By James Welch, Legal Director, Liberty Human Rights

“The Home Office consultation paper “Quashing Convictions – Report of a review by the Home Secretary, Lord Chancellor and Attorney General” seeks views on how, but not whether, section 2 Criminal Appeal Act 1968 should be amended “to ensure that the plainly guilty would not have convictions quashed because of a procedural irregularity, where the Court of Appeal were satisfied that the appellant committed the offence.”[1]

Liberty’s view is that the section 2 should not be amended, indeed, that in making its proposals the Government is seeking to undermine an important constitutional safeguard.

Before its amendment by the Criminal Appeal Act 1995 section 2 provided that an appeal should be allowed if (a) the conviction was unsafe or unsatisfactory, (b) a wrong decision had been made on any question of law, or (c) there was a material irregularity in the course of the trial, subject to the proviso that the Court could dismiss an appeal if it was satisfied that no miscarriage of justice had occurred.

The Royal Commission on Criminal Justice considered the section in its report published in 1993[2]. It concluded that the Court of Appeal seldom distinguished between “unsafe” and “unsatisfactory”, that there was considerable overlap between the three paragraphs and that the proviso was arguably redundant. The majority recommended replacing the test with a simple test, whether the conviction “is or may be unsafe.”

The 1995 Act gave partial effect to the Commission’s recommendation. Section 2 now provides that the Court of Appeal should allow an appeal against conviction “if they consider that the conviction is unsafe.” At the Bill’s second reading the then Home Secretary, Michael Howard, stated that the new test “clarifies the terms of the existing law” and “restates the existing practice of the Court of Appeal.”[3]

Notwithstanding, the paper evidently considers that the 1995 amendment was meant to change the test and that the courts have failed to recognise this. It points to divergent authority from the Court of Appeal on the effect of the amendment. In the 1997 case Chalkley[4] Auld LJ expressed the view that the amendment had made an important change to the test to be applied by the Court of Appeal. While noting that this would be subject to whatever the courts made of Article 6(1) once the Human Rights Act came into force, he stated that the Court now had “no power […] to allow an appeal if it does not think the conviction unsafe but is dissatisfied in some way with what went on at the trial.” By contrast, in Mullen[5] Rose LJ, considering the Court entitled to refer to Hansard in view of the ambiguity of the term “unsafe”, echoed Michael Howard in concluding that the amended form of section 2 was simply intended to “restate the existing practice of the Court of Appeal.” Lord Woolf CJ endorsed Rose LJ’s approach in Togher[6].

In the light of these and subsequent cases the paper concludes that the Court of Appeal’s view is now settled and that the Mullen interpretation has prevailed. The concern that the paper addresses is that this permits the Court to quash a conviction, in the words of the Mullen judgment, “notwithstanding that there is no criticism of the trial judge or jury, and no challenge to the propriety of the outcome of the trial itself.”

The paper cites the report of the Royal Commission in support of its argument that allowing an appeal in these circumstances does not serve the public interest. It is, however, somewhat disingenuous to claim the Commission’s support in this way; the authors of the paper are applying the Commission’s conclusions to circumstances that it did not contemplate.

In its report the Commission considered a range of broad sets of circumstances that may lead to an appeal against conviction. Of these the two that are clearly relevant to the paper’s concerns are appeals founded on errors at trial and those based on pre-trial malpractice (such as the fabrication of a confession or the suppression of evidence) or procedural irregularity. The Commission, no doubt rightly, took the view that similar considerations applied in relation to both.

The majority view was that the Court of Appeal should consider whether notwithstanding the irregularity or malpractice the conviction was safe. If so, the appeal should be dismissed. If on the other hand the defect rendered the conviction unsafe the conviction should be quashed. Where the conviction might have been rendered unsafe a re-trial should be ordered.

