A Riot of Sentencing Approved by CACD...

The Criminal Division of the Court of Appeal (LCJ, Thomas P and Leveson LJ) has handed down a composite judgment on appeals from sentences handed down during the August Riots.  In my view the LCJ has got this spot on.  Law does not exist in a vacuum - it must respond to events as they unfold and guidelines and principles must be adapted to the needs of society - many find this notion unpalatable and say that it is rule by unelected judges who should sentence according to set formulae established by Parliament -but in a democracy these hard judgments in individual cases are vested in the independent judiciary -they are there to sentence on behalf of society and they have the hard task of working out what society requires by way of protection and deterrent in each individual case- it is not perfect but it is our tried and tested system and I have yet to hear of a viable alternative.  This an excellent judgment which will stand the test of time:

"... The level of lawlessness was utterly shocking and wholly inexcusable...... the imposition of severe sentences, intended to provide both punishment and deterrence, must follow. It is very simple. Those who deliberately participate in disturbances of this magnitude, causing injury and damage and fear to even the most stout‐hearted of citizens, and who individually commit further crimes during the course of the riots are committing aggravated crimes. They must be punished accordingly, and the sentences should be designed to deter others from similar criminal activity....... the context hugely aggravates the seriousness of each individual offence. None of these crimes was committed in isolation. Eight of them were intrinsic to or arose from the widespread lawlessness and two more were intended to contribute to or aggravate it at a time when the disorders were at their most disruptive and alarming.... The reality is that the offenders were deriving support and comfort and encouragement from being together with other offenders, and offering comfort support and encouragement to the offenders around them. Perhaps, too, the sheer numbers involved may have led some of the offenders to believe that they were untouchable and would escape detection. That leads us to address the suggestion that perhaps this level of public disorder should be treated as "mindless" activity. It was undoubtedly stupid and irresponsible and dangerous. However none of these appeals involves children or young offenders (where different sentencing considerations arise) nor indeed offenders with significant mental health problems. None of the offenders before us was "mindless". The actions were deliberate, and each knew exactly what he (and in one case, she) was doing." 

Did the Earth move?

So apparently from today Waitrose can invest in my mean lean Barrister legal machine.  Save that I am quite happy in independent practice offering my low overhead relatively cheap service to the public.....so actually I don't care.  Alternative Business Structures (ABS) have arrived.  I am looking forward to my first instructions from M&S or perhaps if I am lucky, even Fortnam and Masons, I suspect my Chief Clerk would not allow Tesco inside the building.  ASDA and Lidl would not get inside the Temple Bar.  Sainsburys might just be allowed to sit on the second best chairs in the waiting room. What we will certainly not being doing is shacking up with solicitors....over the collective dead bodies of the bewigged sister/brotherhood....bring on Ocado Law.....let the good times roll.....

Eviction grounds to be widened?

Further to my post on obtaining possession of properties occupied by social tenants convicted of rioting offences - it would seem that the Government do not think the power wide or draconian enough (see extract from Lords Hansard below) - it appears the current ground which requires the conviction to relate to an offence committed in, or in the locality of, the dwelling-house - might be widened to include offences committed anywhere? This would seem far to wide and possibly contrary to article 8???

Public Disorder: Eviction from Social Housing

Question

11.16 am

Asked By Lord Dubs

To ask Her Majesty's Government what discussions they have had with local authorities about the eviction from social housing of families with members involved in rioting or looting.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham): My Lords, during and since the riots, a number of discussions have taken place between Ministers and local authorities, and eviction was one of many issues discussed. The Department for Communities and Local Government is currently consulting on proposals to extend the existing discretionary ground for possession for anti-social behaviour to include tenants or family members who have been convicted of the sort of criminality witnessed during the recent riots, wherever that criminality took place.

