Jack Grealish and the Media Response

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By Matt Hall

Over the last week or so, football has been the focus of much negative press attention stemming from incidents of fan/player altercation. In Scotland, Glasgow Rangers captain James Tavernier was approached by a spectator in a game versus Hibernian. Shortly after in England, Aston Villa player Jack Grealish was hit from behind during a game against Birmingham City. The incident involving Jack Grealish was highly reported across the media and perpetrator, Paul Mitchell, was subsequently sentenced to 14 weeks imprisonment.

The defendant was charged with battery contrary to s 39 Criminal Justice Act 1988 and the football-specific offence of ‘pitch encroachment’ contrary to s 4 Football Offences Act 1991. As the blog by The Secret Barrister helpfully outlines, the maximum sentence for battery is 6 months, and taking in to account the guilty plea at the earliest opportunity and the then entitled one third deduction, the magistrates could have gone to 17 weeks. The maximum sentence for ‘pitch encroachment’ is a fine. Therefore, 14 weeks was certainly the top end of the scale and on the face of it, the sentence appears stern. Moreover, the defendant was also handed a 10-year Football Banning Order contrary to s 14a Football Spectators Act 1989.

On a note regarding the sentence handed down to Mitchell, many police officers took to Twitter to highlight the swift justice ( just a little over 24 hours) and the severity of the sentence when compared to those who assault police officers. For example, a defendant recently convicted of assault under the 2018 Assaults on Emergency Workers (Offences) Actwas fined £120 and ordered to pay £50 compensation to the police officer he punched (see here). It has been suggested (in the absence of Sentencing Remarks) that the severity of the sentence handed to Mitchell was driven by the need for a deterrent, a legitimate aim of sentencing. Clearly, police officers may have a point here in asking where the deterrent is for those who assault officers going about their job. It is hard to imagine that a similar attack away from a football stadium would have resulted in a 14-week custodial sentence.

Despite the severity of the sentence, it is the knee-jerk and, to quote Stuart Hall, ‘short, simplifying and brutal’ media coverage and commentary that often follows disorder related to football that has been concerning. Following the incident involving Grealish, The Guardian reported that ‘football is urged to protect players’ whilst ex-footballer and current England Women’s manager Phil Neville drew the comparison to tennis player Monica Seles who was stabbed in the back during a tennis match in Hamburg in 1993, outlining his fears that if things do not change ‘a player will end up stabbed.’ The idea of fences returning to the stands was also mentioned and ex-footballer David Cotterill went one step further and suggested that armed police were needed at football matches to assist stewards. Whilst ex and current footballers are well within their rights to worry about their safety, some of the reporting and suggestions that the media give credit to are clearly ill-thought and nonsensical. Indeed, the media has often contributed to the moral panic that ensues when incidents such as this occur at football.

Photo by Vienna Reyes from unsplash.com

Emma Poulton has argued that the ‘hysterical headlines, emotive language and graphic imagery’ that often follow football related disorder contribute to the public viewing all fans of football as ‘hooligans,’ again, a concept that lacks a universal definition and is a construct of the media whom use it to cover an array of behaviour within the football context. What follows, and is true in this instance, is then an outburst for ‘collective punishment’ and headlines such as that in The Guardian that football needs ‘to do more’ to protect players or that armed police are necessary. Indeed, when alcohol was seen as a partial cause in 1985 to the Heysel Tragedy, again, fuelled by newspaper headlines, Parliament were quick to pass legislation that criminalised alcohol possession in direct view of the pitch. In similar vein following the Grealish incident, one media outlet published the opinions of a police officer who believes that cocaine is now a cause of much disorder at football.

Regarding Grealish, some perspective is clearly needed. The individual who attacked him was acting alone. Moreover, football fans are heavily policed and regulated in terms of legislation. As noted above, ‘pitch encroachment’ is a football specific offence and The Home Office’s own statistics demonstrate that arrests for ‘pitch encroachment’ are minimal; 188 arrests in 2015-16; 204 in 2016-17 and; 191 in 2017-18. I would argue many of these arrests take place during times of goal celebrations and not spectators running on the pitch to attack players. Moreover, and taking into account the millions who attend football, this is clearly a minute percentage. This was an isolated innocent and one that does not warrant the knee-jerk responses and ‘hysterical’ headlines that have followed.

It must not be forgotten that football is not unique in attracting disorder; many other sporting and social events attract disorderly behaviour, yet very rarely, if at all, do they attract such stigmatising or emotive headlines or suggestions. A prime example of this would be disorder at horse racing (see disorder involving 40-50 people here) or the 71 people arrested at the 2017 Glastonbury Festival for various offences ranging from drug offences, ABH and possession of an offensive weapon. The point here, is that football is targeted by the media and some members of society in a manner that no other events are.

Clearly, the media and commentators play a role in how football and its fans are perceived. The moral panic that ensues football is unique, in that no other sporting or societal event attracts such condemnation; condemnation that has led to an abundance of football-specific legislation being implemented. Therefore, and despite the media soundbites, football is heavily protected. There is no need to return to fencing in front of the stands, and clearly no need for officers at football to be armed. Statements like this by the media are irresponsible and indicative of what football and its fans have had to witness since the mid twentieth century. The result is a moral panic and a tarnishing of all spectators who pay a lot of money to watch football. As commented by Chief Superintendent Owen West of West Yorkshire Police, ‘one person did an idiotic and criminal act.’ This should not be forgotten, and you cannot legislate for the actions of one mindless individual.

Photo by Tom Grimbert from unsplash.com

Read more from Matt Hall in his previous blog post Matthew Hall presents “Thatcher’s Legacy on the Narrative Surrounding Fans of Football” at the Football Collective Conference.

Interdisciplinary Research into Organized Crime

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On Wednesday 30 January at UWE Bristol, Dr Mary Alice Young convened an interdisciplinary research event on the role of technology and the intelligent machine in organized crime. The event was supported by the Centre for Applied Legal Research and the Criminal Justice Unit. There were 60 attendees in total, including a group of senior investigators from the Metropolitan Police Service, law enforcement officers from the South West Regional Organised Crime Unit, Embassy attaches, investigators from HMRC, and colleagues from UWE’s departments including, Artificial Intelligence, History, Forensics, International Relations, Geography and Criminology. 25 students also attended (representing three faculties), and made valuable contributions to the discussion and connections with potential employers.

Event outcomes

Since the event on 30 January, Dr Young has been successful with a number of publications and planning upcoming workshops.

Dr Young’s interdisciplinary article, ‘Organised Crime and Security Threats in Caribbean Small Island Developing States: A Critical Analysis of US Assumptions and Policies’, has been accepted for publication by the European Review of Organised Crime, with one reviewer stating that it ‘re-orientates a long standing misreading of the Caribbean reality’ of organized crime. Dr Mike Woodiwiss (History, UWE Bristol) is the second author, and the work builds on interviews and field research carried out in Jamaica in 2018.

Dr Young’s forthcoming paper on the untold truth of the architecture of anti-money laundering policies has been accepted for discussion at the Tax Justice Network’s annual conference in July 2019 at City University, London.

Dr Young will also convene a plenary workshop on enablers of organised financial crime, and host the closed Think Tank on Organised Crime in September 2019, at the Cambridge International Economic Crime Symposium, Jesus College.

Technology and Law Policy Commission: Algorithms in the Justice System

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By Dr Tom Smith and Ed Johnston

Technology and Law Policy Commission: Algorithms in the Justice System

Wales Evidence Session, 7 February 2019

This event had 3 different panels speaking for about 30 minutes each regarding the use of algorithms in the justice system. The talks were a mix of practical and managerial algorithms. Both had aspects that were interesting to our teaching and research, as well as elements that were irrelevant.

The commission opened by making the point that we are not asking the correct questions concerning the use of algorithms in the justice system. We are not asking what ‘values’ underpin their usage (for example, issues like transparency and ‘explainability’). All panellists agreed that this is a growth area but the swift growth causes a number of concerns. Firstly, how do we define the ‘values’ that need to underpin the tech and its usage in law?

