Reducing the use of pre-trial detention in the Chinese criminal justice system

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By Dr Tom Smith

In February 2019, Dr Tom Smith spent a week working in China as an expert consultant for a research and training project, entitled ‘Reducing pre-trial detention through improved defence and non-custodial alternatives’. The project forms part of a broad reform programme aimed at improving pre-trial detention practice in the Chinese criminal justice system, by lower detention rates; improving defence rights for suspects; and widening the use of non-custodial alternatives (such as conditional bail). A significant part of the reform programme is the introduction of pre-trial detention hearings (known as ‘official arrest hearings’). These can be most closely compared to a defendant’s first appearance in a Magistrates’ Court in England and Wales (although with a number of distinct differences). At present, these hearings are being piloted in a number of cities across China, with the aim of increasing the participatory nature of proceedings; improving the transparency of the process;  and enhancing scrutiny of detention decision-making. The project is being co-ordinated by the Great Britain China Centre (based in London), in partnership with academics from the Centre for Criminal Justice Reform at Renmin University of China (Beijing), and the Supreme People’s Procuratorate of the People’s Republic of China (the national agency responsible for regulating criminal prosecution and investigation).

Tom Smith and Luke Meyer at Shenzhen Procuratorate training day

Tom’s primary role in this phase of the project was the design and delivery of training sessions for a variety of Chinese criminal justice professionals, including procurators (whose role is comparable to both a Magistrate and a prosecutor); defence lawyers; and police officers. The purpose of the training was to improve the professionalism of the procurators, lawyers and officers in two pilot cities (Shenzhen, in Guangdong province; and Hefei, in Anhui province). In addition, the training aimed to influence their approach to considering the protection of human rights in criminal justice proceedings by introducing perspectives on best practice in England and Wales, whilst providing a critical insight into our pre-trial detention system. The training sought to equip defence lawyers with knowledge and skills applicable to their role in pre-trial detention hearings, which is essentially an adversarial one. Tom was accompanied by criminal defence lawyer Luke Meyer, a Partner at Tuckers Solicitors in Kent. Together, they co-designed the structure of and materials for the training sessions (lasting a day in each pilot city), combining both academic and practical perspectives. The training covered topics such as the current structure of English and Welsh law on remand (i.e. court bail and pre-trial detention of defendants); insight into day-to-day practice in police stations and courts; a review of existing research on pre-trial detention in England and Wales (largely based on Tom and Professor Ed Cape’s report, ‘The Practice of Pre-trial Detention in England and Wales’); and a series of thematic sessions examining criminal legal aid, the use of video-link technology, alternatives to detention in custody, and impact on vulnerable groups of defendants.

Tom Smith and Luke Meyer at Shenzhen Procuratorate training day

Tom and Luke delivered the first training day in Shenzhen on February 22nd and 23rd, alongside sessions by leading Chinese academics and senior figures from the Supreme People’s Procuratorate. On February 25th, they observed an official arrest hearing in Hefei, via video link technology. This offered first-hand experience of the practical implementation of the reform programme, involving a real-life criminal case. The figures involved included two procurators (acting in a similar capacity to Magistrates); a defence lawyer; two police officers (acting in a similar manner to prosecutors in England and Wales); and the defendant (who appeared via video-link). After the hearing concluded, Tom and Luke were invited to ask questions of the deciding procurators in the case as well as the participating police officers. This was a rare privilege: this might be equated to the opportunity to question a bench of Magistrates and a prosecutor about their handling of a remand decision, directly after completing it – something that simply would not happen in England and Wales. This underlines how unusual and important this opportunity was, and provided a significant and unique insight into the progress of the reform programme on the ground. The second day of training was then delivered in Hefei. During both training days, and during associated networking events, Tom and Luke met with procurators, lawyers, academics, and senior local and governmental officials, and answered a variety of questions about English and Welsh law and practice. They were also invited to offer recommendations for continuing the progress of the project.

