Miscarriages of JusticeUK (MOJUK) 22 Berners St, Birmingham B19 2DR story, to understand why she is now serving a minimum of 15 years. Woffinden believes that Tele: 0121- 507 0844 Email: [email protected] Web: www.mojuk.org.uk all ten suspects should not have been convicted but he tells their stories in enough detail for one to understand why they were. Each tale unfolds like an intriguing television drama, with MOJUK: Newsletter ‘Inside Out’ No 627 (16/03/2015) - Cost £1 our judgements and preconceptions of innocence or guilt tugged both ways. Woffinden has ploughed an increasingly lonely furrow on the subject, following in the footsteps of Rough Justice: Who is Looking Out For the Wrongfully Convicted? two other campaigning authors. The first was Ludovic Kennedy, whose book 10 Rillington Place, Duncan Campbell: The letter from Whitemoor Prison in Cambridgeshire was in poor English published in 1961, exposed the wrongful hanging of Timothy Evans. The second was Paul Foot, who but its message was clear. The writer claimed he was serving a life sentence for a murder that campaigned relentlessly in Private Eye, the Daily Mirror and in books on many cases, including that he had not committed. What was also clear was that this was no ordinary case. Not only was of the Bridgewater Four, convicted of the murder of a newspaper boy, Carl Bridgewater, in 1978. the victim a respected author and photographer who lived in one of the most expensive streets Woffinden produced a volume called Miscarriages of Justice in 1987, and in 2015 he published Bad in London, but his alleged killer was the grandson of Chairman Mao’s third-in-command and Show, in which he suggests that Major Charles Ingram, convicted of rigging the TV quiz show Who an informant for MI6 whose entire defence at his Old Bailey trial had been heard in secret, Wants to Be a Millionaire? by placing allies in the audience who coughed strategically, was innocent. with reporters excluded from the court. It took some weeks to unravel the story of Wang Yam, What is striking about Woffinden’s latest volume, however, is his criticism of the media on three who was convicted of the murder of Allan Chappelow at his home in Hampstead in 2006. counts. “It is not merely that the media fails to draw attention to wrongful convictions when they occur; Wang had supposedly broken in to Chappelow’s letter box at his front gate to steal bank it is not just that trials leading to these injustices are misleadingly reported; it is that, in some details and, according to the prosecution, probably killed him when confronted. The victim’s instances, the media itself has played a key role in bringing about the wrongful conviction,” he writes. body was discovered several days later. For over two centuries, the media have been crucial to both freeing and convicting innocent In his letter, Wang claimed that because the press had been barred from reporting his suspects in murder cases. In 1815 Eliza Fenning, a household cook, appeared at the Old defence he had not received a fair trial. With my colleague Richard Norton-Taylor, I wrote a Bailey, charged with attempting to poison her employers with arsenic in their steak and story about the case that appeared in the Guardian in January 2014. Shortly afterwards, a for - dumplings. It was suggested that she had done so after being scolded for consorting with mer close neighbour of Chappelow contacted us to say that, after Wang was already in cus - young male apprentices. She protested her innocence and a radical writer, William Hone, took tody, someone had tried to break into his letter box, too, and that the intruder, when discov - up her case, visited her in Newgate Prison and launched a newspaper, the Traveller, to fight ered, had threatened to kill him and his family. In April, the Criminal Cases Review for her release. It probably did no harm to her cause that she was young and beautiful; the Commission announced that, as a result of this fresh evidence, the case was going back to artist Robert Cruikshank drew her reading the Bible in her cell. It was all to no avail: Fenning the Court of Appeal. It is now expected to be heard soon. Even though no murder trial had was hanged. And yet, ever since, writers and journalists have taken up such cases. ever been heard in such secrecy at the Old Bailey before or since, the media largely ignored Arthur Conan Doyle campaigned in the Daily Telegraph for George Edalji, convicted on the bizarre the story. Tales of alleged miscarriage of justice don’t make many waves these days. charge of disembowelling a horse in Staffordshire in 1903. Edalji, an Anglo-Indian solicitor, served As it happens, Wang Yam’s referral to the Appeal Court came just as a large book entitled three years’ hard labour but was eventually pardoned and concern about his conviction led partly to The Nicholas Cases arrived in my mail. It is by Bob Woffinden and the slightly obscure title is the creation in 1907 of the Court of Criminal Appeal. (Julian Barnes’s book Arthur & George is based a reference to St Nicholas, better known as Santa Claus, who in early Byzantine times halted on the case.) Conan Doyle, too, was active in the campaign to prove the innocence of Oscar Slater, the execution of three innocent men and could thus claim to be the patron saint of the wrong - a German Jew convicted of the murder in Glasgow in 1908 of Marion Gilchrist, a wealthy, elderly sin - fully convicted. And, boy, do they need a saint these days. The author takes ten cases, intro - gle woman. Class and anti-Jewish prejudice clearly played a part in the police investigation, and the duces us to the accused, tells their stories and shares the frustration of the convicted men and initial press coverage of the campaign to free him was dismissive. “Efforts most harmful and ill- women as well as their lawyers and families. advised are being made to work up popular feeling and to receive signatures with the object of Some of the cases may be familiar. Jonathan King, the former singer and music entrepre - obtaining a reprieve,” the Scotsman sniffed. “However amiable may be the sentiments that may have neur, was sentenced to seven years in 2001 for sexual offences against boys aged 14 and 15. prompted some of those who have taken part in the movement, it is one that cannot be otherwise What is less well known is that he was convicted not of offences relating to his original arrest, than mischievous and futile.” It took nearly two decades to prove Slater’s innocence. Scottish jour - but of others that came to light as a result of the media publicity surrounding his case. Another nalists played an important part in keeping the story alive. case is that of Gordon Park, convicted of the murder of his wife, Carol, who disappeared in Yet for many years there remained the feeling that such miscarriages of justice were very 1976 and whose body was found in Coniston Water in the Lake District in August 1997 (the few. Those who sought to question convictions in contentious cases were often mocked, as media named it the “Lady in the Lake trial”). Park was convicted in January 2005. He hanged was the case when the earliest doubts were expressed about the guilt of the Birmingham Six. himself in prison and in despair in January 2010. “Loony MP backs bomb gang” was the headline in the Sun when the Labour politician and jour - Other cases, such as that of Emma Bates, received less press coverage. In 2009 Bates was nalist Chris Mullin challenged their conviction. But with the vindication of the Birmingham Six, convicted of the murder of her violent and abusive ex-partner Wayne Hill in Birmingham. She the Guildford Four, the Maguire Seven and suspects in other so-called “Irish cases”, there was killed Hill with a single stab wound in a confrontation at her home, and it is hard, reading her finally a recognition that something was very rotten in the justice system. There followed a flowering of investigations into dubious cases. In 1982, the BBC media. launched the TV series Rough Justice, which carried out investigations over the next quarter- Not everyone who claims to be innocent is telling the truth, especially if the crime is especially century. Some of its journalists went on to found Trial and Error, which did the same for heinous. One case which received much publicity was that of Simon Hall, who was convicted in Channel 4 from 1993 to 1999. Concerns about the extent of such cases led to the formation 2003 of the horrific murder of Joan Albert, aged 79. It was taken up by Rough Justice after an in 1997 of the Criminal Cases Review Commission. It has since referred 629 cases back to active campaign on Hall’s behalf but then, in 2013, he told prison officials that he was guilty. In the Court of Appeal, 414 of which had been successful; a further 689 cases are under review. doing so, he gravely undermined the claims of many of the genuinely innocent. He hanged him - But both Rough Justice and Trial and Error were discontinued, victims of media austerity. self in prison the following year. As the former armed robber Noel “Razor” Smith notes in his wry Investigations into such cases take time and money. With broadcasters and news papers poem “The Old Lags”, prison is full of people who claim they were wrongly convicted: forced to tighten their belt, there is little appetite for researching complex claims that may lead But there is little editorial outrage about a murder trial being held in secret and scant concern nowhere. Meanwhile, the introduction in 2013 of new rules affecting funds for criminal cases that so many dubious convictions slip by, unreported for reasons of economy, indifference or has sharply reduced access to legal aid lawyers. Lawyers also suffer from the arcane effects fashion. Contrast those sil ences about the law with the apoplectic response to the Supreme of the Criminal Procedure and Investigations Act 1996, with some solicitors still unsure about Court decision last year to uphold an injunction against the Sun on Sunday reporting the names what can be released to the media. There has been a change in the political climate, too. Tony of the “celebrity threesome”. The Sun called it “the day free speech drowned” and quoted the Blair encapsulated this in 