The minority view, expressed in Professor Michael Zander’s note of dissent, was that there may be circumstances where an error at trial, even though it might not render the conviction unsafe, could justify ordering a re-trial. As for pre-trial irregularities, while these would normally give grounds for a re-trial, the Court of Appeal’s role as the guardians of PACE and its codes could make it appropriate to quash a conviction outright where there had been grave malpractice.

The majority responded that it was wrong to punish police malpractice in this way. It could not be “morally right that a person who has been convicted on abundant other evidence and may be a danger to the public should walk free because of what may be a criminal offence by someone else.” It was also illogical to give the Court of Appeal the power to throw the case out where the trial judge should merely have excluded the tainted evidence under section 78 PACE.

Unsurprisingly, the paper adopts the majority view, arguing that punishing the public by quashing a conviction where there is strong evidence of guilt brings the criminal justice system into disrepute.

The problem with the paper’s reliance on the report of the Royal Commission is that the Commission does not appear to have considered appeals where the issue is whether the prosecution was an abuse of process. Both Mullen and Togher were such cases.

Consideration of the facts of Mullen is instructive. In 1990 the defendant was convicted of conspiracy to cause explosions. Shortly before the events that led the police to seek to arrest him he had flown with his family to Zimbabwe. Some two months later he was summarily deported from Zimbabwe and was immediately arrested on his arrival in the UK[7]. Only some time after his trial did it become clear that, rather than seek to extradite him, the British police and intelligence services secretly encouraged the Zimbabwean authorities to deport him and had colluded in the deportation being effected in such a way as to deny him access to a lawyer. The British authorities had thereby acted in breach of both Zimbabwean and public international law.

It is in this context that Rose LJ made the statement about the Court’s powers to quash a conviction even where the appellant’s guilt was clear. This was clearly a case where the state’s actions were “so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed.”[8] Had the trial judge been aware of the circumstances of the appellant’s return to the UK he would have stayed the proceedings as an abuse of process. If, as the majority of the Royal Commission considered, it is illogical for the Court of Appeal to exercise powers in respect of deficiencies in a prosecution that are not available to the trial judge, it is equally illogical to deny the Court powers to address an abuse of process that are available to the judge at first instance. (In Togher, by contrast, the Court was not persuaded that in the light of subsequent events the prosecution was an abuse of process and the appeal failed.)

Liberty’s concern is that the consultation paper is a stalking horse. Once the Court of Appeal’s power to quash a conviction outright where there has been serious malpractice on the part of state authorities is removed, the next step will be to take that power away from the courts of first instance. The power to stay proceedings as an abuse of process is an important constitutional safeguard. It must not be restricted or removed.

The current test under section 2 has the benefits both of simplicity and flexibility. It rightly permits the Court of Appeal to allow convictions to stand where there has been an irregularity that clearly would not have affected a jury’s decision. Importantly, it has allowed the Court to assimilate the test of fairness under Article 6 (see Lord Woolf CJ in Togher, endorsed by the House of Lords in Forbes[9].) While we may take issue with individual decisions of the Court of Appeal and the way that certain lines of caselaw have developed (one thinks of appeals after a plea of guilty, an issue raised by Chalkley and touched on in the paper), the framework, section 2, is sound. It does not need amending.”

James Welch is Legal Director of Liberty

Putting profits before people

By Frances Crook, director, The Howard League

A recent report, on Doncaster prison and young offender institution, provides a telling insight into these institutions. It paints a shocking but depressingly familiar picture of the world of private prisons, where the needs of vulnerable and challenging people – 362 of them under the age of 21 – are secondary to the pursuit of profit.

“It is not appropriate for people to profit out of incarceration”

So said Jack Straw in 1995. He was speaking about the then Conservative Government’s policy of allowing private companies to run prisons. As in other areas, principle in opposition was not translated into government policy. On the contrary, the Labour Government has proved to be a more passionate privatiser in the criminal justice field than the Tories. The latest intention being, to use the approved euphemism, the ‘contracting out’ – or privatisation, to you and I – of community probation services.