Tom Smith at Hefei Procuratorate training day

The opportunity to be involved in this highly significant reform programme was an undoubted privilege. The processes being introduced in China are novel to its criminal justice system, which does not have the same legal traditions and adversarial roots as English and Welsh criminal procedure. The energy and effort that is being directed towards the programme by the various parties involved was impressive and engaging. It is worth remembering that these were two of several pilot cities across the country, involving and effecting thousands of people. Above all, the programme has clear potential for positive impact on the lives of criminal defendants in China, emphasising the protection of human rights, increasing the scrutiny of decision-making, and working towards reduced use of detention before trial. Such goals are shared by many jurisdictions, particularly in light of the United Nations’ Sustainable Development Goals (SDGs), one of which (SDG 16) includes reduction of unnecessary pre-trial detention. This is therefore likely to be part of the long-term agenda for reform in China and beyond. The chance to contribute to this project, by sharing knowledge and understanding of pre-trial detention practice in England and Wales, was a very positive experience. It is hoped that there will be further involvement in this project, as well as a wider strengthening of ties between UWE and China.

Featured researcher: Dr Thomas Smith

Thomas is an in Law and member of the Centre for Applied Legal Research. His research areas include pre-trial detention and bail; disclosure of evidence in criminal proceedings; criminal defence lawyers; access to justice and criminal legal aid.

Email: Thomas8.Smith@uwe.ac.uk Phone: +4411732 84617

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.

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?” This one day event will take place on Wednesday 3 July 2019.

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: “Contemporary issues with disclosure in the police station.”

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: “Reconsidering defence disclosure.”

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: “ Uncovering disclosure errors: Appeals and the CCRC.”

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.

Please see our event page for further details or click here to sign up now.

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.

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.

 

 

 

 

 

 

 

 

 

 

 

 

The Criminal Justice Research Unit share their latest scholarly writings

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The Criminal Justice Research Unit organised on 12 November a Staff Research Seminar giving colleagues the opportunity to talk about their latest scholarly writings.

Matt Hall launched the seminar by presenting a fascinating and highly topical research piece on the legal framework relating to alcohol consumption in airports. This topic is not far off from his own PhD that examines the (ab)use of alcohol at football events and the law that governs it. As Matt pointed out, drunkenness at airports is not a new phenomenon, though it is not causing as much trouble as the media would like to portray it. What seems however new is the fact that individuals, particularly those about to embark on hen/stag/18-30’s etc., arrive at airports in a state of drunkenness which is indicative of the ‘pre-loading’ phenomena that is popular amongst many drinkers. Moreover, over indulgence in unregulated access to free alcohol in some departure lounges is also a concern. The abuse of alcohol at airports is a source of unease for the safety of the aircraft and of the passengers. It leads to disruptions to passengers, (including the planes having to be diverted) for which the airlines incur costs.

So, how is alcohol consumption regulated within society and at airports? As Matt explained, the most important piece of legislation relating to alcohol is the Licensing Act 2003. Its objectives are to prevent crime and disorder as well as public nuisance, ensure public safety and protect children. Anyone selling alcohol must comply with the Act’s principles. The system works on the basis of a licence which must be renewed and thus can also be lost. When applying for an application renewal, representations can be put forward to the relevant Licensing Authority from members of the public or the authorities, highlighting any concerns that the aforementioned principles are not being adhered to. The Act also lists a number of offences such as the sale of alcohol to drunk persons on the relevant premises, the failure to leave the relevant premises when requested to do so, obtaining alcohol for a drunk person on the relevant premises and the sale of alcohol to an individual under the age of 18, etc. The key problem is the enforcement of these offences, as for example, drunk people are regularly still being served alcohol. Remarkably, the Licensing Act 2003 does not apply to airside bars within airports as they are exempt under Section 173 which lists several designated airports. Two justifications are adduced for this exemption: a licensing officer would need to obtain airside security clearance, as well as any ‘sting’ personnel who ‘test’ licensed premises by sending in under 18’s to ‘test purchase’ and secondly, the exemption is in line with practice at airports in other countries. There is thus no surprise that in 2017 the House of Lords Select Committee on the Licensing Act 2003 recommended the repeal of Section 173.

Another important piece of legislation is the Civil Aviation Act 1982 which lists as offences entering the aircraft drunk, endangering an aircraft, endangering the safety of a person, etc. Yet, it turns out that the enforcement is poor here too as drunk individuals are very rarely stopped when boarding an aircraft. There are however on average 40 prosecutions per year which result in anything from a fine of £2000 up to 13 months custody.

