

The changes will raise the threshold for prison sentences that are never spent from two and half years to four, on the basis that sentence lengths are much longer now than when the period was fixed in 1974.

One factor that will limit the impact of the changes is that the period after which a conviction is spent will be counted from the day an offender completes their sentence rather than, as currently, from the date of their conviction. In the case of someone serving a prison term of two and a half years, this means it will become spent after six and a half years, rather than 10.

Age of criminal responsibility is too low, say brain scientists

Alok Jha | The Guardian | 13 December 2011

Parts of the brain responsible for decision-making and impulse control are still developing during a person's teens

The age of criminal responsibility in England, Wales and Northern Ireland could be "unreasonably low" given the emerging understanding of how slowly the brains of children mature, according to a report by the Royal Society. Widespread differences between individuals also mean that the cut-off age at which children are deemed fit to stand trial, at 10 years old, might not be justifiable in all cases.

The comments are part of an assessment carried out by a panel of scientists, lawyers and ethicists of how developments in neuroscienceand brain imaging should inform the future practice of law. Neuroscience and the Law, published on Tuesday, examines how scientific understanding of the brain has advanced in recent decades and the light this has shed on behaviour. The report also assesses the reliability of lie detector tests.

In England, Wales and Northern Ireland, a child is deemed fit to stand trial at the age of 10, but in recent years it has been shown that important changes in the brain's neural circuits go on well into a person's teens. In Scotland children cannot be convicted until they are 12.

"A number of psychologists have already shown that adolescents are not wholly responsible individuals and are inclined to take risks and behave in irresponsible ways," said Nicholas Mackintosh, an emeritus professor in the department of experimental psychology at the University of Cambridge and chair of the Royal Society panel. "What neuroscience has shown in the last 10 years is that this is at least associated with the fact that the brain continues to develop throughout adolescence."

In particular, the prefrontal cortex, which is responsible for decision-making, impulse control and cognitive control, is among the slowest parts of the brain to mature and is not fully developed until around the age of 20. "Neuroscience adds to the evidence that a 10 or 12 or 15-year-old does not have a fully adult brain in many important respects," said Mackintosh.

Swearing at police is not a crime, judge rules

Murray Wardrop | The Telegraph (UK) | 21 November 2011

Swearing at police is not a crime because officers hear foul language “too frequently” to be offended, a judge has ruled.

The decision by the Court of Appeal to overturn the public order conviction of a young suspect who repeatedly said the "F" word while being searched for drugs was last night condemned as "unacceptable".

Policing unions said the ruling would undermine respect for officers.

Overturning Denzel Cassius Harvey's conviction, Mr Justice Bean said officers were so regularly on the receiving end of the "rather commonplace" expletive that it was unlikely to cause them "harassment, alarm or distress".

Mr Harvey appealed against his conviction after he was fined £50 for bombarding police with foul language when they attempted to search him for drugs.

The 20-year-old objected to officers searching him for cannabis in Hackney, east London, and unleashed a tirade of verbal abuse, saying: “---- this man. I ain't been smoking nothing.”

When the search revealed no drugs, he continued: "Told you, you wouldn't find ---- all.”

Asked whether he had a middle name, he replied: "No, I've already ------- told you so.”

Magistrates at Thames Youth Court found him guilty in March last year after concluding Mr Harvey's expletives were uttered in a public area while a group of teenage bystanders gathered around.

"There were people around who don't need to hear frightening and abusive words issuing from young men," the magistrates said.

However, bringing his appeal, Mr Harvey challenged his conviction claiming that no one within earshot – let alone two hardened police officers – would have been alarmed, distressed or harassed by his swearing.

Allowing the appeal, Mr Justice Bean said the only people nearby were the police officers and the group of youths – many of whom may have been "sympathetic" with Mr Harvey.

The expletives he used were heard "all too frequently" by police officers on duty, said the judge, and so were unlikely to have greatly disturbed them.

As for those watching the incident, the judge said it was "quite impossible to infer that the group of young people who were in the vicinity were likely to have experienced alarm or distress at hearing these rather commonplace swear words used".

Peter Smyth, chairman of the Metropolitan Police Federation, said: “If judges are going to say you can swear at police then everyone is going to start doing it.

“I’m not saying that police officers are going to go and hide in the corner and cry if someone tells them to F off, but verbal abuse is not acceptable and this is the wrong message to be sending out.”

The ruling comes after police chiefs were accused earlier this year of surrendering to foul-mouthed louts by banning officers from arresting yobs who taunt them with swear words and offensive language.

Guidance issued by the Metropolitan Police – Britain’s largest constabulary with more than 32,000 officers – told front-line police not to act because the courts will not believe they have been upset by the abuse.

The directive states: “The courts do not accept that police officers are caused harassment, alarm or distress by words such as ----, ----, -------, or ------.”

