In Your Defence

by Sarah Langford

  7 ‘… convicted of multiple rapes’: A life sentence sets a minimum tariff that has to be served before the defendant will be eligible to apply for parole (early release). The average minimum term is around 15 years. However, life sentences last for the rest of a defendant’s life, so if they are released from prison and commit another crime they can be sent back to prison at any time. A whole-life term means there’s no minimum term set by the judge and the person is never considered for release.

  8 ‘… indeterminate sentence for public protection’: The imprisonment for public protection (IPP) sentence was a form of indeterminate sentence introduced by the Criminal Justice Act 2003. It was abolished in 2012. It was intended to protect the public against criminals whose crimes were not serious enough to merit a life sentence, but who were regarded as too dangerous to be released when the term of their original sentence had expired. It was composed of a punitive ‘tariff’ intended to be proportionate to the gravity of the crime committed, and an indeterminate period which commenced after the expiration of the tariff and lasted until the Parole Board decided that the prisoner no longer posed a risk to the public and was fit to be released. There was no limit to how long prisoners could be detained under an IPP. In effect, offenders served longer in prison than had they been given a life sentence. In 2007 the high court ruled that the continued incarceration of prisoners serving IPPs after tariff expiry where the prisons lacked the facilities and courses required to assess their suitability for release was unlawful. In 2010 a joint report by the chief inspectors of prisons and probation concluded that IPP sentences were unsustainable with prison overcrowding in England and Wales. As of 2017, over 3,000 prisoners remain incarcerated under their IPP sentence. Three quarters of them had completed their minimum term and hundreds had served five times the minimum.

  9 ‘… sign cautions for soliciting’: In England and Wales it is an offence for a person persistently to loiter, or solicit, in a street or public place for the purpose of offering services as a prostitute. Norway, Sweden, Iceland, Northern Ireland and Canada criminalize the sex buyers. England and Wales have no consistent police approach to soliciting. In Leeds, for example, the police and council have controversially decided not to apply the law between 7 p.m. and 7 a.m. in a particular area. There has been at least one murder of a prostitute since this decision was made. In Suffolk, however, after a number of prostitutes were murdered, a zero-tolerance approach was taken to kerb-crawling and, copying the Nordic approach, multi-agency support was put in place for women, virtually eliminating street prostitution and murders. Nottingham also targets the sex buyers, decreasing the number of sex workers on the streets in 10 years from 300 to 50. An all-party parliamentary report called ‘Shifting the Burden’ was published in 2016, recommending the reversal of criminalization from the women who sell sex to the men who buy it, but as yet the government has not taken up the proposals.

  9 Helena

  1 ‘… encouraged them to turn to blame’: If separating couples want to get divorced without waiting for two years (or five if the other person does not consent), one person must submit a petition detailing how the other is at ‘fault’. A study published in 2017 found that 60% of English and Welsh divorces were granted on the basis of adultery or unreasonable behaviour. In Scotland – where a divorce can be obtained after one year if both parties agree – this figure was 6%. In a national opinion survey, 43% of people who had been identified as being at fault by their spouse disagreed with the reasons cited for the marriage breakdown, and 37% of respondents denied or rebutted the allegations made against them by their spouse. The study found no empirical support for the argument that fault may protect marriage. In countries that have a ‘no-fault divorce’, including Scotland, there has been no long-term recorded increase in the number of divorces applied for annually. We already have something tantamount to immediate unilateral divorce, but that method unnecessarily encourages acrimony between the parties. A number of judges, charities and interested groups have called for a ‘no-fault divorce’ to prevent separations between couples escalating due to the requirement to blame one another.

  2 ‘… accepted the caution they offered’: See note.

  3 ‘… (CAFCASS)’: See note.

  4 ‘… without telling Ed’: The law states that a parent is free to move anywhere within the jurisdiction without the permission of the other parent. There is no presumption of favour of the status quo – each case must be decided on its own merits. However, if both parents have parental responsibility (see note), then each parent is entitled to be consulted upon any significant changes in their child’s life with a view to coming to an agreement. If a parent thinks that the other may relocate with the children, they are able to bring an application to try to prevent them from doing so.

  5 ‘… right to know each parent’: Section 1 of the Children Act 1989 sets out the ‘welfare principles’ that the court must apply in every case involving a child. These principles ask the court to presume that involvement of a parent in the life of the child will further the child’s welfare if this parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm. The presumption does not apply if there is some evidence before the court in the proceedings to suggest that involvement would put the child at risk of suffering harm, whatever the form of the involvement.

  6 ‘… are no longer eligible for legal aid’: See note.

  7 ‘… a McKenzie Friend’: This (named after the case that first permitted them into court) is a person who has been granted permission by the judge to accompany a party into court. They are there to support and assist the party, but cannot speak in court unless the judge has granted them permission, which is very unusual. They are not entitled to give the party legal advice. There is no requirement for them to be legally qualified or insured and they are unregulated. The view of the Judicial Executive Board is that courts should adopt Scotland’s approach and ban payments. They recommended that McKenzie Friends should be more properly named ‘court supporters’ the better to identify their role.