2002 when he said: “It is perhaps the biggest miscarriage of justice Tory MP Jacob Rees-Mogg, who described the decision as “a legalistic hijack of our liberty”. The in today’s system when the guilty walk away unpunished.” The subtext to this is that we Daily Mail informed readers soberly: “Supreme Court judges yesterday declared that people in shouldn’t be too soft-hearted with every plea of innocence. This attitude is reflected in the way England and Wales have no right to know about the sex lives of celebrities.” As if. All that was that even those who are eventually cleared on overwhelming evidence are treated. missing was Tony Hancock: “Does Magna Carta mean nothing to you? Did she die in vain?” Previously, victims of miscarriages of justice were compensated financially for their lost Where now for wrongful convictions? Louise Shorter, a former producer on Rough Justice, years. No longer. Victor Nealon, a former postman, was convicted of attempted rape in 1996 sees a glimmer of hope. She now works for Inside Justice, the investigative unit attached to and served 17 years – ten years longer than his recommended tariff, because he continued to the prisoners’ newspaper Inside Time, that was set up in 2010 to investigate wrongful convic - protest his innocence. In 2013, after new DNA evidence from the clothes of the assault victim tions. She acknowledges the current difficulties: “Unravelling a miscarriage of justice case can pointed to “an unknown male” as the one responsible for the crime, he was freed with just £46 take a decade or more. Television wants a beginning, middle and end to any story and wants in his pocket. The Ministry of Justice has declined to compensate Nealon financially because, it now, and that’s hard to achieve when the criminal justice wheels turn so very slowly.” under the new rules, his innocence has to be proved “beyond reasonable doubt” – that is to Yet Shorter says that her phone has been ringing off the hook following two successful American say, someone else has to be convicted of the crime. It is an absurd state of affairs. ventures: the podcast Serial and the Netflix series Making a Murderer. In September, she present - The internet – social media in particular – has given platforms and publicity to those who claim to ed the two-part BBC documentary Conviction: Murder at the Station, in which she investigated the have been wrongfully convicted. Yet, as Woffinden points out, the web has also had a negative effect, case of Roger Kearney, who protests his innocence of the murder of his lover Paula Poolton. Her because there are now hundreds of sites dedicated to claims of miscarriages of justice. “The whole his - body was found in her car at Southampton train station in 2008. “The media finally latched on to what tory of miscarriages of justice in the UK in the postwar era was based on the ‘top of the pile’ principle,” the public has known for years: real-life whodunnits – or did-they-do-its – always have been and he argues. “A case reached the top of the pile. It was focused on; it was rectified. Another case then remain immensely popular,” Shorter says. As Wang Yam awaits his appeal hearing and hundreds of took its place at the top of the pile. Now there are far too many cases jostling for attention, with the result others hope that their cases are heard, let us hope that she is right and that we have not returned to that no case gets adequate attention. As the newspapers’ ability to campaign on these issues has been the days when only a “loony MP” or the “mischievous and futile” could challenge the law. weakened, so they are less inclined to publish stories that they think aren’t going anywhere.” It is also much harder for journalists to meet people who claim to be victims. When I wanted to visit Kevin Lane, ‘Cash For Crash’ Trio Convicted After Judge Decides Case Without Jury who has long protested his innocence of the 1994 murder of Robert Magill, shot in a hitman killing in John Hyde, Law Gazette: Two men who helped to stage a ‘cash for crash’ accident have been con - Hertfordshire, it took months before officials granted permission. I was accompanied by a Home Office victed of manslaughter after one of their victims died following the collision. Sabir Hussain and Raja official and our entire interview at Frankland Prison in County Durham was tape-recorded. Hussain were each found guilty of manslaughter and conspiracy to commit fraud by false represen - Wang Yam, the MI6 informant, was told at Whitemoor after his story first appeared in the tation. A third man, Shahrear Islam Miah, was convicted of the second offence but cleared of Guardian that he was not allowed to correspond with us again, though the Ministry of Justice manslaughter. R v Hussain and Others, held at Leeds Crown Court, was almost unprecedented as claims this is now no longer the case. In the United States, a prisoner who wants to contact a it was completed without a jury: the judge had dismissed jurors after approaches were made to them journalist has an automatic right to do so, making investigative reporting much easier. What and bribes offered when the building was evacuated following a fire alarm set off during proceedings. about the Innocence Project? This US organisation was founded in 1992 and harnessed the On 22 February, Mr Justice Goss was part way through his summing up when he applied the energy of law students to investigate cases of alleged wrongful conviction. For a while, the provisions of the Criminal Justice Act 2003 to proceed without a jury. It is believed to be only the idea flourished in Britain, too; Bristol University launched a version in 2004. However, such second time a judge has taken this course in a Crown court trial. Goss said there had been a projects now struggle to overcome the same hurdles of access and resources as the ‘concerted attempt to tamper with the jury’, with approaches made to five of them by at least 2 3 two people. One juror also revealed he had been approached as soon as he arrived at court They need others to be their voice. They need you. Please join us in the fight to free the innocent last week. In his judgment, the judge stressed he ignored the attempts to influence the outcome Investigation into Jean Smyth-Campbell Murder Would Not be Independent of the trial for the purposes of his verdicts and did not hold it against any of the defendants. Scottish Legal News: Jean Smyth-Campbell was murdered on the 8th June 1972. There was no The court heard the two-car collision that led to the charges was in September 2014 in the Beeston effective investigation into her death, which was attributed to Republican gunmen. In 2014, British area of Leeds. The front-seat passenger in one car, 88-year-old Betty Laird, died the same day from Army documents uncovered at the British National Archive at Kew, London, showed that in all prob - injuries suffered in the crash. The driver of the car, Geoffrey Grimshaw, died a few days later but not ability Ms. Smyth-Campbell was killed by members of the British Army from the undercover MRF as a result of the crash. The court heard the defendants had spied an opportunity to stage a crash unit. A fresh PSNI investigation into the 1972 murder of Jean Smyth-Campbell would not meet the as the victims’ car turned right across their lane ahead of them. Sabir Hussain, 25, was alleged to requirements of article 2 of the European Convention on Human Rights, the High Court in Belfast be the driver of the other vehicle, with Raja Hussain, 31, accepting he was the front-seat passenger. has ruled. Margaret McQuillan, sister of Ms Smyth-Campbell, initiated judicial review proceedings Miah, 26, was a rear-seat passenger. A fourth man, Mohammed Ubaidullah, claimed at the time of against the PSNI in 2015 after documents uncovered at the National Archives linked the murder to the collision to be the driver but later said that was a lie and he was in fact sitting behind the driver. an undercover British military unit. Mr Justice Paul Maguire found that past investigations - both the Ubaidullah pleaded guilty in June last year to the manslaughter of Betty Laird and conspir - original RUC investigation and a 2008 investigation by the Historical Enquiries Team - were fatally acy to commit fraud by false representations. The court heard Ubaidullah had been seeking flawed. The court also agreed that the PSNI's Legacy Investigation Branch (LIB) could not be inde - compensation for a false injury as it was ‘easy and a financial gain’. The car used in the crash pendent for the purposes of carrying out a proper investigation in line with article 2 of the ECHR. Mr was bought and insured less than a week before it was staged. The court heard the victims’ Justice Maguire said that “the proposed investigation by the LIB of Mrs. Smyth’s death conflicts with car had been turning right across oncoming traffic when it was in a collision with the defen - the requirements of Article 2 ECHR as the LIB lacks the requisite independence required to perform dants’ car. Ubaidullah gave evidence in court that a front passenger in his car had said ‘there’s an Article 2 complaint investigation in respect of this death”. a chance; go, go, go’ seconds before the collision. The court heard Sabir Hussain was Mrs McQuillan's lawyer, Niall Ó’Murchú of Madden & Finucane Solicitors, said: “This is a involved in two collisions, one either side of Betty Laird’s death, in which claims were made very important judgment for not only the Campbell family but also potentially many other fam - for personal injuries when none appeared to have been sustained. Miah had a similar history ilies who are seeking properly independent and article 2 compliant investigations into their with regard to making claims following a collision in which he was the driver. Goss said there loved ones’ deaths. The Campbell family are very relieved that this nearly three-year battle is was evidence of both Sabir Hussain and Miah being involved in deliberate collisions to make over. They are relieved that an investigation of Jean’s death, which does not involve the PSNI false insurance claims, around the time of the crash at the centre of the trial. He concluded may now proceed, and they feel they finally have obtained