Ken Clarke: the revolution that never was

Editorial | The Guardian | 28 October 2011

It has become plain that by ducking the argument, the justice secretary is losing it

A pragmatic man in an excitable field, Ken Clarke started out determined to get a grip on Britain's remorselessly rising prison population. Between his spell at the Home Office in the early 90s and his reincarnation as justice secretary, the number expensively – and for the most part aimlessly – banged up in England and Wales had doubled to 85,000. The average annual cost of keeping each there is £41,000. With crime under control, and cash painfully tight, Mr Clarke robustly explained why the great jail-building boom must stop. But then, with some singularly ill-chosen words, he created the offensive impression that some rapes were not serious, a misstep which stirred reactionary forces on both sides of the Commons to goad David Cameron into hacking chunks out of his reforms. Ever since, the justice secretary has made his case with an uncharacteristic lack of directness. This week it has become plain that by ducking the argument, he is losing it.

The frenzy around crime often retards the policy, and there were reminders of that on Friday in the rightwing press. Labour shamelessly seized on their claims that Mr Clarke was about to set 2,500 "dangerous offenders free". This was the supposed effect of replacing David Blunkett's malfunctioning indefinite sentences with harsher definite terms, a move which will affect future and not current prisoners, and which may – if Whitehall's hazy predictions prove right – put some downward drag on the overall numbers from around 2019. In other words, the wild men supposedly about to be unleashed on the streets might be individuals who have not yet committed any crime; and their earlier freedom – or not – would depend not merely on future parole decisions, but on other policies followed by Mr Clarke and indeed his successors. This move is nonetheless to be welcomed, seeing as release from indefinite sentences is arbitrarily dependent on whether the resources to assess prisoners as fit to be freed happen to be at hand, an injustice which, as Mr Clarke says, is "a stain on the system".

But of the many questions being settled through Mr Clarke's 11th-hour amendments to his own legislation ahead of parliamentary votes next week, this is the sole point on which he has prevailed. A long-term proponent of giving judges discretion to respond to the contours of the individual case, the justice secretary was slating mandatory sentencesthat tie judicial hands as recently as Tuesday. Yet by Thursday it had emerged that he would be legislating for a presumption to imprison youths as well as adults caught wielding knives, and for mandatory life sentences, until now used exclusively for murder, to be imposed on repeat offenders of certain other crimes.

"Two strikes and you're out" is a wheeze of precisely the same stripe as Michael Howard's three-strikes policy, which Mr Clarke holds up as a case study in bad law. The fact that it has the same get-out clauses that the Lords attached to the three-strikes law may limit the direct damage – the justice secretary says it will create 20 extra lifers each year. But he is being too pragmatic for his own good here, if he imagines that is the end of the matter. The rigid mandatory term for murder has long been a problem, and it is now being extended rather than reformed: a dangerous precedent for more reactionary justice secretaries to exploit in future.

More generally, since the riots we have had another spike in prison numbers, and all the pressures are pushing the same way: from increased magistrates' sentencing powers to the new knife edicts. These things were not in the coalition agreement. They are undermining the rehabilitation revolution, and with it the serious liberal case for this government. Besides, all past experience shows that it is punitive rhetoric more than detailed policies that leads to courts getting tougher. Mr Clarke did try, but ended up settling for fudge and mudge. And that won't do the job.

Legal aid: the new poor law

Editorial | The Guardian | 26 October 2011

Thousands of litigants will be denied legal support and forced to take charge of their own cases, without any clue about how to

Where you have notional rights, but not the means to enforce them, things always get messy. That much has been acknowledged since Henry VIII's day. A 1531 statute provided that subjects who could not afford court costs should not have to pay them – so long as they submitted to some other punishment, such as the pillory, in the event their case was lost.

Legal aid was designed to fill the justice gap for the poor in a more durable way. As it is rolled back through retrenching "reforms", the emerging disarray will make a pelting with rotten fruit seem like a tidy solution. Top judges are not given to opening their mouths unless they have something to say, and yet yesterday several supreme court justices told the Guardian about the disorderly logjam in prospect. Thousands of litigants will be denied legal support and forced to take charge of their own cases, without any clue about how to do so. It is like inviting people who have never even been car passengers to drive straight on to the motorway. And the court staff and clerks, who might previously have provided pointers away from the worst pile-ups, are being cut back as well.

Still worse damage will be done away from the courtroom. Whitehall dismisses the modestly paid solicitors who dedicate themselves to serving the poor as a "producer interest". But the pay freezes in prospect for other public servants are positively indulgent as compared to the hammering these professionals are already taking: yesterday Labour peer Lord Bach argued in vain against a statutory order for an outright cut of 10% in fees. Things will get very much worse with the legal aid, sentencing and punishment of offenders bill, which is coasting towards a third reading in the Commons next week. With the wholesale removal of state support from whole swaths of law, such as social security, the frail infrastructure of community law centres and advice bureaux could wither away. These not-for-profit outfits should be integral to any "big society", yet somehow their rent has to be paid, and, in practice, it has often been through legal aid fees. The government's own impact assessment does not disguise that very many will shut their doors.

A shame, but one that cannot be avoided in these fiscal climes, is the best argument ministers can muster. That really won't do. The Ministry of Justice might save but the exchequer will not do so, since unaided cases will soon translate into destitution that will continue to trigger costly interventions from various social services. A coalition that talks a good deal about English liberties should reflect on Lady Hale's reminder of an old saying, which is acquiring a chilling new resonance. "In England, justice is open to all – like the Ritz."

