Disclosure and Compulsion: Asylum Applications and Criminal Charges: R v McGeough [2015] UKSC 62

Alexander Thompson
Alexander Thompson

In a judgment handed down on 21st October 2015 the Supreme Court rejected the appeal by ex-IRA member, Terence (Gerry) McGeough that evidence in his trial on four charges was inadmissible on several alternative grounds, all of which were rejected by the court.

 

Background

In 1981, McGeough and an accomplice attempted to murder postman and part-time soldier in the Ulster Defence Regiment, Samuel Brush. During the attempt, McGeough was seriously wounded. After surgery and treatment in Dublin, and during recuperation in Monaghan General Hospital, McGeough escaped leaving Ireland shortly thereafter. On 22nd August 1983, McGeough made an application for asylum in Sweden, which contained information to the effect that he was a member of the Irish Republican Army. McGeough’s asylum application failed and the British authorities obtained a file containing the failed application and the admissions made by McGeough in respect of criminal activities in the UK.

Gerry McGeough
Gerry McGeough

In 2010, McGeough was tried and convicted on four counts: possession of a firearm with intent to commit an indictable offence; attempted murder; and two counts (between January 1975 – June 1978 under s.19(1) Northern Ireland (Emergency Provisions) Act 1973, and May 1978 – June 1981 under s.21(1) Northern Ireland (Emergency Provisions Act 1978) of being a member of the IRA.

Cause of Action

Although information relevant to the attempted murder (‘of a British Army officer’ [sic]) and possession of a firearm were also included in the Appellant’s asylum application these convictions were not challenged, largely because the other evidence in relation to these charges was so overwhelming. However, in respect of the two charges of IRA membership, it was the Appellant’s case that the information contained in his asylum application was not admissible at trial for several reasons, of which only one was deemed of weight by the Court, that the contention that the Appellant had been ‘compelled’ to incriminate himself in his asylum application and that the Swedish authorities had exceeded the scope and purpose of EU Directive 2005/85/EC, arts.22 and 41 (relevant to both UK and Swedish asylum laws) in disclosing the incriminating information to the British authorities.

Manner and Form

Article 22(a) reads:

For the purposes of examining individual cases, Member States shall not:

  • directly disclose information regarding individual applications for asylum, or the fact that an application has been made, to the alleged actor(s) of persecution of the applicant for asylum

 

Article 41 requires that:

Member States shall ensure that authorities implementing this Directive are bound by the confidentiality principle as defined in national law, in relation to any information they obtain in the course of their work.

The court took the view that Art.22 required confidentiality while the examination and assessment of the application for asylum was ongoing (para.23) but not beyond that time, and certainly not after an application had failed. As to Art. 41 the court noted that the ‘confidentiality principle’ is a term whose application is defined by the relevant national law. Evidence was given that the tradition in Sweden is one of ‘openness in relation to public documents’ (para.11) and that the Appellant who had had the benefit of two lawyers’ advice would have been fully aware of this fact (para.12).

The court was not convinced either by the Appellant’s argument that if such an application were made in the UK, the material contained therein would, under UK implementation of the directive, be confidential (para.28). Indeed, it found such an interpretation actively ‘inconsistent’ with the framework of the Directive (para.27). In any event, it would not be the relevant requirement for an EU directive that all member states implement it in exactly the same fashion because of the discretion which grants member states freedom as to manner and form provided the minimum requirements and purpose of the Directive are met.

Disclosure and Candour

The Appellant argued that the ‘clear purpose’ (para.20) of the Directive was to ‘encourage applicants for asylum to make full disclosure’ and that applicants could only do so if they felt secure that any information provided would not be disclosed beyond the necessity to process the application. As a matter of public policy it can legitimately be argued that implicit in any asylum process are the notions of security and sanctuary but beyond that the argument becomes far harder to sustain. The court took the view that the requirements for confidentiality in Arts. 22 and 41 and elsewhere in the Directive did not constitute an ‘explicit requirement [of confidentiality] for all time and from agencies’ (para.23). Nor were the arguments by the Appellant that such requirements were ‘implicit’ in the Directive sustained.

Comments

In none of his trials did McGeough ever seriously contest his guilt of any of the four charges. On appeal (at para.13), his challenges were political (he claimed that he had been given assurances that his liability for the attempted murder would be covered by the contentious ‘on the runs’ immunity letters issued to some former terrorists) and procedural, challenging several aspects of the process in different hearings including an alleged breach of Art.6 ECHR because of the lapse of time as well as the non-prosecution assurances he claimed to have received.

In strict legal terms many of the arguments made by the Appellant were thin gruel indeed. His argument that he was ‘compelled’ to make full declaration of his past in his asylum application was found to have absolutely no basis in law by the Supreme Court, or in fact or law by the lower courts. Arguably, however, there is discretion inherent in the Directive which can be found in the term ‘alleged actor(s) of persecution’ rather than the more dry ‘country’ or ‘state’ used in Art.22 and elsewhere into which some higher form or level of confidentiality could be taken as implicit. In McGeough’s case at the Court of Appeal he had obliquely made this point in respect of breaches of Art.6 ECHR, that the UK authorities had pursued him beyond all reasonable duration in this matter. Such ‘persecution’ could legitimately create a justification for confidentiality ‘for all time and from all agencies’ (para.23) with such discretion retained by member states per Art.41. It could be imagined that Sweden would make an exception to its usual approach of openness where disclosure (even that application for asylum had been made) would endanger the safety of an asylum seeker, failed or otherwise.

Consideration also needs to be given to the areas of public policy which inform the necessity of candour in making an application for asylum, as there will always be a balance to be struck, particularly in ‘political’ cases such as this. States considering the granting of asylum will want the fullest information possible on the applicant, and asylum seekers are legally required to provide all information deemed essential the application per Art.20.1(a) of the Directive or risk the application failing. Meanwhile, the asylum seeker will naturally enough want to put his case for asylum in the most sympathetic if not necessarily frankest or fullest terms to maximise his chances of obtaining asylum. It is hard though to see this as genuine compulsion, as was alleged by McGeough, in either having to make the asylum application at all or what is disclosed in the application.