some justice for Jean.” that the collision in September 2014 was an unlawful act that carried the foreseeable risk that some injury might be caused, and in fact caused the death of Betty Laird. Miah was cleared Canada: Three Factors That Cause Trial Delays of manslaughter as the judge could not be sure he was in the car at the time of the collision. Last summer, for the first time, the Supreme Court of Canada interpreted our right as Canadians to be tried on a criminal charge brought against us within a reasonable time to Injustice Anywhere - Fighting to Correct Wrongful Convictions include essentially fixed time limits. Ontario’s current plans to try to cope with this change Mistakes by the criminal-justice system are not uncommon. According to the National Registry of include ripping procedural protections, such as the preliminary inquiry, from out of the criminal Exonerations, courts in the United States overturned 165 wrongful convictions in 2016, which justice process. There are three reasons why Ontario courts will still fail to complete trials with - broke 2015’s record of 149 corrected wrongful convictions. It is promising to see that the numbers in these reasonable new restrictions on how long the state can hold the threat of conviction continue to be on the rise. If you look at data over the past 25 years, we are now seeing and incarceration over an individual’s head, and why the changes to the process now being substantial progress. Those exonerated in Kansas and the 18 other states without compensation laws contemplated will only heap unfairness on top of these failures. must instead seek payment through civil litigation, or by convincing lawmakers to pass separate bills The first reason is that our courts have no control over the number of charges that come before on their behalf. This can yield generous payouts but is expensive, time-consuming and often unsuc - them. Police who control that volume. The police decide the number of people who will be charged cessful. Over the past quarter century, America has incarcerated more people than any civilized nation with criminal offences, as well as the number of criminal charges each individual will face. While on earth. A disturbing number of those incarcerations have been wrongful convictions. Hundreds of it might be possible to statistically forecast the number of criminal complaints that will be made by exonerations can be credited to advanced DNA technology. But research on topics like, bite the public each year, only the police decide which of these complaints will result in charges. mark evidence, fire investigation technology, and shaken baby syndrome, have all played a signif - Worse, the number of charges that will arise each year from proactive policing — the police going icant role as well. The ability to distribute information via the internet has also proven to be an invalu - out into the streets to allege criminality themselves — are unpredictable. These types of charges able resource when fighting wrongful convictions. Exoneration statistics show that we are on the right can, and often do, come in periodic waves that swamp the courts for however long afterward it track, but we have a long way to go. We need to correct the mistakes we have made, all while work - takes to deal with them. Police “projects,” “crackdowns” and “blitzes” are anathema to the creation ing to reforming the system which allowed those mistakes to occur in the first place. Sadly, the wrong - and maintenance of a criminal justice system that can complete prosecutions within prescribed ful conviction problem is far more pervasive than most people realize, and even with increased inter - time limits because it is impossible to properly plan to deal with the unknown. est, most cases continue to lack the attention they warrant. Many innocent people remain in prison. The second reason our courts will continue to fail to complete trials within the prescribed time 4 5 limits is because the discretion of individual Crown attorneys to make prosecutorial decisions has prohibition on contact, however it upheld the rest of the permanence order. been largely taken away over the last three decades and replaced with heavily politicized policies. The Appellants appeal against this decision. The issues in this case was whether the Inner This means an individual Crown — who has carriage of the case and knows it best — and may House erred in inferring in the absence of express reasoning that the Lord Ordinary had determine certain charges should not be prosecuted must still proceed with the case. It also means addressed the threshold test for making a permanence order in section 84(5) of the Adoption charges determined to be prosecuted must also be tried in such a way that denies the individual and Children (Scotland) Act 2007. Further whether: (i) allegations against a parent can be Crown the ability to negotiate a just resolution that avoids a trial. Nowhere is this handicapping — taken into account in assessing whether a permanence order should be granted where no and even crippling — of Crown discretion more impactive on criminal court resources than with alle - finding was made as to the truth of those allegations; and (ii) taking such allegations into gations of domestic violence and sexual assault. There is not a player in the system who will not con - account would violate the parent’s rights under Article 8 of the European Convention on cede — although some only “off the record” — that completely incredible complaints of these types Human Rights. Thirdly, whether a permanence order can be made without any effective pro - are prosecuted every day through to their inevitable acquittals. And this is only one of many exam - vision for a natural parent to exercise responsibilities and rights of contact. ples of political policies dictating the continuance to conclusion of meritless or meaningless prose - The Court unanimously allows the appeals, and refuses the petition for a permanence order. cutions. We can have a criminal justice system that is at the mercy of political objectives and priori - Reasons for the Judgment: The test under s.84(5)(c)(ii) is a factual threshold test which has to be ties of other institutions, but we cannot then complain when the system honours its highest duty to met before the court reaches the stage of considering whether to make a permanence order under preserve our constitutional rights, including the right to trial within reasonable time limits. the other provisions of s.84. The judge is the primary decision maker in determining whether the The third reason our courts will have trouble living within even these non-onerous time lim - threshold test has been met, and must base his or her determination of that issue on findings of fact. its is that there are simply too many social problems we deem criminal and expect the crimi - The judge is not exercising a merely supervisory jurisdiction over the approach of the local authority. nal justice system to effectively manage if not, in fact, resolve. Drug abuse, for example, is a S.84(5)(c)(ii) is similar to section 31(2) of the Children Act 1989, which requires the court to be health problem the criminal justice system has proven entirely incapable of solving for almost satisfied that the child concerned “is suffering, or is likely to suffer, significant harm” before it can a century now but yet we keep thrusting addicts into it. Poverty and mental illness are two make a care order. Both provisions impose a threshold test, requiring the court to be satisfied of other social problems the criminal courts cannot solve but yet are expected to prevent from a likelihood. Decisions under s.31(2) of the 1989 Act as to a future likelihood of harm cannot be affecting the rest of the society by legitimizing the jailing of impoverished and mentally ill peo - based merely on allegations or suspicions, but on facts which have been established on a bal - ple through criminal charges. The role of the criminal justice system is to fairly and expedi - ance of probabilities (In re J (Children) Care Proceedings: Threshold Criteria) [2013] UKSC 9). tiously dispose of allegations of criminal misconduct, not to be a tool of attempts at social engi - The approach in In re J is also applicable to the 2007 Act. The legislation needs to be construed neering or control or to be a substitute for government inaction on social justice issues. It is to in a way which strikes a proper balance between the need to safeguard children and the need to free the innocent of the tremendous prejudice of a criminal allegation or to punish the guilty respect family life. The requirement that residence with the parent was likely to be “seriously detri - appropriately to deter the rational individual and others who are like-minded from doing it mental” indicates depriving parents of their parental authority is a serious matter and should only be again. The criminal justice system is not intended to serve political agendas beyond done if strict criteria are satisfied. The inclusion of the word “satisfied” as part of the test indicates that Charter-compliant legislation regarding what constitutes criminal behaviour and the punish - suspicions cannot form the basis of the order (and can be contrasted with other statutory language ments necessary to curb that behaviour. The relevant players in the criminal justice system used where suspicion may be enough). If the court finds that the threshold test is satisfied, it must must be given the unfettered discretion to decide which criminal charges must be prosecut - make clear (1) what the nature of the detriment is, which the court is satisfied is likely if the child ed, including the authority to make that decision on the basis of the need to get those pros - resides with the parent, (2) why the court is satisfied that it is likely and (3) why the court is satisfied ecutions completed within reasonable time limits. Undermining procedural protections, that it is serious. The alleged behaviour about which the local authority was concerned could only be such as the preliminary inquiry, to try to maintain an unreasonable volume of charges will relied on as a basis of a finding that the threshold test was satisfied