Magistrates were told to send rioters to crown court, emails show

Owen Bowcott | The Guardian | 14 September 2011

Emails sent to justices' clerks after August riots raise questions about judicial independence and the use of blanket guidance

Magistrates were urged to abandon sentencing guidelines when dealing with rioters last month because "nothing like this was envisaged", according to court documents released to the Guardian.

The text of two controversial emails circulated to justices' clerks immediately after August's disturbances raises questions about judicial independence and the use of blanket guidance irrespective of individual cases. One human rights group described the emails as "disturbing".

The messages appear to betray a sense of confusion – verging on chaos – behind the scenes as hundreds of suspects arrested for looting and violence were processed in late night emergency sittings.
The documents, written by a senior justices' clerk in the London regional office of Her Majesty's Courts and Tribunals Service (HMCTS), were released by the Ministry of Justice following a freedom of information request from the Guardian.

They were sent out on successive days at the end of the week in which rioting had started in Tottenham, north London, following a police shooting, before degenerating into widespread looting as it spread across the capital and other cities.

The emails were sent to justices' clerks, who sit alongside magistrates providing guidance on the law and sentencing recommendations. The first, addressed "Dear all", began: "I should be grateful if you would ensure that the following advice is cascaded to every member of your legal team as soon as possible.

"The sentencing guidelines cannot sensibly be used to determine the sentence in cases arising from the recent disturbances/looting. When the guidelines were written nothing like this was envisaged."
Most of those arrested for looting had been charged with "commercial burglary", it noted. "The general advice from the higher judiciary is that we will not be criticised if we return these … If in doubt, commit to the crown court."

Some of the words in the first email were missing. The second message read: "Apologies for the fact that the email … sent yesterday is confusing and frankly incoherent. The intention was that you should advise magistrates to commit to the crown court cases of commercial burglary, or handling … or violent disorder arising from the recent disturbances.

"There is a general acceptance that what occurred earlier this week is not covered by the sentencing guidelines and it will be very much the exception that such cases are sentenced in the magistrates courts …Hopefully before too much longer we may get some guideline cases."

Commenting on the emails, Sally Ireland, the director of policy at the civil liberties group Justice, said: "Justices' clerks can give directions to assistant justices' clerks under the Courts Act; however, the content of the email is disturbing. The application or disapplication of sentencing guidelines should be a matter decided on a case by case basis."

She also questioned the term "higher judiciary", saying: "In what way did they give this general advice? The higher judiciary does not have a role in allocation/sentencing by magistrates, except in the case of appeals and guideline judgments."

Paul Mendelle QC, a former chairman of the Criminal Bar Association, said: "The idea that established Court of Appeal authorities can be set aside or ignored by the secret advice from an anonymous civil servant strikes me as undemocratic at best and unconstitutional at worst.

"Blanket advice to magistrates to deal with all cases in one particular way – commit to crown court – regardless of the facts of the individual cases might be seen as an unlawful fetter on their discretion."
At the time the emails triggered alarm on at least one bench, prompting questions about magistrates' independence.

The week after the riots, Novello Noades, the chair of Camberwell Green magistrates court, in south London, claimed the court had been given a government "directive" that anyone involved in the rioting should be given a custodial sentence. She later retracted her statement and said she was mortified to have used the term "directive".

It has been generally accepted in courts in the legal and judicial world that participation in violent riots and looting should be deemed an aggravating factor, leading to harsher sentences than for theft committed as shoplifting.

John Thornhill, chairman of the Magistrates' Association, said: "Magistrates and legal advisers work as a team in court with the legal advisers having a role in law to advise the magistrates on all matters relating to the law and the magistrates making independent decisions based on any advice given ... this note refers to the issue of mode of trial decisions. Magistrates have to decide whether the maximum sentence of six months custody is sufficient for a single offence and if not then the matter is sent to the crown court.

"It is not in any way outside guidelines as statute allows the judiciary to raise the seriousness of an individual offence after taking account of the harm caused, the culpability of the offender and any aggravating features such as an offence committed during grave disorder."

Some sentences handed down immediately after the riots in August were criticised as being off the judicial scale. The former director of public prosecutions Lord Macdonald warned courts risked being swept up in a"collective loss of proportion". One person got six months for stealing £3.50 worth of water. Two youths were jailed for four years each for inciting riots on Facebook that never took place. Some sentences have since been overturned.

Unusually, the Ministry of Justice provided an accompanying explanation with the emails, rebutting any suggestion that magistrates had been inappropriately influenced by government officials or that the independence of the judiciary had been compromised. "HMCTS is not involved in any guidance justices' clerks choose to give to magistrates, as this guidance is given whilst acting in a quasi-judicial capacity," it said.

"It did not contain any direction by HMCTS or the Ministry of Justice on how anyone should be sentenced. Nor were there correspondence or conversations with the justices' clerks on any guidance prior to its issue."

