Do we need a modern treason law? A historical perspective

The Shamima Begum affair has – inevitably – prompted another outing for those who want Britain’s treason laws updated and reinvigorated. There seems no particular law to deal with someone who leaves Britain to marry into Isis, so why not dust off the medieval notion of treason and make it apply to Begum and her ilk?

It is an error to think that the treason law has never been modernised since the original Statute of Treasons of 1351 (still on the Statute Books here). In fact over the centuries it was updated to protect particular English and British monarchs or to deal with particular threats as and when they came up, such was the dissent that accompanied the countries’ oft-changing regimes. This list counts nearly 100 statutes as Treason Acts, some reforming legislation such as the 2013 Succession to the Crown Act, which extends the protection to female heirs apparent, others intended to crack down on the latest threat.

Young boy’s ‘sexual experimentation’ that led to lifetime criminal record

Note: The UK Supreme Court has ruled on this and similar cases. See Update below.

The case of a 12-year-old boy’s “sexual experimentation” with male friends in a garden shed more than 10 years ago has joined a series of legal challenges to UK policy on maintenance and disclosure of records of “spent” convictions and police cautions. 

The boy, G, and his mother had been told  in 2006 the record of his “reprimand” (a minor caution for juveniles; see S.65 Crime and Disorder Act 1998) for two counts of sexual assault would be wiped out when he was 18. But when in 2011 he applied for a job in an employment agency at the library of a local college he was shocked to find that the police reprimand appeared on records at the Criminal Records Bureau. He withdrew his application to avoid the reprimand being revealed.

In 2006 Association of Chief Police Officers (ACPO) policy on keeping records had changed from weeding them out after five years if there was no subsequent offending to retention for 10 years. After 2009 it became police policy to retain caution and conviction information until the subject reaches 100 years of age.

G and his mother had been misinformed about the five year period and now he had been caught by the “aged 100 rule”. An appeal by G to the Chief Constable of Surrey for the record to be expunged was rejected. 

Kiarie and Byndloss: foreign criminals lose Section 94B Immigration Act appeal

UK Court of Appeal judges have rejected cases brought by two men against the use of a tough new law brought in to curb the rights of foreigners convicted of criminal offences to challenge deportation orders — the so called “deport first, appeal later” system.

The judgment is a strong endorsement of the new system in an early legal test of the new Section 94B of  the Nationality, Immigration and Asylum Act. However, the judges have criticised “misleading” guidance on using the new provision issued by the Home Secretary, Theresa May.

Kevin Kinyanjui Kiarie, born in Kenya, and Courtney Aloysius Byndloss, a Jamaican, have hit the headlines as they challenged the provision that requires some of those facing deportation to leave Britain and make their appeals against deportation from their country of origin.

According to Section 94B of the Nationality, Immigration and Asylum Act 2002 (inserted in 2014 by the new Immigration Act — see provision below) this procedure should occur if the continued presence of the individual in Britain is considered “not conducive to the public good”.

Under the new provision the Secretary of State would certify this to be the case, and that the individuals’ ECHR Article 6 rights (to a fair hearing at court) would not be harmed by pursuing an appeal against deportation “out of country”. Certification can only occur if the the individual would not “face a real risk of serious irreversible harm if removed to the country or territory to which [the person] is proposed to be removed”.

Victor Nealon miscarriage of justice: the case against Chris Grayling

Since publication of this piece the Supreme Court has rejected Nealon’s appeal: R (Hallam, Nealon) v Sec of state 2019. (See note at foot of piece)

In the case of Victor Nealon, seeking compensation for a miscarriage of justice, UK Justice Secretary Chris Grayling seems to have flown in the face several tenets of the British legal tradition. He has overturned the principle that a person is innocent until proved guilty; reversed the burden of proof (that the prosecution must prove guilt, not the defence prove innocence); defied the standard of proof – guilt (not innocence) beyond reasonable doubt; and created himself as a quasi-judicial figure who is judge and jury in his own court. That’s some going as we celebrate Magna Carta, the foundation document for the rule of law.

On the face of it, it all seems perfectly legal, since his treatment of miscarriages of justice is enshrined in legislation passed last year [2014]. In reality, though, there is a strong case against Grayling – and a strong argument that his legislation is fatally flawed.

Nealon had been locked up for 17 years of a life sentence for attempted rape. When released in 2013 thanks to new DNA evidence he was denied compensation. His conviction in 1997 was ruled unsafe and he was released 10 years after his 7-year minimum tariff. Parole had throughout that time been rejected in part because he had continued to deny his guilt.

