Vinter, Bamber & Moore v UK: whole life prisoners must have the “experience of hope”

July 9 2013

The European Court of Human Rights has ruled that the system of “whole life orders”, whereby in England and Wales a mandatory life sentence may be imposed and the possibility of early release denied under section 269(4) of the Criminal Justice Act 2003, amounts to inhuman or degrading treatment or punishment in breach of article 3 of the European Convention on Human Rights. Even prisoners given “whole life orders” – a recent example was Dale Cregan – must be able to have their sentence reviewed at some stage, for instance after 25 years. They must know when sentenced what they must do to gain release, and they must know when they can ask for a review.

The judgment does not ban whole life orders. Nor, strictly, does it introduce for the first time into our law the possibility of a review – the Court of Appeal has already ruled that there is a such a possibility. The judgment does not require that any “whole life” prisoner be released, ever. While there is certainly room to criticise the judgment, it is not an incursion on British domestic policy making on anything like the scale of the prisoners’ voting judgments (or for that matter the one on the DNA database, which for some reason English Conservatives seem unconcerned by). The judgment can be complied with without changing the law at least in the short term. Still, it’s bound to infuriate Eurosceptic opinion – and is already doing so.

The court’s reasoning is as follows.

A life sentence is inhuman or degrading in breach of Article 3, unless there is both some prospect of release and some possibility of review (see para. 110 of the judgment). This is because even if a whole life order is justified when made, continuing detention may become unjustified later (§111 of the judgment), because there’s a risk a prisoner may never atone for his offence and that his punishment may even increase as time goes on (§112) and because it would be incompatible with respect for human dignity to deprive a person of his freedom without at least providing him with the chance to someday regain it (§113). While punishment remains one of the aims of imprisonment, the emphasis in European penal policy is now on the rehabilitation, particularly towards the end of a long prison sentence (§115). Therefore (§119):

Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.

The court accepted (§120) that

it is not its task to prescribe the form (executive or judicial) which that review should take. For the same reason, it is not for the Court to determine when that review should take place.

but

This being said, the Court would also observe that the comparative and international law materials before it show clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter …

Therefore (§121)

where domestic law does not provide for the possibility of such a review, a whole life sentence will not measure up to the standards of Article 3 of the Convention.

Interestingly the court goes beyond merely requiring the possibility of review at an unspecified time (§122):

Although the requisite review is a prospective event necessarily subsequent to the passing of the sentence, a whole life prisoner should not be obliged to wait and serve an indeterminate number of years of his sentence before he can raise the complaint that the legal conditions attaching to his sentence fail to comply with the requirements of Article 3 in this regard … A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration.

The government argued (§94) that, as the Court of Appeal ruled in R v Bieber,  there is the possibility of a review in English law since the Secretary of State’s power of release in section 30 of the Crime (Sentences) Act 1997  must, legally, be exercised compatibly with the Convention rights. So the applicants can argue that their continued detention is not justified, and a decision by the Secretary of State not to release them could be judicially reviewed. This is an important point, because it shows the government accepted, even before today’s judgment, that a prisoner like Jeremy Bamber could already ask to have his whole life order reviewed, and could already go to court to try to enforce a review. It’d be wrong for ministers now to suggest that this was a possibility unheard of before Strasbourg’s intervention today.

But for the Strasbourg judges, that wasn’t enough. The Bieber judgment is not reflected in he government’s written policy as set out in Prison Service Order 4700, the “indeterminate sentence manual” (§126). It’s this lack of clarity that the court saw as ultimately fatal to the UK’s case

In light, therefore, of this contrast between the broad wording of section 30 (as interpreted by the Court of Appeal in a Convention-compliant manner, as it is required to be as a matter of United Kingdom law in accordance with the Human Rights Act) and the exhaustive conditions announced in the Prison Service Order, as well as the absence of any dedicated review mechanism for the whole life orders, the Court is not persuaded that, at the present time, the applicants’ life sentences can be regarded as reducible for the purposes of Article 3 of the Convention. It accordingly finds that the requirements of Article 3 in this respect have not been met in relation to any of the three applicants.

I think there are a number of problems with the judgment. The court’s reasoning at paragraphs 111-119 seems to me thin and unsatisfactory. At paragraph 112, for instance, it does not consider the possibility that atonement may be impossible not because of any failure of the criminal justice system, but because of the nature of the offence itself. No reason is given to support the argument that a whole life sentence disrespects human dignity (except for an approving reference to a judgment of the German Constitutional Court).

