ISSUE 1 SPRING 2016 UVAs Sinister Dangers - Criminal Bar Association

CHAIRMANS COLUMNCriminal Bar Quarterly Spring 2016 - Issue 1Finally, I would like to draw yourattention to a paper published by theMoJ at the end of 2015 aid) which underpinsour current discussions with the MoJabout the replacement of AGFSto bring us into the digital age andcreate a system of remuneration thatfits and works with the Better CaseManagement regime. First somethingof a history lesson.There is a long history of reformsbeing made to the way in whichcriminal defence advocacy is fundedunder the Advocates Graduated FeesScheme. This scheme which startedin 1996 now covers almost all CrownCourt work and therefore determinesthe greater part of the fee income ofspecialist defence advocates. Therewas a very poor understanding ofthe impact of fee changes on thisgroup of specialists beyond anecdotalevidence which, while powerful, doesnot help very much when it comesto having a foundation to changepolicy. One was that LAA and MoJrecords systems did not distinguishbetween such specialists (who broadlyspeaking work defend full time), andthe substantially larger number ofadvocates (both barristers and HCAs)who do very limited criminal defencework. The notion of “average’”feeearnings has been hugely distortedby the large number of suppliers whodo very few cases – or worse are onlyinvolved in work that is peripheral tothe main trial.The research project set aboutcombining the MoJ records with BarCouncil membership records so thatthe gender, age, experience, seniorityand ethnicity of each specialist couldbe determined. In that way it has beenpossible not only to look at how thefee earnings of specialists as a wholegroup have been affected over time,but how different groups of specialists(women or BME, or experienced)specialists have fared.Putting these ideas into practice iscomplicated and there is no substitute forreading the full paper. The group soughtto define such specialists by reference tothe total volume and value or work theycontribute, over a three-year period. In thereport the terms used are “most engaged”and “notionally full time”. These are notideal but capture the idea of identifyingpractitioners who are very involved in thecriminal defence work – to the extent thatit is probably their largest, or only, area ofpractice.The picture that emerges is that thespecialist criminal defence advocateshave suffered significant fee cuts inrecent year. That is important to knowfrom a policy perspective because itimpinges on the sustainability of thespecialist profession.The findings about a lack ofexperience/seniority gradient are bothunexpected and important. This isprobably an unintended consequenceof past rebalancing of fees (that hasalways tended to target for the biggestcuts the more expensive seriouscases that experienced advocatesundertake). It is certainly somethingthat has to change in the future.The lack of any obviousdiscrepancies in fees across differentgender and ethnicity may be a sourceof comfort but the figures are complexand require very careful thought. Itshould be noted however that theincreasing gender balance in theprofession is not being reflected yet inspecialist criminal defence advocacyand we may need to ask ourselves somedifficult questions about why this isso. Personally I hope that the end ofwarned lists may make a significantpositive impact in this area. The Annual DinnerGreat Hall, Middle Temple, LondonFriday 20 May 2016, 19.15 for 20.00Guest Speaker: TBCUnder 7 years’ call 65.00Over 7 years’ call 85.00Silks 105.00If you would like to attend,please contact Aaron Dolan(aaron.dolan@criminalbar.com)5

OffencesSpring 2016 - Issue 1 Criminal Bar QuarterlyThe Year Ahead: NewOpportunities, New Offences iStockphoto/xijian6PrefaceUnmanned Aerial Vehicles – the new danger and other offences for 2016ContributorDexter Dias QCAs 2016 unfolds around us, there are sinister shapes inthe sky. These are not just the portents of yet morefierce fighting around public funding, but something moretangible: UAVs.In a triumph of disposable consumerism, we have seenthe dawn of a world in which almost anyone can own theirown aircraft. These cheap consumables, Unmanned AerialVehicles – drones to you and me – became one of the musthave presents at Christmas. However, both the police andthe Civil Aviation Authority have issued stark warnings.They cautioned about the danger posed to unsuspecting dogwalkers, gardeners and joggers from strangely rotor-bladedobjects falling from the sky. Nevertheless sales rocketed.Various nationals were able to report (inevitably) that