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Lawyers warn, Urgent reforms only way to save justice system from collapse

Law Society president Christina Blacklaws said: “Our system is based on the principle that people are innocent until proven guilty. “Yet people’s lives can be ruined before a case even reaches trial. The accused are not the only ones to suffer.

“Our broken system also has a negative impact on victims and witnesses of crime who face avoidable inconvenience, cost and stress as a result. Without action, the situation will only get worse.” She added: “To save our ailing criminal justice system, we are calling on the government to adopt the recommendations in this report as a matter of urgency.”

Govt Newspeak

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The “crumbling” criminal justice system is heading towards total collapse unless the Government makes rapid reforms, the professional body representing solicitors and barristers has said.

The Law Society of England and Wales said steep cuts made since 2010 has left the system at “breaking point”. In a report published on Friday, it called on the Ministry of Justice to hike legal aid, halt its programme of court closures and rethink its uses of technology to try and cut costs.

Titled “Justice on Trial”, the report said that fewer and fewer people are choosing criminal law as a career, deterred by long hours, low pay and a huge amount of travel.

It said cuts to legal aid have created an “innocence tax” on those just above the income threshold who are forced to pay their own legal fees, tipping many defendants and their families into poverty.

“Many face a difficult choice –…

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#Iran #SA #UAE #Israel #Mossad #AMAN: #CuiBono? The #Truth Behind The Torpedoed Tankers!

The Truth Behind The Torpedoed Tankers | Editorial Dept | OIL PRICE.COM | 14 June 2019

intelligence

Oil prices have been given a convenient reprieve on the eve of OPEC’s decision as to whether it will extend the supply cuts at a time when demand growth is slowing. Thanks to alleged attacks on oil tankers in the Gulf of Oman, not only are the speculators once again redirecting their attention from demand and trade wars, but insurance prices are bound to skyrocket and help push oil up for a longer period – even if speculators have a very short attention span for geopolitical provocations.

The Tanker Incident: The Hidden Truths Behind Conflict Escalation

As expected, and despite actual intelligence or evidence of any kind, the Trump administration is squarely blaming Iran, with Israeli media most vociferously jumping on the bandwagon.

Trump’s ‘expert take’ on this can be summed up in a way that no Western world leader would even conceive of doing; not even George W. Bush. As statements of major foreign policy consequences are typically delivered on Twitter during this administration, Trump said it was the government’s “assessment” that Iran was behind the attack. An “assessment”, in this world, means absolutely nothing and is not based on intelligence. It is based purely on political capital.

The fact is that there is no evidence of Iranian involvement either in this attack or in the sabotage of tankers, which was horribly overplayed in the media, last month.

The only truths we have to work with here are the following:

– Early Thursday, a Norwegian-owned tanker and a Japanese-owned vessel underwent apparent attacks while transiting through the Strait of Hormuz in the Gulf of Oman.

– The Norwegian tanker was carrying Qatari ethanol to Taiwan; the Japanese vessel was carrying methanol from Saudi Arabia to Singapore.

– The Norwegian ship experienced three explosions, while the Japanese ship caught fire.

– Both the US Navy and the Iranian naval forces responded to distress calls from the vessels, while the Iranian naval forces rescued crew members from both.

– The attacks were well-planned and well-coordinated, as well as being extreme precision attacks, clearly designed to cause minimal real damage. They were designed to be highly visible, but not to destroy vessels or cargo, or to take lives.

– The Japanese ship had a hole caused by an unidentified type and make of artillery shell, which was discovered on the ship, according to the ship’s owners. The methanol cargo was not harmed. The ship is not in danger of sinking.

– The Norwegian tanker reported three explosions onboard, and no reports of incoming artillery or torpedoes. A US navy source reported seeing an unexploded limpet mine on the side of the vessel, which could account for the nature of these explosions. Limpet mines are attached magnetically. However, the ship’s owner in the case refutes this account entirely.

In this case, the weaponry tells us nothing. Limpet mines are naval weapons, but anyone can get their hands on them, and in the era of globalization, they change hands many times over. The US has released images it claims proves that Iran was behind what was a mine blast on the Norwegian ship; but, again, the owners of the ship – meaning eyewitnesses – refute this.

Even our deepest sources inside royal circles in Saudi Arabia do not believe that this was a state actor attack perpetrated by Iran. That sentiment, however, will never be made public as it is not in the interests of either Saudi Arabia or the UAE to pin this attack on anyone but Iran or its Houthi allies from Yemen. The Saudis and the UAE have high-level back channels with Iran, as we have mentioned before.

Nor would Iran attack a Japanese ship at exactly the time that the Japanese prime minister was visiting Tehran. There is absolutely no benefit in such an escalation, in such a manner, for Iran.

Always look to the beneficiaries, and not to the media espousing unintelligible statements from world leaders with clear agendas.

It is highly irresponsible of the Trump administration to lay the blame squarely on Iran for these alleged attacks. The media has forgotten conveniently that there is still no conclusive evidence that Iran was involved in last month’s attacks, either.

There are many beneficiaries in this game, from Israel and even Russia to the Saudi-UAE band and the Trump administration. We know without a doubt from our assets in Riyadh that MBS and MBZ are both attempting to escalate tensions without having them escalate to the point of actual conflict. This is a difficult balance to maintain, especially with MBS and his itchy trigger finger, which worries MBZ, his UAE mentor.

But the precision of this attack is what is most telling, which was accomplished with a fair amount of finesse that did no major damage in the end. It was meant to be visible and specifically to escalate tensions.

At least two high-level intelligence consultants for major hedge funds tell us that the nature of the attack, the motives and an assessment of historical precedents would more readily indicate Israeli intelligence involvement, which does not always suggest involvement at the political level.

Both the Mossad and AMAN (Israeli military intelligence) have been masters of sabotage when it comes to Iran. Together with American intelligence, Israeli intelligence has launched a number of sabotage operations aimed at taking down Iran’s nuclear projects, including sabotage of equipment and even through the Stuxnet computer virus. The Mossad has also taken out key Israeli scientists in its sabotage operations.

The Israeli intelligence apparatus is keen to ensure that tensions remain escalated with Iran and that Trump does not become complacent, as he did soon after last month’s attacks on four oil tankers in the same region. Those attacks, for which accusations that Iran was involved have not been proven, were followed by high-level rhetoric coming out of Washington, but then a clear pullback and cool-down when the trade war with China quickly took center stage again. There will be more such attacks if Trump fails to get the world on board with this Iran narrative, though the next round of precision attacks may be different in nature.

Oil speculators are already growing skeptical after the attacks: While oil prices shot up on news of the tanker attacks, by Friday morning they were paring some of those gains on the poor oil demand picture. They are still focusing more on fundamentals, and the trade war with its threat of global recession is still the key factor. But the fact is, if certain forces desire conflict with Iran, they will force it, with or without evidence. It seems fairly easy to get the media on board with this in 2019.

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SOURCE: The Truth Behind The Torpedoed Tankers | Editorial Dept | OIL PRICE.COM | 14 June 2019
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#Discrimination #BAME: #Austerity has fuelled #RacialInequality in the #UK, says #UN expert!

Damning report finds minority communities have been hardest hit by Tory policies

People walking down a street in fading light
Race and ethnicity ‘continue to determine the life chances and well-being of people in Britain’ the research found. Photograph: Christopher Thomond/The Guardian

The government’s austerity programme has entrenched racial inequality in the UK, a UN expert on racism has concluded in a report that also describes the Windrush scandal as a “glaring example” of discrimination in the UK’s immigration policy.