A further difficulty arises where the overtly criminal arises explicitly from the abstract political and the political context. Membership of a proscribed organisation might be one thing and it might be the case that where such membership is proscribed that the state from which the applicant is seeking asylum is an ‘actor of persecution’. This is qualitatively different however to being a member of a proscribed organisation on ‘active service’ (as McGeough, in IRA military parlance would certainly have regarded himself) and taking part in terrorist actions which is a markedly different matter. McGeough would of necessity had to be frank about his membership of the IRA (otherwise he was seeking asylum merely because he was on the run for firearms offences and attempted murder) but he was at least partial in his relating of the attempted murder (a postman and part-time UDR soldier such as Samuel Brush is not in any candid sense a ‘British Army officer’). Here the applicant was not fleeing a persecuting regime but rather, requirements of criminal justice which it would hard to describe as persecution. Whether in this instance the actions of the UK legal system would have amounted to persecution had McGeough been facing only the charges of IRA membership remains unclear in practical terms, but the Supreme Court has stated clearly the scope and purpose of this Directive as to any requirements of confidentiality without such subjectivity.

Alexander Thompson (LL.M Sussex) is a barrister

Do States Have to comply with Human Rights when Countering the Phenomenon of Foreign Fighters?

Alex Conte
Alex Conte

In a blog for EJIL: Talk!, I consider an old question in a new context: do States have to comply with human rights when countering foreign fighters? The phenomenon of foreign fighters involves, as described by the OHCHR, “individuals who leave their country of origin or habitual residence, motivated primarily by ideology or religion, and become involved in violence as part of an insurgency or non-State armed group (even though they may also be motivated by payment)”. Preventing and responding to this phenomenon involves a multitude of potential initiatives at international, regional and national levels. A review of the Security Council’s principal resolution on foreign fighters, Resolution 2178 (2014), discloses several binding decisions as well as recommendations in what the Security Council described as a ‘comprehensive’ response to the factors underlying foreign fighters (see preambular para 13). State prevention and responses to foreign fighters has the potential to impact on the international human rights obligations of States and we are already seeing robust State responses, including in the case of the United Kingdom’s recent enactment of the Counter-Terrorism and Security Act 2015 and earlier amendments to the British Nationality Act 1981 to allow for the deprivation of citizenship.

I want to emphasise here that the question of human rights compliance in countering the phenomenon of foreign fighters does not involve new or untested issues. I draw attention to seven points:

  1. Implementation by States of recommendations and obligations under SC Res 2178 has the potential to impact on a broad range of civil, cultural, economic, political and social rights

The main objectives of SC Res 2178 are to inhibit the travel of foreign fighters, stem the recruitment to terrorism, disrupt financial support to or by foreign fighters, prevent radicalisation, counter violent extremism and incitement to terrorism, and facilitate reintegration and rehabilitation (see operative paragraphs 2-19).

Action in response will, or at least may, engage several human rights obligations of States. Concerning measures to inhibit the travel of foreign fighters, this may include: the freedom of movement; the right to return to one’s country of nationality; the freedom of entry into a State, particularly as this may affect refugee and asylum law; the deprivation of citizenship; the rights to family and private life and to employment and culture, as this affects individuals who may be prevented from entering a territory of habitual residence in which their family resides; the right to privacy, including as this affects the collection, storage or use of information in border control activities; the prohibition against discrimination, including as this affects profiling activities of border control officials; detention, as this affects the prohibition against unlawful or arbitrary detention; and rendition to States in which there is a risk of human rights violations being perpetrated against the individual. Concerning measures to implement the objectives under SC Res 2178 as a whole, the following further rights may be engaged: rights applicable to the criminalisation of conduct, including as this affects the principles of legality, non-retroactivity of criminal laws and double jeopardy; prosecution, including as this affects the right to a fair trial; the right to freedom of expression; the right to freedom of association; and various rights engaged as a result of financial and UN terrorist listing sanctions, including as these relate to the due process deficiencies within the Security Council’s terrorist sanctions regime.

  1. This is exacerbated by the absence in SC Res 2178 of a comprehensive, concise and human-rights compliant definition of terrorism

Consideration of human rights compliance when combating foreign fighters, especially with regard to action in response to Security Council Resolution 2178, must also take into account the absence in that resolution of a definition of terrorism. The absence of a comprehensive and concise definition of terrorism has drawn much criticism, including from the former Special Rapporteur on human rights and fundamental freedoms while countering terrorism (see para 26). His solution was to propose a human-rights compatible definition of terrorism (Practice 7 in his report), drawn from Security Council Resolution 1566 (2004), para 3. This lack of definition, which creates the risk of States adopting overly broad or abusive definitions of the term in the context of combating foreign fighters, is a further aspect to be taken into account  when considering State responses to the phenomenon of foreign fighters against the backdrop of their international human rights obligations.

  1. Global security and human rights are not to be juxtaposed; they are complementary and mutually reinforcing

In September 2006, the General Assembly adopted the UN Global Counter-Terrorism Strategy, as recommended by Kofi Annan in his report entitled Uniting against Terrorism. In his report, the former Secretary-General emphasised that effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing ones (para 118).

The principle of complementarity and mutual reinforcement between security and human rights is reflected within the Global Strategy in three ways. First, respect for human rights for all and the rule of law forms one of the four pillars of the Strategy (Pillar IV). Second, it is also identified as “the fundamental basis of the fight against terrorism” (Pillar IV, title), thus applicable to all four pillars of the Strategy. Finally, the Strategy’s recognition of the importance of respect for human rights while countering terrorism is reflected through the express identification that a lack of the rule of law and violations of human rights amount to conditions conducive to the spread of terrorism (Pillar I, preambular paragraph).

  1. The Security Council has itself made repeated reference to the need for human rights compliance when implementing SC Res 2178

A notable feature of Resolution 2178 is its repeated reference to the need for human rights compliance. Its preambular paragraphs recognise, in line with the Global Counter-Terrorism Strategy, that measures to counter the phenomenon of foreign fighters must comply with the UN Charter and with States’ obligations under international law, in particular international human rights law, international refugee law and international humanitarian law (preambular paras 5 and 7). Resolution 2178 underscores that “respect for human rights, fundamental freedoms and the rule of law are complementary and mutually reinforcing with effective counter-terrorism measures, and are an essential part of a successful counter-terrorism effort”; and notes that lack of compliance with obligations under international law (including international human rights law) “is one of the factors contributing to increased radicalization and fosters a sense of impunity” (preambular para 7).