  8 ‘… direct access scheme’: Members of the public may now go directly to a barrister without using a solicitor or other intermediary. Barristers who undertake this work must be qualified to do so. The client agrees a fixed fee with the barrister for the work they will do, which typically covers drafting documents and appearing at hearings.

  9 ‘An interim contested hearing’: A contested hearing in the middle of an application to decide a point that cannot wait until the conclusion of proceedings at the final hearing. Both parties will file statements on the specific point, and then give evidence after which the judge will decide the issue. The case then proceeds to final hearing on the outstanding issues.

  10 ‘… remove Ed from it’: An Occupation Order is designed to remove someone from their home so that the person making the application can return to live in it. This person must fit into a defined number of categories that establish their right to live there. The court must then perform a balancing act, taking into account the harm caused to the parties and any children by granting, or not granting, the application, as well as the housing needs, financial resources and the parties’ conduct.

  11 ‘… without the other knowing’: An application for an injunction (i.e. something that prohibits an action or event) can be made without letting the other party know, either because it is an emergency or because they fear what the other party will do if they become aware of an attempt to stop them. The application will come before a judge with only the party who is making the application present. The application is usually granted, and the judge then orders both parties to return at a later date to see if the application is opposed. If it is opposed there is then a full contested hearing to decide whether or not the order should remain in force.

  12 ‘… circuit judge, senior and experienced’: A circuit judge is a senior judge of the county or crown court and is referred to as ‘Your Honour’ in court.


  13 ‘… attached a penal notice’: A penal notice is a paragraph added to an order which states that if a party disobeys all or part of the order then they can be arrested by the police. They will then be brought to court and punished for their breach, if it is proved beyond reasonable doubt. It is essentially treated as a contempt of court.

  14 ‘… to deal with the allegations by giving undertakings’: Undertakings are formal promises given to the court not to do something. If a party breaks their undertaking, they can be brought back to court to see if this can be proved. Again, it is essentially treated as a contempt of court. Undertakings are not an admission that a person has done any of the acts of which they are accused. They are therefore a useful way of resolving an application for a Non-molestation Order where the allegations are disputed, without going all the way to a contested hearing. The only difference between an undertaking and a Non-molestation Order is that the police cannot arrest someone for breaking an undertaking – the applicant has to bring the matter back to court.

  10 Chris

  1 ‘… no drugs in prison’: In 2016 more than 45% of prisoners in a survey conducted by the HM Inspectorate of Prisons said it was easy to get drugs whilst incarcerated. In 2017 the Ministry of Justice reported that prison officers had confiscated 225kg (about 500lb) of drugs in one year.

  2 ‘… or in a hospital’: If a judge is satisfied by the written or oral evidence of two medical practitioners that a defendant is suffering from a mental disorder which makes it appropriate for him to be detained in a hospital for medical treatment, the judge can make a Hospital Order in place of sending the offender into custody. The defendant will then be sent to a secure hospital. In 2016 there were 40,161 incidents of self-harm in prisons and 120 self-inflicted deaths – almost twice the number in 2012, and the highest year on record. The Prisons and Probation Ombudsman found that 70% of prisoners who had committed suicide between 2012 and 2014 had mental health needs. In June 2017 the National Audit Office published a report which stated that the government does not know how many people in prison have a mental illness, how much it is spending on mental health in prisons or whether it is achieving its objectives.

  3 ‘… pre-sentence report’: See note.

  4 ‘… follow the guidelines’: The sentencing guidelines state that the offence range for rape is from 4 to 19 years’ custody.

  5 ‘… waive legal professional privilege’: Legal advice privilege applies to confidential communications between lawyers and their clients made for the purpose of seeking or giving legal advice.

  6 ‘… on the day of trial’: See note.

  7 ‘… nor a Restraining Order’: For Sexual Offences Prevention Order, see note. A Restraining Order protects the person named in the order from conduct which amounts to harassment or which will cause a fear of violence. It can be made by the court both after a defendant has been convicted and when he has been acquitted if the court considers it necessary to do so.

  8 ‘… subject to notifications requirements’: See note.

  11 Jude

  1 ‘… (CAFCASS)’: See note.

  2 ‘… on his behalf’: The general rule of law is that a child cannot make an application to the court, or be joined as a party to proceedings, unless he has a guardian appointed on his behalf. The guardian will then go to court on the child’s behalf and represent the child’s best interest. The Family Procedure Rules 2010 provide an exception to this. Rule 16 allows a child independently to instruct a solicitor, provided either that the child has obtained the court’s permission to do so or that a solicitor considers the child understands sufficiently well to give instructions in relation to the proceedings. The test applied is whether the child is Gillick competent – whether he or she has the maturity to make their own decisions and to understand their implications. The court will make a child a party only in cases that involve an issue of significant difficulty. The courts have found a child’s autonomy is of great importance and that it can be in the child’s best interests to have some direct involvement in the proceedings (Re W (a child) [2016] EWCA Civ 1051).