National debates in the aftermath of the EU referendum “amplified racial discrimination, xenophobia and related intolerance in the UK” said Tendayi Achiume, the UN’s special rapporteur on racism.

“Public and private actors have played dangerous roles in fuelling intolerance. Among them, politicians and media outlets deserve special attention given the significant influence they command in society,” she said, without naming the politicians or media outlets she had in mind.

It is the second highly critical UN report on UK government policy to be published in the last month, after a UN poverty expert compared Conservative welfare policies to the creation of 19th-century workhouses and said the UK’s poorest people faced lives that would be “solitary, poor, nasty, brutish, and short” unless austerity was ended.

Achiume completed her research in 11 days in the UK last year, visiting seven cities and two detention centres. She said austerity measures had been “disproportionately detrimental to members of racial and ethnic minority communities, who are also the hardest hit by unemployment.”

The report cites research from the Equality and Human Rights Commission estimating that by 2022 black households will have seen a 5% loss in income because of austerity measures, double the loss for white households.

Despite the existence of a legal framework devoted to combating racial discrimination, Achiume said race and ethnicity “continue to determine the life chances and wellbeing of people in Britain in ways that are unacceptable and, in many cases, unlawful.”

Achiume, a professor of law at the University of California, Los Angeles, said a hostile environment “ostensibly created for, and formally restricted to, irregular immigrants is in effect a hostile environment for all racial and ethnic communities and individuals in the United Kingdom.”

She added: “The UK’s immigration enforcement strategy relies on private citizens and civil servants to do frontline immigration enforcement, effectively transforming places like hospitals, banks and private residences into border checkpoints. In a broader context of national anti-immigrant anxiety, the predictable result of the UK government’s immigration policy and enforcement is racial discrimination and radicalised exclusion. The Windrush scandal is a glaring example.”

Chai Patel, the legal policy director at the Joint Council for the Welfare of Immigrants, said: “We are in violation of international human rights law because of Theresa May’s hostile environment. The priority of our next prime minister must be to free the country from that toxic legacy.”

David Lammy, the Labour MP for Tottenham, said: “Decent people across the country will be ashamed that the British government is now receiving international condemnation from the UN, in particular for the hostile environment which turns doctors and landlords into border enforcement officials.

“The gruesome mishandling and abuse of the Windrush generation by the Home Office is unsurprisingly highlighted in the report, but it is just one of many failings which highlight the depth and breadth of Theresa May’s toxic legacy.”

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SOURCE: Austerity has fuelled racial inequality in the UK, says UN expert______________________________

Damning UN verdict of Universal Credit is based on hard facts

“All of those who aspire to become leader of the Conservative party served in the government whose policies brought about the circumstances which one of their ministerial colleagues accepts forced women into sex work.

This is disgraceful beyond words. They should be hanging their heads in shame instead of spouting fatuous slogans about their Brexit fantasies.”

Govt Newspeak

Amber Rudd previously complained accused UN rapporteur Philip Alston of having done insufficient research

Amber Rudd previously complained accused UN rapporteur Philip Alston of having done insufficient researchAmber Rudd accused UN rapporteur of having done insufficient research

IN all the hoo-hah about the contest to lead the shambles that is the UK Government, fellow readers might have missed an episode that took place before the House of Commons Work and Pensions Committee on Wednesday of this week.

You will recall that, following the publication of a report by UN rapporteur, Philip Alston, which castigated the actions of the Conservative government in cynically dismantling the benefits system and choosing to inflict hardship on the poorest and most vulnerable in society, the Secretary of State, Amber Rudd, complained loudly and clearly. She called him politically biased, accused him of having done insufficient research and said she would complain to the UN about their rapporteur.

A senior civil servant giving evidence earlier this week to the…

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Trump shock: USA told it will LOSE WAR WITH IRAN, and here’s why

“And he warned any conflict would spill over onto the streets of mainland USA with multiple terror attacks. He added: “Iran will undoubtedly use terrorism to strike the US if push came to shove.

“It’s easy to be brave NOW, but the US isn’t under attack. If a real war happened, we would have MULTIPLE Shiite attacks on targets like Times Square, Mall of the Americas, Disneyland…. You get the idea. So does Iran. So does Hezbollah.”

Nwo Report

Donald Trump

Source: Paul Baldwin

PRESIDENT DONALD TRUMP’S USA boasts the most powerful armies the world has ever seen – but today military experts warned they would NEVER beat Iran in a military conflict. The possibility of a hot war between Iran and the USA increased today as British and US servicemen raced to the aid of two oil-tankers apparently hit by torpedoes off the Iranian coast in the Gulf of Oman.

Military threats and sabre-rattling rhetoric have littered dialogue between the two nations in recent months with Iran’s foreign minister warning the US just hours ago it “cannot expect to stay safe” while Donald Trump counter-warned any conflict would be “the end of Iran”. But military experts on both sides of the potential conflict know that despite a massive firepower advantage a USA victory is far from certain, a former ranking US Air Force strategist has said.

And here’s why –…

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Counting the cost of the CQC: Abuse, Whorlton Hall and CQC spin doctors

Alexander's Excavations

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 14 June 2019

 

Summary A dismal spectacle of self-preservation, sly deflection and scapegoating of subordinates unfolded when CQC directors, Paul Lelliott Deputy Chief Inspector and Ian Trenholm Chief Executive appeared in front of the Joint Human Rights Committee on 12 June 2019.

They had been hauled in to answer questions about CQC’s suppression of a 2015 inspection report. The report described wide ranging and serious care failings that effectively amounted to institutional abuse, serious risks and allegations of mistreatment at Whorlton Hall, where BBC Panorama recently exposed serious abuse by staff. 

Although the CQC refused to hand over crucial documents, the Committee had in its possession internal CQC correspondence with Barry Stanley-Wilkinson CQC whistleblower. This put Lelliott in the thick of things in 2016, just before a whitewash alternative CQC report was published June 2016. The correspondence also revealed…

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#UKSC: #IntentionalHomelessness: Capping benefits does not breach #HumanRights of #Children!

Child poverty campaigners welcome Supreme Court housing benefit victory |  Steven Preece | Welfare Weekly 

Supreme Court rules that tenants should not be forced to use subsistence benefits to cover housing benefit shortfalls.

photo credit: Scales of Justice via photopin (license)

#Impunity #MisconductInPublicOffice: Let the people, not the #courts, be the #judge of political promises!

Let the people, not the courts, be the judge of political promisesDAVID PANNICK, QC | THE TIMES | 13 J

Whatever one’s view of where Boris Johnson stands on the scale from nice to nasty, the dismissal by the High Court last Friday of the private prosecution brought against him has made an important contribution to safeguarding freedom of political speech.

Marcus Ball applied to the Westminster magistrates’ court for a summons to start a prosecution of Johnson for alleged offences of misconduct in a public office.

Ball’s complaint is that during the 2016 EU referendum campaign Johnson “repeatedly lied and misled the British public” by stating that the cost of EU membership was £350 million a week.

Margot Coleman, a district judge, issued a summons, but last week Lady Justice Rafferty and Mr Justice Supperstone quashed the summons, ending the criminal proceedings. The court will give its reasons at a later date.