In requiring, or recommending, particular action by UN Member States, the operative provisions of Resolution 2178 follow this pattern. For example, the resolution requires States to “prevent and supress the recruiting, organizing, transportation or equipping of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training” (operative para 5). But it expressly requires that States do so “consistent with international human rights law, international refugee law, and international humanitarian law”.

  1. The principle of complementarity and mutual reinforcement is also a natural consequence of States’ legal obligations and of the flexibility of human rights law

An obvious point should be recalled: not only are human rights essential to a sustainable strategy for the countering of terrorism, but States are obliged by law to comply with their international human rights obligations. States have human rights obligations under customary international law (applicable to all States) and international treaties (applicable to States parties to such treaties). Compliance with human rights is not something requiring States to do something extra, or something special. In commenting on human rights in the fight against terrorism, former Judge of the European Court of Human Rights,

Justice Egbert Myjer
Justice Egbert Myjer

, succinctly stated: “Just do what you have promised to do” (Myjer E (2009) Human Rights and the Fight against Terrorism – Case-law of the Strasbourg Court (paper presented at the Round Table Fight against Terrorism: Challenges for the Judiciary, 18-19 September 2009, Fiesole, Italy), p.1).

Furthermore, any argument that respect for human rights prevents States from effectively fighting terrorism not only takes a short-term perspective, it also disregards the nature of international human rights law which, other than in the case of a limited number of rights, incorporates a level of flexibility to accommodate security and public order objectives.

  1. The requirement of human rights compliance is not altered when States implement binding decisions of the Security Council

As discussed, certain aspects of the operative provisions of Security Council Resolution 2178 make express reference to the need for States to comply with their international obligations, including under international human rights law. Other binding decisions do not, prompting the questions: how are such obligations to be interpreted; and what approach is to be taken with respect to future decisions of the Security Council where ambiguity is present?

In cases before the UN Human Rights Committee and the European Court of Human Rights, States have, in simple terms, argued that human rights considerations are not relevant when determining the meaning or implementation of Security Council resolutions under Chapter VII of the Charter. States have pointed to the fact that Chapter VII decisions must be carried out by States, without discretion, by virtue of Articles 25 and 48 of the Charter. They have argued that Article 103 of the Charter requires that human rights obligations must be set aside since that provision holds that: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter [here, obligations to comply with Security Council resolutions] and their obligations under any other international agreement [here, international human rights treaties], their obligations under the present Charter shall prevail”.

In Sayadi and Vinck v Belgium, the majority of the Human Rights Committee avoided the issue by concluding that the Committee was competent to consider the compatibility with human rights of national measures to implement a Security Council resolution (para 10.6). Its focus was on implementation, rather than interpretation. Two diverging positions can nevertheless be seen. On the one hand, Committee member Ivan Shearer took the view that the Committee should have rejected the authors’ case as unsubstantiated. He effectively agreed with Belgium that the combination of Articles 25, 48 and 103 of the Charter meant that the ICCPR was subordinate to the Charter, not on a par with it. In contrast, Sir Nigel Rodley considered Article 24(2) of the Charter (which provides that the Security

Prof Sir Nigel Rodley
Prof Sir Nigel Rodley

Council must discharge its duties “in accordance with the Purposes and Principles of the United Nations”), concluding that it should therefore be presumed that the Security Council does not intend that action taken pursuant to its resolutions should violate human rights, and that Security Council decisions should be interpreted in light of that presumption.

The European Court of Human Rights, in Al-Jeddah v UK, arrived at the same result as Sir Nigel Rodley. It concluded that the purposes and principles of the Charter, when combined with the qualified competence of the Security Council under Article 24(2) and the UN and Member State commitments under Articles 55(c) and 56, called for an interpretation of Security Council resolutions in a way that was most in harmony with the provisions of the European Convention on Human Rights (para 102). The same approach was later taken by the European Court in Nada v Switzerland in the context of Security Council listing and sanctions resolutions, where it stated:

“[T]he United Nations Charter does not impose on States a particular model for the implementation of the resolutions adopted by the Security Council under Chapter VII. Without prejudice to the binding nature of such resolutions, the Charter in principle leaves to UN member States a free choice among the various possible models for transposition of those resolutions into their domestic legal order. The Charter thus imposes upon States an obligation of result, leaving them to choose the means by which they give effect to the resolutions.”

  1. A human rights compliant approach when implementing binding decisions of the Security Council remains the case even when a State is left with no choice as to the means of implementation

A further question must be addressed: what if a State considers that there are no human rights compatible options in the implementation of a Security Council decision?

The majority approach of the Human Rights Committee in Sayadi and Vinck v Belgium was to disregard any question of the compatibility of Security Council decisions with human rights, instead focussing solely on the question of the compatibility of implementing acts by Belgium with its obligations under the ICCPR. The majority stated (para 7.2):

“While the Committee could not consider alleged violations of other instruments such as the Charter of the United Nations, or allegations that challenged United Nations rules concerning the fight against terrorism, the Committee was competent to admit a communication alleging that a State party had violated rights set forth in the Covenant, regardless of the source of the obligations implemented by the State party.”

In November 2013, the European Court turned its mind to the question under consideration in this section. In Al-Dulimi v Switzerland, the Court agreed with Switzerland (and France and the UK, who joined as third party interveners) that sanctions mandated under operative paragraph 23 of Resolution 1483 (2003) left Switzerland with no discretion as to the means of implementation (para 113). The Court held that States nevertheless remain liable under the ECHR for all acts and omissions of their organs arising from the need to observe international legal obligations. It continued to explain that, if the organisation under which such obligations arise (in this case the UN and its Security Council) has means of protecting human rights that are at least equivalent to the ECHR, the Court can in such cases assume that the State has complied with its obligations under the ECHR (para 114). The Court concluded that no equivalent protection existed and that, accordingly, Switzerland bore full responsibility for any violation of rights under the ECHR in its implementation of Resolution 1483 (paras 118-120).