Matt highlighted the fact that one problem resides in the definition of drunkenness, thus raising the issue of legal certainty. At which point is an individual deemed drunk? To explain this Matt referred to the situation of drunkenness in public places and at football events. In the former case, offenders are often ‘dispersed’ and told to go home; in the latter, they are prevented from accessing the football stadium as arresting drunk individuals is not a priority for law enforcement officers. Discretion is the key word here. A similar situation is happening at airports as fighting drunkenness is not a priority for airport officials and so enforcement of the law is low.

How can the issue be tackled? Matt went through a number of possible solutions. First, Section 173 could be repealed thus allowing airside bars to be licensed and thereby adhering to the Licensing Act’s principles. There could also be a blanket ban on alcohol consumption at airports and on board of aircraft, however, this would be unlikely given the financial interests of various stakeholders and also, issues of jurisdiction such as when an aircraft leaves UK airspace. Alternatively, individuals who are drunk could be barred from entering an aircraft, which would require a stricter approach in applying the law. In his opinion, the thrust of the problem is that there is no clear definition of the concept of ‘drunk’.

The second presentation held by Dr Noëlle Quénivet focused on the defence of duress and whether it was a justification or an excuse under international criminal law. Her presentation is based on a chapter of a book she is co-writing with Dr Windell Nortje (University of Western Cape, South Africa) on child soldiers and the defence of duress (to be published by Palgrave). Noëlle started by highlighting that, as strange as it may sound, defences are an essential component of international criminal law: individuals who have committed war crimes, acts of genocide or crimes against humanity are allowed to raise defences. The possibility to use defences should be welcomed as a sign that international criminal law is not about victor’s justice and human rights standards, and particularly the right to a fair trial, are complied with. After all, the use of defences does not mean that the act finds approval; it however does not merit condemnation and punishment.

Duress is one of the defences available to alleged perpetrators prosecuted before the International Criminal Court (ICC). It is usually understood as the compulsion of perpetrator to commit a crime because he/she fears for his/her life and limb, the threat stemming from another person (see Article 31(1)(d) of the ICC Statute). As a result, the perpetrator is placed in a position where his/her freedom of will and decision-making abilities are restricted to such level that he/she is not able to make a moral choice.

Noëlle explained that to understand how the defence of duress is applied one needs to examine the Anglo-American common law tradition in as much as the latter has been key in influencing case-law in international criminal law, namely via the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY). Under national law criminal law defences are often subdivided into justifications and excuses to distinguish between wrongfulness and blameworthiness. A justified action is not criminal because the conduct, although unlawful, is permissible or tolerated as its benefits outweigh the harm or evil of the offence. Here the focus is on the act. An excuse involves an action that is produced by the impairment of a person’s autonomy. Here the focus is on the actor.

Duress is a highly controversial defence in international criminal law. In common law countries it is a justification whilst it is an excuse in Romano-Germanic (civil law) systems. Moreover, duress is not admitted as a full defence in common law countries which means that it can never be invoked in the case of killing. To illustrate the issues relating to the application of duress Noëlle recounted the facts of the Erdemovic case and how the ICTY had come to the conclusion that ‘[d]uress does not afford a complete defense to a soldier charged with a crime against humanity and/or war crime involving the killing of innocent human beings.’ (para 19)

She then suggested that the ICC Statute might have overruled this jurisprudence since duress is accepted as a ground excluding responsibility that applies to all crimes and does not stipulate that it cannot be pleaded when taking a person’s life. Whether it is an excuse or a justification remains to be seen as the criteria for duress have been amalgamated with that of necessity (usually viewed as a justification) in a single provision and the fact that the provision requires the actor to carry out a lesser evil test seems to indicate that the defence is considered a justification.

Noëlle then explained that she would prefer the defence of duress to be an excuse. First, it ensures that the wrongful acts are viewed as such, the message being that such acts cannot be tolerated. Second, it allows to understand the act in its wider context, the focus being on the actor and his/her lack of autonomy in the given circumstances. Third, it can be used as a full defence, including killing though at this stage she indicated that she supported the application of the principle of proportionality, rather than a balance of harms test, as a limit to using duress as the defence.

UWE Bristol’s first Interdisciplinary Symposium on Organized Crime with Dr Mary Young.