The statement continued: "We believe there is a strong public interest in ensuring there is confidence in the independence of the judiciary and we do not want this to be undermined by a perception the government has inappropriately issued any directions as to the types of sentences which should be handed down."

According to the latest MoJ figures, Some 1,715 riot-related suspects have so far appeared before magistrates courts, two-thirds in London.

A lawyer in London

The Law Report | 23 August 2011

Meet London defence lawyer Bruce Reid and his rioting clients: the 20-year-old pregnant mum who stole a vacuum cleaner, the middle class student who's jeopardised a promising career over some stolen clothes, and the bank clerk arrested in a ransacked mobile phone store.

Listen to interview with Bruce Reid by Erica Vowles.

Sentencing remarks: The Queen v Stephen Carter, David Beswick, Linda Mary Boyd, Michael Gillespie-Doyle

Punish the feral rioters, but address our social deficit too

Ken Clarke | The Guardian | 5 September 2011

Three-quarters of the adults charged already had a conviction, which is why urgent reforms are needed

I've dealt with plenty of civil disobedience in my time, but the riots in August shocked me to the core. What I found most disturbing was the sense that the hardcore of rioters came from a feral underclass, cut off from the mainstream in everything but its materialism. Equally worrying was the instinctive criminal behaviour of apparently random passers-by. What are the lessons for the justice system?

The first is that disorder on our streets must be met with a firm, fast and sustained response. The system was briefly caught unawares, but tested like never before, and ultimately gave a quick and definitive answer to those who thought they could commit crime without consequence. It's thanks to the police officers who cancelled leave, the staff who kept courts open all hours and the judiciary who worked through the night that rioters high on violence soon found themselves facing the cold, hard accountability of the dock. I am hugely impressed by the dedication of our staff, some of whom worked 35-hour shifts to ensure the efficient delivery of justice. These are public-spirited people, doing their duty in the best traditions of public service. The criminal justice system was itself on trial and, though it's still early days, so far it has coped well. It has the capacity – whether in courts, in prisons, in prison transit or probation – to deal with those who come before it.

The second lesson of the riots is that they reaffirm the central point of any sane criminal justice policy: where crimes have been committed, offenders must be properly punished and pay back to the communities they have damaged. The scale of the violence and looting was new, but crimes like arson and burglary are not – and our courts do deal severe punishments to serious offenders.

'Deaths in custody' corporate manslaughter crime created

BBC Online | 1 September 2011 

Police and other authorities can now be prosecuted over deaths in custody in England, Scotland and Wales.

Legislation which has now come into effect means police forces, the MoD, UK Border Agency and private firms managing people held in custody can be prosecuted for corporate manslaughter. The main legislation came into force three years ago but ministers gave public bodies which hold people in detention until now to prepare for it.

Campaigners have welcomed the change.

Corporations can already be prosecuted for corporate manslaughter or for the equivalent offence (corporate homicide) in Scotland. The extension of these offences to public bodies involved in detention means they could be prosecuted if they failed to ensure the safety of someone in their care.

Examples could include deaths during an immigration removal or when someone has been restrained using an unauthorised or badly taught body hold.

The law does not cover incidents abroad, such as where someone dies in the custody of British forces. However, British nationals can be convicted of causing a death through gross negligence, even if the fatality occurred overseas.

The provisions are not retrospective, meaning the law could not apply to cases such as Jimmy Mubenga, an Angolan man who died during his deportation in October 2010.

Jonathan Grimes, a health and safety lawyer with Kingsley Napley, said: "Existing law already allows a criminal prosecution of police officers, prison officers or others responsible for detaining members of the public, following a death in custody, where negligence on the part of these individuals can be proven to have contributed to the death.

"The Corporate Manslaughter and Homicide Act is about holding an organisation to account where its negligence causes a death.

"As such the change is to be welcomed, not least since it may focus custody-providing organisations on ways they can ensure the safety of those they are responsible for detaining."

Inquest, a campaign group, said that since 1990, juries had returned 12 verdicts of unlawful deaths in custody at coroner's inquests - but there had been no successful prosecutions. Juries now tend to return narrative verdicts in recent years, exlaining the circumstances of the death in custody.

Helen Shaw, co-director of Inquest, said: "While not all deaths in custody are a result of grossly negligent management failings that would lead to consideration of a corporate manslaughter prosecution, many of Inquest's cases have revealed a catalogue of failings in the treatment and care of vulnerable people in custody.

"The new provisions provide a new avenue to address these problems and will hopefully have a deterrent effect, preventing future deaths and could also have a key role in maintaining confidence in public bodies by addressing the accountability gap that currently exists following a death in custody."

Case study: Mikey Powell

In 2003, Mikey Powell died of positional asphyxia while being transported in a West Midlands police van. Ten police officers were cleared at trial and the force said lessons had been learned. Mr Powell's cousin, Tippa Naphtali, has welcomed the changes.

"Until now, families like ours could only prosecute or pursue the individual officers involved in a death in custody," he says.

"If that was the situation in Mikey's case, we would have the opportunity to hold the institution accountable. Now that this has become law, senior police officers will be a lot more careful about how prisoners are treated.