Two conclusions can be drawn from this jurisprudence. First, wherever a State has a choice as to the means of implementing a decision of the Security Council, including on foreign fighters, it must adopt the means of implementation that are most consistent with its international human rights obligations. Second, even if an irreconcilable conflict arises between a Security Council decision and a State’s human rights obligations (leaving the State with no choice as to the means of implementation), the State nevertheless remains liable for all acts and omissions of their organs arising from the need to implement such a decision, unless the Security Council decision is accompanied by means of protecting human rights that are at least equivalent to the State’s international human rights obligations. Article 103 of the Charter therefore does not provide States with shelter from bearing full responsibility for any violation of rights.

 

Dr Alex Conte is a Reader in Human Rights Law at Sussex Law School, University of Sussex. His principal area of research interest concerns global security and human rights, looking at various issues pertaining to global security and the interface this has with human rights and the rule of law, as well as with the intersection between international human rights law and international humanitarian law. Twitter: @alexcontelaw.

Can hate crime be prosecuted effectively?

Abenaa Owusu-Bempah
Abenaa Owusu-Bempah

As part of a drive to tackle hate crime, the Ministry of Justice asked the Law Commission to examine the case for extending the racially and religiously aggravated offences in the Crime and Disorder Act 1998, so that they also cover disability, sexual orientation and transgender identity. The Commission was not asked to examine whether the existing racially and religiously aggravated offences are in need of reform. In its final report, the Commission recommended that, before a decision is taken as to whether the offences be extended, a full-scale review of the operation of the existing offences be carried out.

If a review is undertaken, it should address questions about the appropriate substantive elements of hate crime offences (what type of conduct do we want to criminalise and against whom?) and the rationale of hate crime legislation (what makes ‘hate crime’ different from other crime? Why should it be treated differently and sentenced more harshly?). But the review should not be limited to these important concerns. Consideration should also be given to the procedural difficulties which can be encountered during the prosecution stage of the criminal process. In other words, to whether the existing racially and religiously aggravated offences can be prosecuted effectively.

The offences aim, amongst other things, to protect certain vulnerable groups, tackle racism and hate crimexenophobia, and contribute to social cohesion. However, if the offences cannot be prosecuted effectively, they become little more than an empty gesture to those affected by hate crime, and this may be counterproductive. Procedural problems can also put defendants at risk of wrongful conviction. If this is the case, rather than extending the offences to cover additional characteristics, perhaps they should be repealed.

There are a number of procedural problems arising from the structure of the existing racially and religiously aggravated offences which can prevent effective prosecution. These relate primarily to alternative charges, alternative verdicts and inconsistent verdicts.

Alternative charges

Aggravated offences are aggravated versions of pre-existing offences, set out in the Crime and Disorder Act 1998. These pre-existing offences will be referred to as ‘basic offences’. The 11 basic offences which can become aggravated include various forms of assault, criminal damage, various public order offences, and harassment and stalking offences. In order to be convicted of an aggravated offence, the prosecution must prove that the defendant committed the basic offence, and that it was aggravated. The aggravated offences have higher maximum sentences than the basic offences.

A basic offence will become aggravated if there was a demonstration of hostility towards the victim based on their race or religion, or if it was motivated by hostility towards a racial or religious group. So, when an aggravated offence has been committed, a basic offence will also have been committed.

Where there is evidence that an aggravated offence has been committed, the prosecution prefers to charge the accused with both the aggravated and basic versions of the offence. This avoids the problems caused by charging only one of the offences. For example, if only the aggravated offence is charged, and the prosecution can prove that the accused committed the basic offence, but not that is was racially or religiously aggravated, then the accused must be found not guilty. The accused will not be held liable for the basic offence.  On the other hand, if the accused is charged with both offences, and the more serious aggravated offence cannot be proved, there is an option to convict of the basic offence.

Yet, charging both offences has created problems. The most significant problem is the potential for charge bargaining.  Some prosecutors may be willing to accept a plea of guilty to the basic offence on the condition that the aggravated charge is dropped. Although it is the policy of the Crown Prosecution Service not to accept a plea to the basic offence alone, responses from practitioners to the Law Commission’s consultation, as well as some recently published conviction and sentencing statistics, suggest that this does occur.

Accepting a plea to the basic offence and dropping the charge of the aggravated offence risks creating the impression that hate crime is not taken seriously. Routine ‘charge bargaining’ has the potential to reverse any positive communicative effect of the law. Instead of assuring the public that it is wrong to target individuals because of their personal characteristics and that such conduct will not be tolerated, we could be left with an empty political gesture which is unlikely to influence attitudes or deter potential offenders, and is likely to dishearten, and further marginalise, the very people which the offences are intended to protect.

Alternative Verdicts

Where an aggravated offence is tried in the Crown Court, the judge can leave to the jury an alternative verdict. This means that, instead of charging both the basic and aggravated offence, the prosecution need only charge the aggravated offence, and the jury will still be allowed to convict of the basic offence if the aggravated element cannot be proved beyond reasonable doubt. There is no provision for returning alternative verdicts in the magistrates’ court.

Allowing the jury to return an alternative verdict, rather than considering only the aggravated offence, creates risks for the both the prosecution and the defence. For the prosecution, there is a risk that the jury will convict of the basic offence when they otherwise would have convicted of the aggravated offence (in practice, juries can be reluctant to convict defendants of aggravated offences). For the defence, there is the risk that the defendant will be convicted of the basic offence when they otherwise would have been acquitted.

However, the benefits of allowing juries to return alternative verdicts outweigh these disadvantages. The primary benefit is that the defendant is less likely to be wrongfully convicted of the aggravated offence in circumstances where he clearly committed the basic offence, but the aggravated element cannot be proved. If there is no option of returning an alternative verdict, the jury may be tempted to convict of the aggravated offence so that the defendant does not get away with the basic offence, rather than because the defendant actually committed the aggravated offence.

Unfortunately, in practice, judges do not always give the jury the option of convicting of the basic offence instead of the aggravated offence. This means that juries are sometimes left with a difficult choice between either 1) letting the defendant get away with the basic offence, or 2) convicting them of a more serious offence than they committed.