Justice Felix Frankfurter, sitting on the US Supreme Court bench in 1950, said that “the safeguards of liberty have frequently been forged in controversies involving not very nice people”.

Misconduct in public office is a common law offence — that is, one not defined by any statute — for which the maximum sentence is life imprisonment. The offence is committed where a public officer acting as such wilfully neglects to perform a duty or commits misconduct to such a degree as to amount to an abuse of the public’s trust, without reasonable excuse or justification.

The offence has repeatedly been criticised as vague and unfocused. The Law Commission has spent three years considering the need for reform and expects to publish its recommendations in the autumn.

The commission is considering proposing that the crime be replaced by an offence confined to breaches of duty that risk causing serious harm when committed by specific public office holders with duties to prevent harm. Or that it should be replaced by an offence addressing corrupt behaviour on the part of any public office holder.

Either of these alternatives would be a distinct improvement.

Under present law, Ball needed to show that Johnson’s alleged misconduct was carried out by an officer “acting as such”. Johnson was an MP and, at the beginning of the referendum campaign, mayor of London. But his comments were made as a contribution to that campaign and not in respect of his public offices.

It would have been most unfortunate if the court had allowed this prosecution to continue. As Lord Nicholls of Birkenhead said in the appellate committee of the House of Lords in a case in 2003: “Freedom of political speech is a freedom of the very highest importance in any country which lays claim to being a democracy.”

All the more so during an election or referendum campaign. If a politician makes comments on policy that are false or misleading, that person should be answered in debate, not brought before the criminal court for judges to decide the rights and wrongs.

For example, a politician should not be required to respond in a criminal court to an allegation that it was false to say that “you’ve never had it so good”, or “the pound in your pocket has not been devalued”. For the Johnson prosecution to have proceeded to trial would have inhibited robust political speech — and not just deterred lies.

For such reasons, parliament has been careful about how it regulates political speech during an election. The Representation of the People Act 1983, section 106, makes it an illegal practice for a person to make or publish a false statement of fact, before or during an election, unless the defendant can show that he or she believed, on reasonable grounds, that the statement was true. But the law applies only to statements about “a candidate’s personal character or conduct”. The 1983 act wisely does not regulate other statements, however false — and obviously so — they may be said to be. The electorate is the judge of that.

In a 2010 case concerning section 106, the High Court held that a Labour Party candidate who had won a seat in that year’s general election by 103 votes should be disqualified for making false statements about the personal character or conduct of his Liberal Democrat opponent. Lord Justice Thomas noted that in February 1868 Sir Alexander Cockburn, the chief justice, wrote to Lord Chelmsford, the lord chancellor, expressing concern that the law should not provide that “after the heat and excitement of a contested election” a judge should be asked to “proceed to the scene of recent conflict, while men’s passions are still roused, and in the midst of eager and violent partisans . . . go into all the details of electioneering practices . . .”

Last week’s decision happily avoids introducing into the law any such judicial assessment of the truth of policy statements during an election or a referendum. Political slogans are not made on affidavit.

The author is a practising barrister at Blackstone Chambers, a fellow of All Souls College, Oxford, and a crossbench peer in the House of Lords

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source: Let the people, not the courts, be the judge of political promisesDAVID PANNICK, QC | THE TIMES | 13 J______________________________________

 

Image result for Misconduct in public office

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Also see:

Misconduct in Public Office

Updated: 16 July 2018|Legal Guidance

Content

This guidance describes the legal elements of the offence of misconduct in public office and how to apply them. It provides charging advice indicating the factors to consider when deciding if it is appropriate to charge the offence.

Principle

Scope of the offence

Misconduct in public office is an offence at common law triable only on indictment. It carries a maximum sentence of life imprisonment. It is an offence confined to those who are public office holders and is committed when the office holder acts (or fails to act) in a way that constitutes a breach of the duties of that office.

The Court of Appeal has made it clear that the offence should be strictly confined. It can raise complex and sometimes sensitive issues. Area Prosecutors should therefore consider seeking the advice of the Director’s Legal Advisor to resolve any uncertainty as to whether it would be appropriate to bring a prosecution for such an offence.

Policy

Where there is clear evidence of one or more statutory offences, they should usually form the basis of the case, with the ‘public office’ element being put forward as an aggravating factor for sentencing purposes.

The decision of the Court of Appeal in Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868 does not go so far as to prohibit the use of misconduct in public office where there is a statutory offence available. There is, however, earlier authority for preferring the use of statutory offences over common law ones. In R v Hall (1891) 1 QB 747 the court held that where a statute creates (or recreates) a duty and prescribes a particular penalty for a wilful neglect of that duty ‘the remedy by indictment is excluded’.

In R v Rimmington, R v Goldstein [2005] UKHL63 at paragraph 30 the House of Lords confirmed this approach, saying:

“…good practice and respect for the primacy of statute…require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise.

The use of the common law offence should therefore be limited to the following situations:

  • Where there is no relevant statutory offence, but the behaviour or the circumstances are such that they should nevertheless be treated as criminal;
  • Where there is a statutory offence, but it would be difficult or inappropriate to use it. This might arise because of evidential difficulties in proving the statutory offence in the particular circumstances; or because the maximum sentence for the statutory offence would be entirely insufficient for the seriousness of the misconduct.

Definition of the Offence

The elements of the offence are summarised in Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868.

The offence is committed when:

  • a public officer acting as such;
  • wilfully neglects to perform his duty and/or wilfully misconducts himself;
  • to such a degree as to amount to an abuse of the public’s trust in the office holder;
  • without reasonable excuse or justification.

A Public Officer

The prosecution must have evidence to show that the suspect is a ‘public officer’. There is no simple definition and each case must be assessed individually, taking into account the nature of the role, the duties carried out and the level of public trust involved.

The courts have been reluctant to provide a detailed definition of a public officer. The case law contains an element of circularity, in that the cases tend to define a public officer as a person who carries out a public duty or has an office of trust. What may constitute a public duty or an office of trust must therefore be inferred from the facts of particular cases.

The judgment of Lord Mansfield in R v Bembridge (1783) 3 Doug KB 32 refers to a public officer having:

‘… an office of trust concerning the public, especially if attended with profit … by whomever and in whatever way the officer is appointed’.

It does not seem that the person concerned must be the holder of an ‘office’ in a narrow or technical sense. The authorities suggest that it is the nature of the duties and the level of public trust involved that are relevant, rather than the manner or nature of appointment.

In R v Whitaker (1914) KB 1283 the court said:

‘A public office holder is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public.’

This approach was followed in a series of cases from other common law jurisdictions: R v Williams (1986) 39 WIR 129; R v Sacks [1943] SALR 413; R v Boston (1923) 33 CLR 386.

In R v Dytham (1979) 1 QB 723 Lord Widgery CJ talked of ‘a public officer who has an obligation to perform a duty’.

Remuneration is a significant factor, but not an essential element. In R v Belton [2010] WLR (D) 283 the defendant was an unpaid voluntary member of the Independent Monitoring Board. The Court of Appeal held that remuneration was not an indispensable requirement for the holding of a public office, or for liability to prosecution for the offence of misconduct in a public office.

The fact that an individual was a volunteer might have a bearing on whether there had been wilful misconduct, but was only indicative, rather than determinative, of whether an individual held a public office.