"I believe it will curtail the behaviour of certain officers and officials and we should see a massive reduction in deaths in custody. The institution itself can no longer hide behind crown immunity."
Legal briefing on Mikey Powell's death by Doughty Street Chambers

Do we have a fundamental right to film the police in public?

Hugh Tomlinson QC | The Guardian | 31 August 2011

English case law is unclear, but rulings in the US and Strasbourg suggest we do have a right to photograph public officials

As a number of recent cases have made clear, filming policing activity in public places is a vital method of holding police to account. But there have been continuing tensions between the police and photographers over the practice. In January 2010 there was a protest in Trafalgar Square by photographers against the use of terrorism laws to stop and search photographers. A campaign called "I'm a photographer, not a terrorist" was launched to protect the rights of those taking photographs in public places.

However, although guidance issued by, for example, the Metropolitan Police has made it clear that

"Members of the public and the media do not need a permit to film or photograph in public places and police have no power to stop them filming or photographing incidents or police personnel"

this often does not appear to have come to the attention of individual police officers (or security guards).

There have been some successful complaints about the use of police powers to prevent photography (see, for example, the complaint by Jess Hurd) but there is no English case law on the relationship between the right to take photographs of the police and freedom of expression. Advances in technology has meant that the legal issues have arisen in a number of different jurisdictions (see "Is filming the police a felony or a right?").

In this context, a recent decision from the United States is of considerable interest. In the case of Glik v Cunniffe (26 August 2011) the US Court of Appeals for the First Circuit held that there is a First Amendment right to record police activity in public. Glik was arrested on 1 October 2007, after openly using his mobile phone to record three police officers arresting a suspect on Boston Common. He was charged with criminal violation of the Massachusetts wiretap act, aiding the escape of a prisoner and disturbing the peace. The charges were dismissed but, with the assistance of ACLU, Mr Glik brought a claim alleging, inter alia, that the police officers violated his First Amendment right to record police activity in public. The Judge refused to dismiss the claim on the basis of qualified immunity and the Court of Appeals dismissed the police appeal holding that

"Glik was exercising clearly-established First Amendment rights in filiming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause."

It was noted that

"Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting "the free discussion of governmental affairs".

The court's conclusion will resonate with photography campaigners in this country:

"A citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."

The Citizen Media Law Project and the Thomas Jefferson Center have posts about the case.

Although First Amendment jurisprudence is not always consistent with the approach of the English or European Courts, the principles set out in this case are ones which appear to be consistent with the Convention's approach. The importance of the right to gather information for the purposes of promoting public debate has been repeatedly recognised by the Strasbourg court and strongly suggests that there is a fundamental right to take photographs of the activities of public officials - particularly police officers.

Restorative justice after the riots?

Paul Carter-Bowman | The Guardian | 27 August 2011

As a former young offender I know rehabilitation in prisons is lacking. But it was a letter from my victim that made me change

After the crimes, the punishment. Sentences handed down barely a fortnight after the mass riots across England have included prison terms of up to four years, where those on the receiving end will spend around two entire years in prison, with the latter part of their terms served on probation within the community. Of the 1,474 who have already appeared before the courts, over 1,000 have been remanded to custody, which, to you and I, means spending time in prison.

But what can we expect our prisons to achieve with these rioters?

In 1999, at the age of 16, I phoned the police and handed myself in for a violent offence I had committed the previous evening. I did this thinking that the punishment I would receive would be no more or less than what I deserved, and believed that it would serve a purpose beyond simplistic retribution. I was aware that I had overstepped the boundaries set down by society, that I had become a dangerous individual. I expected to be taught a lesson and, perhaps naively, that I would emerge from my punishment a reformed character.

However, from the moment I entered Reading young offenders institution, it was clear that the practice of prison did not include reform or rehabilitation. There was no interest from either the regime or the guards who kept us. The point of prison was simply to keep me there. This would, theoretically at least, make sense if I was to never be released. But after pleading guilty to grievous bodily harm, the sentence I received was four and a half years (I went on to serve three).

Indeed, of the thousands of young people aged 15 to 21 whom I shared prisons with, not a single one received a sentence that would keep them out of society for their anticipated natural lives. A couple committed suicide, one was murdered by his cell-mate, and several will still to this day be awaiting parole from a life sentence, but everyone else has since been released back into the community. Ministry of Justice data confirms that 75% of young people reoffend within a year of being released from prison, and no doubt many of the others just evade capture.

Riots sentencing: a sinister attempt to upend the judicial process

Vera Baird | The Guardian | 18 August 2011

When people are rightly angry it's the duty of the courts to punish more severely – but not to do as the government tells them

National revulsion and popular demand for punishment are dangerous things. They licensed the rule-bending that miscarried justice in the 80s, for the Birmingham Six and Guildford Four. In the miners' strike, once Margaret Thatcher had called the NUM "the enemy within", it was next to impossible to get them honestly policed or fairly tried.