Inconsistent verdicts

Sometimes a defendant is tried for two or more aggravated offences arising out of the same incident. For example, in the case of Dossett [2006] EWCA Crim 709, it was alleged that the defendant had confronted a parking attendant, shouted at her, including telling her to ‘go back to your fucking country’, grabbed her jacket to see her identification number, and continued to shout and threaten her. He was charged with racially aggravated assault and a racially aggravated public order offence. The words ‘go back to your fucking country’ constituted the evidence of racial hostility for the purposes of both charges. Yet, he was only convicted of the racially aggravated public order offence. Instead of being found guilty of racially aggravated assault, he was found guilty of an alternative charge of basic assault. Dossett appealed against the convictions, arguing that they were inconsistent (either both of the offences had been aggravated or neither had been aggravated). Although the Court of Appeal upheld the convictions, it is difficult to see how Dossett could have been guilty of one of the aggravated offences, but not the other. It is possible that he was under-convicted of the basic assault (i.e. he had actually committed a racially aggravated assault) or over (and wrongfully) convicted of the racially aggravated public order offence (i.e. he was guilty of a basic public order offence, but not the more serious aggravated version).  This case is not an isolated incident. For example, the same issue is evident in the more recent case of Mihocic [2012] EWCA Crim 195. Throughout the criminal law, appeals on the ground of inconsistent verdicts are not uncommon.

A solution

In large part, these procedural problems stem from the structure of the racially and religiously aggravated offences. Because of this, it is likely that a significant change in the law would be necessary to rectify the problems. However, a more straightforward solution would be to repeal the offences and rely on existing sentencing legislation to deal with the conduct currently covered by the aggravated offences.

Sections 145 and 146 of the Criminal Justice Act 2003 require judges to increase the sentence for any offence (other than an aggravated offence) where there is evidence of a demonstration of hostility, or a hostile motive, on the basis of race, religion, disability, sexual orientation or transgender identity. The judge must declare in open court that he has made this finding of hostility and that he has increased the sentence as a result.

There are concerns that these sentencing provisions are not currently used as rigorously or consistently as they should be, and that they do not have the same symbolic or communicative function as criminal offences. In response to this, the Law Commission has recommended improvements to the operation of the sentencing provisions. These include specific guidance for judges on when and how to apply the provisions, as well as reforms to allow the application of these provisions to show on an offender’s criminal record. If these recommendations are put in place, the sentencing provisions could be applied consistently, and could also encompass the desired symbolic and communicative function of the aggravated offences.

Repealing the aggravated offences could be perceived as a reversal of the progress which has been made over the past two decades to tackle racism and other prejudices. But if procedural problems result in offences which cannot be enforced properly, they become little more than an empty gesture. Procedural problems also create the potential for injustice to those accused of wrongdoing. Hopefully, anxiety about repealing the offences could be reduced through reassurance that the sentencing legislation is still hate crime law and that by eliminating the procedural problems stemming from the aggravated offences, and improving the operation of the sentencing provisions, hate crime can be dealt with more fairly and effectively.

For a more detailed account of the procedural problems associated with the racially and religiously aggravated offences, see A Owusu-Bempah, ‘Prosecuting Hate Crime: Procedural Issues and the Future of the Aggravated Offences

Reforming the Criminal Process for Complainants: Beyond the headlines

Abenaa Owusu-Bempah
Abenaa Owusu-Bempah

Over the past few months, there have been a number of reports in the media highlighting concern for witnesses and complainants of crime, particularly complainants of sexual offences. The current Director of Public Prosecutions (DPP), Alison Saunders, and the former DPP, Sir Keir Starmer, have been particularly vocal on the issue. The headlines include, “Victims of crimes like rape deserve better in court” and “Police stations are intimidating for rape victims”.

Some of the headlines are misleading. For example, on 18th January 2015, The Telegraph published an article titled, “Men must prove a woman said ‘Yes’ under tough new rape rules”. The article was referring to guidance from the DPP to the effect that police should ask those suspected of committing rape why they believed the complainant had consented. This does not require the suspect to ‘prove’ consent. When it comes to the trial, the burden remains that of the prosecution to prove, beyond reasonable doubt, that the defendant lacked reasonable belief in consent.  However, if a rape suspect fails to respond to the questions put to them by the police, and then later, at trial, claims to have had a reason to believe the complainant had consented, the initial silence may be used against him, as evidence of guilt. Creating an expectation that a suspect should explain the basis for a belief in consent may increase the potential for adverse inferences of guilt to be drawn against those who do not do so, despite the fact that there may be an innocent explanation for their silence, such as fear, anxiety or legal advice.

The stories behind the headlines address legitimate concerns – that victims of sexual offences should not be deterred from reporting the offence; that the criminal process should be made as bearable as possible; and that the negative emotional impact of testifying in court should be minimised. However, recent announcements and proposals from the DPP, as well as the suggestions made by the former DPP, raise concerns of their own. On the whole, despite claims that any changes should be made “without undermining the rights of the defence”, there seems to be very little consideration given to those accused of criminal wrongdoing. While the concern for complainants is well placed, many of the current proposals act to reinforce perceptions that those who are accused of committing a crime are necessarily guilty, and that those who assert that a crime has been committed against them are necessarily truthful.

With this issue continuing to generate public attention, it is important to consider some of the worrying implications of what is being proposed.

Referring to complainants as ‘victims’

Alison Saunders has asserted that complainants should be referred to as “victims” from the time they make a complaint. She feels this appropriate because “when someone goes to the police they feel they are a victim of crime”. She also states that “There is, of course, no presumption of guilt and whether someone is legally a victim of a specific crime by a specific person is for a court to decide”.

In some circumstances there will be no question as to whether the complainant has been vicitimised, and the real issue will be who is responsible for their victimisation. Moreover, in an informal setting, there may be no objection to referring to someone who claims to have been victimised, as a victim. However, in the context of a formal legal setting, and in terms of the vocabulary used by legal professionals, it is not easy to rectify these two statements from Alison Saunders. If someone is not legally a victim until it is proved that an offence has been committed against them, then it may be no more appropriate to call them ‘victim’ than it is to refer to the accused as being ‘guilty’. For legal professionals to publicly refer to a complainant as a victim can reinforce public perceptions that the person accused of committing the offence is in fact guilty. This brings into question the presumption of innocence. Exactly what it means to presume someone innocent, and exactly what this requires on the part of state officials, is open to debate. However, it has been recognised by the European Court of Human Rights that the presumption of innocence protects against official insinuations that one is guilty before conviction.