A major concern rests on the fact that algorithms are often opaque systems for decision making and there is a problem with ‘explainability’ (i.e. we cannot extract from machine learning the rationale for why the algorithm arrived at a particular conclusion). Arguably, this raises a red flag for lawyers in terms of justification of decisions to those affected, and especially for the potential conflict between Freedom of Expression and the use of AI to tackle forms of extremism in England and Wales.

There is a further problem with the lack of emotional intelligence associated with the use of AI. This raises questions about the lack discretion afforded to humans in legal systems when allowing machine learning to make decisions. Much of modern policing is done by using discretionary powers – a concern is the potential for the use of AI to allow the criminal justice ‘net’ to widen disproportionately and without adequate safeguarding. Additionally, if there is an element of human discretion operating alongside AI, who do we defer to in making final decisions (a classic man vs. machine argument)? This raises questions about the risk of humans delegating responsibility (and thus accountability) to machines.

As well as these elements, we need to answer questions concerning data control. What happens to the data that is generated by machine learning?

A further problem exists concerning the language being unpicked by the AI. We have many different languages spoken/written in society. Coupled with this we have local spoken/written language. Finally, we have code spoken by offenders to avoid detection on social media (for example in organised dogfighting). The dogfighting article suggests that there is an informal code spoken on social media to alert likeminded individuals to events and dogs for sale – how can the AI pick up such information? This would require continuous human input and updating to ensure that those targeting by such technologies cannot evade justice by ‘gaming’ such systems.

Ed asked a question about the Harm Assessment Risk Tool (HART) being used by Durham Constabulary but sadly it was not answered. I wonder what risks exist in using an algorithm to make bail decisions post-conviction. However, with the advent of the Released under Investigation status used frequently by police officers and the reduction of the use bail, this is perhaps not an issue (however, that feels very much like fudging the numbers to appear successful – this new unregulated status may in fact be a retrograde step which undermines attempts to reduce unnecessary use of bail). 

There are positives to the technology. The Facial Recognition software described by a Police Inspector appeared to be very beneficial. There are some 12 million images in the Police National Database and the average officer will upload 30 new images per day. Previously, there would be a 12 day wait to try and identify a suspect from the database. The new software will provide a result in 5 minutes. This is of particular benefit when tackling crowd disorder at sporting events. Previously, officers would have to stick their heads out the window of a police van to identify someone. Now the software can scan all individuals in a crowd. Whilst this has clear practical benefit there was little regard for the potential breach of civil liberties or discussion about training for officers on responsible and effective use.

Finally, the panel spoke of the need for regulation and the panels tried to centre in on accountability, oversight and transparency. We need to know a) how will the use be regulated (soft regulation or by legislation) or b) what happens if the evidence is wrongly used. We can exclude evidence under s.78 PACE 1984 currently, but does this broad protection go far enough?

Lots of questions, not many answers. It’s clear that this is a ‘sexy’ and attractive area of law, which is being pioneered primarily in other jurisdictions. Whilst the desire not to be left behind and to utilise technology effectively in the digital age is understandable, this area also potentially poses great danger. The use needs to be carefully considered from a protective, due process standpoint rather than focusing solely on the practical benefits of the technology to crime control and enforcement.

First PROTAX project focus group works to counter tax crimes in the UK and EU

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Prof Nicholas Ryder (UWE Bristol), Sam Burton (UWE Bristol), Prof Umut Turksen (Coventry University) and Dr Fanou Rasmouki (TRILATERAL) hosted the first focus group as part of an EU funded project, PROTAX , in Bristol on 31 January 2019. PROTAX project is focused on the human factors surrounding tax crimes. As such, it seeks to understand ground-level problems that hamper the application of law, investigation, collaboration and ultimately the conviction of tax crimes. By integrating stakeholder knowledge and expertise, PROTAX will generate law enforcement tools and guidelines to help counter tax crimes and reach harmonised levels of organisation and networking across the EU.

At the focus group, we welcomed tax experts, law enforcement agencies, relevant industry representatives. It has been an excellent opportunity to discuss how to counter tax crimes in the UK and EU.

The following themes were discussed during the focus group:

  • Exploring tax crimes
  • LEA requirements and organisational aspects
  • Inter-agency co-operation
  • International collaboration
  • Dual role of the financial sector: Prevention and facilitation of tax crimes
  • Benchmarks and best practices
  • Ideas to advance the fight against tax crime

Once the remaining 10 focus groups in 10 different EU countries are completed, we will convene a conference in Brussels at the EU Commission where we will invite all focus group participants and other stakeholders involved in the prevention, investigation and prosecution of tax crimes. The conference will provide a platform for professionals specialised in tax and tax crime matters to learn about the findings of the focus groups and contribute to the formulation of recommendations to the European Commission and stakeholders to enhance capabilities in the fight against tax crimes.

For more information on Protax see the project website: https://protax-project.eu/

SLSA Seminar Series: The Perennial Problem of Disclosure – A way forward?

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By Ed Johnston

Ed Johnston has recently been award £1,500 from the annual Socio-Legal Scholars Association’s Annual Seminar Series. Ed is currently organising a one-day conference at UWE Bristol Law School on the topic “The Perennial Problem of Disclosure – A way forward?”

Prior to the mid-1960s, there was no requirement for defence disclosure. Between 1967 and 1996 the defence only had to disclose alibi and expert evidence. The prosecution would disclose elements of their case to ensure ‘equality of arms’. The issue of balance between both parties is long-running, since the prosecution have historically commanded significant resources to investigate and prosecute crimes (in comparison to the defence). The system of disclosure is a fundamental element of fair trial procedure as it helps to compensate for this natural imbalance. However, with the advent of the defence case statement under the Criminal Procedure and Investigations Act (CPIA) 1996, both the underlying culture and systemic purpose of disclosure experienced a seismic shift.

In the following two decades, the general focus of criminal justice policy has been toward prosecuting cases in an efficient manner; the defence case statement forms a pivotal aspect of this. The disclosure regime was extended by the Criminal Procedure Rules (CrimPR) which now mean that disclosure, albeit operating under the guise of ‘case management,’ is essentially mandatory in summary trials. In contrast, under the CPIA 1996, summary trials were only the subject of a voluntary disclosure regime. Despite the insistence (via both judicial guidance and executive policy making) on the need for a culture of early disclosure and co-operative working to permeate modern criminal procedure, the post-CPIA 1996 regime is marked by practical failings and (arguably) ideological contradictions. This has generated significant and sustained criticism, and led to miscarriage of justices as a result of an inadequate disclosure system and culture.

In late 2017 and early 2018, a series of criminal cases collapsed after significant police failures in managing disclosure of key evidence. The first and most widely reported of these was the case of Liam Allan, who was accused of rape and released on bail for two years, before vital undisclosed evidence emerged days into his trial. In the wake of this, the CPS, Metropolitan Police, a Parliamentary Select Committee, and the Government have engaged in reviews of the effectiveness and fairness of the current disclosure regime in criminal proceedings. As mentioned above, this is not new; the modern system of disclosure has been lamented almost since its inception in 1996. There have been a number of critical examinations, including by academics Plotikoff and Woolfson (A Fair Balance in 2001); by Lord Justice Gross (A Review of disclosure in criminal proceedings in 2011); and by HMCPSI and HMIC jointly (Making It Fair in 2017) and the Mouncher Review (also in 2017).

Liam Allan speaking at the First Annual Criminal Justice Research Unit lecture at UWE Bristol in December 2018.