And the court does not ask itself why, if detention under a whole life order may turn out to be unjustified one day, the point at which it does so shouldn’t be ten years, or fifteen, rather than the 25 it comes close to recommending. Wouldn’t a fixed review after 25 years be an equally inflexible rule, perhaps allowing inhuman detention after 20, 19 or 12 years in some cases? And what about prisoners sentenced to a whole life order at the age of, say, 65? Wouldn’t a fixed review after 25 years treat them less favourably than younger convicts? Generally, the way the court flirts with a 25 year rule at paragraph 120 seems to me to get close to laying down detailed policy for the whole of Europe, and going beyond the court’s proper role.

Leichtenstein’s Judge Villiger (he’s actually Swiss) provides a clear and brave critique of the majority’s reasoning. He rightly points out that the majority never explains whether whole life orders are inhuman treatment, or degrading punishment, or even torture – the judgment stays at a very general level in its discussion or article 3.

More important, though, is his criticism of the abstract, generalised nature of this ruling in favour of these applicants:

the judgment provides for an abstract assessment and fails to undertake a concrete examination of the each applicant’s situation at the time when it is examining the case …

… Clearly, the considerations in the judgment as to the problematic issues of irreducible sentences are relevant and valuable, but they have to be examined individually …

… In the present case, the first applicant, Mr Vinter, has been serving his sentence for just over five years, the second applicant, Mr Bamber, for nearly twenty-seven years, and the third applicant, Mr Moore, for nearly seventeen years …

… Article 3 does not come into play as regards the first applicant (just over five years) and the third applicant (nearly seventeen years).

The second applicant (twenty-seven years) is approaching a borderline situation. However, bearing in mind the reasons for his conviction and sentence, i.e., multiple murders, I would consider that the justifications for detention have not (yet) shifted and that the primary justification for his detention, namely punishment, remains decisive. In this respect I am satisfied that, in 2008 and 2009 respectively, the High Court and the Court of Appeal examined this particular point and concluded that the grounds of punishment and deterrence continued to prevail in respect of the second applicant (see § 23 of this judgment).

Judge Villiger is right. What the majority has done here, by deciding that article 3 is breached the moment an “irreducible” whole life order is imposed on the basis of a general critique not just of the English legislation but of its harmoniousness with internal prison service guidance, is find that these prisoners have already been subjected to inhuman or degrading punishment (which is what I suppose it must be) even though all of their cases have been considered by the courts in the last few years, and none of them has shown that he is safe or rehabilitated or that his ongoing detention is unjustified. This is an in abstracto judgment, not really connected to the applicant’s circumstances. The court should tread more cautiously than this. Arguably it should only condemn democratic legislation and judicial decisions made under it where it has actually has before it an applicant whose rights really have been breached.

The Irish Judge Power-Forde nearly agreed with Judge Villiger. But, she says,

what tipped the balance for me in voting with the majority was the Court’s confirmation, in this judgment, that Article 3 encompasses what might be described as “the right to hope”. It goes no further than that. The judgment recognises, implicitly, that hope is an important and constitutive aspect of the human person. Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change. Long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs which they have committed. They ought not to be deprived entirely of such hope. To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading.

The judgment must of course be complied with – and it can be complied with quite simply, as Judge Mahoney suggests in his concurring judgment, by the issuing of a new Prison Service Instruction (as they’re now called) dealing with this specific issue. New legislation isn’t needed, at least for the moment.

Interestingly, the judgment actually allows the UK to tighten the position in an important respect. Currently, the Secretary of State’s discretion under section 30 of the 1997 Act can be appealed to at any time. A new PSI could make clear that a request can only be made after (say) 30 years, and every five years after that. While at some points the judgment seems to require a review, at others it speaks of the possibility of a review; so I’d be tempted, if I were in government, to permit an application for permission to have your detention reviewed, rather than permit reviews as of right.

If clarity is provided now about when and how an application can be made to the Secretary of State, then at some point in the future the UK may face a further challenge on the basis that even a decision on permission for review should be made by a judge. But this judgment doesn’t say that it has to be: that’s a battle that can be fought later, perhaps with Jeremy Bamber in a few years’ time.

So this judgment is open to criticism. I think it goes too far by effectively ruling out prospective whole life orders in all cases, even though none of the applicants showed any unfairness in his own specific case. But it’s not as obviously bad or overreaching as Hirst or S & Marper, it does not have any serious or immediate effect on our legislation and it does not make any actual prisoner more likely, in the real world, to be released. It ought not to be that big a political deal. But I’m not surprised that it is.

2013-07-10T00:43:31+00:00Tags: , , , |

Abu Qatada: a victory for pragmatism and the rule of law

July 8 2013

Photo: Home Office
Photo: Home Office

Only a matter of weeks ago, politicians were seriously discussing the possibility that the UK might need to withdraw from the European Convention on Human Rights in order to be rid of Abu Qatada. Yet this weekend we saw him board a plane to Jordan – and no human rights treaties were harmed. It’s a triumph for Theresa May, who deserves credit for a significant achievement.