Grayling has refused to order compensation because his innocence has not been proved “beyond reasonable doubt”. This is quite contrary to the principle in criminal law cases that guilt must be proved beyond reasonable doubt – innocence need not be. But the new standard of proof specifically for miscarriage of justice compensation claims was rushed into law last year [2014] as an amendment to Section 133 of the 1988 Criminal Justice Act – Section 133 (1ZA). The decision looks justifiable in law – which is probably why leave for a judicial review was turned down in December 2014.

This piece nevertheless argues that Grayling’s decision is challengeable in law and that the new legislation is unworkable – creating as it does a new legal concept (innocence beyond reasonable doubt) with no forum or expertise to establish innocence to such a level of certainty. This means that any decisions to reject claims based on the new law (rather than the perfectly functional law as it stood before 2014) will be open to challenge because they will all have been arrived at unreasonably – without the necessary evidence being made available to the Secretary of State nor any possibility of its being made available. There is also a strong arguable case that the Ministry of Justice and the new law itself is in breach of Article 6 of the European Convention on Human Rights: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Victor Nealon: the Court of Appeal miscarriage of justice case

The case of Victor Nealon, denied compensation despite being imprisoned for 17 years after a miscarriage of justice, has raised important issues about the compensation regime for such cases. Nealon, a former postman, was convicted of attempted rape in Redditch in Worcestershire in 1996. He served 10 years more than his recommended minimum tariff on a life sentence, in part because he continued to protest his innocence. The facts and legal arguments about the case are outlined below in some detail, based on his successful appeal in 2013 thanks to new DNA evidence. A post on the legal issues regarding compensation and why the new law (2014 Antisocial Behaviour, Crime and Policing Act at Section 175) that bars it to people in Nealon’s position unless they can prove their innocence (rather than prove a miscarriage of justice) is also available on Thinking Legally: The case against Grayling.

Nealon was convicted of attempted rape (of Ms E) in 1997 at Hereford Crown Court and sentenced by Jowitt J. His first appeal against conviction was dismissed in 1998. In July 2012, the Criminal Cases Review Commission (“CCRC”) referred the conviction to the Court of Appeal Criminal Division on the grounds of fresh DNA evidence (following his third application to the CCRC). He had continued to declare his innocence throughout his time in prison which debarred him from consideration for release after the 7-year minimum term was up. In effect his refusal to accept the verdict of the court meant he lost an extra 10 years of his life.

The following is extracted from Lord Justice Fulford’s judgment in the Court of Appeal in March 2014. 

What are the perceived problems with the European Arrest Warrant?

The EAW is one of those strange areas in which Conservatives and others on the Eurosceptic right are deeply concerned about human rights issues. Enfield North MP Nick de Bois, for example, has summed up the EAW issue by saying “cooperation and expediency must not take precedence at the expense of fundamental judicial fairness, fairness and human rights”. Nick de Bois MP pdf)

Gerard Batten, UKIP MEP calls the EAW “a tick-box defendant transfer form-filling exercise that neuters the discretion any national judge may have had over extradition to European Union countries”.

So what exactly are the perceived problems with the European Arrest Warrant? The issues that come up again and again are: 

Maria Miller affair: Are MPs over-privileged?

The Maria Miller expenses case has raised the issue of why members of the UK Parliament “mark their own homework” regarding their own ethical issues. Calls have been made to give lay members (ie non-MPs) on the Commons Standards Committee a vote on breaches of expenses rules – or to take the issue away from MPs altogether. Further, the idea of allowing MPs’ constituents to recall and “sack” MPs if not satisfied by their performance has also been raised.

Conservative MP Geoffrey Cox QC has warned against siren voices demanding a watering down of parliamentary privilege as a result of the expenses affair. That would be a dangerous constitutional change from the position in which MPs order their own affairs. If outsiders interfere “it can have the power to change history” he told the BBC’s World At One. It is a constitutional issue.

Fundamentally Cox is right. The privilege the House of Commons has to order its own affairs goes back to one of the earliest struggles with James I – who was no fan of the Parliament he was forced to work with when he became King of England in 1601.

He is reported to have told a Spanish ambassador: “The members give their opinion in a disorderly manner. At their meetings nothing is heard but cries, shouts and confusion. I am surprised that my ancestors should ever have permitted such an institution to come into existence.”

Downey and Villiers: is there an IRA amnesty?

No amnesty for the IRA 187! That was the (apparently) tough message from Northern Ireland Secretary Theresa Villiers in response to the revelation that many potential suspects of crimes during the Troubles had received “letters of comfort” suggesting they would not be prosecuted.