if the allegations were relevant only lead to more wrongful convictions. Reid Rusonik a Toronto criminal defence lawyer to that issue and if they were proved on the balance of probabilities to be true [19-29]. The approach of the Lord Ordinary was deficient in a number of respects. He did not deter - In the Matter of EV (A Child) On appeal from the Inner House of the Court of Session mine the threshold issue arising under s.84(5)(c)(ii) but approached the case in a supervisory EV’s parents. both have learning disabilities. In 2010 the father was charged with criminal sexual manner considering whether the local authority’s concerns about EV’s father were justified. conduct with another learning disabled person of a similar age. The charges were dropped. EV was The correct approach would have been to consider whether the allegations were relevant to born in December 2013 and taken into care at birth. The Respondent Council was granted a per - the issue arising under s.84(5)(c)(ii). If they were, then the Lord Ordinary should have made a manence order in respect of EV in March 2016. It contained the mandatory provisions requiring finding of fact on the balance of probabilities as to whether the allegations were true. If he was parental responsibility of guidance and right to regulate the child’s residence to be vested in the coun - unable to make such a finding, he should not then take them into account in his consideration cil. It also contained ancillary provisions which extinguished the other parental rights and responsi - of the threshold test. Further, the Lord Ordinary did not refer to the matters which he had a bilities of the Appellants and vested them in the council. In addition, it specified there should be no duty to consider under s.84(5)(b). It is not clear whether he had in mind the requirement under contact between EV and the Appellants and included an order granting authority to adopt. The s.84(4) that the child’s welfare is paramount, but that is not in any event a consideration that Appellants appealed. The Inner House, quashed the grant of authority to adopt and removed the would arise until the threshold test under s.84(5)(c)(ii) was satisfied [30-62]. 6 7 The application should not be remitted to be decided again by the Inner House, but chological risk assessment. Further, it was submitted that the judge had failed to have regard refused. It is open to the local authority to commence fresh proceedings as and when that may to the facts of the petitioner’s case and to consider these against the decision in Haney. be appropriate. Remitting the case would require the Inner House to go through nine days’ It was said that the petitioner’s “unusual circumstances and unique history” required the worth of evidence which by now is somewhat stale and which would not take into account respondents to give him “priority” within the prison system, but he had not been given a reason - intervening events which may be relevant. This is a case where the assessment of the evi - able opportunity to progress to a point where the Parole Board would be in a position to consid - dence is difficult because of the learning difficulties of the parents and there may be a signifi - er releasing him. However, the appeal judges found no error in the Lord Ordinary’s judgment. cant benefit in seeing and hearing the evidence at first instance [63-66]. Delivering the opinion of the court, Lady Paton said: “In our opinion, the steps taken with a view to the rehabilitation of the petitioner disclose a careful and consistent endeavour on the part of the Scottish Prisoner Loses Appeal Over Alleged ‘Failure To Facilitate Rehabilitation And Release’ Prison Service to provide the petitioner with opportunities reasonable in all the circumstances for him to A man convicted of culpable homicide some 50 years ago who claimed that his human rights rehabilitate himself and to demonstrate that he is no longer an unacceptable danger to the public. had been breached because he had not been given a reasonable opportunity to rehabilitate Applying the guidance in Haney, we have detected no breach of any duty arising under Article 5 of the himself after being transferred from the state hospital to prison has had his legal challenge dis - ECHR, nor any error in the Lord Ordinary’s approach or conclusions.” In relation to the question of dam - missed. The Inner House of the Court of Session dismissed the appeal by Alexander Reid, ages, senior counsel for the petitioner submitted that if the judges were satisfied that there had been a upholding the Lord Ordinary’s decision to refuse a petition for judicial review in which it was breach of the Article 5 duty, he should be awarded damages of £500 as “an expression of the court’s argued that the “post-tariff” prisoner had suffered a breach of his rights under Article 5 of the disapproval”. Lady Paton added: “As we have concluded that there has been no breach of the duty aris - European Convention on Human Rights (ECHR). In 1967 the petitioner, then aged 17, was ing from Article 5, and that the petitioner is being provided with opportunities reasonable in the circum - accused of murder but pled guilty to a “violent homicide” on the grounds of diminished respon - stances for him to rehabilitate himself and to demonstrate that he is no longer an unacceptable danger sibility and detained in Carstairs State Hospital, where he remained for about 45 years. to the public, it is difficult to identify, far less quantify, any alleged loss, injury or damage suffered by him.” Lady Paton, Lord Brodie and Lord Malcolm heard that in 2012, following upon developments in the diagnosis relating to his mental health, he was successful in an appeal to the High Court Anger as Government Applies for Secret Hearing of Rendition Case of Justiciary (Reid v HM Advocate 2013 SLT 65) and in November that year was transferred Jamie Doward, Guardian: The government has been accused of attempting to bury the truth from Carstairs to serve a life sentence in HM Prison, Glenochil. The punishment part of his life about Britain’s role in the CIA’s extraordinary rendition process by seeking to have a case, sentence, which was set at 10 years, expired on 8 September 1977, meaning he was now a brought by two men detained by the US, heard in secret. It is the first time that a civil claim involv - post-tariff prisoner serving an “indeterminate” life sentence. ing extraordinary rendition will be heard in such a way. The use of “closed material procedure” The petitioner raised judicial review proceedings contending that his rights under Article 5 (CMP) cases in matters of national security is extremely rare. They were extended to the civil ECHR had been breached, in that the Scottish Prison Service – for whom the Scottish courts under the Justice and Security Act 2013. But in their first year of operation they were used Ministers are responsible – had failed in their duty to “provide an opportunity reasonable in all only five times. They have also been used in proceedings involving children who have been sus - the circumstances for such a prisoner to rehabilitate himself and to demonstrate that he is no pected of being radicalised and in cases involving female genital mutilation and forced marriage. longer an unacceptable danger to the public” (R (Haney) and others v Secretary of State for In cases of national security, secret intelligence introduced by the government during a CMP Justice [2015] 1 AC 1344). The petitioner sought declarator that his Convention rights had case will be seen only by the judge and a security-cleared “special advocate”. been breached by the respondents’ failure, in the period 27 November 2012 to date, to facili - The new case, centres on two Pakistani men the UK handed over to American forces in tate his progress towards release; damages of £5,000; and such further order as the court 2004. The US then rendered the pair to Afghanistan and secretly detained them in Bagram for deemed just and reasonable in the circumstances. a decade without charge, trial or access to a lawyer. They claim that they were tortured Following a first hearing before Lord Glennie in May 2015, the Lord Ordinary rejected the throughout their ordeal until they were eventually released to Pakistan in 2014. “For years, petition and in particular declined to grant declarator of a breach of the petitioner’s convention ministers made false statements about their involvement in torture and rendition until they rights, and refused to award any damages. But the petitioner reclaimed, arguing that the Lord were forced to admit the government’s complicity in this sordid affair,” said Omran Belhadi, a Ordinary erred in failing to hold that the circumstances of his case required the respondents, lawyer with Reprieve, which is helping the two men bring their case. Now they are trying to in fulfilling the implied ancillary duty owed to the petitioner under Article 5 of the ECHR, to “pri - use secret courts to keep the full truth buried. With a torture apologist now in the White House, oritise his case” within the prison system. It was also claimed that Lord Glennie erred in fail - it’s more important than ever that the government recognises the horrific mistakes of the Blair ing to hold that the respondents’ overall management of the petitioner’s rehabilitation was in years and ensures … it never happens again. Instead, the official dissembling continues.” breach of the implied ancillary duty “to facilitate his rehabilitation and release from custody”. According to the particulars of the claim submitted by one of the men, Amanatullah Ali, he was The Lord Ordinary failed to have regard to the respondents’ failure to carry out a psycho - held in solitary confinement and interrogated by “servicepersons … (who) had the British flag on logical assessment of the reclaimer prior to his involvement in a CARE programme, the peri - their uniforms”. He was made to stand naked in front of a camera. “If he moved”, someone od of time that elapsed before the respondents provided a place to the petitioner on the CARE “would enter the cell and beat the claimant”. When he was transferred to the US military, the programme and thereafter the period of time that elapsed before the