The government’s breakthrough came when it accepted legal reality – it was never going to win in the Supreme Court – and focused on changing the facts. It was the mutual assistance treaty concluded earlier this year with Jordan which made it almost impossible for evidence gained by torture to be used in any Jordanian trial of Abu Qatada, and removed the human rights obstacle to his deportation. Ministers’ success is all the greater because it was got by complying with, not defying, human rights legislation. This is a victory not just for Theresa May but for Britain and the rule of law. Because adherence to the convention is an important part of British foreign policy. Withdrawing from it would be a disaster.

There’s a certain kind of romantic, especially English, patriotism – often expressed by Eurosceptic Conservatives – which insists that we invented human rights, so no foreign court or treaty has anything to teach us about them. According to this view, international human rights treaties are are of no use to us. We might as well tear them up if foreign judges show us the slightest disrespect. But the European Convention is useful to us precisely because human rights are so British. The European Convention, like every international human rights treaty, is an instrument of British soft power, projecting the British way internationally.

Looking around the world, it’s obvious that threats to British interests come from undemocratic places. It was a military junta that invaded the Falklands, for example, and the European Convention has been a vital instrument, coupled with EU membership, to bed down the rule of law in Spain, Portugal and Greece, which most of us have forgotten used to be military dictatorships not all that long ago. Central and eastern Europe used to be a hostile region, where intermediate range nuclear missiles were aimed at us. Europe looks very different now, and Poland and the Czech Republic are signatories to the ECHR. Where human rights are respected, prosperity and trade follow. British interests advance wherever human rights extend.

The political influence of human rights is even more vital on countries that are only partly open – like Russia – or where democracy is under pressure, like Turkey. Much of today’s wider world lives under shades of unfreedom where every human rights challenge and every judgment can slowly let in a little more light. Once you see this bigger picture, it’s clear that Britain’s irritation with Strasbourg over Abu Qatada really is just a little local difficulty. What’s at stake is far bigger. As the Attorney General Dominic Grieve said in a speech at Chatham House last week,

the fact that the decisions of the institutional infrastructure do not necessarily always favour our approach and can be politically unwelcome and irritating … should not deter us from the path to maintain Britain’s strategic advantage.

In a small way, Abu Qatada’s case has exported human rights to Jordan. Torture is just a little less probable there now, and evidence gained by torture just a little less valuable. That’s a tiny step forwards. But the big win here is that Britain has achieved its tactical objective without undermining its wider strategic interests.

We’re much better served by pragmatism, not petulance, about the international rule of law and human rights. The case of Abu Qatada shows pragmatism can work.

2013-07-08T14:56:04+00:00Tags: , , , , |

Paul Mendelle QC on the government’s criminal legal aid proposals

June 27 2013

Paul Mendelle QC

Yesterday I spoke to Paul Mendelle QC, joint head of chambers at 25 Bedford Row and former chair of the Criminal Bar Association, about the government’s proposals on criminal legal aid. He explained his opposition to price competitive tendering and his thoughts on very high cost cases (VHCCs).

He also told me the thinking behind his question to Andy Slaughter MP at last week’s “Legal Aid Question Time” – and what he thought of the answer.

2013-06-27T13:25:45+00:00Tags: , , |

McNally: If you live in a bubble, you’re not going to persuade people

June 20 2013

LAQT1

By turns combative and conciliatory, justice minister Lord McNally gave a mercurial performance, defending the government’s criminal legal aid proposals on Tuesday evening in front of an audience of lawyers at a “Legal Aid Question Time” organised by the Bar Council and chaired by Joshua Rozenberg. More than once McNally’s emphasis was on realism:

Let’s not kid ourselves: we’re in a wage negotiation.

Mainly though, the realism in his view was required from lawyers:

We’ve got to make the professions face up to the change that is inevitable.

He didn’t regret describing some responses to the criminal legal aid consultation as “hysterical”. People are “throwing around quite extreme accusations”, he said. And

If I’ve offended anybody by the odd phrase, well, I get the odd phrase thrown at me as well.

McNally’s message was mixed. He stressed repeatedly that this was a genuine consultation, and that ministers were “listening”. But he was also robust about his proposals and about this advice he’d been given:

Don’t buckle.

McNally made it clear he didn’t enter politics in order to destroy justice: for him, legal aid was

one of the proudest achievements of the Attlee government

but

The debate about its size, function and focus has been going on for a decade

and if you had to cut services most accessed by the poorest, then

… you’re going to have to hurt the poorest and most disadvantaged.

He said he welcomed dialogue and at one point he somewhat optimistically mused on whether

we could make some kind of agreement about where legal aid fits into our system.

But McNally was as ebullient as he was emollient.