  3 ‘… decisions in their chambers’: Guidelines were published in 2010 with the purpose of encouraging judges to enable children to feel more involved and connected with proceedings in which decisions are made about their lives. In part this could mean the child meeting the judge, to give them an opportunity to satisfy themselves that the judge has understood their wishes and feelings, and to understand the nature of the judge’s task. A judge will never see a child alone.

  4 ‘… fairest in the world’: The World Justice Project Rule of Law Index produces annual reports based on independent data on the global rule of law organized around 80 different factors ranging from constraints on government powers to absence of corruption and the upholding of fundamental rights. The scores and rankings are derived from more than 110,000 households and 3,000 expert surveys in 113 countries and jurisdictions. The Index is the world’s most comprehensive data set of its kind and the only one to rely solely on primary data, measuring a nation’s adherence to the rule of law from the perspective of how ordinary people experience it. The only country of a similar population size which ranks above the United Kingdom is Germany. Rankings are: 1 Denmark (population 5.7 million); 2 Norway (population 5.3 million); 3 Finland (population 5.5 million); 4 Sweden (population 5.7 million); 5 Netherlands (population 17 million); 6 Germany (population 82.67 million); 7 New Zealand (population 4.69 million); 8 Austria (population 8.74 million); 9 Canada (population 36.3 million); 10 Australia (population 24.13 million); 11 United Kingdom (population 65.64 million).

  The UK fell out of the top 10 in the 2017–18 index with a score for the accessibility and affordability of civil justice much closer to the United States (ranked 19). The effectiveness of its correctional system is recorded at 0.53 – a figure lower than in the US (0.58).

  Bibliography

  I have highlighted a handful of reports – available free on the internet – which deal with some of the issues raised in this book. There are many more listed on www.inyourdefence.co.uk

  1 Dominic

  McGuinness, Terry, The Age of Criminal Responsibility, House of Commons Library Briefing Paper, Number 7684, 16 August 2016: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7687#fullreport

  Bateman, Dr Tim, The State of Youth Justice 2017: An overview of trends and developments, National Association for Youth Justice, September 2017: http://thenayj.org.uk/wp-content/uploads/2017/09/State-of-Youth-Justice-report-for-web-Sep17.pdf

  Prison: the facts, Bromley Briefings Summer 2017, Prison Reform Trust, Summer 2017: http://www.prisonreformtrust.org.uk/Portals/0/Documents/Bromley%20Briefings/Summer%202017%20factfile.pdf

  2 Derek

  Strudwick, Patrick, ‘This is Why Men Meet for Sex in Public Toilets’, Buzzfeed, 12 August 2017: https://www.buzzfeed.com/patrickstrudwick/men-are-still-meeting-for-sex-in-public-toilets-and-the?utm_term=.rmR6KGK1X8#.lcMV6P6Dxd

  Business as Usual? A follow-up review of the effectiveness of the Crown Prosecution Service contribution to the Transforming Summary Justice initiative, HMCPSI Inspectorate, June 2017: https://www.justiceinspectorates.gov.uk/hmcpsi/wp-content/uploads/sites/3/2017/06/TSJ_FU_thm_June17_rpt.pdf

  3 Saba

  Impact of changes to civil legal aid under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, House of Commons Justice Committee, Eighth Report of Session 2014–15, HC311, 12 March 2015: https://publications.parliament.uk/pa/cm201415/cmselect/cmjust/311/311.pdf

  5 Rita

  Conspiracy and Attempts: A Consultation Paper, The Law Commission, Consultation Paper No 183, 2015: http://www.lawcom.gov.uk/app/uploads/2015/03/cp183_Conspiracy_and_Attempts_Consultation.pdf

  Thomas, Cheryl, Are Juries Fair? Ministry of Justice Research Series 1/10, February 2010: https://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/are-juries-fair-research.pdf

  6 Maggie

  Br
oadhurst, Karen, and Mason, Claire, ‘Birth Parents and the Collateral Consequences of Court-ordered Child Removal: Towards a Comprehensive Framework’, International Journal of Law, Policy and the Family, Vol. 31, No. 1, 1 April 2017, pp. 41–59: https://academic.oup.com/lawfam/article/31/1/41/3065577

  Children in need of help or protection, report by the Comptroller and Auditor General, National Audit Office, HC 723, Session 2016–17, 12 October 2016: https://www.nao.org.uk/wp-content/uploads/2016/10/Children-in-need-of-help-protection.pdf

  McCracken, Katie, et al., Evaluation of Pause, Department for Education Research Report, Children’s Social Care Innovation Programme Evaluation Report 49, July 2017: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/625374/Evaluation_of_Pause.pdf

  7 Peter

  Online child sexual abuse images: Doing more to tackle demand and supply, National Society for the Prevention of Cruelty to Children, November 2016: https://www.nspcc.org.uk/globalassets/documents/research-reports/online-child-sexual-abuse-images.pdf