The court in Attorney General’s Reference No 3 of 2003 [2004] EWCA Crim 868 referred to the unfairness that could arise where people who carry out similar duties may or may not be liable to prosecution depending on whether they can be defined as ‘public officers’. What were once purely public functions are now frequently carried out by employees in private employment. An example is the role of the court security officer.

The court declined to define a public officer, however, but said:

‘This potential unfairness adds weight, in our view, to the conclusion that the offence should be strictly confined but we do not propose to develop the point or to consider further the question of what, for present purposes, constitutes a public office.’

In Cosford [2013] EWCA Crim 466, [2014] QB 81, the court had to decide whether nurses working in a prison were public officers. Lord Justice Leveson concluded that they were public officers (whether directly employed by the prison service or by a private company contracting with the prison service). He held that the limit on the scope of who is a public officer should not be focused on the position held by the defendant, rather:

‘It should be addressed to the nature of the duty undertaken and, in particular, whether it is a public duty in the sense that it represents the fulfilment of one of the responsibilities of government such that the public have a significant interest in its discharge extending beyond an interest in anyone who might be directly affected by a serious failure in the performance of the duty’.

In Mitchell [2014] EWCA Crim 318, [2014] 2 Cr App R 2 the Court of Appeal had to decide whether an ambulance paramedic was a public officer. Lord Justice Leveson stated the correct approach was to ask three questions:

‘First, what was the position held? Second, what is the nature of the duties undertaken by the employee or officer in that position? Third, does the fulfilment of those duties represent the fulfilment of one of the responsibilities of government such that the public have a significant interest in the discharge of the duty which is additional to or beyond an interest in anyone who might be directly affected by a serious failure in the performance of that duty? If the answer to this last question is “yes”, the relevant employee or officer is acting as a public officer; if “no”, he or she is not acting as a public officer.’

The following have been accepted as holding a public office by the courts over several centuries:

  • Coroner (1675) Parker 2 Lev 140
  • Constable (1703) Wyatt 1 Salk 380
  • Accountant in the office of the Paymaster General (1783) Bembridge 3 Doug
  • K.B. 32
  • Justice of the Peace (1791) Sainsbury 4 T.R 451
  • Executive or ministerial officer (1819) R v Friar 1 Chit.Rep (KB) 702
  • Gaoler (1827) Cope 6 A%E 226
  • Mayor or burgess (1828) Henly v Mayor of Lyme 5 Bing 91
  • Magistrates Pinney (1832) 110 ER 349
  • Overseer of the poor (1891) Hall 1 QB 747
  • Army officer (1914) Whitaker 10 Cr.App.R.245
  • County Court registrar (district judge) (1968) Llewellyn-Jones 1 Q.B.429
  • Police officer (1979) Dytham 69 Cr.App.R.387
  • Local authority employees (1995) Bowden 4 All E.R 505
  • DVLA employees Att Gen’s Ref (No 140 of 2004) [2004] EWCA Crim 3525
  • Police Community Support Officer Amar Iqbal [2008] EWCA Crim 2066
  • Immigration officers John-Ayo [2009] 1 Cr App R (S) 71
  • Those in charge of police computer systems Gallagher [2010] EWCA Crim 3201
  • Nurses working within a prison Cosford [2014] QB 81
  • Church of England clergy James (1850) 2 Den 1, 169 ER 393 though its authority was doubted in the unreported case of Ball (8 September 2015) in which Wilkie J ruled that a Church of England Bishop was a public office holder.
  • Local councillor (2004) R v Speechley [2004] EWCA Crim 3067
  • Member of the Independent Monitoring Board for prisons (2010) R v Belton [2010] EWCA Crim 2857

It is extremely difficult to extract from the cases any general identifying features of public officers in a contemporary context. A person may fall within the meaning of a ‘public officer’ where one or more of the following characteristics applies to a role or function that they exercise with respect to the public at large:

  • Judicial or quasi-judicial
  • Regulatory
  • Punitive
  • Coercive
  • Investigative
  • Representative (of the public at large)
  • Responsibility for public funds

This list is not exhaustive and cannot be determinative of whether a person is properly described as a public officer, when acting in a particular capacity. The characteristics should be treated only as a guide and considered in the context of all the facts and circumstances of the particular case.

Wilful neglect or misconduct

  • Nature of the neglect or misconduct

The wilful neglect or misconduct can be the result of a positive act or a failure to act. In the case of R v Dytham [1979] QB 722, for example, a police officer was held to have been correctly convicted when he made no move to intervene during a disturbance in which a man was kicked to death.

There must also be an element of knowledge or at least recklessness about the way in which the duty is carried out or neglected. The test is a subjective one and the public officer must be aware that his/her behaviour is capable of being misconduct. 

  • Meaning of ‘wilful’ (also see ‘Breach of Duty’)

In Attorney General’s Reference No 3 of 2003 the court approved the definition of ‘wilful’ as ‘deliberately doing something which is wrong knowing it to be wrong or with reckless indifference as to whether it is wrong or not’.

In R v G [2003] UK HL 50 Lord Bingham said with respect to inadvertence:

“It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another … if one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment.”

Lord Steyn added:

“… the stronger the objective indications of risk, the more difficult it will be for defendants to repel the conclusion that they must have known.” (R v G [2003] UK HL 50)

  • Abuse of the public’s trust

Public officers carry out their duties for the benefit of the public as a whole. If they neglect or misconduct themselves in the course of those duties this may lead to a breach or abuse of the public’s trust. 

  • Seriousness of the neglect or misconduct

The behaviour must be serious enough to amount to an abuse of the public’s trust in the office holder. In R v Dytham, Lord Widgery said that the element of culpability:

“… must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment.”

In Attorney General’s Reference No 3 of 2003 the court said that the misconduct must amount to:

“… an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder.”

In Chapman [2015] 2 Cr App R 10, the Lord Chief Justice stated that the judge in summing up had to make clear that the necessary conduct was not simply a breach of duty or a breach of trust:

“It is not in our view sufficient simply to tell the jury that the conduct must be so serious as to amount to an abuse of the public’s trust in the office holder, as such a direction gives them no assistance on how to determine that level of seriousness. There are, we consider, two ways that the jury might be assisted in determining whether the misconduct is so serious. The first is to refer the jury to the need for them to reach a judgment that the misconduct is worthy of condemnation and punishment. The second is to refer them to the requirement that the misconduct must be judged by them as having the effect of harming the public interest.” 

  • Consequences

Although the offence is not a ‘results crime’, the likely consequences of any wilful neglect or misconduct are relevant when deciding whether the conduct falls below the standard expected:

“It will normally be necessary to consider the likely consequences of the breach in deciding whether the conduct falls so far below the standard of conduct to be expected of the officer as to constitute the offence. The conduct cannot be considered in a vacuum: the consequences likely to follow from it, viewed subjectively … will often influence the decision as to whether the conduct amounted to an abuse of the public’s trust in the officer. (Attorney General’s Reference No 3 of 2003).”

Whilst there is no need to prove any particular consequences flowing from the misconduct, it must be proved that the defendant was reckless not just as to the legality of his behaviour, but also as to its likely consequences.

The consequences must be likely ones, as viewed subjectively by the defendant. Although the authorities do not say so, likely can probably be taken to mean at the very least ‘reasonably foreseeable’; it is arguable that likely may mean ‘probable’ in this context. 