You do have a vested interest

he told his audience, and as a minister spending public money

I have a right to ask the solicitors’ profession to organise itself as efficiently as possible to deliver what the taxpayer is paying for.

The “vested” interest remark prompted Maura McGowan QC, chairman of the Bar, to respond:

The vested interest is the one we all have: having a well run and properly funded justice system … It’s not a battle over our wages as has been described.

For her, the Bar Council was not just saying the proposals were wrong. She objected to them because they amounted to

altering the system

and feared for the future of justice:

there is a risk – a very substantial one in our view – that the provision of criminal justice will be wrecked by these proposals.

Lord McNally’s “unbending dialogue” approach to consultation clearly frustrated her:

they’re not going to “buckle” – so why are we doing it?

and she was in no mood to cooperate with the plans for price competitive tendering:

We believe PCT is wrong, so we’re not going to help design the PCT scheme.

She reminded the audience that the Liberal Democrats has been completely opposed to these sorts of legal aid cuts before the election.

An important political point was raised by Paul Mendelle QC from the floor about Labour’s position. Since Labour had been in favour of proposals similar to these and had now changed its mind, what was to stop it changing its mind again if it regained power? Paul Mendelle was clearly looking for the sort of honesty I too have asked of Labour.

He got at least some of it. Andy Slaughter MP, opposition justice spokesman, admitted that

We’d have made cuts in legal aid – it’s a question of degree, and a question of how.

What was less clear was how Labour’s approach would have differed from the coalition’s. At one point Slaughter identified two key differences: building into the system incentives to plead guilty, and removing client choice of lawyer were, he said,

not things we’d have countenanced,

reminding us that a Labour green paper on legal aid had talked about retaining competition. But later he said the differences between the parties were a matter of

degree, and choice of representation.

Slaughter made pretty good use, though, of his chance to attack the government rhetorically.

I don’t think they show a concern about criminal justice

he said, and called into question the government’s motives in putting forward its plans, which he claimed were

either red meat for the tabloids, or they’re playing to vested interests.

It was wrong, he said, for Lord McNally to “sneer” at the stance the professions were taking against what he called a

brutal attack

and he criticised ministers tactics in what he called an “air war”:

You demonize individuals, everyone’s a fat cat …

That was all fair enough in a knockabout way – though I wonder how much it impressed Paul Mendelle.

Slaughter did at one point put the legal aid debate into an interesting context, though, pointing out that he’s also been opposing government plans to bring in a £1200 total fee for bringing an unfair dismissal claim to an employment tribunal hearing. The government is not simply curtailing the rights of those who call on public funding, was his implication, but even those of private self-funders  in a key area of civil law.

Lord McNally again wanted his audience to focus realistically on Labour’s position:

I ask you just not to buy a pig in a poke from the other end of the table … whichever government comes in in 2015, if Sadiq [Khan] or Andy asks for £500 million back, they’ll get a short answer.

McNally made another verbal misstep in response to a question from Hannah Kinch about the prospects for young barristers from disadvantaged backgrounds, and a suggestion that the cuts would disproportionately affect female and black and minority ethnic lawyers.  McNally made the fair point that problems with social mobility can’t simply be blamed on legal aid cuts, but the audience groaned with disapproval when he rhetorically asked the bar and solicitors

Shouldn’t you be thinking about the structure of the profession where the bottom of the profession is left to BME and women?

Maura McGowan was having no blaming of the professions, though:

We don’t pretend to live in another century, nor do we structure the profession to ensure women and BME get lower-paid work.

Steve Hynes of the Legal Action Group was an interesting panellist, sharing many of the concerns of the Bar Council and Law Society but coming at the debate from a slightly different angle. He complained that the proposals are “technically inept” – in his view they won’t work or achieve what the governments wants them to – saying he thought simply reducing the number of providers from 1600 firms currently down to 400 would not in itself save money. He’s open to serious change:

I don’t see anything wrong with Coop Legal Services, or with redesigning the market

but expressed concern that small firms and young barristers should be able to compete in any new system:

It’s not tue that only larger firms can be more efficient … small can be beautiful.

Interestingly he implied that there may be vested interests pressing for reform that may not be aligned with the wider public interest:

 … of course larger firms want the volume.

But he argued for “whole system reform” rather than the government’s current plans. An interesting point he made more than once (and with which Maura McGowan agreed) was that

Client choice is the best determinant of quality in the system.

Lord McNally accepted that

Client choice is certainly an issue that’s emerged in the consultation

but when pressed by Joshua Rozenberg about the idea that criminal clients may be “too thick to pick”, he made a principled defence of the removal of choice in at least some cases, suggesting the public can’t understand

the idea that the 20 year career criminal should get his choice of brief on the public payroll.