These have been called “get out of jail” cards by critics of the scheme, initiated under the Labour Government in the context of Northern Ireland peace negotiations. Angry Loyalists, Conservatives and others believe it amounts to an unconstitutional amnesty, never agreed by the UK Parliament. They are particularly outraged that in the case of John Downey one of the letters, sent to him by the Northern Irish police in error, caused the collapse of the Hyde Park bombing trial. His lawyers had successfully claimed abuse of process before Mr Justice Sweeney in the High Court.

So no wonder Villiers had to talk tough. But is she actually saying anything tough? Actually, no. Her speech in effect signs up to the scheme and suggests the Tories in the Government may huff and puff but will quietly leave it alone. Her statement says nothing new and changes nothing. Her main contention is this:

“They [the letters] will not protect you from arrest or from prosecution and if the police can gather sufficient evidence, you will be subject to all the due processes of law, just like anybody else.”

That’s not new, tough anti-IRA bomber policy – that’s just a description of the status of the letters. They were sent to “on the runs” (OTRs) – potential suspects of often serious terrorist crimes who had moved outside UK jurisdiction. Under the Northern Ireland peace deal those convicted offenders already in prison would be due for early release – they would serve no more than two more years for their offences. But it was difficult to know how such a principle would affect those who had evaded justice – and weren’t likely to want to rush home and put themselves on trial even if two years was the maximum likely sentence.

Repeal of the Human Rights Act – and a British Bill of Rights

Note: details of a potential “overhaul” of the Human Rights Act, clause by clause, appear below for those who prefer to get straight to the nitty gritty: “Conservative Rights and Obligations – point by point”

The 2022 Queen’s Speech has underlined the intention of the  Secretary of State for Justice, Dominic Raab, to “reform” the UK Human Rights Act with a new British “Bill of Rights” (consultation document here). 

It is likely that Raab will craft what he calls a distinctly British version of human rights that swings the legal regime subtly in favour of the executive and public bodies, albeit without seeking to withdraw from the broad obligations of the European Convention of Human Rights.

But whether the changes will be acceptable to the European Court of Human Rights is a moot point. If not, Raab will relish the fight, and will point outthat the court already accepts a “margin of appreciation” for the exercise of human rights in individual countries ie the idea that they might be affected by the history and constitutional outlooks of individual nations and hence are not homogenous across all signatories. 

Edmondson et al: News International hacking judgment and GCHQ scandal

Note: Since publication of this post Privacy International has announced a legal challenge against the GCHQ programme based on European Court of Human Rights proportionality principles.

The first legal skirmish in the Rebekah Brooks/Andrew Coulson phone hacking saga has produced a Court of Appeal judgment with wider ramifications – which could spread into the burgeoning bugging scandal surrounding Britain’s “spy-station” GCHQ.

The phone hacking case need not detain us too long. Edmondson et al v Regina was brought by various top former News International personnel facing conspiracy charges regarding alleged phone hacking, among them Brooks and Coulson. Their contention was that the offence they are accused of, conspiring to intercept other people’s mobile phone voicemail messages, should be dismissed because the alleged hacking was not actually unlawful under the Regulation of Investigatory Powers Act 2000.

This is why the case is relevant to GCHQ and the revelations by Edward Snowden of alleged trawling and storing of private communications: Section 1(1) of RIPA says: “It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of – 
(a) a public postal service; or
 (b) a public telecommunication system.” (Emphasis added.)

The Edmondson defendants claimed no one could be alleged to have “intercepted” messages that had already arrived at the voicemail inbox and been opened for reading by the recipients since they were no longer “in transmission”. They cited S.2(7) of RIPA which says:

“For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.”

The defendants argued that once it had been “accessed” (listened to in the case of a phone message or, presumably, opened if it is a text or email) it is no longer “in the course of its transmission”.

The judges, headed by the Lord Chief Justice Lord Judge, rejected this argument. “Interception” included interception of messages saved on the voicemail facility. The judgment notes:

“In this regard it is significant that the intended recipient cannot gain access to the voicemail message without resort to the telecommunication system, but is totally dependent on the system. In these circumstances, there is no good reason why the first receipt of the communication should be considered as bringing the transmission to an end nor is there any support for this within the statutory language. We consider that it is readily apparent from the plain words that it was the intention of Parliament that section 2(7) should extend the course of transmission to include this situation.”

So the appeal was dismissed and the substantive case against the defendants proceeded. Ultimately Coulson was found guilty of conspiring to hack phones while Brooks was acquited (Guardian report).

Issues for GCHQ
The wider implications, however, are that the court has clarified that, no matter where in the process a phone message is captured, it will have been intercepted somewhere in the transmission system and hence potentially unlawfully.