Pulling no punches

Sir William Gage has pulled no punches re Baha Mousa - nor should he:

My judgment is that they constituted an appalling episode of serious, gratuitous violence on civilians, which resulted in the death of one man and injuries to others. They represented a very serious breach of  discipline by a number of members of 1 QLR.

Evicting those convicted of Riot Crimes from social housing?

If the landlord is a registered social landlord and the tenancy is assured - then its Ground 14, Schedule 2, Housing Act 1988.  If the landlord is a local authority and the tenancy is secure - then its Ground 2, Schedule 2, Housing Act 1985 - both Grounds 2 and 14 say this -

The tenant or a person residing in or visiting the dwelling-house—

(a)has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or

(b)has been convicted of—

(i)using the dwelling-house or allowing it to be used for immoral or illegal purposes, or

(ii)an [indictable] offence committed in, or in the locality of, the dwelling-house.

The Court then has to go on to consider whether it is reasonable to make a possession order and must take into account the following:

The court must consider, in particular—

(a)the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought;

(b)any continuing effect the nuisance or annoyance is likely to have on such persons;

(c)the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated.

If any public sector employees are convicted of Riot Crimes....

Any public sector employee convicted of an offence arising out of the recent public disturbances should be considered for dismissal or some other disciplinary sanction (a fair procedure of investigation and disciplinary process must be followed - see the ACAS Code). Our teachers and youth workers are in loco parentis, medical professionals have duties to save our lives and civil servants have duties to uphold and enforce the law.  Any of these convicted of offences of dishonesty or public order cannot be trusted in these important public positions of trust.  Any convicted should face the prospect of potential penalties at work. Dismissal for misconduct can include dismissal for offences committed away from work: in Singh v London Country Bus Services Ltd [1976] IRLR 176 the EAT held that ‘conduct’ in this context: “does not have to be something which occurs in the course of the actual work, or at the actual place of work, or even be connected with the work, so long as in some respect or other it affects the employee, or could be thought to be likely to affect the employee, when he is doing his work”. Or the dismissal could be for for some other substantial reason - in the case of Harper v NCB [1980] IRLR 260 the EAT that confirmed that a reason is substantial if “the employer can show that he had a fair reason in his mind at the time when he decided on dismissal and that he genuinely believed this to be fair” so long as the reason is not “whimsical or capricious…which no person of ordinary sense would entertain…” (para 8).

The raw end of the Rule of Law

There is an very unfashionable philosophical school of jurisprudence which sees Law as merely the rhetorical expression of the power of the state.  Law merely sets down in words the directives of the State, telling the citizens what to do and what not to do. Usually the words are enough - people comprehend them (or at least the basics) and obey them.  Sometimes, like Monday night in London and last night in the West Midlands and North West, the words are not enough.  There is required a physical manifestation of the words to enforce their meaning.  We rely on the Police forces of this country to provide that physical manifestation - to enforce the law.  Sometimes that physical manifestration has to get very physical - if people are smashing windows, stealing goods, setting fires and threatening and taking life then the Police have to appear, intervene and apprehend.  If the perpetrators fight back and resist arrest, then the Police must move in and fight back.  Many lawyers prefer to see Law as merely existing in the abstract (positivism is the posh name for this) and like to think that it has nothing to do with a police officer in riot gear banging a rioting teenager on the head in the lawful exercise of his power to remedy breaches of the peace.  The events of this week (so far) are one of those thankfully rare reminders that at the end of the day, after all of the pontificating in the Supreme Court is over, the ultimate expression of the rule of law is its raw unmitigated enforcement, by force, when that rule is being flouted by so many and in such a flagrant way.  The preservation of a democracy sometimes, thankfully rarely in this country, requires the use of force - the quaint historic expression in our tradition is the preservation of the Queen's peace.  I should like to thank every one of the sworn Constables who kept the peace outside my front door last night and who protected my family from harm.  That they should have to intervene with the use of force against citizens is regrettable, but essential - and notwithstanding that sometimes some their number fail us, they should receive our overwhelming support.