droneswere “flying” off the shelves. All this may well providegainful employment for criminal practitioners in the nearfuture. Indeed, 2015 saw what was believed to be the firstprosecution under the Air Navigation Order 2009.Nigel Wilson from Bingham, Nottingham, was fined 1,800 at the Westminster Magistrates’ Court for flyingdrones over iconic London landmarks and football matchesfeaturing Arsenal, Tottenham and Liverpool. Horses, itwas said in court, were startled. Wilson was also bannedfrom buying or flying a drone for two years. Beyond this,however, the supersized versions of these increasinglyin-demand consumables have caused considerable legalcontroversy and further fuelled the heated debate around theappropriate balance between public safety from terrorismand international standards of human rights.In October 2015, Amnesty International forcefullyqueried the legality in international law of drone strikes inthe Middle East. In another act of whistleblowing - thedisclosure of what has come to be known as The DronePapers – there was a series of leaks about United States’ “killlist”, its “assassination program in Afghanistan, Yemen andSomalia”. For its part, the United Kingdom has also beenusing drones. In November, British national MohammedEmwazi – dubbed Jihadi John – was killed in a drone strikein Raqqa, Syria. Although it is believed that an Americandrone delivered the fatal fire, Emwazi’s movements in theISIL capital had been tracked by a British drone operatedfrom Lincolnshire.An NGO, Rights Watch, has issued legal proceedingsagainst the Attorney-General’s refusal to publish his advice

OffencesCriminal Bar Quarterly Spring 2016 - Issue 1to the government on the basis in international law of thedrone policy. Watch this (air)space. iStockphoto/VIPDesignUSAFemale Genital MutilationLast year saw the long-awaited, much-heralded, historic firstprosecution for Female Genital Mutilation (FGM). It waswidely perceived to have failed.The jury took 30 minutes to acquit Dr DhanusonDharmasena who had stitched a woman’s labia followingher giving birth at the Whittington in London in 2012.Following the verdict, a stream of criticism was voiced aboutthe decision by DPP Alison Saunders to proceed. Suchrebuke is misconceived for two reasons.First, an acquittal after a Crown Court trial is notnecessarily a “failure”. To recapitulate: the woman hadundergone “Type 3” FGM as a child in her native Somalia.This involves the sewing of part of the labia. Duringlabour, the doctor made two incisions to ease the birth.Thereafter he sewed her back up. Was restoring the patientto the condition he found her in an act of FGM? Thiswas therefore a highly fact-sensitive and difficult decision.Indeed the court (ultimately Sweeney J) had on threeoccasions rejected applications by the defence to dismiss.Secondly, it is unquestionably the case that the merefact that a prosecution was brought possesses significantsymbolic value. Those of us who work closely with FGMsurvivors, can confirm that the fact of the prosecution itselfhas radiated through affected communities. Whereas in thepast Britain has been seen as something of a “soft touch”compared to countries such as France, where there havebeen over 100 prosecutions, the legal and cultural climateis beginning to change. Frontline services, such as health,education and social services are becoming sensitised to theissues around FGM. This is an ongoing and iterative processand members of the Bar are active in the dissemination oflegal guidance and human rights frameworks.As I write this, we are approaching the UN’s internationalday of zero tolerance for FGM. The latest data published bythe Health and Social Services Information Centre revealthat in the April-September period last year 2,421 casesof FGM were reported in the UK (785 in London). Manyare historic: women who have endured the legacy of thisharmful practice coming forward after enduring years ofpain, suffering and trauma. But the statistics help crystallisea clearer picture of the scale of the problem in the UK.Internationally UNICEF has upgraded previous estimatesof the number of young women and girls who have sufferedFGM worldwide from 130 million to 200 million. Thesefigures confirm what those of us who have been active in thearea have long said: the scale of this crime is significant notonly globally but in this country also.Two things remain certain. First, that there are likely tobe more prosecutions domestically. Secondly, however, thecomplex socio-cultural drivers of the phenomenon requireimaginative, proactive – and properly funded – interventionsbeyond