  • Motive

In order to establish whether the behaviour is sufficiently serious to amount to the offence, the officer’s motive is also relevant:

“… the question has always been, not whether the act done might, upon full and mature investigation, be found strictly right, but from what motive it had proceeded; whether from a dishonest, oppressive, or corrupt motive, under which description, fear and favour may generally be included, or from mistake or error …

“To punish as a criminal any person who, in the gratuitous exercise of a public trust, may have fallen into error or mistake belongs only to the despotic ruler of an enslaved people, and is wholly abhorrent from the jurisprudence of this kingdom.”

(R v Borron [1820] 3 B&Ald 432: Abbott CJ, at page 434.)

At its highest the motive may be malice or bad faith but they are not prerequisites. Reckless indifference would be sufficient.

Without reasonable excuse or justification

It is not necessary for the prosecution to prove the absence of a reasonable excuse or justification, although the nature of the prosecution evidence should in practice negate any such element.;

The defendant may advance evidence of a reasonable excuse or justification. It is for the jury to determine whether the evidence reveals the necessary culpability.

Charging Practice

General principles

Where there is clear evidence of one or more statutory offences, they should usually form the basis of the case, provided the offences give the court adequate sentencing powers. The ‘public office’ element can be put forward as an aggravating factor for sentencing purposes.

A comparison may be made with charges of perverting the course of justice. In R v Sookoo (2002) EWCA Crim 800 the Court of Appeal held that adding a charge of attempting to pervert the course of justice along with counts for the principal offence or offences was only appropriate where a case had serious aggravating features (such as wasted police time and resources or detention of members of the public following false implication of them in the offence by the accused).

Similar reasoning should apply to the charging of misconduct in public office. When charging such an offence the prosecutor should provide a detailed review note of the reasons for doing so in the particular case. The note should make reference to any relevant factors referred to in this guidance, particularly where a statutory offence covering the behaviour in question is either charged or could have been charged.

For example an assault by a police officer committed on duty should not automatically be considered as misconduct in public office. A charge of assault would normally provide the court with adequate sentencing powers and the ability to take into account the breach of trust by the officer as an aggravating factor. See R v Dunn (2003) 2 Cr.App.R.(S).

Similarly, prosecutions for unauthorised access to or use of computer or other data systems should normally be conducted using the specific offence provided in section 55 Data Protection Act 1998. Only where the circumstances are such that a fine would not be an appropriate or sufficient penalty should a prosecution for misconduct in public office be considered.

Misconduct in public office should be considered only where:

  • there is no suitable statutory offence for serious misconduct (such as a serious breach of or neglect of a public duty that is not in itself a criminal offence);
  • there was serious misconduct or a deliberate failure to perform a duty owed to the public, with serious potential or actual consequences for the public;
  • the facts are so serious that the court’s sentencing powers would otherwise be inadequate.

Level of misconduct required

The offence is, in essence, one of abuse of the power or responsibilities of the office held. Misconduct in public office should be used for serious examples of misconduct when there is no appropriate statutory offence that would adequately describe the nature of the misconduct or give the court adequate sentencing powers.

The third element of the definition of the offence provides an important test when deciding whether to proceed with an offence of misconduct in public office. Unless the misconduct in question amounts to such an abuse of trust, a prosecution for misconduct in public office should not be considered.

The culpability ‘… must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment’ (R v Dytham 1979 QB 722).

The fact that a public officer has acted in a way that is in breach of his or her duties, or which might expose him/her to disciplinary proceedings, is not in itself enough to constitute the offence.

Examples of behaviour that have in the past fallen within the offence include:

  • wilful excesses of official authority;
  • ‘malicious’ exercises of official authority;
  • wilful neglect of a public duty;
  • intentional infliction of bodily harm, imprisonment, or other injury upon a person;
  • frauds and deceits.

Breaches of duty

Some of the most difficult cases involve breaches of public duty that do not involve dishonesty or corruption.

In all cases involving breach of duty, the following matters should be considered:

Was there a breach of a duty owed to the public (not merely an employment duty or a general duty of care)?

  • Was the breach more than merely negligent or attributable to incompetence or a mistake (even a serious one)?
  • Regard must be had to motive.

In considering whether the neglect or misconduct was wilful, the following issues should be addressed:

  • Did the defendant have a subjective awareness of a duty to act or subjective recklessness as to the existence of a duty?
  • Did the defendant have a subjective awareness that the action or omission might be unlawful?
  • Did the defendant have a subjective awareness of the likely consequences of the action or omission?
  • Did the officer realise (subjective test) that there was a risk not only that his or her conduct was unlawful but also a risk that the consequences of that behaviour would occur?
  • Were those consequences ‘likely’ as viewed subjectively by the defendant?
  • Did the officer realise that those consequences were ‘likely’ and yet went on to take the risk?

Dishonesty or corruption

Dishonesty or corrupt behaviour are not essential elements of the offence of misconduct in public office.

If, however, an allegation of misconduct in public office arises from circumstances involving the acquisition of property by theft or fraud, or where the holder of a public office is alleged to have made improper claims for public funds in circumstances said to be criminal, an essential ingredient of the offence is proof that the defendant was dishonest.

In R v W [2010] EWCA 372, a police officer used an official credit card for personal purchases. The Court of Appeal held that an essential ingredient of the offence of misconduct in public office in such circumstances was that the defendant was dishonest, and had not merely flagrantly broken the rules governing the use of the card.

When the allegation does involve the acquisition of property by theft or fraud, any misconduct should normally be prosecuted using appropriate statutory offences on the basis that an appropriate statutory offence should always be used where available in accordance with R v Rimmington, R v Goldstein [2005] UKHL63. (See Policy). The fact that the offence was committed in the course of a public office is an aggravating element.

Cases involving a death in police custody

A charge of Misconduct in Public Office should never be added routinely as a lesser alternative to a charge of manslaughter by gross negligence for the purpose of catering for the possibility that a jury might conclude it cannot be sure that the breach of duty [amounting to gross negligence] caused death. The legal elements of a misconduct charge must be carefully and separately considered. A gross breach of duty is not the same as the neglect/misconduct threshold required to prove a charge of misconduct.

AG Ref 1993 concerned an allegation that police officers failed to reposition a detainee in police detention, ensuring his airways were clear, and failed to summon medical help. During the course of its judgement the Court of Appeal observed [at Para 64] that:

While this is not intended as a comment upon the present case, it will be clear from what we have said that we do not consider that, in future, in circumstances such as the present, a charge of misconduct in public office should routinely be added, as an alternative, to a charge of manslaughter by gross negligence on the basis that it may be difficult to establish causation. This offence is quite different from manslaughter and, as appears from the authorities, different considerations apply when considering whether to allege it”.

Please see the guidance on deaths in custody for further information.

Useful Links

Archbold 25-381

Attorney General’s Reference No 3 of 2003 [2004] EWCA 868

R v Bembridge (1783) 3 Doug KB 32

R v Whitaker (1914) KB 1283

R v Williams (1986) 39 WIR 129

R v Sacks (1943) SALR 413;

R v Boston (1923) 33 CLR 386.

R v Dytham (1979) 1 QB 723

R v W (2010) EWCA 372

R v G (2003) UK HL 50

R v Borron (1820) 3 B&Ald 432

R v Dunn (2003) 2 Cr.App.R.(S)

R v Sookoo (2002) EWCA Crim 800

 

“Bone cancer in children?”

A powerful repudiation of circular thinking.