In 2018, two further reviews followed in the wake of the Allan case and others (including those of Samson Makele and Oliver Mears): the Justice Committee published Disclosure of evidence in criminal cases inquiry in July, and finally the Attorney General published a Review of the efficiency and effectiveness of disclosure in the criminal justice system in November. The latter review concluded that the ‘system is not working effectively or efficiently as it should’ and identified above all the need for a change in culture (rather than law) was needed. There is an obvious appetite for improving the function of the disclosure regime; yet, despite the numerous reviews and investigation, it remains fundamentally flawed and this represents a risk of causing further miscarriages of justice (which may or may not be detected). Speaking in June 2018, the former DPP, Lord Macdonald, suggested that it was ‘inevitable’ that innocent defendants had been imprisoned as a result of disclosure not being readily available to defence lawyers (a claim the then DPP, Alison Saunders, was hesitant to echo). Arguably, the current crisis in disclosure represents one of the most significant and impactful problems in 21st Century criminal justice.

This one day conference in July 2019 seeks to bring together academic and practitioner perspectives to examine potential avenues for reform and improvement. If you would like to attend this event, please register online here.

The confirmed speakers for the conference are: 

Anthony Edwards

Anthony is a criminal defence solicitor who specialises in Corruption, Fraud and Major Crime. He is widely acknowledged as one of the leading authorities on Police Station law and he has published widely in the areas of criminal procedure.

Dr. Abenaa Owusu-Bempah

Dr. Owusu-Bempah is an Assistant Professor of Law at the London School of Economics. Her research interests focus on criminal procedure and fair trial rights. Her recent book, Defendant Participation in the Criminal Process, examines how the disclosure provisions of the CrimPR compel the defendant to actively participate in their own criminal trial. The book examines how the adversarial criminal process can be effected by essentially non-adversarial provisions.

Dr. Hannah Quirk

Dr. Quirk is a reader in Criminal Law at Kings College London. Her research interests lie in wrongful convictions and sentences. She has published extensively on the erosion of the Right to Silence and wrongful convictions.

We will be announcing further details of this event on our CALR website soon.

Catherine Easton (editor of the European Journal of Current Legal Issues) has been commissioned a Special Edition of the journal, which will focus on the papers presented at the seminar. This proposal has been accepted and the edition will be published in the winter of 2019.

The Knife ASBO: The Incorrect Response

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By Ed Johnston

Last week, the Home Secretary suggested a new measure to tackle the ever-growing problem of knife crime in England and Wales. He suggested that children as young as 12 could be sanctioned with ASBO-style order, should the offender breach the order, they could be imprisoned for up to two years. There is undoubtedly a major problem with knife crime in London and this requires a solution. In November 2018, the House of Commons Briefing Paper Knife Crime in England and Wales indicated that the period 2017/2018 had the highest rate of number of knife or sharp instrument crimes in over a decade with nearly 15,000 incidents. However, whilst this crime increased year on year, the Sanction Detection Rate for crimes that involved knives was under 30%. It is clear that something needs to be done to tackle this very dangerous problem. Furthermore, the Briefing Paper highlighted the findings of the Crime Survey of England and Wales that suggested 6.2% of 10-15 year olds knew someone who carried a knife and 0.3% of that sample self-reported that they carried a knife. The Government has previously attempted to ‘get tough’ on knife crime, The Criminal Justice and Courts Act 2015 introduced a minimum custodial sentence of six months for repeat offenders of knife crimes. Nevertheless, this has not provided an answer to the reoccurring problem and knife crime is perpetually in the news.

Knife Crime in England and Wales briefing paper
House of Commons Briefing Paper Knife Crime in England and Wales

The Knife and Offensive Weapon Sentencing statistics published in December 2018 states that at the end of September 2018, there were 21,381 cases of knife crime formally dealt with by the criminal justice system. Of those cases, 36% of cases resulted in an immediate custodial sentence. A mere 11% of cases resulted in a caution, which is a 13% drop from September 2009. For almost 3/4s (73%) of offenders, this was their first knife or offensive weapon offence. So, whilst the courts are treating the problem with severity, the average custodial sentence exceeded 6.5 months in 2016 for the very first time; there appears to be no effective deterrent currently available. According to the House of Commons Briefing Paper, there were 5,053 admissions to English hospitals as a result of an assault by a sharp object in 2017/18. This is a rise of 14% on the previous year and when compared to 2014/15 it has increased by 39%. The problem is real, the courts have attempted to deter offenders by using harsher sentences which has driven up the average custodial sentence, however, nothing seems to be working. In fact, in the dawning hours of 2019, two people were killed in London before 6am.

It is clear that something needs to be done to tackle this problem. However, questions remain about Sajid Javid’s Knife Crime Prevention Orders (KCPO). The Home Secretary wants to amend the Offensive Weapons Bill in order to bring in these orders. Amendment 73A of the Bill suggests that the court can make an order if, on the balance of probabilities, on at least two prior occasions (within two years), the defendant was in possession of a bladed article without good reason, in a public place, school or further education premises. The good reason could be for work, educational purposes, religious reasons or as any part of a national costume. Whilst this is clearly aimed at deterring young people from carrying a knife, which is to be commended, the standard of proof is far lower than establishing if a defendant has committed a crime. All that needs to be established is the fact it is more likely than not the person has previously carried a knife twice. Should a defendant be subjected to a KCPO, there are a number of prohibitions that the court can impose. The court can prohibit the defendant from:

  • Being in a particular place
  • Being with particular people
  • Participating in regular activities
  • Using particular articles or having particular articles on them, or
  • Using the internet to facilitate or encourage crime involving bladed articles.

This is a civil injunction, hence the lower the standard of proof. However, any breach of the order will render the conduct criminal, and the defendant could be imprisoned. These types of injunctions are nothing new to the courts. They have had the power to stop defendants associating with certain people or entering certain spaces for years. The Anti-social Crime and Policing Act 2014, allows the court to ‘prohibit the respondent from doing anything described in the injunction’ or ‘require the respondent to do anything described in the injunction.’ Both sanctions would allow the court the bar an individual from being in a particular place, being with particular people, participating in regular activities or using the internet to encourage knife crime. This could mean a person subjected to an order could be banned from using social media.

 A new provision, is not required. Perhaps, the Home Secretary is looking to polish his ‘tough on crime’ mantra for when Teresa May steps down ahead of the next general election (with some suggesting that may be as early as this summer). Perhaps Mr. Javid should not look to widen the net of criminal justice by snaring more young people into its grasp, as the stigma of being involved or subjected to criminal sanctions is hard to shift for young people. Employment opportunities are only going to be hampered by being subjected to KCPO and it begs the question, how can this be effectively policed? If the aforementioned rise in custodial sentences does not deter young people from these offenses, will a bar on using WhatsApp or other social media platforms? Whilst the provisions, on paper, have some bite, the reality means that they are almost impossible to enforce. It is suggested that the orders will be reviewed periodically, although the police are already underfunded and struggling to tackle crime; it is unrealistic to suggest the police would have the resources to see if a KCPO is being complied with. Ultimately, the proposals are another example of an order which is enforced by a low standard of proof but carries consequences that could give rise to criminal sanction and could blight the offender’s future.

Perhaps the Home Secretary would be better served looking at alternatives to divert young people from knife crime, rather than creating new provisions, that replicate sanctions that are already on the statute book. The courts have tried using more serve sentencing powers and yet that has failed to remedy this ever-growing problem, it is hard to believe a regime that mimics existing legislation would fix this problem. Nevertheless, it will help Mr. Javid’s leadership bid as the Home Secretary looks like he is doing something, rather than actually doing something to tackle the growing epidemic of knife crime.

The disclosure crisis: A suspect and practitioner perspective

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On Wednesday 5 December 2018 UWE Bristol hosted the first annual Criminal Justice Research Unit lecture on the topic “The disclosure crisis: A suspect and practitioner perspective.” The event was organised and chaired by Dr Tom Smith and Dr Ed Johnston and funded by the Centre for Applied Legal Research.

Roughly a year ago today our first speaker Liam saw accusations of rape dismissed after the police failed to disclose crucial evidence which fundamentally undermined the claims made against him. Liam gave us a very a personal account of his experiences with the criminal justice system. Jerry Hayes and Anthony Edwards each provided varied and valuable professional perspectives on the problem of disclosure. We hope that this lecture will help to promote meaningful and long term change in this area as well as furthering our goal here at UWE Bristol of research that shapes the future of organisations.