provision of a psy - claimant “was taken to a windowless cell which he believes measured about six and a half 8 9 feet wide by six and a half feet long” and in which he was “forbidden from lying down”. He had made a crucial ‘mistake’ about the chemical composition of the home-made bombs was subject to sleep deprivation and was allowed to use the toilet only twice a day. “If the and that ‘a correction’ had to be made over their concentration. Earlier that day, another doc - claimant needed to go to the toilet outside those times, he had no choice but to urinate and defe - ument seen by this newspaper reveals that one of Mr Hill’s prosecution colleagues, who also cate in his cell,” the claim states. “If the servicepersons discovered he had done this they became attended the conference, had visited the FEL, which had been asked by investigators to furious and punished him. The claimant therefore tried to hide his faeces in the cell. As a result, review Dr Black’s work. Astonishingly, the document – a copy of notes taken by one of the the cell became extremely insanitary and smelled disgusting. The claimant felt as though he did lawyers – shows FEL chief scientist Clifford Todd told them Dr Black had used the wrong not exist in the world and had no importance to anyone.” Ali alleges he was subject to a num - method to test the explosives. Moreover, Mr Todd expressed concern that Dr Black was ‘not ber of punishments including deprivation of food and denial of a toothbrush and toilet paper. a forensic scientist, he is an academic’ and had a ‘lack of experience in forensic work’. A government spokesperson said: “Where we are defending a case that involves material The MoS has established that Dr Black had never, before this time, been involved in a terrorism which may impact on national security, we apply for closed material proceedings so that the case. According to the note, Mr Todd told the lawyers he could ‘pick lots of holes’ in Dr Black’s work, court can properly consider all relevant information. This application is now before the court ‘especially re quality systems’. He had made ‘a basic error’ in calculating the proportions of chemi - and it would be inappropriate to comment further.” Secret courts have been used to hear a cals in the explosive mixture, and had ‘got his figures back to front’. When it came to the trial, Mr Hill claim involving a man alleged to have been the army’s main informant inside the IRA. Another did not disclose anything about the problems raised by Mr Todd and the FEL, nor did he mention the case was brought by several Libyan dissidents and their families who were held by the UK case conference to the defendants’ lawyers. Four of the convicted bombers have now submitted a authorities before being deported back to their home country. dossier to the Criminal Cases Review Commission (CCRC), asking it to order a fresh hearing at the Court of Appeal. In further documents seen by this newspaper, their lawyers claim Mr Hill’s failure to Terror Law Chief's 'Cover Up' That Could Explode UK's Biggest Bomb Trial disclose documents relating to Dr Black amounts to a ‘bad faith abuse of process’ – so casting a David Rose, Mail on Sunday : Barrister appointed as top legal watchdog used 'faulty evidence' to potential shadow over Mr Hill’s role as Terrorism Reviewer. convict 21/7 bombers despite knowing the expert was discredited The top barrister just appointed Leading counter-terrorism expert Professor Anthony Glees, director of the Centre for Security and as the new terrorism watchdog is accused of an alleged cover-up of vital evidence that could cause Intelligence Studies at the University of Buckingham, said Ms Rudd’s decision to appoint Mr Hill was one of Britain’s biggest terrorist cases to collapse – the convictions of four men jailed for the ‘21/7’ ‘bizarre’. He added: ‘This is an extremely important job, but the right person would be a lawyer who attempted London bombings. Max Hill QC, who has acted as lead prosecutor in many terrorist tri - has never been involved in terrorism cases at all – not one who has been prosecuting them for years. als, was chosen last month by Home Secretary Amber Rudd to be the Independent Reviewer of It’s completely unacceptable to choose someone like Mr Hill, and it amounts to a conflict of interest. Terrorism Legislation. He started the high-profile role last Wednesday – it requires him to monitor The doubts over his role in the 21/7 case are a further reason to question the wisdom of appointing whether Britain’s terror laws are working fairly and to report to Parliament. him, and I’m surprised he’s accepted it.’ Mr Hill has denied he was party to any cover-up. Last night But The Mail on Sunday can t reveal that when Mr Hill presented the 21/7 bombings case he refused to comment on the case, but his spokesman said he ‘places the highest value on per - to Woolwich Crown Court in 2007, the prosecution team he led had been warned that foren - sonal integrity and the maintenance of his professional reputation’. sic evidence against the four defendants and another member of the gang might be deeply The reason why Dr Black’s evidence was so important was that the 21/7 devices, carried in flawed. Government scientists from the Ministry of Defence Forensic Explosives Laboratory rucksacks by Muktar Ibrahim, Yasin Omar, Ramzi Mohammed and Hussain Osman on to three (FEL) set out their concerns about the questionable evidence in a report before the trial. This Underground trains and a bus, did not explode. They claimed in their defence that this was should have been disclosed to the defence under rules to guarantee fair trials – but the report deliberate, telling the court they had intended only to terrify people to make a political point stayed hidden. Mr Hill has said he was not aware of the FEL report before the trial. against Britain’s invasion of Iraq. The 2005 incident took place just two weeks after the 7/7 But other documents, obtained by this newspaper, show he did know serious issues about the bombings in which 52 people were killed by devices of an apparently similar type. The fifth forensic evidence had been raised by FEL experts. These documents, published here for the first member of the 21/7 gang, Manfo Asiedu, who abandoned his device on wasteground, even - time, were also not disclosed before the trial. They include the minutes of a secret ‘case conference’ tually pleaded guilty to conspiracy to cause explosions. During the manhunt for the 21/7 held on November 22, 2006, eight weeks before the trial began, with Mr Hill, Scotland Yard officers bombers, police shot dead the innocent Brazilian Jean Charles de Menezes on a Tube train. and other prosecution lawyers. There Mr Hill personally quizzed Dr Stuart Black, an associate pro - There was little doubt that all five men arrested were guilty of serious offences, which could fessor in Reading University’s archaeology department, who conducted forensic tests critical to the have sent them to prison for many years – for example, conspiracy to cause explosions or prosecution’s case. It is highly unusual for an archaeologist to be consulted in this capacity. Dr possessing explosives. Having pleaded guilty to these offences, Asiedu was jailed for 33 Black’s evidence demolished the claims by the bombers that their devices were not designed to kill years. He will be eligible for release on licence in 2023. But to convince the jury they were and maim. His tests supposedly proved that the devices were viable, and their chemical make-up guilty of conspiracy to murder – the most serious offence for which they were charged – the was sufficient for them to detonate with destructive force. prosecution, led by Mr Hill and Nigel Sweeney QC, now a High Court judge, had to prove the A video image released by police shows two of the alleged July 21 bombers Muktar Said devices had been viable as bombs. For this, they relied on Dr Black. Ibrahim (left) and Ramzi Mohammed during their arrest in London on July 29, 2005 But the Dr Black told the court that his tests on the devices, using an innovative technique known case conference minutes, seen by the MoS, show Mr Hill pointed out to Dr Black that he Isotope Ratio Mass Spectrometry (IRMS), proved the devices were viable and capable of 10 11 causing explosions strong enough to kill and maim. He contended that the homemade explo - issue – the ratio of flour to the chemical hydrogen peroxide, the two main components of the sive from which they were made had not, as the defendants claimed, been deliberately dilut - 21/7 devices. Bombs of this type will explode only if this ratio is exactly right. ‘In terms of ratio, ed with tap water. At the trial, Dr Black’s evidence went largely unchallenged. The defence a correction has to be made,’ Mr Hill said. Following this, Dr Black made an ‘amendment’ to instructed an expert witness, but in court he admitted he was not an expert in IRMS. his statement, which admitted ‘a number of errors in the original report’. It was the information Ibrahim, Mohammed, Omar and Osman were found guilty and sentenced to life, with a com - in this amended statement that formed the basis of his trial evidence. Nasa’s Professor Max bined total of 160 years in jail. They were told they had to serve a minimum term of 40 years Coleman, an IRMS expert and former colleague of Dr Black at Reading, said: ‘Stuart doesn’t before they could be considered for release. In 2008, they fought and lost an appeal. Then, in have this experience, but the police seem wedded to him. I can’t work out why.’ Scotland Yard 2010, an FEL whistleblower contacted Stephen Kamlish QC, who had been Asiedu’s barrister. and the CPS refused to comment, except to say that in the Asiedu appeal, the court found ‘no The whistleblower, Sean Doyle, had been the FEL’s chief research scientist, and is one of the evidence of a cover-up’. A spokesman for the CPS said: ‘The Court of Appeal… highlighted world’s leading experts in Isotope Ratio Mass Spectrometry. He told Mr Kamlish that long the good faith of the prosecution team.’ Dr Black did not respond to requests for comment. before the 21/7 trial, using a formal ‘miscarriage of justice procedure’ imposed in response to wrongful convictions in IRA bomb cases in the 1970s, senior FEL scientists had written a Youth Sentencing to Take Child's Upbringing Into Account report that was highly critical of Dr Black. Owen Bowcott, Guardian: The social and ethnic backgrounds of young offenders should be taken It not only drew attention to flaws in his methods and calculations, but also stated IRMS into account to “avoid criminalising children unnecessarily”, according to sentencing guidelines for should not have been used to determine whether the unexploded devices had been viable judges and magistrates published on Tuesday. Among mitigating factors to be considered when pun - bombs at all. It was, the report said, ‘the wrong tool’. The FEL miscarriage of justice procedure ishing those between the ages of 10 and 17 are whether they have had “unstable upbringings”, expe - states that if scientists invoke it, their report must normally be given to the defence and pros - rienced criminal behaviour within their family or were exposed to pornography. Filming victims to humil - ecution teams in a criminal case in order to ensure fair trials. No mention was made of the mis - iate them and circulating images on social media will, however, lead to heavier punishments. The reg - carriage report at the 21/7 trial. In the wake of Mr Doyle’s revelations, Asiedu tried to appeal, ulations, circulated by the Sentencing Council, give greater priority to the defendant’s social circum - claiming that ‘bad faith’ had infected the entire prosecution, and that the failure to disclose the stances, including any social deprivation or abuse. They are aimed at ensuring uniform treatment in FEL report amounted to a ‘cover-up’. youth courts across the country. “The approach to sentencing should be individualistic and focused on However, the Court of Appeal ruled that ‘while there may be criticisms which can properly be the child or young person, as opposed to offence focused …” the guidelines’ introductory remarks state. made of Dr Black’… ‘the failure of disclosure had no impact on Asiedu’s case, nor did it affect Rehabilitation is the target: “It is important to avoid ‘criminalising’ children and young people unneces - the voluntary nature of his guilty plea’. As a prosecuting barrister in the 21/7 bomb trial, Max Hill sarily; the primary purpose of the youth justice system is to encourage children and young people to took part in a conference call with Dr Stuart Black. While reviewing Dr Black’s forensic evidence, take responsibility for their own actions and promote reintegration into society rather than to punish.” Mr Hill is quoted in the minutes of the meeting (above left) as saying ‘a mistake has been made’. Factors regularly present in the background of young offenders include “deprived homes, poor Prosecution lawyers also met with scientists of the Forensic Explosives Laboratory who pointed parental employment records, low educational attainment, early experience of offending by other out serious failings in Dr Black’s evidence and questioned his credentials. family members, experience of abuse and/or neglect ...” and the misuse of drugs or alcohol. Several Appeal Court hearings took place over three years. Mr Hill admitted the FEL miscar - Magistrates and judges are advised that they should always have “access to information about how riage of justice report should have been disclosed, but maintained that neither he nor the Crown best to identify and respond to these factors and, where necessary, that a proper assessment has Prosecution Service ever saw it before the trial. A CPS spokesman repeated this assertion yes - taken place in order to enable the most appropriate sentence to be imposed”. Black and minority terday. He denied there had been a cover-up. Pressed by the court, Mr Hill said in 2014 that all ethnic youths are over-represented in the youth justice system, the guidelines acknowledge. A sig - records of prosecution case conferences before the trial had now been reviewed, including those nificant proportion of looked-after children and young people are from black and minority ethnic back - with Dr Black. There was, Mr Hill insisted, ‘nothing [more] to disclose’. It was not until the last of grounds, the report says, while others may have suffered “discrimination and negative experiences the Asiedu hearings, on February 10, 2015, two days after this newspaper published details of of authority”. Such issues need to be taken into account when sentencing offenders. Among miti - Mr Doyle’s fresh evidence, that Mr Hill finally disclosed the minutes of the case conference on gating factors that should be assessed when sentencing young offenders for sexual offences are November 22, 2006. After the hearing was over, one of his colleagues also disclosed the records “exposure by others to pornography or sexually explicit materials”, domestic abuse and lack of famil - of the visit to the FEL earlier that day, saying her notes had been in ‘deep storage’. It went unre - ial support. A key aggravating factor to be taken into account for any offence, the guidleines say, is ported because the court imposed a gagging order. We can report them now as it has been lift - the “deliberate humiliation” of a victim through filming an attack “with the intention of causing addi - ed. The court rejected Asiedu’s appeal. It said in its ruling that the FEL miscarriage of justice tional distress or circulating” details and photos on social media and among friends. report ‘plainly’ should have been disclosed before the trial, but added there was ‘no evidence’ of A separate new guideline on providing reduced sentences for guilty pleas is also published a cover-up and found no bad faith or abuse of process. on Tuesday. It defines more strictly the point at which reductions can be granted. To qualify for The case conference note is on an official Metropolitan Police form. The case conference the maximum reduction of one--third off a sentence, a defendant must plead guilty at the first minutes from 2006 suggest that Mr Hill had been briefed about the FEL’s concerns. The min - court hearing. Those who admit their guilt later will serve longer sentences. Pleading guilty on utes quote him as saying to Dr Black ‘a mistake has been made’ about a critical forensic the day of the trial will reduce a sentence by a tenth. 12 13 Lord Justice Treacy, the chairman of the Sentencing Council, said: “The guidelines we their sirens on and blue lights flashing. Officers said they went after Henry because he was have announced will bring improvements to the way courts deal with offenders who have acting suspiciously. Seven small bags of “skunk” and £230 in cash were recovered from admitted offences and to how the sentencing of children and young people is undertaken. The Henry’s clothing by a detective after the crash. The four officers travelling in the pursuing cars guilty pleas guideline will help ensure that those defendants who are going to plead guilty do told the court Henry was “at no point aware” they were following him and that therefore the so as early in the court process as possible. This saves victims and witnesses the stress of a events of that night “technically” did not constitute a pursuit. But the jury rejected their evi - trial and means the police, prosecutors and courts can put their resources into those cases dence. The IPCC found that the officers conducted a pursuit without authorisation from a sen - that do go to trial. Our guideline on the sentencing of children and young people has the pre - ior officer in the control room. It also said the officers also did not consider the risks to Henry vention of reoffending at its heart. No one wants children who commit offences going on to of the pursuit. Commenting on the length of time it is taking to schedule a hearing, a Scotland become adult criminals. The guideline therefore looks with far greater detail at what kind of Yard spokesman said: “Since material from the independent IPCC investigation was provided sentence would prevent this based on the age, background and circumstances of each child to the MPS in November 2016 a process of disclosure has been taking place in line with reg - or young person, so that it can help them reintegrate instead of becoming alienated further.” ulations that govern the police misconduct process. The MPS aims to ensure that the hearing Children under the age of 10 cannot be found guilty of a criminal offence. is carried out as soon as possible as that is in the best interests of all those affected. The offi - The new guidelines come at the same time as David Lammy, the Labour MP for Tottenham, is cers remain on restricted duties. None has retired or resigned.” An IPCC spokeswoman said: conducting a review for the government into the treatment of those who are black, Asian or of minor - “Although disclosure of evidence was provided to the MPS prior to the Henry Hicks inquest, ity ethnic backgrounds by the criminal justice system. Malcolm Richardson, national chairman of the the force requested additional documentation a number of weeks after it concluded on June Magistrates Association, the independent charity representing magistrates in England and Wales, 28, 2016. The material was provided to the MPS in November 2016, following a disclosure said: “Magistrates are aware of the need for sentencing exercises to take place on a case-by-case process.” The Hicks family declined to comment on advice from their legal team. basis and in response to the particular circumstances of the person before the court. This includes being aware of factors which disproportionately affect different groups in society. Appropriate guid - US Supreme Court Rules That Jury Secrecy Can be Lifted if Racial Bias is Suspected ance which supports sentencers to be aware of these particular factors is therefore welcome.” Guardian: The US supreme court ruled on Monday 06/03/2017, that racial bias in the jury room can be a reason for breaching the centuries-old legal principle of secrecy in jury delib - Delays Over Police Hearing ‘Hit Grieving Henry Hicks Family’ erations. The court ruled 5-3 in a Colorado case in which a juror reportedly tied defendant Koos Couvée, Islington Tribune: Charity boss says wait for disciplinary proceedings ‘under - Miguel Angel