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On 10th October 2018, Dr Young convened and hosted the First Interdisciplinary Symposium on Organized Crime. The day long Symposium (sponsored by UWE Bristol’s CALR) attracted 45 participants, with many from outside of UWE and academia. Five senior officers from the Metropolitan Police Service attended, as well as participants from the South West Regional Organised Crime Unit, the Institute of Statecraft, the Tax Justice Network and also attachés from several Embassies. Speakers included, Professor Tim Hall, Human Geography, University of Winchester; Dr Anna Markovska, Criminology, Anglia Ruskin; Dr Michael Woodiwiss, History, UWE; Mr Chris Atack, Detective Sergeant in the Metropolitan Police Service specialising in Economic Crime; Mr Mark Berry, PhD Researcher, Cardiff University, Trustee for the International Association for the Study of Organised Crime; Dr Phil Legg, Computer Science and Programme Leader for MSc Cyber Security, UWE Bristol.

 

On the back of this success Dr Young has created the entirely “Independent Organized Crime Research Network for Law Enforcement and Academics”, which had its inaugural meeting on Friday 16th November and saw colleagues from FET, HAS and law enforcement officers come together.

 

In October and November 2018, Dr Young was also a Panel Discussant, ‘Towards tax justice: challenging global tax avoidance” RebLaw, University of Law, London; and an invited Session Discussant, Open Society Justice Initiative & Tax Justice Network, Closed Meeting on Strategic Litigation to Combat Tax Havens.

 

“Justice is not being seen to be done – and we’re all the poorer for it”- Research on reporting in criminal courts

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By Dr Tom Smith.

In January 2018, researchers from the School of Journalism (Phil Chamberlain and Sally Reardon) and the Department of Law (Marcus Keppel-Palmer and Tom Smith) supervised journalism students for a week of observations in Bristol Magistrates’ Court. It took three days before they spotted a news reporter. The students sat through more than 200 cases, with the vast majority going entirely unreported in mainstream media

It’s been a complaint for many years that criminal courts are not being covered sufficiently by reporters. It requires a particular skill set, and too many of today’s depleted newsrooms don’t have the resources to spare for such work. High-profile cases – such as the recent trial of Ben Stokes at Bristol Crown Court in August 2018 – still get attention; but the vast majority of people passing through Magistrates’ Courts do so anonymously. As a result, the public has little idea how, or indeed if, justice is being served fairly and effectively in their local area.

In January 2018, the Society of Editors convened a seminar to consider the problem and launched a working group to consider solutions (see here). Meanwhile Her Majesty’s Courts and Tribunals Service has been making efforts to make courts more ‘open’ to the media. At the aforementioned seminar, a number of media executives said that if they had more resources, they would employ the journalists to do this vital job. They directed their anger at organisations such as Facebook and Google, who they accuse of profiting from their labour without putting any money back into the industry. John Whittingdale MP, the former chair of the House of Commons’ Culture Select Committee, has said this issue needs addressing. The National Union of Journalists has also highlighted the lack of court reporting. The consensus therefore appears to be that more coverage of court proceedings is ‘a good thing’.

Yet, for an issue which lawyers, journalists and politicians all agree on, there is surprisingly little analysis of court reporting, and quite a lot of received opinion. Dr Judith Townend (University of Sussex) has written extensively on the principle of open justice and its importance. In 2014, Professor Leslie Moran (Birkbeck University) examined the level of court reporting in the local and national press for one day. He found that a few stories dominated most media reports, rather than providing a representation of the range of cases. In 2016, the Justice Gap’s Brian Thornton (University of Winchester) repeated the exercise, identifying a decline in coverage (see here). This was, he suggested, probably due to the fact that half of local newspapers did not have a court reporter. The limited number of studies so far have looked at the presence and volume of court reporting. This study wanted to identify what was being missed by this lack of coverage. In short: if the objective is to send more reporters into court, what might they find?

The small-scale pilot study in January 2018 saw the research team supervise student journalists, who observed cases in Bristol Magistrates’ Court for a week, recording every case they encountered. They utilised a coding sheet designed to record key details; these were structure so as to include not only basic detail about offence with which defendants were charged, but also other potentially relevant details and factors such as mental health, drugs, and housing. Crucially, the observers gave each case a ‘newsworthiness’ rating. Using criteria developed by Galtung and Ruge, and refined by others over the years, the students judged how valuable a local newspaper would view each story. Various factors contributed to this rating such as the seriousness and location of the offence, how easily the case could be understood by a lay audience, or the profile of those involved. These were rated on a Likert Scale of 1-5, ‘one’ being cases of little interest to the potential audience (i.e. the public) and ‘five’ for high interest. They also recorded if any reporters were present during proceedings.