The lecture has been recorded and is available to watch online as a video, or to listen to as a podcast:

View Full video

Listen to Podcast

 

 

Liam Allan

Liam Allan is a criminology and criminal psychology graduate who was charged with rape in 2015 and spent two years on bail before his case collapsed owing to failures with the disclosure regime. Liam gave us a very personal insight into his experience and the trauma of accusation, from the moment he was arrested until the case was dropped. Liam described being made to feel that he was “guilty until proven innocent”. Liam arrived at the Crown Court charged with 13 counts of rape; days into his trial, it emerged that the police had 60,000 non-disclosed text messages containing vital information which led to the collapse of the case against him. Following these events, there was huge media interest and public outcry. Subsequently, 600 cases were dropped, 6 of which were rape cases. Since that time, Liam has continued his studies and founded the Innovation of Justice campaign, which seeks to unite organisations, lawyers and barristers, individually seeking to improve different aspects of the criminal justice system.

 

 

Jerry Hayes

Jerry was the prosecution barrister for Liam’s trial, and played a fundamental role in the discovery of the non-disclosed evidence. Jerry described some of the fundamental issues with the criminal justice system, in particular in relation to sexual offences. He argued that many members of a jury jump to conclusions in a “no smoke without fire” reaction to rape cases (something Liam suggested he had previously done, prior to his accusation). Jerry emphasised the importance of remembering that people are complainants, not victims, until a conviction or a plea of guilty. Jerry described in detail how and why the system very nearly failed Liam Allan – who would have served up to 12 years in prison and been on the Sexual Offenders Register for life. He suggested that the evidence that was withheld had been deemed “too personal” to be revealed and not relevant to the case. Yet, he argued, it was not only capable of undermining the prosecution case; it made it absolutely clear that Liam Allan could not be guilty. Jerry described Liam’s case as the worst he had seen in 41 years of practice.

 

Anthony Edwards

 

Anthony Edwards has been a practicing solicitor for 45 years and gave us a professional overview of how disclosure should be handled to avoid major miscarriages of justice. Anthony explained some of the provisions of the Criminal Procedure and Investigations Act (CPIA) and gave an overview of the recent Attorney General’s review of disclosure. He argued that, with sexual offences, there is added complexity and difficulty due to frequent “credibility contest” in such cases – that is, they turn on one person’s word against another. He stated that it is a routine part of defence practice to deal with non-disclosure issues; from major fraud to cases of minor assault. He suggested that poor disclosure practice undermines the criminal justice system, as police and prosecutors do not look for what is actually needed in a case. Anthony highlighted that this issue will not just go away (and not done so for decades), arguing for an enormous cultural shift from the police, the prosecution and defence, to ensure that all evidence is properly disclosed from the start. Anthony highlighted the need for an independent disclosure review process, conducted by an independent barrister, arguing that history tells us that the police nor the prosecution can or will do a satisfactory job. Anthony highlighted the related issues associated with the use of social media by parties in a case; particularly the problems of detecting and accessing such material when it stored on a third party’s account. He asked: how an accused can find such material if they do not know it exists? Anthony suggested that, with an independent disclosure counsel running the process, a significant proportion of cases that currently reach court and are subsequently dropped or dismissed by a jury would be filtered out of the system at an early stage, avoiding injustice.

 

Question and Answer session

We had a range of questions, some sent in advance and then opened up questions from the audience. Liam talked about how the case affected his personal life and that he was suspended from his job for 2 months. The emotional strain of the case understandably caused Liam to breakdown in court, but he also spoke about the impact on his family and friends. There was much discussion around the CPS and CPIA, whether they were fit for purpose and whether Liam was judged fairly. Anthony and Jerry gave an insightful discussion of the failings of the criminal justice system and how these failings impact genuine victims of sexual abuse. The idea of anonymity for those accused of certain types of offences was discussed by all three speakers, and the idea that it should be anonymous until a judge, because there may be other offences, directs that it should be made publicly known. There was criticism of the CPS and police using their lack of resources as an excuse for their failings, and whether this is a valid excuse or reason, nonetheless it needs to be addressed.

 

The entire lecture is available online here:

Full video

Podcast

 

Presentation of a Paper on Brexit and EU Citizenship at a Conference in Austria

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In the past few years the concept of citizenship has for a variety of reasons regained fashion amongst national, European and international lawyers. In the UK the renewed interest in the notion of citizenship is partially explained by the effect of Brexit on the status of EU citizens in the UK (and UK nationals in the EU). Last year a wide range of events, which Christian Dadomo and Dr Noëlle Quénivet attended, were organised in Bristol to discuss citizenship (see here and here) and so when they saw a call for papers for a conference on citizenship at the University of Graz (Austria) they jumped onto the opportunity to present their work abroad and thankfully their paper entitled ‘Assessing EU Citizenship under the Myopic Lens of Brexit’ was accepted.

The conference ‘Transformation of Citizenship’, held on 20 and 21 November 2018, was organised by the Institute for International Law and International Relations in conjunction with the European Training and Research Centre for Human Rights and Democracy of the University of Graz (Uni-ETC) within the context of the project ‘Transnational Governance of Irregular Migration and the Transformation of Citizenship’.  It brought together a vast array of scholars from all around the world to discuss issues such as the sale of passports, global citizenship, statelessness, foreign terrorist fighters, solidarity, etc. Two panels were dedicated to Union Citizenship, thus highlighting the importance and relevance of the topic.

Christian and Noelle started their paper by reminding the participants that the CJEU had defined EU citizenship as a fundamental status that enables nationals of Member States to enjoy the same treatment in law and that since then scholars had been debating the legal value of such status. Christian and Noelle argued that Brexit brings to the surface again discussions about the legal value or more generally the worth of EU citizenship in contrast to (State) nationality. In their opinion, there are two ways of looking at EU citizenship. There is first a minimalist approach that focuses on the legal status and the rights with which individuals are endowed. It is the more palpable, almost every day life appearance of EU citizenship for EU citizens having exercised their right to free movement. Yet, attachment and loyalty to the EU cannot be fostered by a limited focus on citizens’ status and rights alone and so there is also a broader and more dynamic approach to EU citizenship that looks at the symbolism of EU citizenship and more specifically at the solidarity between EU citizens that should create some form of identity. It is more aspirational and inscribes itself in a vision of the EU as a polity in which a European civitas exists and thrives.

At first sight, Brexit undergirds this minimalist approach to EU citizenship in as much as many discussions centred upon the rights of the EU citizens in the UK (though less on the UK nationals in the EU27). The focus of attention was initially about the fate of these EU citizens in the UK and the rights they would lose as a result of Brexit. Both EU nationals in the UK and UK nationals in the EU realised the value of their EU citizenship. After all, you only appreciate what you had once you have lost it! For example, UK nationals both in the EU and more interestingly in the UK (even those who have never exercised their right to free movement) have applied for the nationality of an EU Member State to keep their EU citizenship.

However, the wider, aspirational approach towards EU citizenship is no less visible in Brexit for there have been demonstrations in favour of the EU in a State whose nationals have always been sceptical towards the EU, support in the European Parliament for ‘associate’ EU citizenship and a European Citizenship Initiative launched in July 2018 with the objective of keeping EU citizenship for UK nationals in the EU27. Therefore, it is possible to state that Brexit has revealed that EU citizenship goes beyond this minimalist approach that focuses solely on rights to a vision of EU citizenship as something that has a wider appeal and is based on solidarity along the French motto of ‘liberté, égalité et fraternité’.