Pena Rodriguez’s guilt to his Hispanic heritage. The juror’s statements came to mines any confidence in the system’. Henry Hicks died when his moped crashed into cars near light after Pena Rodriguez was convicted. Two jurors reported that a third juror colleague Pentonville Prison in December 2014 The head of a leading charity has blasted the Met’s determined that he was guilty because Pena Rodriguez is “Mexican, and Mexican men take “delay” in holding a misconduct hearing for the officers involved in the fatal pursuit of teenag - whatever they want.” Pena Rodriguez said the juror’s views, expressed behind the closed er Henry Hicks. Henry, 18, from Angel, died after losing control of a Vespa moped and crash - doors of the jury room, deprived him of a fair trial. ing into cars in Wheelwright Street, next to Pentonville Prison, on December 19, 2014. In June Justice Anthony Kennedy wrote for the majority “that blatant racial prejudice is antithetical to last year, following a 12-day inquest into his death, a coroner’s inquest ruled that Henry was the functioning of the jury system and must be confronted in egregious cases like this one killed in a road crash during a police pursuit – after a jury rejected the version of events pro - despite the general bar of the no-impeachment rule”. The court’s four liberal justices joined vided by police officers involved in the chase. Based on the inquest findings and its own inves - with Kennedy to form a majority. But the court stopped short of ordering a new trial or even tigation, the police watchdog, the Independent Police Complaints Commission (IPCC), ruled laying out procedures for lower courts to follow. Instead, Kennedy said, trial courts could “con - that the four officers, known only as A, B, C and D, should face gross misconduct proceedings sider the evidence of the juror’s statement and any resulting denial of the jury trial guarantees”. over their actions during the pursuit of Henry. But seven months on – and more than two years Chief Justice John Roberts and justices Samuel Alito and Clarence Thomas dissented. since Henry’s death – no date for a hearing has been set. “Today, with the admirable intention of providing justice for one criminal defendant, the court Deborah Coles, director of the charity Inquest, which supported the Hicks family during the not only pries open the door; it rules that respecting the privacy of the jury room, as our legal inquest, said: “Delay of this sort undermines the public’s trust in police and the justice system. system has done for centuries, violates the constitution,” Alito wrote. The supreme court had It’s in the interest of justice that, where decisions have been made to hold misconduct hear - resisted the call in earlier cases to examine what was said in the jury room. But several jus - ings, they should be heard as promptly as possible. It [the delay] particularly impacts bereaved tices indicated during argument in the case in October that the allegations raised by Pena families. They are looking to this process to get some justice and accountability. Families have Rodriguez made for an extraordinary case. The dispute arose after a jury convicted Pena this hanging over them and they want to go through the process. These delays frustrate their Rodriguez of inappropriately touching teenage girls. No other juror was alleged to have said grieving process because it’s unresolved.” Ms Coles added: “This family have been very clear anything improper and all 12 jurors, including the two who reported the inappropriate com - from the outset that they want justice and accountability and this delay just frustrates and ments, voted to convict him. Lawyers for Colorado and the Obama administration, which undermines any confidence they have in the system [designed] to hold officers accountable.” urged the court to leave jury secrecy undisturbed, acknowledged that the statements attrib - The inquest heard Henry was being followed by two unmarked police cars, which had uted to the juror identified only as HC were indefensible. But they said there are better 14 15 ways to address racial bias on juries, including closer screening of potential jurors. was a major risk in a prison responsible for receiving those new to custody; • the use of force Incarcerating Prisoners Thousands of Miles Away From Relatives Violation Article 8 had increased threefold, and levels were now higher than at similar prisons; • although commu - In Chamber judgment in the case of Polyakova and Others v. Russia (application nos. 35090/09, nal areas were reasonably clean, cells were often overcrowded, dirty and not properly equipped; 35845/11, 45694/13 and 59747/14) the applicants are either prisoners, or the family members of • 47% of prisoners were locked up or not purposefully occupied during the core day and although prisoners, who were adversely affected by decisions of the Russian Federal Penal Authority (“the most prisoners benefited from some time out of cell in the morning or afternoon, not enough was FSIN”) to imprison individuals thousands of miles away from their families. The applicants com - done to ensure prisoners attended work, training or education; • many prisoners were transferred plained that the decisions to allocate prisoners to remote penal facilities -and their subsequent inabil - on from Durham without a completed assessment of the risks they posed; and • the work of the ity to obtain transfers – had violated their right to respect for family life. The European Court of two community rehabilitation companies (CRCs) and the offender management unit was not Human Rights held, unanimously, that there had been a violation of Article 8 (right to private and fam - integrated well enough. • Inspectors made 67 recommendations. ily life) of the European Convention on Human Rights in respect of each applicant. Peter Clarke said: “This is a disappointing report. The prison had many strengths, not least The Court held that the distance between the penal facilities and homes of the prisoners’ a strong local identity and generally friendly staff, but the culture was not as constructive or families – ranging from 2,000 to 8,000 kilometres – was so great that it had inflicted hardship purposeful as it should have been. It was striking how little had changed since our last inspec - on the persons concerned. In particular, one applicant (who is a prisoner) had been unable to tion, with a passivity, even complacency, about what was needed to take the prison forward. see his mother prior to her death; whilst another applicant (a young child born after her father’s Plans to redefine the prison’s role and purpose arguably provide an opportunity to develop incarceration) had never been able to see her father. The location of the imprisonments had greater momentum towards improvement.” interfered with the applicants’ right to family life. Furthermore, this interference had not been in accordance with the law. Quality of law stan - Secure Training Centre: Oakhill - Requires Improvement to be Good dards require that domestic law affords protection against arbitrariness in the exercise of discre - Oakhill secure training centre requires improvement to be good. Several aspects of the serv - tion left to the executive authorities. However, Russian law had not required the FSIN to consid - ice have deteriorated since the last inspection and the promotion of positive behaviour is inad - er the impact that a penal facility’s location might have on the family life of the applicants. equate. The achievement of young people has improved and is good. Given the age profile of Moreover, the law had not provided the applicants with a realistic opportunity to obtain a trans - young people within the centre, with over half aged between 16 and 18, this achievement is fer to another penal facility on grounds relating to the right to respect for family life – either commendable. Since the previous inspection, the centre has had significant challenges through an application to the FSIN itself, or through a judicial review of its decisions. The Court because of difficulties in recruiting and retaining staff. The reasons for this are complex and also found a violation of Article 6 (right to a fair trial) in respect of one of the applicants. include aspects of local demographics. More tellingly has been the significant impact of the Panorama programme about Medway secure training centre and the subsequent decision of HMP Durham – Not a Safe Prison the parent company G4S to sell the children’s services sector in its entirety. HMP Durham had many strengths but the pace of progress was too slow and it was not safe enough, Staffing pressures have been heightened by rising levels of violence within the centre. Some staff said Peter Clarke, Chief Inspector of Prisons. As he published the report of an unannounced inspec - are less resilient or confident in working with a cohort of older, more challenging young people, and tion of the local jail. HMP Durham, in the city centre, dates from the early 19thcentury. It serves courts staffing support from other G4S secure training centres is no longer possible. In order to ensure that in the North East and Cumbria and holds just under 1000 prisoners in often overcrowded accommo - the centre could continue to operate safely and effectively while recovery plans were implemented, dation. Nearly half of those held were remanded or serving short sentences. The high levels of need with the agreement of the Youth Justice Board (YJB), a temporarily reduction of numbers from 80 among the population were clearly evident and a significant challenge. During the inspection, inspec - places to a maximum of 55 was in place during the summer. During the period of the inspection the tors were told of plans to designate Durham as a reception prison with the principal purpose of holding centre had returned to full bed availability and was declaring 80 available beds. remanded and unsentenced prisoners. Previous inspections, and this more recent inspection, acknowl - Halfway through last year, a new permanent director was appointed and the centre was trans - edged the many positive features of the work done at this prison. The pace of progress, however, has ferred to the