Blogging Theology

Problem of Evil Domino Effect

“Bone cancer in children?” That’s what Stephen Fry said when asked why he doesn’t believe in God. Pointing to evil in the world and asking why God can’t stop it is the most popular way of rejecting Theism today. But it’s not new. It has existed for ages.

It’s one challenge that leads to another in a domino effect…

1 God is not as knowing or powerful or good as the Theist claims He is. If God is all knowing, then surely He knows all the evil that takes place in the world, and if He is all powerful, surely He has complete ability to remove those evils. If He is all good, then surely He desires that all evil be removed. However, we see evil things in the world all the time, so one of these attributes must not exist, and therefore the very…

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#FamLaw: #s34(4)CA1989: How does the family court deal with #DomesticAbuse?

How does the family court deal with domestic abuse? A snapshot |  | THE TRANSPARENCY PROJECT | 7 June 2019

This is a first post from Sophie Smith-Holland, one of our new contributors. Sophie tweets as @SSmithHolland.

The post is divided into two parts. This is Part One.

The question of how the Family Court deals with domestic abuse has had a huge amount of public and media attention recently. Concerns have been raised that the system is placing children and victims at unacceptable risk and that there is a ‘culture of contact at all costs’. The concerns have been raised by campaigners including survivors and MPs who have described a disconnect between the Practice Directions and best practice guidelines and what actually happens in practice at courts around the country. In these circumstances, a review of some recent published judgments in which domestic abuse has been raised as an issue seemed timely, to take a look at the decisions made and how they were reached. Because we are looking at published judgments, inevitably a majority of the cases are care proceedings rather than ‘private law’ disputes between parents, which are less often published.

A Lancastrian Council v M [2019] EWFC B6 (07 March 2019)

In this case, the local authority had applied for permission to refuse to allow direct contact between a father and son. The local authority had a care order and the child lived with his mother under the care plan approved at the time.

Under s34 of The Children Act 1989 (CA 1989), Local Authorities have a duty to allow “reasonable” contact between the child in care and their parents but can apply for permission from the court to refuse to allow this contact. There is a statutory presumption under s1 CA 1989 that unless the contrary is shown, the involvement of a parent in their child’s life will further their welfare. Involvement is broadly interpreted, though – it does not just mean direct face-to-face contact. It was of relevance in this case that the child had dual heritage – his mother was from Poland and his father was from the Democratic Republic of Congo and so the court determined that contact with his father was particularly important for cultural reasons.

A history of the father being the perpetrator of domestic abuse is alluded to but not explained in any detail – as is to be expected from an appeal judgment!

The Court of Appeal has given the following guidance for the court when considering whether contact should be suspended:

  • Contact is a fundamental element of family life and is almost always in the interests of the child
  • Contact should be terminated only in exceptional circumstances where there are cogent reasons for doing so and no alternative
  • Contact is to be terminated only if it will be detrimental to the child’s welfare
  • There is a positive duty to attempt to promote contact, grappling with all available alternatives before abandoning hope
  • Contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt
  • The court should take a medium and long-term view
  • The judge should take all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case
  • The child’s interests must take precedence over any other circumstances – this requires the familiar holistic approach to paramountcy.

It can be seen that there is a very high threshold to be met before contact will be suspended. Given the presumption and the guidance, it can certainly be understood why it might be thought that courts are pushing children and their primary carer into contact and contact arrangements that are unsafe, as there is a positive duty to do whatever it takes to make it work. However, it must be remembered that it is clear in the wording of both the presumption and the guidance, that this will always be subject to a welfare analysis.

In this case, there had been previous proceedings over many years relating to the father’s six older children with whom he had no contact, and in 2017 a different local authority was given permission to refuse contact between him and his daughter.

The threshold on which the care order was made referred to findings made in previous proceedings. A psychologist initially determined that the father had mental health issues, including low mood and self-harming behaviour which required therapy (the father did not accept this) but later did not see that the father was a direct risk to the child when he was emotionally stable and in a supervised setting. The continuing concerns were relating to the father not acknowledging the risk in some of his behaviours, that he took the opportunity of contact to harangue social workers and that because of these points, contact was not always in the child’s best interests.

In the care proceedings, the guardian had successfully supported contact continuing after the making of the final care order, but only six months later was supporting the local authority’s application to refuse contact because of what had happened in the intervening months. The father’s behaviour / attitude was as seen to be as it had been previously – his comments to social workers created concern about physical risk, he made a comment about abduction, he likened himself to a suicide bomber, he pushed the boundaries of any rules and breached an injunction granted to protect the social workers. This was all, of course, in the context of a history of domestic abuse.

It was argued on behalf of the father that his circumstances had changed. For the first time, he agreed to engage in therapeutic work to address domestic abuse. He was not threatening towards his assessor. There had been no violence, only empty threats made in frustration.

However, the court was unable to see any significant change and the judge described the words used by the father in cross-examination as “brooding, manipulative, intimidating threat aimed at those involved with his children. The words are similar to his ambiguous reference to a suicide bomber in the previous proceedings.” The guardian’s view was that unless and until the father followed through with his recent words about self-improvement, contact would be detrimental to the child’s welfare.

Despite the statutory presumption, the guidance and the fact that contact was determined to be particularly important in this case for cultural reasons, the court held that the local authority had met the high standard necessary for contact to be suspended in the best interests of the child. Upon considering the guidance, the court determined that the loss of contact would be even more detrimental in this case where direct contact would be the best method of ensuring that the child was brought up with and understanding his culture on  his father’s side but this was outweighed by the detriment in the short and longer term of the contact being unsafe. The judge granted the local authority permission to refuse contact – but stated that if the father successfully completed the recommended work then that might make the suspension only temporary.

Comment

The benefits of contact were outweighed in this case by the child’s need to be kept safe from his father’s harmful behaviours. You might sympathise with the submissions made on behalf of the father and be surprised that the court considered this to be an “exceptional” case – the father’s behaviour was simply a continuation of what had been seen previously. Alternatively, you might think that the court should have suspended contact at the conclusion of the proceedings, given that the risks were known at that time. The result is that the child has been exposed to his father’s behaviour for an additional six months, when this could have been avoided. Why is it that only six months later the contact was deemed unsafe? I think that this case demonstrates quite well the tension between having a positive duty to facilitate contact and contact needing to be in the best interests of the child. It also shows the point at which it “became clear that the child will not benefit from continuing the attempt”, though it would perhaps not be surprising that the further attempts would fail when the father had not completed the recommended therapy in order to make the changes required of him.

This post is continued in Part 2…

How does the family court deal with domestic abuse? A snapshot – Part 2 | THE TRANSPARENCY PROJECT | 7 June 2019

This is Part 2. You can read Part 1 here.

A (A Child) [2019] EWFC B16 (12 March 2019)

In this case, the court was making a final decision in care proceedings. The decision to be made was whether a child could be cared for by both of his parents, just his mother or whether his care had to be passed to the local authority with a plan for adoption. The mother had three other children, and their father was brother of the father in the case (the child’s uncle).

When making the decision, the court has to carry out a full analysis of all the realistic options for the child and weigh them against each other. The court can’t approve a plan for adoption unless satisfied that nothing else will do i.e. there is no other arrangement that can realistically be put in place that is in the child’s best interests.