More fundamentally, the European Union has enabled a shift in the way non-nationals are viewed: from foreigners to workers (homo economicus), to residents and to EU citizens. With Brexit the pendulum might go all the way back to viewing UK nationals in the EU who were EU citizens as foreigners and EU citizens in the UK as foreigners. Yet, the rhetoric of both the UK and the EU shows that they are adamant to reverting to square one. Consequently, it might be possible to state that Brexit has demonstrated that EU citizenship has subtly though fundamentally challenged the way EU citizens who have exercised their right to free movement are viewed. Though Brexit undeniably highlights the duality of EU citizenship, a status in its own right as well as a complementary over-layer that acts as a gate to rights that will be lost post-Brexit, it has revealed the intrinsic value of EU citizenship for EU citizens living in another EU Member State. As a result, Christian and Noelle argued that Brexit shows that EU citizenship is more than just a bundle of rights. EU citizenship has a transformative power in the sense that it is not just a ‘top up’ but has become part of a Union citizen’s legal heritage, especially in relation to long-term residents. And so, reverting to the status quo ante is nearly impossible.

What is more Brexit offers an opportunity to reinforce and complete EU citizenship and putting EU citizenship at the forefront of the European project. Like the French revolutionaries who created French citizenship on the tryptic ‘liberty, equality and fraternity’, the EU citizenship can equally be further developed on the tryptic ‘freedom of movement, equality treatment and solidarity’. Freedom of movement is fully developed, equal treatment can be completed by extending the so-called special (political) rights and notably the right to stand and vote in all national elections including referenda in their country of residence, and finally solidarity needs better promotion as it is only in its infancy.

Matthew Hall presents “Thatcher’s Legacy on the Narrative Surrounding Fans of Football” at the Football Collective Conference

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On Friday 30th November 2018, Matthew Hall (UWE Bristol, Law), along with Ashley Jane Lowerson (University of Sunderland, Law) presented their paper at the Football Collective Conference at Hampden Park, Glasgow. This is an event attended by many scholars from across all disciplines from around the world. Also attending were current and ex-professional footballers and members of the Football Association.

Titled, ‘Thatcher’s Legacy on the Narrative Surrounding Fans of Football’, Matt and Ashley introduced by discussing Mrs Thatcher’s early days as PM and the ‘tough on crime’ rhetoric that she often espoused. It was discussed how some scholars have argued through a punitiveness lens that Mrs Thatcher’s legislative programme was anything but tough. The prison population remained around the 45,000 mark during her time as PM and only under Major and Blair did a sharp increase occur (and now is around the 80,000 mark). Thatcher’s legislation merely created an ‘illusion’ of toughness and ‘laid the foundations’ for a more punitive approach some years later.

Matt and Ashley then discussed how measuring the ‘toughness’ of law through a punitive lens was a narrow approach and legislation can influence in other ways. Attention turned to football fans and some of the legislation that was created with fans of football in mind, particularly since the events of Heysel in 1985. Ashley discussed the Sporting Events (Control of Alcohol etc.) Act 1985, Public Order Act 1986 and the Football Spectators Act 1989 and how collectively, these have arguably created a stigma that has become attached to all fans. In particular, when taking in to account the wide nature of some of the legislation in that numerous restrictions apply to all fans and not just those who seek to cause disorder.

Matt then went on to discuss Goffman’s theory of stigma and Frost’s conceptual framework. Structural inequalities were discussed and how the law can be constructed in ways that reflect negative meanings to certain groups in society; how stereotypes and prejudice can result from structural inequalities; and finally, discrimination in that these groups then become treated differently in society because of their stigmatised status. Discussed on this point was the nature of how the police often favour the tougher ‘command and control’ approach when policing football matches as opposed to other large gatherings such as political protests, where a more ‘facilitative’ role is adopted with the use of Police Liaison Teams to create a ‘friendlier atmosphere.’ Also, how public houses quite often refuse admission to fans of football on match days for no other reason other than they are football fans and in early 2018, Chorley councillor Danny Gee attempting to ban all fans of football from entering Chorley Centre on Saturday afternoons.

Matt and Ashley then discussed how stigma can be legitimised by law, and in terms of football fans, this is arguably the case. Mrs Thatcher may not have been regarded as ‘tough’ by some scholars with her legislative programme, but fans of football would disagree. 1985, under Mrs Thatcher PM, saw the first football-specific legislation introduced and arguably, this is one of Thatcher’s legacies surrounding the narrative of football fans in the current day.

Pre-trial Detention in England & Wales: An academic analysis

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In November 2018, Dr Tom Smith hosted a delegation of visitors from China, including academics from two universities, several prosecutors and lawyers from city, provincial, and national procuratorates (the bodies responsible for prosecution decisions), and colleagues from the Great Britain China Centre. The purpose of the visit was to discuss pre-trial detention practice in England and Wales, with a view to promoting reform in China (following on from a pilot project conducted in various provinces in 2016-17). Alongside a question and answer session and a court visit, the visit included a presentation by Dr Thomas Smith. This blog is a written form of this presentation.

This presentation aims to summarise the current regulatory structure for pre-trial detention (PTD) in England and Wales (E&W); to summarise research conducted in this area of practice; and to identify future issues which will be faced in ensuring PTD is used appropriately and decisions are made fairly. It is hoped that this presentation will assist the delegation in promoting reform of PTD practice in China over the coming years, an area of both great importance and great challenge.

 

Law and Procedure in E&W

Before engaging in analysis of the system, it is first necessary to briefly summarise the stages at which a person suspected or accused of a criminal offence can be detained prior to trial (commonly known as pre-trial detention (PTD)). PTD traditionally refers to detention of a person, by a court, prior to trial. However, since the police also have the power to detain unconvicted persons (both before and after a charge), these have been included in this summary. After a person is arrested on suspicion of an offence, decisions about their detention or release can be made at various stages prior to any potential trial. The first, and earliest, point at which this can happen is before a person is charged with any offence (hereafter, the pre-charge stage). The second stage is after a suspect is charged with offence, but before their first appearance at court (hereafter, the post-charge stage). At both of these stages, the decision as to whether a person should be released or detained is made by the police (specifically, a custody officer). The third stage at which such decisions will be made is after the accused person (now referred to as a defendant) has appeared at court for the first time (hereafter, the court stage). The court stage also includes such decisions made at the conclusion of any subsequent court hearings involving the defendant. At the court stage, PTD decisions are made by judicial figures – specifically, Magistrates or District Judges in a Magistrates’ Court; or professional judges (such as Circuit Judges) in the Crown Court. Whilst PTD will not normally be the primary focus of court hearings, all such hearings must end with a decision about the liberty of the defendant. Decisions or hearings relating to PTD in E&W are commonly referred to as ‘bail’ or ‘remand’ hearings; in this sense, if one encounters a reference to bail or remand in relation to court proceedings, this can be equated to PTD decision-making. Notwithstanding the different figures responsible for these decisions, one element is common across all stages: a person suspected or accused of an offence is at risk of being deprived of their liberty; or, if they are released, of being the subject of ‘conditions’ which can regulate or control their behaviour. As such, PTD at all stages has a significant impact on the fundamental rights of people who have yet to be charged, tried or convicted.

Pre-charge

If suspects are not charged with an offence, there is a presumption that they will be released without bail (that is, unconditionally). This presumption was recently introduced by the Policing and Crime Act 2017. However, this presumption can be overturned if certain pre-conditions are met, meaning that a suspect can be released on bail for 28 days (initially). This will allow the police to attach conditions to release. Crucially, if the police decide it is necessary (to secure or preserve evidence or obtain evidence through interrogation), a suspect can also be detained until they are charged with an offence. This is, initially, for a maximum of 24 hours (which can potentially be extended) and is subject to review.

Post-charge

After a person is charged, they can either be released (with or without bail); or detained (if the police believe that they may fail to attend court, commit an offence or interfere with witnesses). Whatever decision is made, it will apply until the charged person’s first court hearing. Both pre and post-charge, all suspects held in police custody are entitled to legal representation if they request it, regardless of means (under s.58, Police and Criminal Evidence Act (PACE) 1984).