Steve Hynes’s view was that a system can be designed that retains client choice. His immediate alternative suggestion to the government’s plan was that there be a “wigcut” at the top of end of the profession – targeting higher rates of advocacy fees – so as to retain the greatest possible scope of matters covered by criminal legal aid. He said he felt

reasonably encouraged

by the minister’s assurances that he’s listening.The signal coming from McNally seemed to be that there might be room for some movement from the government – but not much, either on the scale of the cuts of the broad principles of the plan.

I thought Steve Hynes’s ideas were interesting – perhaps because his position on the future of legal aid seems fairly similar to my own. I thought Maura McGowan pressed the legal aid lawyers’ case robustly and well, and was pleased Andy Slaughter was forced to and did address the debate with some of the honesty I want from Labour. To oppose the details of these cuts is fine, so long as the impression is not given that Labour would maintain the current level of spending, in the system as currently structured. It wouldn’t.

As for Lord McNally, the minister made a brave and decent defence of his position – and his honest, occasionally gaffe-prone style shouldn’t be underestimated. His approach will I think help his case among the broader public – though it won’t impress legal aid lawyers. Many listening must have thought Lord McNally’s the one “living in a bubble”, to use his words, clearly directed at lawyers’ representatives.

Here are some other write-ups of the event, from Save Justice, Gemma Blythe, Jon Mack and Richard Bentwood.

2013-06-20T17:45:01+00:00

Julian Assange: one year older

June 19 2013

Assange

It’s a year since Julian Assange’s extraordinary decision to seek refuge in Ecuador’s London embassy. What should be done about him?

The government has three broad options: it can try to de-recognise Ecuador’s embassy or break off diplomatic relations and close it, so that police can enter the embassy building and arrest him; it can make some sort of deal with Julian Assange – letting him go to Ecuador or giving him some guarantee; or it can let the police continue their stubborn watch for another year or more.

I wrote last year advising ministers against withdrawing the Ecuadorian embassy’s diplomatic status – and my view hasn’t changed. True, the Diplomatic and Consular Premises Act 1987 does indeed give ministers a domestic power to withdraw recognition. Section 1(3) says

In no case is land to be regarded as a State’s diplomatic or consular premises for the purposes of any enactment or rule of law unless it has been so accepted or the Secretary of State has given that State consent under this section in relation to it; and if—

(a) a State ceases to use land for the purposes of its mission or exclusively for the purposes of a consular post; or

(b) the Secretary of State withdraws his acceptance or consent in relation to land,

it thereupon ceases to be diplomatic or consular premises for the purposes of all enactments and rules of law.

But as I said last year, withdrawing consent under section 1(3)(b) would be legally risky, and might not work. Julian Assange or Ecuador could well succeed in a legal challenge to the decision (on the basis that arresting one man is not the sort of purpose for which Parliament granted the power), in which case Britain would be left looking pretty silly. I doubt the government will want to hand Assange the legal initiative, or risk giving him a legal and public relations coup. And this is without even mentioning the diplomatic consequences worldwide of such a decision.

One day, Assange may become such an irritant that de-recognition becomes a risk worth taking  (actually it’d be legally safer I think to break off diplomatic relations completely and close the embassy). But I think that day’s long off.

The second option is to do some sort of deal with Assange, either unilaterally – no, I really mean bilaterally, don’t I? – or together with Sweden.

The first is surely unreal. Letting him go to Ecuador, or freeing him here with a promise not to extradite him, would breach the UK’s legal obligations to Sweden at a time when other EU member states know Britain will soon want to opt back in to the European Arrest Warrant system (assuming it formally opts out of EU justice measures as whole, as expected). Why should the Commission or other member states accept Britain’s opt-in, or any changes Britain may want to the European Arrest Warrant system, if it’s failing to fulfil its obligations anyway? Bigger things are at stake for Britain than this one case alone. A deal excluding Sweden makes no sense.

So what about an agreement involving Sweden?

There could in theory be an agreement that Assange be questioned where he is, by videolink or by Swedish prosecutors attending on him in Knightsbridge. But why should they agree to that? As I understand Swedish criminal procedure they would normally, in a rape case like this, have their suspect in custody for final questioning at a late stage in their investigation and a decision on formal accusation – after which the trial must by law begin within two weeks. Interviewing Assange other than on her own patch may disadvantage the Swedish prosecutor in ways not obvious to foreign observers – she may not be able to exercise legal powers relating to her questioning, for instance. And what guarantee would she have that following questioning he would come to Sweden for trial? Or that even if he were tried in his absence, he’d surrender himself for imprisonment, if convicted? No: it makes no sense for Sweden to agree to this. And, by the way, even if Assange agreed to serve any prison sentence in Britain – what would stop an American extradition request from here?