How far from that danger re-emerging are we now when David Cameron asserts that everyone involved with rioting, however peripherally, should expect to go to jail; 100,000 sign a petition for those convicted to lose their benefits and councils intend to evict people who live in the same house as culprits, just for being their brother, sister or grandparent?

The Guardian reported this week that magistrates' clerks had "instructions" from a "senior clerk" to advise the bench to disregard all sentencing guidelines and jail every riot defendant. This is apparently a policy directive from the courts service, the government department that administers the courts. It is not from the higher judiciary, who speedily distanced themselves from it.

We are only aware of it because the chair of Camberwell Green magistrates, Novello Noades, blurted it out. She called it a "directive" but retracted the description later when presumably somebody reminded her that she is supposed to be an independent member of the judiciary.

Draconian sentences, weak-kneed liberals and why thugs need to fear the law

Stephen Glover | The Daily Mail | 18 August 2011

A magistrate or judge handing down a sentence normally has two main considerations in mind.

One is the right punishment for the offender. The other is the deterrent effect on others.

We should not be at all surprised that, following last week's riots, much more emphasis than is usual is being placed on the deterrent effect.

A crime which in normal times would lead to a small prison sentence, or very possibly no sentence at all, is now likely to attract a swingeing penalty.

In other words, the context in which the crime was committed is rightly judged to be of crucial importance.

Two young men who posted messages on Facebook last week inciting people to riot in their respective home towns have both been sentenced to four years in prison by a judge at Chester Crown Court.

If either of them had done exactly the same thing six months ago, they would have barely been noticed. At most they would have received a rap on the knuckles from the police, and perhaps a caution.

As it is, Perry Sutcliffe-Keenan and Jordan Blackshaw have each received a punishment intended to deter which some people may think excessively harsh.

The justification for the sentence is that their call to violence, delivered at the time it was, supposedly caused some general panic in Warrington and Northwich.

Judge Elgan Edwards QC also said that 'considerable strain' was placed on hard-pressed police officers who were trying to control the riots.

Context is all-important: that is the message which critics of seemingly draconian sentences should take on board.

Last week saw the biggest outbreak of mindless criminality that this - and probably any other civilised - country has experienced in modern times.

Tough measures are needed in such unprecedented circumstances.

But it does not follow that every sentence that has been handed out in the past few days is proportionate. Most of us will have noticed punishments which, notwithstanding what I have said, do seem excessive.

Some police officers fended off gangs of youths intent on ransacking shops and retail centres, but are the sentences for looters appropriate?

A 23-year-old student with no previous convictions has been jailed for six months after he pleaded guilty for stealing six bottles of water said to be worth £3.50 as he was passing a looted supermarket in Brixton.

What a stupid idiot. But, especially in view of his good character and the contrition he showed to the police and magistrates, was this an appropriate punishment?

Harsh riot sentences could cause appeals logjam, say rights groups

Owen Bowcott, Helen Carter and Shiv Malik | The Guardian | 17 August 2011 

Riot-related jail terms must be balanced against justice and proportionality, say campaigners

Civil liberties groups have warned that the court system will be clogged with appeals by people convicted of riot-related offences seeking to overturn lengthy terms of imprisonment.

"We know the courts are swamped with cases and handing down hurried and overly punitive sentences [that] will result in many criminal appeals which will act as a further drag on the system," said Andrew Neilson, director of campaigns for the Howard League for Penal Reform.

"While it is understandable that the courts have been asked to treat the public disturbances as an aggravating factor, this should be balanced against the key principle of criminal justice – that of proportionality."

The Sentencing Council for England and Wales, which produces guidelines for judges, has not met since the riots and insisted on Wednesday that there had been no discussions regarding the appropriate sentencing of rioters. The Ministry of Justice also denied asking the council to amend its guidance on future unrest.

Gillian Guy, a solicitor and member of the council and chief executive of the Citizens Advice Bureau, said that if magistrates had been told to disregard the guidelines, "then they must be satisfied that to apply the guidelines would be contrary to the interests of justice".

She added: "There's not one sentence for each crime. There has to be a range, because there are various factors that come into play. There's room within the range to take into account … other activity that's going on. We look for consistency and fairness and whether people understand what's going on."

Why CCTV has failed to deter criminals

Cory Doctorow | The Guardian | 17 August 2011 

As the recent UK riots showed, CCTV does nothing to prevent criminal behaviour

I've lost track of the number of people who've asked me to comment on David Cameron's insane plan to cripple Britain's internet in times of civil unrest by blocking Twitter and other services. In case you're wondering where I come down on it, well, let's say that it's not just a bad plan, it's also an ineffective one.

It's only been a week, after all, since Cameron's government concluded that the Digital Economy Act's web censorship plan wouldn't be implemented because downloaders would have no trouble getting around the blocks it would throw up. If people who want to download movies can evade Britain's censorwall, then so can people who want to organise riots. Duh.

But for me, the use of BlackBerrys in organising riots (if "organise" is the correct verb here) is just a sideshow. Though as a Canadian, I'm fascinated to see that our national technology success story, the businesslike BlackBerry, has now enduringly entered pop culture's lexicon as the tool of choice for disaffected and violent youth.