At court

If an accused person is detained post-charge, they must appear before a Magistrates’ Court quickly. Normally, this will be no later than the first court sitting after charge (generally, within 24 hours of being charged). At the end of this first court hearing, the defendant must be released or detained; as such, this represents the first ‘formal’ PTD hearing for those accused of criminal offences. Importantly, there is a presumption of release on bail for every defendant (under s.4, Bail Act 1976). This applies at all stages of proceedings (there are some exceptions to this presumption). The presumption can be overturned if the court has reasonable grounds for believing that detention is justified. There are a number of available ‘grounds’ for detention under the Bail Act 1976, with the main ones being the fear that the defendant may fail to surrender to the court; may offend on bail; or may interfere with the administration of justice (for example, by intimidating a witness). In deciding whether the ‘grounds’ to detain a defendant are established, the court should consider various factors, including the nature and seriousness of the offence; the probable outcome/sentence; the character of the defendant; antecedents (previous convictions); and the defendant’s bail record (that is, whether they have breached bail conditions in the past).

If the presumption of release is not overturned by the court, a defendant will be released on either unconditional bail or conditional bail. With the former, the only requirement is for the defendant to return to court for a future hearing (for example, a trial). With the latter, the defendant can be released subject to additional requirements, commonly known as ‘conditions’. Conditional bail is effectively an alternative to detention; that is, when the court feels that the defendant needs to be subject to some measure of control or monitoring, but detention is inappropriate or disproportionate. Conditions can therefore be attached to release, primarily if the court believes that the defendant might fail to surrender to custody; might offend on bail; or might interfere with witnesses or the administration of justice (among others). The court has significant discretion in terms of the type of conditions it can impose. There are three basic categories: a surety (the surrender of something of value, such as a passport); a security (sometimes known as ‘money bail’); and ‘other conditions’. The first two categories (particularly securities) are generally unusual in E&W. Other conditions are common, and can include (theoretically) anything the court thinks is necessary. However, frequently used conditions include a residence requirement; a curfew and/or electronic monitoring (or ‘tagging’); or the requirement to stay away from a location or person (for example, a witness).

Defendants can be represented by a lawyer at court, but – in contrast to police custody – are not entitled to this (with some limited exceptions). Whether a defendant will qualify for legal aid will depend on whether they pass an interests of justice test; and a means test. If the defendant does not qualify for legal aid or cannot afford their own lawyer, they may be unrepresented. A ‘duty’ lawyer scheme operates in English and Welsh criminal courts, which provides a lawyer to unrepresented defendants on a rota system. That is, a lawyer will be assigned a ‘slot’ during which they will provide representation at court to defendants who require it. However, if the current duty lawyer is not available when a defendant requires one (perhaps because they are covering another case); or is unable to deal with the case because of its nature, a defendant may be left unrepresented.

Research on pre-trial detention in E&W

E&W has one of the lowest ‘proportional’ PTD populations both in Europe and globally, at approximately 10% of the prison population. However, this figure needs additional context. E&W also has one of the highest prison populations per capita in Europe (141 per 100,000); therefore, the gross number of pre-trial detainees is significant (roughly 9,000 persons on any given day). It should also be added that this figure relates only to those placed in detention by the court – it does not include those in police custody, a figure which is not routinely published. The number of persons placed in PTD annually has varied over the years, but was estimated to be roughly 80,000 in 2016. In that year (and the following year), it has also been suggested that 10-12,000 people facing less serious offences were kept in PTD. Finally, the average number of persons held in PTD on any given day has been decreasing over the last decade (whilst the overall prison population has been increasing, until recently). PTD has largely received little attention from policymakers, although the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 did usher in some significant changes with the aim of lowering the PTD population. In essence, this legislation restricted the circumstances in which the presumption of release could be overturned at the court stage in relation to summary (that is, minor) non-imprisonable offences and introduced a ‘real prospects’ test – that is, courts making PTD decisions needed to consider whether there was any ‘real prospect’ that a defendant would receive a custodial sentence if convicted.

Some research has been conducted on PTD at the court stage over the past two decades, but a limited amount. Hucklesby conducted research on bail and detention in the late 1990s; HMIP undertook a thematic review of remand prisoners in 2009; and the Howard League for Penal Reform conducted some examination of this area in 2014. Most recently (2016), Professor Ed Cape and Dr Tom Smith undertook research in England and Wales as part of a 10 country study of PTD (coordinated by Fair Trials International, and backed by the EU Commission), producing a report entitled the ‘Practice of Pre-trial in England and Wales’. The project examined five aspects of PTD decision-making: process (how decisions are made); substance (content/nature of decisions); review (scrutiny of decisions); alternatives to PTD (specifically, the use of conditional bail); and outcomes (the case outcomes for defendants subjected to PTD). The project examined these aspects of practice based on observation of PTD hearings; interviews with lawyers and judges; a survey of defence practitioners; and a review of prosecution case files.

Processes used in E&W PTD hearings were broadly compliant with European Convention on Human Rights (ECHR) standards. Detained defendants were promptly produced; were normally present at hearings, and represented by a lawyer. When defendants were detained, trials normally took place quickly. However, PTD hearings were often uncontested (that is, parties did not challenge each other); were reliant on police and prosecution information, rather than an extensive, objective body of evidence; and were generally short and formalistic. Disclosure of information to the defence prior to hearings was the subject of limited regulation; so much so, that it was possibly in breach of the EU directive on the right to information by virtue of its narrow scope. There were significant problems with timely disclosure, with concerns about the lack of material available to the defence prior to hearings (although prosecutors were generally observed to share such information if it was available). Defence practitioners generally felt that most disclosure was ‘somewhat’ sufficient.

The most common outcome in observed hearings was unconditional bail; the most common outcome in reviewed cases was conditional bail. Defendants were detained in approximately 40% of observed hearings and reviewed cases. Most applications for detention by prosecutors were granted, and where detention was approved by the court the most common ground for doing so was fear of further offences. In establishing grounds for detention, the most important factor influencing the decisions of courts was a defendant’s history of offending. In terms of the nature of the decisions made, witnesses were rarely called to give evidence in PTD hearings. Additionally, the reasoning provided by judges for their decisions was limited at times, arguably in breach of ECHR jurisprudence. In some cases, Magistrates were observed confusing ‘grounds’ for detention with the ‘factors’ to be taken into account. As such, rather than using a factor as evidence to establish a ground (for example, using a history of offending to establish the ground of ‘fear of further offences’), some Magistrates would simply detain on the basis of a factor (for example, the seriousness of the offence). This was therefore in breach of domestic legislation, specifically the Bail Act 1976.

In terms of the use of alternatives to detention, bail (both types) was granted in approximately 60% of observed hearings and reviewed cases. Extensive use was made of a limited range of bail conditions, with the most frequently imposed being a residence requirement; an order to stay away from person or location; and imposition of a curfew or electronic monitoring via a ‘tag’. The research also found that bail was not limited to less serious cases; in one observed case, a defendant accused of rape was released on unconditional bail (although this was exceptional). Concerns were raised by practitioners and judges about monitoring and enforcement of conditions, which could potentially undermine confidence in their use as an alternative to custody. Additionally, there was concern about the lack of available bail hostels and bail information schemes, which were felt to be helpful in ensuring that defendants were not detained unnecessarily.

Generally, review of PTD decisions took place quickly. When a defendant was detained by the court, such a review had to take place within 8 days. When PTD decisions were reviewed in the Crown Court (for example, when a defendant appealed a decision or when a routine review took place in serious cases), defendants were generally not present (although were normally represented by a lawyer). Practitioners and judges could not adequately explain why this was, with the ultimate conclusion being that non-appearance was simply habitual. Review hearings experienced the same issues as at initial hearings, namely limited reasoning, a lack of evidence, and short length. There was some anecdotal evidence to suggest that an informal ‘reversal’ of the presumption of release operated at the review stage. That is, when a defendant was detained at a previous hearing, the review court would expect the defendant to show why they should be released. This appeared to be a prima facie breach of the presumption under the Bail Act 1976, suggesting that securing release at the review stage was significantly harder for detained defendants. Finally, the research examined final outcomes in cases where defendants had been detained at some point during proceedings. This was only recorded for case file reviews as observed cases could not be followed through to completion. The research found that nearly 25% of defendants detained at some stage were acquitted or had the case against them dropped. Of the remainder, just under one-third received a non-custodial sentence. Additionally, nearly half of defendants detained at some stage prior to trial did not go to prison after conviction. Of those who did receive a custodial sentence, nearly all received a sentence longer than the time spent in PTD.