That leaves either an agreement involving a guarantee by Sweden that he wouldn’t be extradited onwards to the US; or a guarantee by Britain that it wouldn’t give consent to onward extradition under article 28.4 of the European Arrest Warrant Framework Decision.

Neither the British government nor, I think, Sweden’s, can agree in advance to rule out onward extradition entirely. As far as Britain is concerned, if it surrendered Assange to Sweden and was then asked for its consent to onward extradition, under section 58 of the Extradition Act 2003 the Home Secretary would need to apply a staged series of legal tests before, finally, exercising a discretion whether to consent. The government may have the final say, but it cannot lawfully make an advance decision in the abstract without sight of an actual request, without any consideration of the merits and without respecting the process laid down by Parliament – yet purporting to bind future governments – that Britain would never consent to Assange’s further extradition in any circumstances whatever.

As David Allen Green has written, the position seems, unsurprisingly, similar in Sweden in respect of onward extradition to the US. In neither country can ministers legally purport in advance to take a final, binding decision on a hypothetical request (and in Sweden’s case, before the courts had even looked at it as they’d be required to).

And by the way: the guarantee Assange would need is indeed a wide guarantee ruling out any sort of onward extradition at all. You might I suppose argue that a limited guarantee could work – say, that he won’t be extradited to the US for any offence connected with his work for Wikileaks. But if the US really is trying to get Assange “via Sweden” as is often argued (an argument I’ve never thought made sense, since onward extradition would need British consent – the result being that he’s actually somewhat more protected in Sweden than in Britain) then it can also seek him “via” any other country that doesn’t offer him a guarantee. So any agreement only makes sense for him if it rules out onward extradition anywhere.

Nor does it make sense to limit the guarantee in respect of the kind of offence for which he could be extradited. If, as is sometimes argued, the Swedish rape investigation is some sort of ruse to get him to the US, then an alternative ruse could be dreamt up – an accusation of murder, or drug trafficking, or terrorism.

No: Assange would only be safe, using his own arguments, if a complete guarantee were given against any onward extradition from either Sweden or Britain to anywhere, for anything, ever. Given that neither country knows what offences he (or any other individual for that matter) may have committed or may commit in future, and given that each country must process any future extradition request on its merits, in accordance with its own domestic laws and international obligations to other countries (including the United States) it follows that neither can give the sort of assurance Assange would need. An agreement is impossible.

What, then, are we left with? The cost of the police operation outside the Ecuadorian embassy is reportedly over three million pounds a year. But three million is a relatively trivial sum, weighed against the political cost, for Britain, of backing down.  Twenty years of this might cost a hundred million. Still, in my view, the cost of abandoning the extradition of Julian Assange would be greater. If I were William Hague, I’d mentally insure for more.

As well as damaging relations with EU countries and with the US, backing down would encourage those who have political connections in countries with hostile attitudes to Britain – like Iran, a possible future Taliban-led Afghanistan, or even Argentina – to try to defy British justice as Assange has done. And it would embolden regimes that wanted to play the same sort of political stunt that Ecuador has tried here. The attempt Parliament made, by enacting the Diplomatic and Consular Premises Act 1987, to warn rogue states off abuse of their embassies would have failed. It could lead us back the the days of the “Libyan People’s Bureau”.

Britain’s only real option is to doggedly pursue arrest and extradition, however long it takes. Time is, after all, on its side: Assange or Ecuador must tire of this eventually, and a change of regime in Quito could mean the police are welcomed in. I expect the “legal working party” talks that have been announced are, from the British point of view, simply an exercise in trying to persuade Ecuador to give up.

Assange has apparently talked about holding out for five years. The government should prepare to hold out for much longer than that. Any prison sentence Julian Assange might serve – if convicted of any offence in Sweden – is only delayed, and he only gets older, with every year that goes by. He’s just one year older now.

As for what he should do: he should surrender himself to British and Swedish justice.

2013-06-19T10:02:42+00:00

Andy Slaughter MP: this is going to be a long struggle

June 6 2013

Andy Slaughter

Here’s another speech from Tuesday’s legal aid demonstration – this time from Labour’s shadow justice minister, Andy Slaughter.

I think those interested in the debate about legal aid are not only entitled to, but should, closely scrutinise Labour’s plans as well as the government’s. There’ll probably be a Labour or Labour-led government two years from now, so the future of legal aid is likely to be in Labour’s hands as well as this government’s.

What I want to see is honesty from Labour. This week’s new mood of realism about public spending from both Ed Miliband and Ed Balls must be reflected in what Labour says about legal aid as well as other areas of policy. If they really see legal aid as an exceptional priority, and intend to reverse Chris Grayling’s proposed cuts, then that needs to be spelled out.