The real story for me is about surveillance, and not the mere use of CCTV footage to apprehend rioters after the fact. It's about the total failure of CCTV to deter people from committing crimes in the first place.

After all, that's how we were sold on CCTV – not mere forensics after the fact, but deterrence. And although study after study has concluded that CCTVs don't deter most crime (a famous San Francisco study showed that, at best, street crime shifted a few metres down the pavement when the CCTV went up), we've been told for years that we must all submit to being photographed all the time because it would keep the people around us from beating us, robbing us, burning our buildings and burglarising our homes.

A year before the Vancouver Winter Olympics, a reporter from a one of the local papers called me to ask whether I thought an aggressive plan to use CCTVs in the Gastown neighbourhood would help pacify the notorious high-crime heroin district. I said that the deterrence theory of CCTV relied on the idea that the deterred were making smart choices about their futures and would avoid crime if the consequences might catch up with them.

Then I recounted my last trip through Gastown, where the pavements were thronged with groaning and unconscious emaciated addicts, filthy and covered in weeping sores, and asked if those people could be reasonably characterised as "making smart choices about their future." I explained how my hire care had been broken into by a thief who'd left four perfect fingerprints on the passenger window, not caring whether the crime was associated with her or his biometrics forever.

Funnily enough, I was in Vancouver during the riots, which took place quite close to my home in London. I went through Gastown, which is utterly transformed into a pleasant shopping and university district. Simon Fraser University very carefully and cleverly slotted a new campus into the middle of Gastown, and hired only local people to work in it.

It was the very model of giving people a chance and a stake in their neighbourhood. And while there are still some sad and disfigured junkies here and there, you'd never know that Gastown was recently notorious as the most drug-blighted neighbourhood in the city that is the major port of ingress for heroin into the Americas.

I won't pretend to understand the forces that led my neighbours to take to the street and smash and burn and hurt each other. I don't think I know what "pure and simple criminality" is – presumably, it's some imperceptible pollen that drifts through society and alights on people, which is awfully convenient for government because "pure and simple" criminality has no cause and therefore no one to blame and nothing that can be done to prevent it.

But I do understand one thing: the deterrence theory of surveillance had no nexus with the motivations of the rioters. The theory of street crime as a rational act is bankrupt. Evidence-led CCTV deployment shows us where CCTV does work, and that's in situations where crimes are planned, not pulled off in the heat of the moment.

Parking garages, banks and jewelry stores, yes – but the idea that we can all be made to behave if only we are watched closely enough is bunkum. We behave ourselves because of our social contract, the collection of written and unwritten rules that bind us together by instilling us with internal surveillance in the form of conscience and aspiration. CCTVs everywhere are an invitation to walk away from the contract and our duty to one another, to become the lawlessness the CCTV is meant to prevent.

After the London riots, one thing is certain: anyone promoting CCTVs for deterrence is most likely selling something, probably CCTVs.

Dealing with the looters – a beak speaks

Larry Elliott | The Guardian | 11 August 2011

Magistrates aren't soft, but a spell behind bars won't solve the problems of young offenders I see.

The lawlessness seen on the streets of London and other English cities appears to have come as a shock to politicians. It will have come as no surprise to lay magistrates sitting in the youth courts. I know, because twice a month I take time off from charting the global financial crisis to sit as a justice of the peace.

In my experience, stretching back almost 20 years, the young offenders who come up before the beak fall into two broad categories. A minority turn up neatly dressed and with both parents in tow. They are still in full-time education, have the prospect of university and a decent career, and tend to be accused of relatively petty offences: a bit of drug-dealing perhaps. The parents hate being in court and the young offender knows it. They feel burning shame for the humiliation they are heaping on their mum and dad. It is often the first time they have appeared in court and they are scared.

In the other camp, there are those offenders who turn up late offering a litany of lame excuses. Before the case can begin, they have to be told to take their hands out of their pockets, turn off their mobile phones and stop chewing gum. Only rarely do they turn up with both parents: usually it is the mother, but quite often they are on their own. When magistrates retire to read the pre-sentence report, they can usually have a good guess at the contents: learning difficulties, excluded from full-time education, a history of physical and sometimes sexual abuse, living in a household dependent on benefits.

Magistrates are encouraged to engage with young offenders but it is hard going. The teenagers are trained by their defence lawyers to express remorse but are not entirely convincing when they say they feel sorry for their victims. There's not much sign that they respect the court, let alone fear it.

From the bench, what magistrates see is a raging bundle of id impulses, the desire for immediate gratification untempered by a sense of guilt and with only an ill-formed notion of right and wrong. The temptation to bang them up and throw away the key is strong, and magistrates will no doubt be encouraged to do just that over the coming weeks. It is, though, not the way the courts work, and a good thing too.

Despite what the politicians think, magistrates are not routinely soft. Formal sentencing guidelines mean that the courts can't make it up as they go along. For every offence, there is a starting point for the bench's deliberations and a range of possible sentences after magistrates have looked at any aggravating or mitigating factors, and at the offender's record and character. Magistrates can choose a sentence outside these nationally agreed parameters but they have to explain in open court why they are doing so. If they want to send someone to prison or order someone to do unpaid work, they first need to get a report from the probation service or, in the case of someone under 18, from a youth offending team.