The focus of the case was the issue of domestic abuse, its impact on the parental relationship and the consequential relevance for the child. Reassuringly, in paragraphs 3 to 5, the judge showed a thorough understanding of what domestic abuse is, and the impact it can have on children. He said:

DV/domestic abuse(see Practice Direction 12J) is a broad concept including not only physical violence but also non-physical behaviour such as controlling and coercive behaviour (which may be physical, sexual, financial or emotional / psychological in nature). Ultimately domestic abuse is about control and the inappropriate misuse of an unequal power relationship:

DV has the potential to have profound impact upon any child experiencing life within such a setting. Whilst there are obvious physical risks attendant upon DV (directly or by being caught up in an incident of violence) of equal relevance is the impact at an emotional level. Any child living with DV is confronted by a myriad of emotional issues ranging from simple fear for their care giver subject to DV to more complex issues touching upon the predictability of care given by a parent who may at the personal level oscillate between focused care and angry/unpredictable presentation. It is for these reasons that the Court takes a sophisticated approach to DV and is wary about arguments which seek to minimise or downplay the significance of the same. A further complication is the often-intimate nature of the abuse. Played out in the private sphere there may be only the most limited available evidence as to what is taking place and the key participants may be unwilling or unable to be fully open in their disclosure.

As alluded to, this case had a complex family dynamic. Over a period of a few years, the mother had at different times been in a relationship with both the father and his brother and had children with them both. Unfortunately, both relationships were violent. This father had been a central figure within the previous proceedings concerning the older children and at the final hearing in that matter the mother and father presented as a couple seeking to care for the children.

Incidents of domestic abuse included:

  • A violent incident where the father struck the mother whilst she was heavily pregnant with her third child
  • The mother’s three older children were found with injuries and removed. The mother agreed she had struck them with an implement.
  • The father of the older children is alleged to have hit the mother with a phone and strangled her
  • During the parenting assessment of the mother, there was a suggestion that the father had attempted to strangle himself
  • The mother alleged that the father of the older children had raped her but later withdrew the allegation whilst maintaining its truth
  • There was an incident between the mother and the father of the older children which ended with each hitting the other
  • The mother suffered a black eye at the hands of the father of the older children.

The findings made in the previous proceedings can be briefly summarised as:

  • The triangular relationship between the adults was a standout feature and was toxic – it got in the way of their ability to prioritise the needs of the children
  • The children were exhibiting problematic behaviour patterns deriving from the care they had received
  • The adults had an unacceptable level of tolerance of domestic violence. Regarding the incident where the father struck the mother whilst she was pregnant, the judge found that the father had a very low threshold for resorting to violence and a very significant need for intervention work at an intensive level to correct his behaviour style
  • The domestic abuse was not limited to violence alone and there was evidence of controlling behaviour
  • There was minimisation on the part of the father
  • The mother was a victim to the behaviour and the judge was concerned she accepted domestic abuse as the norm and minimised what had happened
  • A year’s engagement with domestic abuse work and therapy would be required to correct the mother’s deep-rooted difficulties
  • The father also needed to undertake work to support any progress made by the mother – due to the father’s evidence at the hearing, the judge was sceptical as to whether there was fertile territory for positive change in the relationship
  • In the previous proceedings, the decision had been that the children’s needs could only be met by the making of both care and placement orders. In the present case, the judge decided that when considering domestic abuse now, he needed to look at the historic position found in the previous proceedings (set out above), the nature of the work undertaken since that date and factual developments since the last judgment which shed light on continuing concerns relating to domestic abuse.
  • The work undertaken by the mother had been an assessment at a residential unit, the Freedom Programme, Domestic Violence Intervention Project (DVIP), couple counselling and individual counselling. The work undertaken by the father had been an assessment at the residential unit, a piece of work commissioned through DVIP and couple counselling.

Evidence was given by various professionals as to the work done. The overview of the evidence was that the father still has significant work to do and was at an early stage (pre-contemplation stage). Progress for him would be slow, over a period of 9-12 months and would require a professional who fully understands the issues confronting him.

The conclusions as to the mother were more positive but ultimately somewhat limited by her dependence on the relationship with the father. She was felt to be at the contemplation/action stage but this represented the start of a journey.

There were five new incidents which were said to be of relevance when considering actual progress in behaviour and attitudes. The judge commented:

I of course remind myself of the findings within the May judgment. In the context of a concerning relationship involving DV it is relevant to examine the available detail to understand how the relationship appears to be progressing.

The new incidents can be summarised as a verbal argument between the parents, a build up of tension prior to an incident (which professionals said shone a light on the insight, impulsiveness, aggression and other behaviour patterns of the father), the father kicked a child’s blanket after a disagreement with another resident at the unit (there was concern from professionals that the situation could have escalated had it not been for staff intervening) which resulted in his placement being terminated, the mother raised her voice to the father and said hurtful things and there was a stand-off at supervised contact whereby the father refused to hand the child over to the contact supervisor to allow them to accompany the mother out of the building. The stand-off lasted 45 minutes with the father calling the police.

Over the course of nine long paragraphs, the judge conducted a careful analysis specifically on the question of domestic abuse. He found that he interpreted the significance of the majority of the new incidents differently to the professionals and that the professionals had placed great weight on these incidents when forming their conclusions. He concluded:

The net effect is that I have been left with a distinctly different conclusion with respect to the period of the assessment insofar as it touches upon evidence of continuing DV in the adult relationship or indeed as to the father acting out concerning behaviour. I agree there has been evidence of problematic behaviour but this has at least to be considered in the context of the very challenging circumstances.

He was also concerned that there had been a failure to “reflect on features which point in the other direction” i.e. to suggest that things had actually improved.

The domestic abuse was considered as part of two aspects of the welfare checklist, namely, the child’s needs and any harm suffered/likely to be suffered. The judge considered all the realistic options in the case, and concluded that he wasn’t persuaded it was proportionate to make the care order. He considered the decision one of the harder decisions he has had to make. He thought there would be times when the father’s “rough side” shows and that on such occasions arguments may arise and become heated but that on balance it was less likely than not that his behaviour would be of  the same  level as had  been found previously. The judge also did not favour the alternative plan of the mother separating from the father. The final order made was a supervision order for a period of 12 months.

Comment

It’s encouraging to see the careful consideration of domestic abuse as an issue in this case. The issue was dealt with head-on by the judge and was considered at every part of the decision-making process and in great detail. One of the issues raised by those calling for an inquiry into the treatment of domestic abuse in the Family Court is that “Both survivors and perpetrators spend too long waiting for support or change programs. This wait impacts the process and prejudices children who are denied a safe relationship, if one can happen, or the security of knowing that an unsafe contact will not occur.” In this case, had the judge sanctioned the local authority’s plan that the child should be adopted, then clearly the child would have been denied the chance to have that safe relationship and so the decision seems to be positive. However, the judgment may still be of concern to those who think that the judiciary need training to better understand the nuances and subtleties of abuse, as the judge had ended up disagreeing with the experts in the case about the significance or otherwise of recent incidents, as is in the ambit of his discretion – and, on one view, left the child in the care of an abusive and risky parent.