Informing witnesses of the defence case

The DPP has also announced that witnesses should be informed of the general nature of the defence case and that they may be questioned as to their sexual history or bad character during the trial.  Where a trial is to take place in the Crown Court, the defence is under an obligation to make quite detailed disclosure of the nature of its case to the prosecution. This in itself raises issues of compatibility with the right to a fair trial. However, since that is the position in law, what is the harm of the prosecution then sharing some of that disclosure with the complainant? Perhaps the most likely and worrying consequence is that witnesses will be able tailor their evidence to the nature of the defence case, making it more difficult for the defence to cast doubt on the accuracy of a witness’s testimony as well as making it more difficult to show that a witness is not credible. Not only could this increase the prospect of wrongful conviction, but it brings into question whether the defence would be able to effectively challenge the witness, as is the right of the defendant.

Adapting the trial process

There is no doubt that giving evidence at trial is a difficult experience, and that complainants of sexual offences can be subjected to aggressive and intrusive cross-examination. The defence’s right to examine witnesses has not always been easy to rectify with the complainant’s right to privacy and to be free from inhuman and degrading treatment. Since 1999, special measures have been available to vulnerable witnesses in court, to assist them to give their best evidence and to minimise the negative emotional impact of testifying. Complainants of sexual offences are automatically eligible for special measures. These measures range from screening the witness from the accused, to pre-recorded evidence-in-chief and cross-examination through a television link. In addition, there are special rules preventing complainants of sexual offences from being questioned about their past sexual behaviour, unless certain circumstances apply. One purpose of these rules was to correct the unfortunate ‘rape myths’. These myths had influenced the way in which criminal justice professionals responded to rape complaints and deterred reporting of rape. The crux of these myths is that promiscuous women are more likely to consent than virtuous women and that promiscuous women are more likely to lie about being raped than virtuous women.

It has been suggested that the current rules do not go far enough to protect vulnerable witnesses and complainants of sexual offences, and that they are not used as rigorously as they should be. It has also been suggested that our ‘adversarial’ trial may need to be reformed in order to accommodate the needs of witnesses.  One possible reform, which has been put forward by Sir Keir Starmer, is to allow judges to have greater involvement in the examination of complainants of sexual offences, adopting a more inquisitorial style of trying cases. Not only is it wrong to assume that judges would be any better at dealing with the needs of witnesses than trained lawyers, but there are also inherent dangers in transplanting foreign procedures and hoping for the best. As Damska famously put it, “the music of the law changes, so to speak, when the musical instruments and the players are no longer the same”.

It is not disputed that the current rules may not be applied rigorously enough. But it seems that the logical response would first be to improve training of those responsible for implementing them (including through the toolkits published by the Advocates’ Training Council), and to ensure that complainants have access to the information and support which is already available (as is their entitlement under the Victims’ Code).

Concluding thoughts

It is important that witnesses and complainants are kept informed and supported throughout the trial process, and that they are able to give their best evidence. However, this should not, and need not, come with such a high price for defendants. The balance has already been shifted very much in favour of the prosecution, with official rhetoric implying that being ‘for victims’ means being against defendants. This rhetoric has led to a number of significant reforms to criminal procedure and the law of evidence, including those in the Youth Justice and Criminal Evidence Act 1999 and the Criminal Justice Act 2003, some of which have arguably compromised the defendant’s right to a fair trial.

It is concerning that this rhetoric continues to gain ground and that, what are likely to be publicly popular announcements, have demonstrated little to no concern for those accused of criminal wrongdoing. Perhaps instead of making public declarations for new methods of support for complainants and witnesses (which may fail to adequately address concerns in much the same way as previous methods have), the focus should be placed on making better use of the rules and facilities already available, addressing the occupational failures and culture within the criminal justice system, and continuing to challenge outdated assumptions. If this proves to be insufficient, then the possibility of reform could be returned to, bearing in mind the implications for the defence.

As harrowing as the court experience can be for witnesses, the criminal process is about determining the guilt of the accused, whose future and liberty may be at stake. At the same time as battling misconceptions of how witnesses, particularly rape complainants, ought to behave, perceptions of an accused person’s guilt should not be created or reinforced prior to conviction.

Dr Abenaa Owusu-Bempah teaches Law of Evidence and Criminal Law at the University of Sussex.

Hate Crime and Restorative Justice: Exploring Causes, Repairing Harms

Mark Walters

In 1998 the UK Government changed the law so that offenders of racially aggravated assault, harassment and criminal damage would receive an enhanced penalty for their crimes. Since then, various Acts of Parliament have been introduced that enhance the punishment for an array of different types of hate crime – including offences where the offender demonstrates religious, sexual orientation, transgender and/or disability hostility.  One of the main justifications for these laws is that hate crimes cause heightened levels of fear, anxiety and insecurity amongst victims and minority communities, and as such offenders deserve a more severe penalty. Such penalties also send a clear message to communities that hate-motivated crimes will not be tolerated and, in turn, it is hoped that others will be deterred from committing similar offences. Critics, however, have noted that penalty enhancements do little to actively repair the emotional, social and cultural damage caused by hate-motivated incidents, nor do they directly challenge an offender’s underlying prejudices – those which are causal to hate crimes more broadly.

It is against this backdrop that I decided to conduct a three year study (which was to make up my doctorate) into an alternative justice measure aimed at repairing the harms of crime: that of restorative justice (RJ).  RJ seeks to bring the “stakeholders” of an offence together via inclusive dialogue in order to explore what has happened, why it happened and how best those involved in the offence can repair the harms caused.  In recent years, governments across the globe have begun to pursue new approaches to justice that focus on restoring, rather than perpetuating, the harms caused by crime. For instance, in November of 2013 the Coalition Government announced a budget of £29 million which will be used to increase the availability of RJ for all victims of crime during all stages of the criminal justice process.