It's absolutely right that this should be the case, since most magistrates are amateurs who rely on experience, common sense and professional back-up to come to what we hope is the right decision. It's a curious system, peculiarly British in its way, but it works.

Magistrates will not need the exhortation of politicians to get tough with the looters. In many cases, JPs will look at their guidelines and decide that the aggravating feature – the break down in public order – means their powers of sentence are insufficient. The maximum jail term they can hand out for a single offence is six months, reduced by up to a third if the offender pleads guilty. Only half a prison sentence is actually served behind bars: the rest under licence back in the community. Those caught red-handed with flat-screen TVs or designer trainers can expect to find themselves up before a judge in the crown court, with a harsher sentence as a result.

Yet we are kidding ourselves if we imagine that a spell under lock and key, even when necessary and richly deserved, solves deep-seated problems of parenting, schooling, poverty and abuse. There are times when magistrates feel a deep sense of sadness when they read a pre-sentence report in the privacy of their retiring room, which is why they see their task as both to punish and to rehabilitate. That seems to me the right approach. I have not heard of a better one.

England riots: justice grinds on as courts sit through the night

Tim Adams | The Observer | 14 August 2011

Some weeks are longer than others. In the early hours of Friday, at Horseferry Road magistrates court, around the corner from the Houses of Parliament, the riots of three or four nights ago felt like something that had happened in another time and place altogether.

One effect of our attention-deficit news culture is to collapse narratives into fast forward. In that respect, everyone in court number one had already lived through 24-hour cycles of tension, violence, anarchy, horror, cleanup, clampdown, fightback, soul-searching and recrimination. And that was all by Wednesday. The determined grind of retributive justice was about all that remained.

In parliament, some hours (or was it days?) earlier, the prime minister had made much of the symbolism of courts sitting through the night up and down the land "ensuring swift justice". The will for speed was there, but British justice has its own stubborn pace, and is more often a properly wearying business, the bureaucratic accretion of fact and referral, and rarely can it have felt more so than in court one at getting on for two o'clock in the morning.

The duty solicitors and court officials had clocked up 16 hours or more by then – but the charge sheets and supporting documentation kept coming, though rarely by now quite on cue or simultaneously. At midnight, the talk had been of a dozen new adult arrivals, plus a couple of juveniles, in the cells downstairs. "They are being bussed in from all over London," someone explained. The police wagons were queuing around the block.

On the press benches those deputed to chronicle the roll-call of the accused had adopted a glassy-eyed fascination with the process, scanning the lists of handlers of stolen goods for genuine firestarters, mostly in vain. Even the diehards in the public gallery, looking for answers or drama, were beginning to glance at watches and drift away. Most fatigued of all, though, seemed many of those in the dock, hearing the detail of what they were alleged to have done all that time ago. They stretched and blinked and did their best to concentrate, but a fair few seemed barely able to stay awake.

Much as the government might, on this occasion, have relished the idea of this admonitory process being broadcast more widely, Britain still thankfully doesn't do show trials. After the 24-hour apocalyptic exposure of the week's events on screens of all sizes, there was something reassuringly mundane and unmediated about these preliminary hearings. Television and the internet had magnified the riots, brought them into our homes and pockets, repeated their shocking extremes until they were ingrained, making the perpetrators at once faceless and global. The court had the effect of bringing the crimes back down to human scale. Separated out from what successive magistrates repeatedly emphasised as "the extremely serious context of unrest, looting and violence", most of the charges had a singular, and often banal, quality.

David Cameron's 2006 'hoodie' speech in full

BBC News | 10 July 2006

Here is the text of Conservative leader David Cameron's speech to the Centre for Social Justice founded by Iain Duncan Smith.

"It's always a pleasure to speak to the CSJ.

On my first day as leader I went with Iain to the East Side Young Leaders Academy - an inspirational project working with black boys at risk of crime.

And the first of the policy groups I set up was Iain's, looking at all the full range of social justice issues.

For the Conservative Party I'm leading, social justice is a vital issue.

The reason is simple: the degree of social injustice in our country.

One of the worst aspects of social injustice that people face is the fear and suffering caused by crime and disorder.

In many communities, it's doing more to wreck the sense of general well-being than just about anything else.

Everywhere I go, it seems to be the same story.

People frightened to go out for a drink on a Friday or Saturday night because town centres turn into war zones.

Neighbourhoods wrecked by vandalism, graffiti and a less tangible, but perhaps more damaging, sense of menace in the air.

The complaints are identical.

Young people are out of control.

There's nothing for them to do.

Why can't their parents do their job properly?

Today I want to talk about how we solve these problems for the long term.

Too often, the debate is about short-term solutions: ASBOs, curfews and criminal justice.

Of course, we need these things to protect the public from anti-social behaviour today.

But my aim is a society where we need them less and less.

The long-term answer to anti-social behaviour is a pro-social society where we really do get to grips with the causes of crime.