In what staff at the court said was a relatively quiet week, the study recorded 240 cases. On average, six courts were open each day. Of these cases, the number given a score of ‘three’ or more was approximately 50 (roughly 20% of the sample). Stories in this batch included:

  • a man charged with breach of the peace after sparking a terror alert in a local shopping centre;
  • a man who had taken natural remedies for a cold, finding himself over the drink-drive limit
  • Bodycam footage showing a man who failed to produce his driving licence being punched by police officers

What was also clear was the number of stories about the ‘process’ of justice rather than the substance of the case itself. Mental health issues were a common part of cases, as were drug addictions and social security problems. Defendants were not always best served by the use of technology in court and on a number of occasions were unrepresented during their hearing.

Although the research team only encountered a single reporter, the media did report some of the cases. This was, however, done so without the use of ‘inperson’ reporting; instead, media outlets re-published information issued to them the Crown Prosecution Service (CPS) on cases which it had successfully prosecuted that week. Whilst this provides a useful indication of the cases heard, there are obvious problems with, in essence, subcontracting reporting on criminal proceedings to the CPS. The ‘list’ of convictions clearly relates to only a fraction of the cases (primarily the most ‘newsworthy’ according to internal CPS standards) and does not account for acquittals or other types of hearing. It is highly unlikely that the list would include any which called CPS competency into question – such those with disclosure failures, missed deadlines, or acquittals. Yet, the team observed cases where the procedural and evidential competence of the CPS (and other parties) was questioned by Magistrates. Ultimately, the nuance of the criminal justice process is lost in this simple ‘guilty list’ approach. A huge slice of public life – impacting on many people’s lives and our perceptions of criminality and justice – is passing by, unreported and uncontested.

We should be concerned by this. The reporting gap cannot be made up by anyone; it requires specialist skills and there are legal penalties should it not be done correctly. A topical example is the case of Stephen Yaxley-Lennon (better known as Tommy Robinson). In May 2018, Yaxley-Lennon was convicted of contempt of court after live broadcasting from Leeds Crown Court during a highly sensitive trial of a number of Muslim men accused of running a child sex ring. His primary justification for doing so was the perception that mainstream media were ignoring cases of Islamic men engaged in serious sexual offences, and that in taking such actions he was providing an informative and valuable public service. Whilst one can fairly dispute the true motivations behind these actions and criticise the methods used (and the potential impact on the fairness of the trial), it is arguable that non-specialist laypersons such as Yaxley-Lennon may be catalysed to undertake, in essence, ‘vigilante’ journalism, should they perceive a deficit in journalistic coverage of criminal justice. Whilst a fairly extreme example, this case – which was appealed by Yaxley-Lennon and is currently in the hands of the Attorney General – does demonstrate how a lack of media reporting of criminal court proceedings leaves a vacuum which will, without appropriate action, inevitably be filled by those unsuited to an important, challenging, and sensitive role.

The experience of the study was, generally, encouraging. The research team found Bristol Magistrates Court staff to be polite, helpful, and professional; one magistrate wanted to hear much more about the research project. Another wanted us to look at particular areas where the justice system wasn’t working. At the same time, we were also aware of an incident last year where a citizen reporter was ordered to stop taking notes in court. Anecdotal evidence from around the country has painted a similarly mixed picture of the attitude towards open justice and external scrutiny. With this mind, it is worth highlighting that the general availability of information on the court’s work for the public is poor. There are no transcripts; full court lists are off limits to non-journalists; and mobile phones are treated as weapons of mass destruction (although the aforementioned Yaxley-Lennon case demonstrates the worst fears of court staff in this regard).

Bristol has a vibrant media community. As well as its established daily newspaper, it is home to regional BBC and ITV offices; it has MadeInTV; a vigorous community newspaper (the Bristol Cable); and radio stations, from independents such Ujima to commercial and BBC outlets. There are bloggers, tweeters, and very popular freesheets in the Voice series. Yet the courts remain largely ignored. Subject to funding, we hope to develop (through research and collaboration) ways of increasing court coverage. We also aim to repeat our study across the country and provide a fuller picture of the state of court reporting in England and Wales, and highlight what is being missed. We think it likely that some places will be well served by agencies, trained independent reporters, or traditional media. We hear of others where a reporter has not been seen for years.