the punitive. Indeed, there remains the real riskthat an over-emphasis on a prosecutorial approach will havethe counterproductive effect of driving the practice furtherunderground. If the ultimate objective is to enhance theprotection of at-risk young women and girls, we need toreverse-engineer our suite of interventions to optimise theefficacy of the limited resources we are devoting to this area.That said, progress has been made. The courts have beenintervening. Along with colleagues in the Bar HumanRights Committee, we advised Parliament to create FGMProtection Orders to provide a range of preventative legalpowers to protect at-risk girls before they are mutilated.These include the confiscation of passports and prohibitionfrom removal from the jurisdiction. The Government notonly accepted our recommendation, but accelerated itsimplementation. A number of cases have already comebefore the High Court. I am proud to say that the Barplayed a pivotal part in drafting the legislation and advisingon its Parliamentary passage. So Protection Orders havebeen made: girls who would have been mutilated just twoyears ago have now been brought under the protective shieldof the court.Much more needs to be done. But the direction of travelis the right one. We must remain resolute in counteringarguments of cultural relativism with an unswervingcommitment to the vindication of the rights of at-risk girls.FGM is and remains an egregious violation of human rights,a form of social control and violence against women, and acrime. It has nothing to commend it.Coercive controlIn another area of gender-based violence, the end of 2015saw the coming into force of a new offence of Controlling orCoercive Behaviour in an Intimate or Family Relationship.While the provisions under the Serious Crime Act 2015have been drafted in a gender-neutral fashion, the empiricalrealities of the social problem are plain. In the 2014-15period, 84 per cent of victims of coercion were women. Theseare often hidden crimes, but as with other forms of silentsuffering such as FGM and sexual abuse, there is a slow shift7

8OffencesSpring 2016 - Issue 1 Criminal Bar Quarterlytowards a greater understanding of the sheer extent of itsprevalence.In December, Citizens Advice reported an annualincrease of 24 per cent in the number of people seekingtheir help around domestic abuse issues, amountingto over 5,400 referrals. This coincides with the HMConstabulary report the same month that the number ofdomestic abuse cases in England and Wales had risen by31 per cent in the last two years (353,000 in the year toMarch 2015).Therefore the principle of extending the criminal law topenalise a range of oppressive and exploitative behaviourswhich while stopping short of serious physical violencenevertheless act to severely damage the lives of vulnerablepeople isolated within families and abusive relationshipsis to be welcomed. The law is directed at providing somerelief from patterns of sustained humiliation, threats andintimidation that destroy the confidence, independenceand self-esteem of some of society’s most vulnerable andabused people. It will be sufficiently flexible to encompassmodern forms of domination such as controlling socialmedia accounts or surveillance through apps. It carries amaximum sentence of five years’ imprisonment.However, unlike the regime around the ModernSlavery Act, it does not provide victims with a recognisedstatutory respite from being prosecuted where they havecommitted an offence arising from being coerced. Thisraises the possibility of an inbuilt structural deterrentagainst certain victims reporting their abuse. Plainlythe prosecuting authorities will have public interest teststo apply, but it would have been preferable to have hadprotections for victims coerced into crime placed on atransparent statutory basis. Experienced practitionersknow all too well the formidable obstacles presented byrunning a duress defence.The fact is that one can be imprisoned behind barsthat are visible and those that are not. A prison is notjust a place, but a debilitating state of mind. The kindof conduct criminalised by the new law has created thesocial incarceration of thousands of vulnerable women,whose misery finds its expression in a slew of seriousmental health problems, substance abuse and self-harm.This legislation is important and necessary. Due to thespecific characteristics of our evolved physiognomy andpsychology, human beings tend to live within families andbonded pairs. We live within them, but we can be lostwithin them also. These laws need to be both used