Yet despite the rapid expansion of RJ within many criminal justice systems, there remains a resistance towards its use for hate crime. This is mainly due to the concern that restorative encounters will potentially expose victims to further victimisation. There is also the risk that a restorative approach to hate crime will be perceived as a “soft option”, leaving offenders to simply say “I’m sorry” in order to avoid more punitive sanctions. While such concerns persist, the use of RJ for hate crime in England and Wales is beginning to become more readily available. The Government’s most recent update to its Action Plan on tackling hate crime states that it is now committed to assessing alternative measures to combating hate crime including RJ.  However, until now there was little empirical research from which such an assessment could be made. As such, questions remained as to whether RJ can effectively address either the causes or consequences of hate crime. 

The research study

In order to examine whether RJ helps to repair the harms caused by hate crime victimisation over 60 interviews were conducted with victims, restorative practitioners and police officers, who had participated in restorative practices. In addition 18 separate restorative justice meetings were observed, many of which involved face-to-face dialogue between victim, offender and their supporters.

The research focused on two main restorative practices: Community Mediation, administered by the Hate Crimes Project at Southwark Mediation Centre, South London and the Restorative Disposal, implemented by Devon and Cornwall Police since 2008.  The cases researched involved “low-level” offences (including crimes aggravated by racial, religious, sexual orientation and disability hostility) such as causing harassment, alarm, distress, fear or violence, common assault, as well as more serious forms of violence including several cases of actual bodily harm and grievous bodily harm.

Executive summary of findings

  1. Community Mediation

The majority of complainant victims interviewed (17/23) stated that the mediation process directly improved their emotional well-being. Most participants indicated that their levels of anger, anxiety and fear were reduced directly after the mediation process. The four most common reasons for these improvements were:

  • Participants felt they could play an active part in their own conflict resolution
  • Participants were able to explain to the perpetrator and others the harms they had experienced, while additionally talking about what it is like for them to be “different” in the community
  • Participants felt supported by mediators who listened to their version of events
  • The perpetrator signed an agreement promising to desist from further hate incidents.

Prevention of re-offending

Notably, 11 out of 19 separate cases of ongoing hate crime incidents researched in Southwark ceased directly after the mediation process had taken place.[1] A further 6 cases stopped after the community mediator included other agencies within the mediation process. These included schools, social services, community police officers and housing officers.

  1. Police Restorative Disposals

Unfortunately the positive findings reported from Southwark were not repeated for the restorative policing measures used for low-level offences by Devon and Cornwall Police.  Just seven (half) out of the 14 interviewees stated that they were satisfied with the outcome of their case. The study also found that only seven out of the 14 interviewees felt that they were provided with an opportunity to explain how the incident affected them – a key aspect of restorative justice.  It was therefore unsurprising that only four out of the 14 participants stated that they felt the RD helped to repair the harms caused by their targeted victimisation. Reasons for lower levels of harm reparation included:

  • Several participants felt pressured by the police to agree to the intervention. This had implications for the voluntariness of the process.
  • While 11/14 victims had received an apology from the offender, most felt that the apology was disingenuous; several apologies had been written on a note pad without explanation as to why the crime had been committed. This left several victims feeling ‘let down’ by the police.
  • Only one victim was given an opportunity to talk directly with the offender about the offence and how the offender could repair the harms he had caused
  • Officers had received a three hour training session on the virtues of RJ. Such short courses mean it is unlikely that police officers have adequate experience or understanding of how RJ should be administered in cases involving hate.

Discussion

Critics of restorative justice techniques often raise concerns about the possibility of causing ‘re-victimisation’ by bringing victims and offenders together via RJ meetings. However, my interviews with victims and practitioners (combined with my case observations) showed that these fears are largely unfounded. In fact, during the entire study only one victim stated that they experienced a sense of re-victimisation during a restorative intervention. In this single case of direct re-vicimisation, it was the facilitating police officer rather than the young offender who had been accused of treating the victim unfairly. This does not mean that concerns regarding revictimisation should be ignored.  Almost every restorative practitioner I spoke to noted how hard they worked to ensure participants were thoroughly prepared before any direct dialogue took place between victim and perpetrator. This was primarily in order to ensure that victims and offenders understood the aims and objectives of RJ and participated voluntarily. It was, however, also an essential part of the restorative process which was used to ensure that incidents of victimisation were not repeated during the process.

If RJ is to be used more widely for hate crime, police services and other justice agencies must use experienced and fully trained restorative practitioners who understand, not only the key values underpinning RJ, but also the sensitive dynamics of hate crime victimisation.  In order to further support the reparative qualities of restorative practice, organisations should work together using a multi-agency approach to addressing hate crime. Such an approach allows the various agencies involved in tackling hate victimisation (including neighbourhood policing teams, housing associations, schools, colleges and social services) to combine their efforts in supporting victims and managing offenders.

The full analysis of hate crime, restorative justice, multi-agency partnerships and the importance of re-conceptualising “community” in restorative discourse in cases involving “difference” can be found in the newly launched book: Hate Crime and Restorative Justice: Exploring Causes, Repairing Harms (2014, OUP). A full text of the book’s introduction can be accessed here.

Dr Mark Austin Walters is Lecturer in Criminal Law and Criminal Justice, School of Law, Politics and Sociology and Co-Director of the International Network for Hate Studies: www.internationalhatestudies.com

Part 4: Juror Misconduct

Abenaa Owusu-Bempah
Abenaa Owusu-Bempah

In a report published in December 2013, the Law Commission recommended the creation of a new statutory criminal offence of a sworn juror in a case deliberately searching for extraneous information related to the case he or she is trying. This was, in part, a response to some high profile cases in which jurors had used online search engines and social networking sites to find out more about the case they were trying. Such matters are currently dealt with as a contempt of court and subject to a maximum sentence of two years’ imprisonment. As noted earlier on this blog, the benefits of a single criminal offence could include greater awareness that such conduct is prohibited, greater protection of the defendant’s right to a fair trial, and greater procedural protection for jurors who are found to have conducted extraneous research. The Criminal Justice and Courts Bill, however, contains not one, but three new offences dealing with this type of misconduct by jurors. Arguably, the Government’s proposed legislative response to juror misconduct has gone too far.