Finally, business as usual isn’t going to do justice to justice stories. Simply having more reporters cover the relatively few high profile or unusual cases from the many that pass through the courts each year is not going to add greater understanding or provide better scrutiny. Some stories are about patterns, better understood through data analysis. Some are about social issues which need following up by specialists. The failure of ‘business as usual’ also extends to the endemic opaqueness of the criminal justice system, and its inherent caution in opening up to the outside world. Without doing so – and without addressing the growing chasm left by traditional media – more Yaxley-Lennons may emerge to take their place. Few would approve of this. There are some 300 Magistrates’ Courts in England and Wales. If Bristol is any guide (and, at present, it is the only yard stick we have), each week 15,000 newsworthy stories are potentially being missed by the media and the public are none the wiser. Justice is not being seen to be done; and we’re all the poorer for it.

 

Showcasing undergraduate student law research at UWE Bristol.

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We are pleased to introduce the inaugural issue of the UWE Bristol Student Law Review (UWESLR), edited by Dr Tom Smith.

The future of legal research is, like the legal profession, dependent on our current students. As such, it is essential to both encourage the efforts of young scholars and to assist in the development of their research and writing skills. This publication intends to do so by showcasing outstanding examples of research by undergraduate Law students at UWE. This fulfills twin objectives: to reward their endeavours by sharing their work with a wider audience, and to demonstrate to both their peers and others the quality of the research produced by our future academics and lawyers.

This issue includes three articles; these are based on the submissions of undergraduate students as part of the final year Dissertations module for the Law and Joint Awards programmes. Annie Livermore writes about the use of surgical and chemical castration in the treatment of sex offenders; Amber Rush writes about the regulation, reintegration and rehabilitation of child sex offenders; and Georja Boag writes about the identification, protection, support and treatment of victims of human trafficking. All have produced excellent and engaging pieces of research, and should be congratulated for their efforts.

The Review represents part of an ongoing effort to make students a part of the academic research community within the Department of Law at UWE. The research culture of any university should reach beyond the individual and collective activity of professional researchers; students should feel part of the scholarly environment in which they are learning. It is hoped that the Review will help to create an unbroken chain between academic and undergraduate research. In doing so, researchers can pass on their expertise and experience to the next generation of scholars, and students can better develop their skills.

We hope you enjoy reading it. The full  UWE Bristol Student Law Review (UWESLR) is available to read and download here.

Application for three year study to investigate student success and retention

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By Kathy Brown

Last year two academics from the School of Criminology and Law at Liverpool John Moores University (JMU) contacted Jane Rees and me to see if they would like to join them in a longitudinal study that investigates student success and retention.  As academics both responsible for, and with particular interest in the retention and success of law students in Bristol Law School, Jane Rees and I joined the planned study. 

Jane Rees at a previous talk

Having previously been entertained by JMU colleagues at their Liverpool campus as part of a first planning exercise, last week Jane and I hosted Bleddyn Davies and Ester Ragonese (JMU) showing them the sights of Bristol and more particularly UWE’s Faculty of Business and Law building.  The purpose of the meeting was to draft an outline bid for Nuffield Foundation funding for a three year study across three universities starting in September 2019.  We were fortunate to be joined by Craig Lennox , from Research, Business and Innovation (RBI) at UWE Bristol, who shared valuable knowledge with us (‘we want a Craig’ – the words of Ester and Bleddyn!).  It was also fortuitous that Sarah Grabham was proximate to our meeting room and accepted our invitation for her to join us for a short time. 

Kathy Brown receiving an award for outstanding teaching

 

The proposed principal investigators will be Liverpool JMU.  Lauren Devine kindly shared her expertise and provided some advice and guidance for the Nuffield Foundation application with Jane and I and this, together with support from Thom Oliver from RBI is hoped will give the application the right focus and detail.  Once the application has been made each university will be embark on a pilot which will emulate our planned three year longitudinal study.  Funding for the pilot exercise is our next focus.

Ultimately it is hoped the results of the research will have multiple applications ranging from recruitment through to supporting law schools and other university departments to identify ‘why students stay’.