management of the custodial and detention arm of the parent company. Since this time, been slow. The prison was still not safe enough. The prison’s work to help prisoners resettle back into there has been purposeful change and improvement from a low base. The recruitment of staff has the community had deteriorated, as had education, skills and training provision for prisoners. been prioritised and an assertive recruitment campaign undertaken. This has been highly success - Inspectors were concerned to find that: • 27 recommendations from the last inspection had not ful in attracting staff to work within the centre. However, the relative inexperience of a significant pro - been achieved and 12 only partly achieved. • four prisoners had taken their own lives since the portion of staff has led to inconsistency and variability across the centre both in terms of practice and last inspection in 2013 and there was a further tragic death the week following the inspection. recording. Some first tier managers across the centre do not sufficiently support, advise, and, where The prison was trying to learn lessons from those deaths and men in crisis said they felt well necessary reproach some new and existing staff to drive up the quality of care. cared for; • although levels of violence remained broadly unchanged and most incidents were The centre was generally calm during the inspection. In a survey of young people resident at low level, more prisoners said they felt unsafe at the prison than during previous inspections; • the time of inspection, 93% of those who responded reported that they felt safe at the centre. just under half the prisoners when surveyed said that illicit drugs were readily available in the These findings are further supported by structured interviews with 10 young people that were prison; • arrangements when prisoners first arrived at the prison were generally poor, which undertaken by HMIP researchers. Arrangements for the first night are good and young peo - 16 17 ple are supported sensitively to settle in. Safeguarding arrangements have improved since EDM 1002: Protection of Whistleblowers Making Public Interest Disclosures the last inspection and almost all referrals to the local authority were timely, appropriate and well That this House is gravely concerned by the provisional recommendations in the Law Commission's recorded. The application of rewards and sanctions is inconsistent and characterised by poor review of the Official Secrets Act; notes the ability of whistleblowers to make disclosures in the public oversight and governance. Inspectors saw a number of examples where young people had items interest is vital for democracy, press freedom and for the public good; is shocked by the proposal to in their room that were not consistent with the level of the incentive scheme they were on. This extend the maximum criminal sentence for unlawful disclosures from two years to 14 years, make undermines the effectiveness of the system as well as those staff who apply the scheme con - unlawful the mere acquisition and possession of confidential material; invites the Law Commission fully sistently. Since the last inspection, the number of assaults has risen significantly. Although a vio - to consult with relevant bodies, and especially to consult the NUJ over a matter which will inevitably lence reduction strategy has recently been produced, it has had limited impact to date. There are impact on legitimate media investigations and public interest journalism; welcomes the fact that the good arrangements for the oversight of restraint, sanction and the use of force. Government has put on record that it does not want to curtail freedom of speech or the legal rights of The residential units are undergoing much-needed refurbishment and redecoration. They are whistleblowers to make protected disclosures and has brought forward amendments to the Digital currently too bare, with pictures and information displays having been removed. There are plans Economy Bill in this respect; and calls on the Government to rule out any such interference with essen - to address this once the redecoration is completed. Young people know how to make complaints, tial liberties and freedoms including draconian jail sentences for journalists. and these are generally managed well. Young people’s views are sought through meetings, sur - veys and focus groups. As a result, changes to some practices in the centre have been made or EDM 1010: Effective, Independent Investigation Redress of Human Rights Violations are planned, for example the introduction of the new rewards and sanctions scheme. That this House notes the Commencement Matter raised by Senator Brian Ó Domhnaill in the There is a high level of mutual respect between teachers and young people, which helps pro - Republic of Ireland's Seanad calling for a comprehensive update on the Government's actions to mote and maintain a positive learning environment. The headteacher and her staff have worked implement the Stormont House Agreement, and to provide bereaved families with an effective and hard to improve teaching and learning. The achievement of learning objectives is good, with independent investigation to secure redress of recognised human rights violations; and further notes most young people making significant progress from their starting points. The majority of teach - that Minister Seán Kyne, T.D., responding on behalf of the Irish Government, has advised that ing and learning is good. Inspectors saw young people positively engaged in classes. The man - Ireland's advocate at the Council of Europe has highlighted the urgent need for progress on this mat - agement of behaviour in the classroom is good, assisted by care staff support. Attendance is ter, focusing particularly on the establishment of a properly resourced legacy inquests system to sat - very good and punctuality is improving, following fewer restrictions on young people mixing. isfy the outstanding judgments against the Government and to ensure effective and full compliance Resettlement arrangements are prioritised from the point of the young person’s admission, with Article 2 of the European Convention on Human Rights. through to the time of leaving the centre. The resettlement team are pro-active in ensuring they remain involved with young people when they return to their communities. Inspectors spoke And Finally... Where's The Beef? with a number of external professionals, including social workers and youth offending workers A police officer responding to reports of a cow loose on the motorway quickly established its where - who were either on-site during the inspection or contacted by telephone. All reported well on abouts when he hit it with his car. Daniel Steven Schulz, 30, was searching for the cow at around 10pm their communication with the resettlement team and the child-centred approach to planning. on Monday and unexpectedly encountered it fifteen minutes later. The incident report records: "As the Young people have access to a good range of health services and generally are positive deputy was making a second pass through the area, the cow ran out of the ditch and the vehicle struck about the care they are given. A number of recommendations are repeated from the previous it." The cow, which had escaped from a nearby farm, was killed. Mr Schulz's car was totalled and he inspection, including the need to implement an electronic patient recording system. This short - was sent to hospital with non-threatening incidents, Kanabec County Sheriff Brian Smith said Mr fall has an adverse impact on individual young people’s healthcare arrangements, as it limits Smith told Minnesota's St. Paul Pioneer Press: “I’d have to say this is the first time I’ve ever had [a the ability of health services to monitor their overall impact. deputy] hit the animal they’re looking for. But then again, that’s exactly why we go look for them. I’ve been to too many serious accidents and even fatalities caused by livestock on the road.” EDM 1010: Effective, Independent Investigation Redress of Human Rights Violations That this House notes the Commencement Matter raised by Senator Brian Ó Domhnaill Hostages: Andrew Malkinson, Michael Ross, Mark Alexander, Anis Sardar, Jamie Green, Dan Payne, in the Republic of Ireland's Seanad calling for a comprehensive update on the Zoran Dresic, Scott Birtwistle, Jon Beere, Chedwyn Evans, Darren Waterhouse, David Norris, Brendan Government's actions to implement the Stormont House Agreement, and to provide McConville, John Paul Wooton, John Keelan, Mohammed Niaz Khan, Abid Ashiq Hussain, Sharaz Yaqub, David bereaved families with an effective and independent investigation to secure redress of Ferguson, Anthony Parsons, James Cullinene, Stephen Marsh, Graham Coutts, Royston Moore, Duane King, Leon Chapman, Tony Marshall, Anthony Jackson, David Kent, Norman Grant, Ricardo Morrison, Alex Silva,Terry recognised human rights violations; and further notes that Minister Seán Kyne, T.D., Smith, Hyrone Hart, Glen Cameron,Warren Slaney, Melvyn 'Adie' McLellan, Lyndon Coles, Robert Bradley, John responding on behalf of the Irish Government, has advised that Ireland's advocate at the Twomey, Thomas G. Bourke, David E. Ferguson, Lee Mockble, George Coleman, Neil Hurley, Jaslyn Ricardo Smith, James Dowsett, Kevan & Miran Thakrar, Jordan Towers, Patrick Docherty, Brendan Dixon, Paul Bush, Council of Europe has highlighted the urgent need for progress on this matter, focusing Alex Black, Nicholas Rose, Kevin Nunn, Peter Carine, Paul Higginson, Thomas Petch, Vincent and Sean Bradish, particularly on the establishment of a properly resourced legacy inquests system to satis - John Allen, Jeremy Bamber, Kevin Lane, Michael Brown, Robert Knapp, William Kenealy, Glyn Razzell, Willie Gage, Kate Keaveney, Michael Stone, Michael Attwooll, John Roden, Nick Tucker, Karl Watson, Terry Allen, fy the outstanding judgments against the Government and to ensure effective and full com - Richard Southern, Jamil Chowdhary, Jake Mawhinney, Peter Hannigan, Ihsan Ulhaque, Richard Allan, Carl pliance with Article 2 of the European Convention on Human Rights. Kenute Gowe, Eddie Hampton, Tony Hyland, Ray Gilbert, Ishtiaq Ahmed. 18