The first proposed offence is one of ‘research by jurors’ (Clause 44). This offence is similar to that recommended by the Law Commission. It applies where the juror intentionally seeks information about the case. ‘Information’ can be sought by whatever means (including internet searches). Perhaps controversially, it includes not only information about the defendant and the facts of the case, but also about the judge, lawyers, the law relating to the case, the law of evidence, and court procedure. There may be some very limited situations in which searching for information about a judge or lawyer could influence the jury’s deliberations (for example, finding that the lawyer had represented the defendant on a previous occasion). Yet, whether it is appropriate to go so far as to prosecute someone for looking up the judge or lawyers, or for seeking clarification about the law and court procedure, is questionable. Such conduct has yet to form the basis of a finding of contempt of court.

The second offence is one of ‘sharing the research with other jurors’ (Clause 45). The commission of this offence takes place after the first offence has been committed. Sharing extraneous information is detrimental to the defendant’s right to a fair trial, as it could be used to influence the jury’s deliberations; the evidence may not be reliable and the defence will have had no opportunity to explain or put it into context. This is a key reason for prohibiting the initial act of research. Once the act of research has come to light, it is likely that a new trial, with a new jury, will be ordered. Under the proposed reforms, the juror would be liable for two separate offences arising out of what currently seems to be treated as one course of conduct, subject to one penalty. The contempt of court cases which have so far arisen have focused on whether the juror committed an act or omission calculated to, and intended to, ‘interfere with or prejudice the due administration of justice’ (see, for example, A-G v Davey and A-G v Beard [2013]). It seems both excessive and unnecessary to impose liability for two separate offences, each carrying a maximum sentence of two years’ imprisonment.

The third offence is one of ‘engaging in other prohibited conduct’ (Clause 46). It covers situations such as that in A-G v Davey, in which a juror in a case of sexual activity with a child had acted in contempt of court by posting the following status on Facebook:

‘Wooow I wasn’t expecting to be in a jury deciding a paedophile’s fate, I’ve always wanted to fuck up a paedophile & now I’m within the law!’

The juror must intend to engage in the prohibited conduct but need not know that the conduct is prohibited. ‘Prohibited conduct’ means ‘conduct from which it may reasonably be concluded that the person intends to try the issue otherwise than on the basis of the evidence presented in the proceedings on the issue’. This offence appears to be aimed at protecting the defendant’s right to be tried by an independent and impartial tribunal, but it is drafted too widely.The definition of ‘prohibited conduct’ goes beyond the type of conduct exhibited in Davey. It will likely be difficult for a judge to explain to a jury precisely what it means. This, coupled with the fact that the juror need not actually know that the conduct is prohibited, makes for a potentially uncertain and far-reaching offence. In addition, it seems that the mere perception of intention would be enough to satisfy the requirement of intention to ‘try the issue otherwise than on the basis of the evidence presented’. The Law Commission’s report suggested that it may be appropriate to extend the proposed offence to cover conduct such as that in Davey, but this was not an official recommendation, nor did it call for an entirely separate, and so far-reaching, offence.

The measures in the Bill exceed that which is necessary to achieve the legitimate aims of the single offence recommended by the Law Commission. The additional offences are unlikely to increase jurors’ awareness of the type of conduct which is prohibited. Nor are they likely to increase protection of the defendant’s right to a fair trial.

Dr Abenaa Owusu-Bempah is Lecturer in Law at the University of Sussex

 

Introduction: Criminal Justice and Courts Bill 2013-14

Criminal justiceOn 5 February 2014, the Criminal Justice and Courts Bill was introduced into the House of Commons.

The Bill is expected to receive Royal Assent by the end of 2014.

The Bill would introduce a number of significant changes to several aspects of criminal and civil justice. These include:

  •  Ending automatic early release from prison for those serving extended sentences and those convicted of child sex offences and terrorist related offences
  • Criminalising the possession of extreme pornographic images depicting rape
  • The creation of ‘secure colleges’ for the detention of young offenders
  • Trial by a single magistrate on the papers for ‘low-level regulatory cases’
  • Requiring convicted criminals to pay court costs
  • The introduction of four new criminal offences of juror misconduct
  • Restricting the availability of judicial review

According to the Ministry of Justice, the Bill will: deliver a firm but fair package of sentencing and criminal law reforms that properly punish serious and repeat offenders and better protect victims and the public; reduce the burden of the cost of courts on hardworking taxpayers by making criminals pay towards the cost of their court cases; reform judicial review to tackle unmeritorious claims and unnecessary delays to the system; put education at the heart of youth custody; and modernise the law to tackle the influence of the internet on trials by jury to ensure defendants receive a fair trial.

However, it is not all good news. Specific provisions in the Bill raise a number of serious concerns relating to, for example, access to courts, open justice, fair procedure, and the appropriate ambit of the criminal law. In the following five blog posts, members of the Criminal Law, Criminal Justice and Criminology Research Group, and the Sussex Law School, comment on various aspects of the Bill.

In Part 1, Bob Sullivan considers the dangerous offender clauses of the Bill (Clauses 1-5) in the light of recent penal history. He questions whether it is wise to pursue further reform so soon after the relevant provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force.

In Part 2, Tanya Palmer comments on the proposed amendments to the offence of possession of extreme pornographic images (Clause 18). She considers whether ‘cultural harm’ is an appropriate target of the criminal law and raises a number of concerns about the breadth of the offence.

In Part 3, Richard Vogler considers the provision made for trial by single justice on the papers for uncontested, low level, regulatory offences (Clauses 26-30).  He questions whether the apparent financial benefits of the proposed reforms can be justified in the light of the principle of open justice.

In Part 4, Abenaa Owusu-Bempah examines the proposed legislative response to juror misconduct (Clauses 44-47), finding that the criminal offences set out in the Bill exceed that which is necessary to tackle juror misconduct and protect the right to a fair trial.

Finally, in Part 5, Donald McGillivray and Emanuela Orlando comment on the proposed reform of judicial review, which includes financial deterrents for prospective claimants (Clauses 52-59). They consider the costs of the reforms in terms of environmental justice, and whether those ‘costs’ can be justified.