andstrengthened.International esteemFinally, with the ongoing uncertainty around two-tiercontracts, the exact extent of the existential threat to thecriminal bar remains unclear. However, none of us canbe under any illusion but that further battles loom on ourdrone-shadowed horizons.Yet when we are embroiled in the mundane infuriationsof simply claiming reasonable travel expenses to Sheffieldor Sheerness – let alone fair payment for the countlessantisocial hours of painstaking work on telephonic evidenceserved electronically (but I mustn’t get you started) – it iseasy to lose sight of what we are and what we do. It is herethat a little continental and conceptual distance is refreshingand restorative.The fact is that one can be imprisonedbehind bars that are visible and thosethat are not. A prison is not just a place,but a debilitating state of mind.During 2015, I travelled to both West and CentralAfrica in relation to a number of human trafficking andgender-based violence issues. In particular, on behalf ofthe Bar Human Rights Committee (and in collaborationwith UNICEF) I was able to experience first-hand thedire human consequences of the civil war in the CentralAfrican Republic. Our ambition is to use the expertise andexperience that we as legal practitioners have to provideadvice on both better protective mechanisms for victims ofsexual and serious violence and capacity building to enhancethe rule of law and respect for human rights.I have to tell you that our criminal bar and our criminalpractitioners – you – are held in the highest internationalesteem. They are valorised for their professional integrity,unsurpassed advocacy expertise and unfailing commitmentto social justice and human rights initiatives (often pro bono)across the globe.They are one of the prime assets of the legal profession inthe UK. You are. I wish you well in 2016. Dexter Dias QC practises in criminal and human rights law from GardenCourt Chambers (London) and has been conducting research at Cambridgeand Harvard Universities. Follow @DexterDiasQCLegalAwards2016The Whole of the Law. Connected.Launching soonCelebrate excellence on 29th September 2016#Halsbury2016www.halsburylegalawards.co.uk

Law CommissonCriminal Bar Quarterly Spring 2016 - Issue 19Overhaul of Offences Against the PersonPrefaceReforming the Offences Against the Person Act 1861ContributorsLaw Commission ContributedOn November 3, 2015 the Law Commission publisheda scoping report entitled “Reform of Offences Againstthe Person” (Law Com No.361), calling for a comprehensiveoverhaul of the law on non-fatal crimes of violence. Thepresent law is largely set out in the Offences Against thePerson Act 1861, though the review also covers assault andbattery, which are common law offences, and assault on aconstable in the execution of his duty, contrary to the PoliceAct 1996, s.89.The most obvious problem with the 1861 Act is its lackof accessibility. It is written in Victorian (sometimes preVictorian) legalese, and many of the sections set out somany overlapping requirements and alternatives that it isdifficult to work out either how many offences the sectioncreates or whether any particular factual situation is caught.Crucially important terms such as “inflict” and “maliciously”have no clear meaning and are overlaid by several layers ofjudicial interpretation, each different from the last. The Actstill refers to obsolete concepts such as “felony” and “penalservitude” and fails to state the penalty for several of theoffences: this has to be worked out from references in aninterlocking series of other statutes. As argued in the report,the Act is in effect written in code and gives victims anddefendants no guidance on what the law actually is.Secondly, the 1861 Act contains many narrowly-definedoffences which are either never used or fully covered bymore general offences. Examples are attempting to chokewith intent to commit an offence, assault on a magistratepreserving a wreck and failing to feed servants andapprentices.Last and most importantly, the 1861 Act as it now standsdoes not provide a logical grading of offences. The offence ofassault occasioning actual bodily harm under s.47 (“ABH”)is meant to stand mid-way between common assault and theoffence of maliciously inflicting grievous bodily harm unders.20 (“GBH”). However, the maximum sentence for ABH isfive years, the same as for GBH; even though, for ABH, thedefendant need not intend or foresee any harm to the victim.By contrast, the maximum sentence for common assault issix months.One effect of this is that a

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