Comment It’s encouraging to see the careful consideration of domestic abuse as an issue in this case. The issue was dealt with head-on by the judge and was considered at every part of the decision-making process and in great detail. One of the issues raised by those calling for an inquiry into the treatment of domestic abuse in the Family Court is that “Both survivors and perpetrators spend too long waiting for support or change programs. This wait impacts the process and prejudices children who are denied a safe relationship, if one can happen, or the security of knowing that an unsafe contact will not occur.” In this case, had the judge sanctioned the local authority’s plan that the child should be adopted, then clearly the child would have been denied the chance to have that safe relationship and so the decision seems to be positive. However, the judgment may still be of concern to those who think that the judiciary need training to better understand the nuances and subtleties of abuse, as the judge had ended up disagreeing with the experts in the case about the significance or otherwise of recent incidents, as is in the ambit of his discretion – and, on one view, left the child in the care of an abusive and risky parent.

Re N (Children) [2019] EWCA Civ 903

This was a private law case between the parents of two children. The proceedings had been ongoing for around five years. After separation, the mother applied for a child arrangements order, a non-molestation order and a prohibited steps order. The father had pleaded guilty to an offence of harassment (sending abusive text messages to the mother).

A final child arrangements order was made that the children live with the mother and have overnight and holiday contact with the father. As the judgment relates to the appeal proceedings, there is little said about the court’s consideration of domestic abuse in reaching this decision, save it says that “…despite a number of court findings critical of the father, the evidence broadly suggests that the children enjoy and benefit from contact with him”.

The father later alleged that the mother’s partner had physically harmed the children and the local authority carried out an investigation but found no evidence of physical abuse. Meanwhile, the mother applied for a variation of the contact and the father’s contact was subsequently confined to visiting supervised contact. It is unclear from the judgment why she took this stance but the matter was listed for four days before a circuit judge and with a guardian appointed to represent the children, so it may be assumed that her reasons were serious. It seems likely too that the mother was alleging further domestic abuse of some sort as the final order made was for the children to have only supervised contact with the father and both a non-molestation order and prohibited steps order were made against the father too. It’s a shame we are having to rely upon assumptions here.

The father was granted permission to appeal this decision. The appeal was dismissed but the judge gave further case management directions concerning the issue of contact following the parties’ agreement to undergo a psychological assessment.

The psychologist’s report concluded that, in respect of the father, there was compelling evidence that during times of stress, and in particular when he felt slighted or wronged, the father has reacted with overwhelming levels of dysregulated emotion resulting in aggression and damage to property. There was extensive evidence of longstanding difficulties in anger management, volatility and aggression with dramatic acts and threats of self-harm. These were not thought to be indicative of an acute mental illness but essentially maladaptive coping strategies and other personality traits of fluctuating mood, wilfulness, egocentrism, and lack of remorse. The psychologist recommended that the father should consider treatment in the form of psychotherapy – either dialectical behaviour therapy or cognitive analytical therapy.

There was a directions hearing that the father did not attend. He filed a position statement asking the court to identify all the relevant information about the types of therapy recommended and once he has this information, arrangements will be made for him to undergo the necessary therapy, so unsupervised contact can take place. The hearing proceeded in the father’s absence. The judge expressed doubts about the prospect of the father engaging with therapy and expressed confidence that the mother would be able to manage contact in future. At the conclusion of the evidence heard, the judge handed “an element of discretion” to the mother’s counsel and solicitor for the guardian as to what would be included in the final order. He indicated he would not be ordering the father to do the therapy required as he considered that this was something he needed to do for himself and not because the court said so. Surprisingly, the judge then went onto say that he was going to make an order under s91(14) CA 1989 to prevent the case coming back without first making a permission application to him. The order was made against both parents for two years and to prevent them bringing any further application for a child arrangements order without permission as the court process was “ratcheting up the emotional anti”. The judge gave the father liberty to apply to vary the terms of this order.

The father applied to vary the order. He also undertook a course of psychotherapy with a psychologist qualified in various therapies, including those recommended. The psychologist’s report concluded that after 10 sessions of therapy she found no evidence that the father suffered from emotional distress outside the context of missing his children and frustration with the legal system.

The hearing of the father’s application took place and the mother was neither present nor represented. The judge did not have any papers from the proceedings and only had a copy of the order and a document/s from the psychologist. He considered the quality of the analysis in the report to be very poor. The judge seemed to recall that the previous hearing had resolved by agreement (this was wrong) and that the purpose of making the order under s91(14) was to “provide the mother and children with a period of respite from the intense and corrosive litigation”. He summarily dismissed the father’s application, stating that the psychologist’s report “provides no evidential basis which justifies re-opening the litigation at this stage”.

The father then appealed. The Court of Appeal allowed the appeal. The court confirmed that  s91(14) orders should be made sparingly and they significantly impact upon a party’s ability to access justice. The court must be satisfied that the parties affected are fully aware that the court is dealing with an application and is considering making such an order, understand the meaning and effect of such an order, have full knowledge of the evidential basis on which such an order is sought, and have a proper opportunity to make representations. Further, it is even more critical to ensure that these requirements are observed when the affected party is unrepresented. These requirements were not complied with and the judge below seemed to mistakenly treat the hearing as permission to apply under the s91(14) order.

Comment

Unfortunately, due to the judgment being an appeal judgment the background information is incomplete – for example, we do not know whether any incidences of domestic abuse were alleged and/or found as part of the first set of the proceedings or whether the court was just working with the conviction of harassment for sending abusive messages. It may be reasonable to think not, as the mother did not seem to get the non-molestation order applied for and it was ordered that the father would have unsupervised contact with the children, including overnight. However, it might also be the case that allegations were raised but a fact-finding hearing was determined not to be necessary. This would be worrying if so, if the context was that something sufficiently serious happened soon after the decision was made which justified the mother requiring the contact to be supervised only four months after the final order. Without further detail, it is not possible to scrutinise this any further save to say that it raises concerns about whether proper thought was given to whether the order made would expose the children and/or the mother to an unmanageable risk of harm. The comment that the judge was confident that the mother would be able to manage contact in the future rings alarm bells. It may, of course, be that what happened subsequently simply could not have been predicted or expected and therefore protected against. It is right to acknowledge that inevitably the court making the decision will have had far more information than we have available to interpret, and so caution is required. The appeal judgment does not disclose any attempt by the mother to have appeal the decisions made (on the grounds that orders were not safe or did not comply with PD12J or otherwise)

Conclusion

What this snapshot review has demonstrated is that it is incredibly difficult to see what is happening on the ground by surveying reported cases only, because there is, understandably, a lack of detail in appellate judgments about how decisions were reached in the lower courts – and in private law cases it is typically only appeal judgments that are publicly available, in spite of guidance that suggests otherwise. However in two of the three cases I have looked at contact was ordered and then within a period of only four to six months the matter was back to court to suspend or drastically change the arrangements which does, possibly, raise a question as to whether the issue of domestic abuse was properly dealt with first time round. The suggestion of those in support of an independent inquiry that there should be a “robust recording of decision making” made by judges which are then collated by an appointed court recording officer “so that we can begin to assess the scale of the problem and so understand how we must deal with it” therefore seems entirely sensible.

One of the areas to be covered by the Ministry of Justice’s recently announced ‘spotlight’ review of the family court’s handling of domestic abuse is s91(14) ‘barring orders’, and of course the application of PD12J more generally is also due to be considered. At the time of writing there is no further information about who will be on the review panel or how it will conduct its business. See ‘Spotlight’ on Family Courts announced – but is it enough?

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SOURCE: How does the family court deal with domestic abuse? A snapshot |  | THE TRANSPARENCY PROJECT | 7 June 2019
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