But I don’t think Labour does or can take that view. As Adam Pogonowski has reminded me, Sadiq Khan said only last autumn on the fringe of Labour’s Manchester conference that

The reality is that in 2015, when we will hopefully win the election, we won’t be able to turn the tap back on and increase funding for the criminal justice system

To be fair to him, that was before Chris Grayling’s criminal legal aid plans were announced. But according to the Law Society Gazette, at that same meeting in Manchester

Khan did not directly answer a question about whether Labour would support further cuts to criminal legal aid, but he reiterated his party’s support for the introduction of price-competitive tendering for criminal defence services. He said that if it had been introduced, it would have saved money that have been used to fund legal aid in social welfare law.

Yet in this more recent article, Sadiq Khan, while criticising Chris Grayling’s detailed proposals, I think risks giving the impression that he opposes price competitive tendering altogether.

I want honesty from Labour. It’s reasonable for them to oppose the detail of Chris Grayling’s proposals, their timing and their full scale, while accepting much of their broad thrust and principle, and not proposing to completely reverse them. That’s more or less my position. And I support them if they plan, as Sadiq Khan has written

an urgent strategic review looking at the system in its entirety – from charge to prosecution to verdict – to examine whether our current system is fit for future challenges, rooting out inefficiency and bureaucracy.

That would fit with Ed Balls’s proposed “zero-based” approach to restructuring public spending if Labour gets in.

What’s not reasonable is for Labour to give the impression of being fully in agreement with Tuesday’s “Save Justice” demonstrators – most of whom are not, I reckon, minded to accept any significant criminal legal aid cuts – if they know that, in power, they’d accept many of the cuts being made now, or would make broadly similar cuts of their own, on a broadly similar scale.

It’s against that background that I think speeches from opposition spokesmen need to be heard.

2013-06-06T13:38:45+00:00Tags: , |

Geoffrey Robertson QC: there is a hidden agenda

June 4 2013

Geoffrey Robertson2

Geoffrey Robertson’s was another impressive speech today. He reminded us of the days of the “dock brief” and of what Stephen Sedley has called the “great sleep” of public law in the middle of the 20th century – just before legal aid was created, he reminded us. He ended by attacking the government’s “hidden agenda”: to make it easier for itself to act unlawfully, without proper scrutiny or redress.

He was the one speaker I heard to make any counter-proposals for cuts: he suggested better off households might have to make substantial contributions to criminal legal aid, rather than being denied it altogether; and he suggested cutting more from silks’ fees rather than doing as the government plans. He mentioned Trident, too – which he said was worth 45 years of legal aid.

2013-06-04T23:08:14+00:00Tags: , , , |

Denying defendants a choice of lawyers is wrong

June 4 2013

Even I’m concerned about Chris Grayling’s proposals for criminal legal aid. When the government announced cuts to civil legal aid, I broadly backed them, in contrast to most lawyers. Now, the government’s proposing some further cuts to civil legal aid as well as major changes to the criminal legal aid system – most dramatically, a move to competitive tendering of publicly-funded criminal defence work.

Here’s the government’s consultation paper, with various comments from me. The consultation closes today.


It’s important to note that there are a series of proposals here, many of which I basically accept or at least don’t oppose. Anyone writing about public spending has to take seriously the UK’s public spending deficit, and accept that there must be public spending cuts. Any other view is unreal. Even if (like me) you think the coalition is causing economic harm by the timing and depth of its cuts and the rhetoric it has used about them, the need to make cuts is unavoidable. I was interested that Ed Balls yesterday proposed cutting the winter fuel payment to better-off pensioners. To depart from law for a moment, I think he’s right to say that, and I agree with the approach that announcement signifies. I accept the need for cuts and for further “tough choices”, even if Labour gets in in two years, and I think the impact should fall as far as possible on the better off.

The only remaining question is whether legal aid is a special case. Frankly, I don’t think it is. Our commitment to the rule of law doesn’t justify maintaining every line of legal aid spending in a fiscal context where other public services are being cut, as are benefits for the poor and for disabled people. If we really believed the need for public funding of law trumped all financial considerations, we’d bring in universal legal aid for all, to create something like a “National Justice Service”. Indeed I wonder if something like that (or Greg Callus’s “Obamacare”-style insurance idea) might not be a more sustainable model of public legal provision in the future. But we’re stuck with what we have, and I can’t realistically defend every aspect even of criminal legal aid spending, in the fiscal context of today and the next five or ten years.

So as I say, there are proposals here that I accept.

I’m not happy with, but think I must accept the cutting of public funds for prison “treatment” disputes. And I accept the introduction of a household disposable income threshold of £37,500 above which defendants would no longer receive criminal legal aid. I’d like to see this limit higher, but I can’t say this figure’s unreasonable. It’s not a threshold of £37,000 gross household income.