On the basis of these findings, the authors made a number of recommendations. It was suggested that the law regulating PTD should be simplified and codified in one statute. It was also suggested that judges and prosecutors should receive consistent and regular training on ECHR standards, due to an apparent lack thereof. The report also recommended clarified and extended regulation to ensure defendants had access to all relevant information, material and evidence prior to PTD hearings. The research recognised that a lack of time and resources was a significant factor in a number of the problems identified, and suggested that more time and resources be made available to the courts, the prosecution and the defence to ensure thorough and fair consideration of PTD decisions. It was also suggested that more resources be made available for the provision of bail information services and bail hostels, and that the mechanisms for monitoring and enforcing bail conditions should be reviewed and strengthened.

Recent reform in this area

Since the research was published, some progress has been made in implementing these recommendations. In March 2016, Professor Cape and Dr Smith engaged with the Criminal Procedure Rule Committee (hereafter, the Committee), the agency responsible for drafting the rules governing criminal proceedings (the Criminal Procedure Rules, hereafter CrimPR). The Committee had pre-existing concerns about aspects of PTD practice, including problems with disclosure of information and evidence to defendants prior to hearings and the amount of scrutiny undertaken during hearings. Based on the research report, the authors engaged in dialogue with the Committe over a period of several months; attended Committee meetings; and submitted a position paper relating to the recommended changes to PTD practice. On the basis of this (alongside contributions from a number of other stakeholders), the Committee proposed changes to the CrimPR in late 2016. These changes would clarify and expand the scope of initial disclosure required of prosecutors before a PTD hearing; introduce a new rule requiring defendants to be given sufficient time to consider information and evidence before a PTD hearing; and amend an existing rule, to require the court to ensure sufficient time is taken in considering PTD decisions. These proposals were accepted, becoming law in February 2017.

Current and future issues in pre-trial detention practice

Notwithstanding these very positive developments, the research – and other developments since – suggest that PTD practice in E&W has a number of ongoing challenges that should, ideally, be addressed. These include the problem of limited information and disclosure; the ‘routinisation’ of PTD hearings; the viability of alternatives to detention; access to lawyers and legal aid; and the use of Video Link (VL) technology in PTD hearings.

Limited information and disclosure

Courts rely primarily on police and prosecution information and summaries in PTD hearings. The research (alongside a more recent study by Transform Justice, in 2018) suggests that such material has some problems of reliability, accuracy, completeness, and availability at the early stages of a case. Whilst this is, to some extent, understandable considering that a hearing will normally take place within a day of charge, there is undoubtedly a gap in terms of material that can and should be supplied. This problem is exacerbated by a lack of clear and extensive regulation for disclosure of information to the defence in advance of PTD hearings. At the time of the research, this was primarily regulated by the CrimPR, specifically Rules 8 & 14. The requirements were fairly limited, both in terms of scope and the obligation to provide material to the defence in advance of proceedings. The regulation therefore appeared to be in breach of Articles 6 and of the 7 EU directive on information, which mandate disclosure of a more extensively defined category of material and information. As described above, the CrimPR were amended in 2017 and this went some way toward addressing these issues on paper. However, it is as yet unclear whether these amendments have been impactful in practice. As noted earlier, prosecutors did generally share available information with the defence when they could; but equally, 30% of surveyed defence lawyers stated that they regularly received no paperwork pre-hearing. Such issues impact on the accuracy of decision making and the fairness of the hearings for defendants, since a lack of information will inevitably limit the ability of defendants and their lawyers to challenge detention applications.

Similarly, PTD prior to the court stage is also afflicted by problems in relation to disclosure. These are, arguably, even more acute and impactful. At the pre-charge stage the police and prosecution have few requirements to disclose information (with some limited common law requirements and some regulation in PACE 1984, Code of Practice C). Post-charge, disclosure is generally regulated by statute (specifically, the Criminal Procedure and Investigations Act 1996) although this primarily relates to disclosure once a defendant pleads not guilty or is anticipated to plead not guilty. Generally, there is an ongoing ‘crisis’ in relation to the disclosure of evidence and information which might assist the defence at the pre-court stage (which covers material which would be useful for the purposes of PTD decisions). There have been a number of high profile cases involving disclosure failures (for example, that of Liam Allan, in December 2017). This has led to the halting of a number of prosecutions due to concerns about inadequate disclosure; a critical parliamentary inquiry into the issue (published in July 2018); and a review by the Attorney General (published in November 2018). As such, at all stages, the failure to provide information and evidence to the defence can impact on the ability of accused persons to adequately engage with and challenge bail decisions and the ability of authorities to make fair and proportionate decisions which take such representations into account..

Routinisation of PTD hearings

Another concern raised by the research was that PTD hearings are ‘routinised’ – that is, conducted in a very routine manner with limited engagement with individual cases on the part of practitioners. Hearings were largely uncontested, with little discussion or debate amongst lawyers or judges. Hearings were also very swift, lasting only a matter of minutes on average. Whilst this is not inherently inappropriate, the frequency with which proceedings were dealt with in this almost cursory manner raises the risk that cases of genuine complexity might be not be scrutinised properly. The brevity of hearings and the speed of the overall PTD process can arguably be explained by a range of factors, including the actual or perceived simplicity of many cases; pressures on lawyers and judges to make decisions quickly; the long-running agenda of maximising efficiency in courts; and statutory time limits on the detention of defendants (which would therefore motivate all parties to proceed with in-custody cases as quickly as possible to avoid any undesired release of a defendant). Hearings also appeared to be formalistic; that is, the submissions of parties and the judgments of the court were often repetitive, generic, and closely reflected the ‘formal’ wording of the law. There was often a lack of individualised rationale for decisions in cases – that is, one which relied on and engaged with the specific facts and issues in the case before the court. It might therefore not be obvious to a defendant exactly why decision has been made (even if such reasons were obvious to the judge and lawyers). Generally, the reasoning provided by judges was limited – in some cases, no reasoning was provided at all or no decision was clearly announced. Such practice appeared to pose issues of compliance with ECHR jurisprudence. Overall, the findings (and the response to their publication and dissemination) suggested an attitude of complacency and political lethargy to PTD practice in E&W. An exception was the proactive and engaged response of the Criminal Procedure Rule Committee; otherwise, no action has been taken by Government or other bodies, despite the inclusion of PTD as part of the 2030 Sustainable Development Goals (which the UK is committed to). Most practitioners who engaged in the research appeared to think the PTD system in E&W was adequate, despite identifiable problems and areas for improvement.

Viability of Alternatives to Detention

The research also identified three significant problems with alternatives to detention: bail information schemes, which practitioners considered to be useful but lacking provision across courts; the lack of availability of bail hostels when a defendant did not have a suitable address to be released to (which could lead to unnecessary detention); and concerns about the monitoring and enforcement of bail conditions. Bail information schemes involve specialist assessment of the needs and circumstances of a defendant, which is used to provide recommendations to the court about appropriate conditions for release. This is normally conducted by probation officers. Whilst the input of the scheme was not always necessary, practitioners and judges noted the usefulness of this support in some more challenging cases, particularly those involving issues such as mental health and addiction. As such, this was generally regarded to be a valuable service for prosecutors and judges when making PTD applications and decisions. However such schemes were not consistently available at courts, with some schemes only being available on certain days or simply not being available at all in other locations. This might therefore rob decision-makers of valuable insight into the best way forward. A similar problem affected bail hostels, officially known as ‘approved premises’ – a form of accommodation used to house released defendants in the community. These are utilised when a defendant does not have an appropriate address to which they can be released on bail. They are particularly useful for offences involving domestic violence (which will often involve a defendant and complainant who co-habit) or homeless defendants. Like bail information schemes, bail hostels were lacking in terms of availability or might be located in inappropriate locations (such as being some distance from a defendant employer). As such, when a defendant had no address or no suitable address, the court might have no choice but to detain them. In some cases, this might be unnecessary or disproportionate.

In terms of monitoring and enforcement of alternatives to detention, it would be fair to say that prosecutors and judges were generally confident in using conditional bail. Electronic ‘tagging’ was considered to be the most effective condition, and appeared to be used commonly. However, some practitioners and judges expressed concerns about effective and consistent monitoring of conditions and enforcement of breaches. There was, to some extent, a lack of clarity as to who was responsible for checking defendants were abiding by conditions. The default assumption was that the police should do so, although this was not necessarily clear. Particular concern was expressed about monitoring and enforcement of residence conditions; ‘no contact’ orders (especially via social media); and the condition to report to a police station. Ultimately, it was felt that, in many cases, it was difficult to ensure that adherence to these conditions was effectively supervised and that breaches could be detected and acted upon (with the exception of ‘tagging’, which has a fairly clear protocol for this). In this sense, confidence in the effectiveness of the conditions as regulators of defendant behaviour – and therefore as alternatives to detention – could be undermined. That being said, the courts utilised conditional and unconditional bail in the majority of cases, suggesting that such misgivings have not necessarily translated into more restrictive use of alternatives.

Access to lawyers and legal aid

As highlighted earlier, access to a lawyer is an entitlement for all suspects in police custody regardless of means; but not for all defendants at court. Access to a lawyer is a vital element of the right to a fair trial (Article 6, ECHR) which should be available from the very start of criminal proceedings (for example, see the case of Salduz v Turkey). In relation to PTD (in both police stations and courts), access to a lawyer helps an accused person understand what is happening; challenge decisions; and ensure those decisions are taken legitimately. Provision of lawyers and the quality of representation is affected by both the amount of legal aid funding for lawyers and the law firms who employ them, as well as the eligibility of defendants at court for legal aid. With this in mind, it is important to highlight that (notwithstanding claims it has ‘spiralled out of control’) legal aid funding has reduced year on year since 2004, and fees for legal aid lawyers have been effectively ‘frozen’ since the mid 1990s. Significant cuts to fees were imposed in 2014; and further planned cuts were either abandoned (2015) or ruled unlawful (2018) – although, may well be imposed in the future. Evidence suggests that the overall number of firms and providers of criminal legal aid services has reduced, with a consequent impact on the numbers of lawyers available to provide such services. We might therefore ask what the impact of this is on PTD decision-making.

Notwithstanding the challenging climate in which criminal legal aid now exists, suspects in police custody continue to remain entitled to a lawyer if they request it. However, the reality of uncompetitive, fixed fees for police station advice work may mean an impact on the availability of providers (for example, in rural areas) and the quality of advice provided (for example, if firms are forced to rely on less experienced and/or qualified advisors for financial reasons). A lack of available lawyers may mean long delays in arrival at the police station; those who request advice may be deterred from waiting for their lawyer, leaving them unrepresented and the police freed from external scrutiny in considering PTD decisions. Fewer defendants in court now qualify for a legal aid lawyer due to restrictions on the rules of eligibility. Moreover, a smaller pool of legal aid providers and lawyers may mean that ‘duty’ schemes in courts are stretched beyond capacity, with demand outweighing supply. A major concern is that defendants may be forced to appear as ‘litigants in person’ (that is, unrepresented) in PTD hearings. Some evidence suggests this is happening in criminal proceedings (for example, a suppressed Ministry of Justice report and research undertaken by Transform Justice). Unrepresented clients at court is rarely a desirable outcome for any party, with defendants potentially disadvantaged and the time of courts wasted. Overall, the fundamental concern is that fewer lawyers with less time and shrinking resources may impact access to a representative and therefore the quality of PTD decisions affecting defendants. PTD hearings should have meaningful input from both parties; without a defence lawyer involved, a defendant is at a significant disadvantage and the court is robbed of a valuable perspective in choosing whether or not to overturn the presumption of release.

Video Links and PTD

The use video link (VL) technology in court proceedings is not new, and is relatively widespread (although is not the norm in criminal proceedings generally). Currently, the Ministry of Justice is in the midst of a £1bn reform programme designed to ‘modernise’ the courts, and the use of VL is a major part of this. In terms of PTD hearings, the primary benefit is saving time and money by avoiding the need for detained defendants to be transported to court from a prison or police custody. Many PTD hearings are already conducted using VL; the Ministry of Justice has also suggested that, in the future, VL might be used for all but exceptional PTD hearings. However, some concerns exist about the use of VL in such hearings. The reliability of the technology used has been called into question (for example, when the virtual connection between the defendant and the court is lost during proceedings). Questions have been raised about the variable quality of VL and the impact it has on PTD decision making (for example, poor audio and visual quality). Access to legal advice for those on VL may be more inconsistent; the ‘duty’ lawyer (if available) will be at the court centre rather than custody. There may be problems of access for lawyers in custody locations (particularly prisons). As such, defendants appearing virtually may not have a lawyer at all. If they do, it may be more difficult for them to consult their lawyer in private, as there are significant concerns about how well police stations and prisons ensure defendants are not observed or monitored. Some research suggests that the psychological impact of a virtual appearance, specifically feelings of isolation and disengagement from proceedings (particularly for those with vulnerabilities) may impact the fairness of proceedings. Finally, there are also concerns about the accuracy of claims that it saves time and money, particularly if proceedings are slower or interrupted. In 2010, research by the Ministry of Justice suggested defendants appearing via VL in PTD hearings were less likely to be represented. A more recent study by Transform Justice (2017) found that 58% of court users thought VL made it more difficult for defendants to engage. Multiple studies of VL in bail immigration hearings have been critical, noting that applicants are depersonalised and isolated from the court. All of these concerns should be borne in mind for the use of VL in PTD hearings.

Conclusions

When compared with other systems – both in Europe and globally – it is reasonable to argue that E&W operates a system that, in theory, is well designed, fair and balanced. In practice, PTD does not appear, when taken at face value, to be used excessively – but it is difficult to determine what proportion of cases may involve detention which is inappropriate, unjustified or possibly unlawful. Considering the proportion of defendants who are either not convicted or not imprisoned after conviction (in combination with the somewhat superficial approach PTD decision-making observed in a number of cases), PTD does not appear to operate as a matter of last resort. If this were the guiding principle, it appears difficult to justify the detention of 40% of defendants. Whilst the system and its practical operation do compare favourably with some European neighbours, there are undoubted problems which have existed for a number of years and which, if unchecked, can feed unfair and opaque decision-making, inadequately regulated conditional release and, ultimately, unnecessary deprivation of liberty. Complacency as PTD practice in E&W, at both a political and practice level, appears to be entrenched. Bearing in mind that PTD is likely to be in the ‘front line’ of future reform of criminal proceedings (both financial and technological), this apathy towards the need for improvement is concerning. That being said, interest in the area has been growing in recent years. In March 2018, Transform Justice undertook research into remand hearings which provided further insight into the issues affecting this area of practice, and have proceeded to lobby for reform. In April 2018, the Commonwealth Human Rights Initiative gathered a roundtable of academics (including Dr Smith) to discuss pre-trial detention in relation to the UN’s Sustainable Development Goals (to which the UK Government is committed), which includes limiting excessive pre-trial detention. In July 2018, the House of Commons Justice Committee published an inquiry into disclosure in criminal proceedings, referencing written evidence based on Professor Cape and Dr Smith’s research. One can only hope that, with sustained effort, awareness can be raised and action taken on the issues highlighted in this presentation.