I have detailed concerns about the proposed residence test for civil legal aid claimants, and reforms to reduce legal aid for judicial reviews by making lawyers bear the risk of an unsuccessful application for permission. But I’m not sure I can really oppose them.

I worry too about amendments to the civil legal aid merits test to prevent the funding of “borderline” cases with perhaps less than a 50% chance of success. Again, though, I’m not sure I can realistically oppose this.

I accept the proposal to restructure Advocacy Graduated Fees, and a reduction in and tapering of daily trial attendance rates from the third day of a trial. I don’t think this will incentivise lawyers to advise “wrong guilty pleas”: I think that suggestion is a bit of an insult to criminal lawyers. I accept it’s reasonable for public funding to be structured in a way that is biased against long trials.

I accept the proposal to reduce all criminal fees in Very High Cost Cases by 30%. In fact, I’d go further, and cut fees more harshly at the top end, so as to be able to cut them a little less for more junior barristers. It’s not because I share populist anger about highly-paid QCs; it’s just that (as with every public spending cut) I think the better off should bear as much of the burden as possible. I think the same principle should apply in cutting experts’ fees, by the way, which I accept in principle. But the cardiologist and the accounting partner should accept a far bigger proportionate cut to their already high fees than the occupational therapist to her (and I think it may well be “her”) already much lower one. Finally, I accept the proposal to tighten the rules on appointing multiple counsel.

But the most important and by far the most contentious proposal is to move quickly (by the end of next summer) to a new system of paying much of criminal legal aid not by setting fees done by existing law firms, but by requiring those firms, or joint ventures involving a number of them, or alternative providers like companies, to bid competitively for a limited number of contracts, in effect setting their own fees.

Even this proposal I’m not opposed to tooth and nail in principle. Maybe something like it could offer more efficient publicly-funded justice. I don’t know. My attitude to it is not one of visceral dislike of “marketisation”. Criminal legal aid already depends on private sector provision operating in a market for public funds. Nor am I snooty about the sorts of providers who might want to bid for contracts – even Eddie Stobart. I think any new providers should be judged on performance, not prejudice. But still, I have serious concerns about what’s planned.

This would be a massive change, and it’s one that should be made, if it is made, with caution. Ministers need I think to realise that there is some risk of catastrophic failure here. I’d prefer to see implementation slowed, and perhaps trialled or piloted in some areas. I’m not yet convinced by the consultation paper’s argument that that’s impossible, and that one big bang is the only way.

I also worry about what the consultation paper calls “sustainable procurement”: how the proposed market structure will ensure incumbent contractors face real competition from new entrants, and how any new entrants will be able to build and maintain the capacity to bid and fulfil contracts. I worry that this model could entrench a sort of publicly-funded oligopoly of unshiftable incumbents who always successfully retain their contracts because challengers can’t find experienced lawyers with the ability to do the work properly. If you believe in a competitive market, you should ensure that’s what you really get.

But my overriding concern is the proposal that criminal suspects and defendants should no longer be able to choose which solicitor they use. Instead, the plan is that each defendant will be allocated one of the approved contractors – and that he or she should not be able to change provider without a good reason. I’m less concerned about limiting the ability to change solicitor: I think it’s fair enough for the taxpayer to want a good reason for that. I also think it’s reasonable for the taxpayer to permit only a limited choice of representative (the need for a lawyer to be regulated is already a mild form of this kind of limitation). But it’s wrong to deny clients any choice of lawyer at all. I firmly oppose this idea.

I’m against it partly for traditional, lawyerly reasons. I think client choice helps underpin the independence of the legal profession, and the relationship of confidence between client and lawyer. I think it helps ensure fairness and quality of representation. But I’m also against the proposal for other reasons.

Reading my response to the proposals overall, you’ll probably guess I’m open even to radical changes in public service provision. I rarely think the status quo is best, and I don’t instinctively oppose changes because they’ll bring the private sector in, or offer choice. In fact I tend to support proposals for reform of public services that actually rely on extending choice – whether that’s choice for parents and children in education, or choice for patients in the health service. I think public services should treat us as individuals, and that more choice, not less, is probably the best way forward.

Against that background, again I see no reason why publicly-funded law is an exception. It’s not. If the future is a competitive market among criminal lawyers and the organisations that pay or employ them, then it should be a competitive market based on client choice – not one that tries to eliminate choice. That’d seem an odd kind of market to me.

So while I’m far from a stereotypical legal refusenik, and am prepared to accept many of the proposals in this consultation, even I’m worried about competitive tendering. It should be slowed down and tested if at all possible, rather than being rushed. And ministers must rethink so that client choice is placed at the heart of their reforms – not denied.

2013-06-04T13:29:00+00:00
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