The first privately run British prison, HMP The Wolds, opened in 1992. There are now 10 others in England Wales, 9 of which have opened since 1997. The Home Office claims that the involvement of private operators has encouraged innovation and has helped to improve standards right across the prison estate by challenging the public sector prisons to up their game. There is no real evidence for this assertion. What the private corporations who run these prisons have been good at is making money (the perfectly legitimate aim of every business). Cost cutting is what they know, so the salary of officers in private prisons is up to a third less than that of officers in public sector prisons (despite the fact that they will be dealing with the same prisoners) and they shave costs by employing far fewer of them. The real saving is on pensions, so that no only do staff have low wages in the private prisons but they will face old age with a minimal pension. This cost-cutting has had very real implications for the conditions in which prisoners are held.

The one area where private prisons could have made a difference is in overcrowding. They could have made a stand against the degrading treatment of packing people ever more tightly into jails but instead they chose not to: more prisoners in the market means more profit and they had no intention of missing out.

Private prisons also benefit from blurred lines of accountability. They are not required, as the Prison Service is, to publish accounts to Parliament. Instead, they are accountable to Home Office civil servants in the Office of Contracted Prisons who publish on their behalf a flimsy scorecard showing their performance during the year, against a limited range of targets. Questions about cost bases are met with the response that such matters are commercial in confidence.

Luckily, this lack of accountability does not extend to the Chief Inspector of Prisons, Anne Owers, who inspects private prisons on the same basis as public sector ones. Her reports, and those of her predecessor, reveal far more about the workings of private prisons than the Home Office itself would ever voluntarily allow into the public realm.

A recent report, on Doncaster prison and young offender institution, provides a telling insight into these institutions. It paints a shocking but depressingly familiar picture of the world of private prisons, where the needs of vulnerable and challenging people – 362 of them under the age of 21 – are secondary to the pursuit of profit.

The report describes squalid living conditions, including dirty and graffitied cells with inadequate or missing bedding and pillows, broken toilets and televisions. It says the prison provides an unclean, poorly maintained and unsafe environment for newly arrived prisoners on the so-called first night centre. First night arrangements are specifically intended to provide a less harsh environment for people arriving at the prison for the first time. The early stages of prison custody are recognised as a time of heightened risk of self-harm and suicide. Therefore, the provision of appropriate arrangements to reduce the distress of newly arriving prisoners would be considered good practice. The better prisons do just that. Doncaster does not. It cannot be mere coincidence that it has experienced 20 self-inflicted deaths since opening in 1994.

The Chief Inspector describes such deficiencies in safety and decency as representing an “institutional meanness”. This could also be found in the way in which the prison made prisoners pay to change the telephone numbers they needed to use to contract family members, and in the fact that no unemployment pay was provided to those prisoners who could not work because the prison failed to provide sufficient work places for its population.

Problems were also apparent with race relations, where only 29% of young black and minority ethnic prisoners felt that staff treated them with respect, compared to 75% in the prison overall.

Perhaps the most serious, though unsurprising, concern is in the chief Inspector’s observation that the deficits she found were “all in areas not specifically mandated by the contract under which the prison is run. There remains a concern that, in focusing on meeting their contractual obligations, prison managers had allowed important areas to slip below what was safe and decent; and indeed may have sought savings in precisely those areas”.

Doncaster prison is run by a company called Serco. A quick look at their website reveals that their tentacles have spread across a range of public services: they run trains in the north of England, schools in the West Midlands and West Yorkshire, social housing in Kent, and have contracts with the MOD. I am unclear as to how any of this qualifies Serco to run prisons; or for that matter how a company that runs prisons is considered qualified to run any of these other ostensibly public services.

And it isn’t just at Doncaster that Serco has failed to distinguish themselves in the custodial field. As the operators of Ashfield Young Offenders Institution in Bristol, their stewardship of this prison holding vulnerable children caused such concern that the Prison Service was forced to take over the running of the jail and install a public sector Governor to sort out the mess and safeguard the welfare of the children being held there. They did not have the confidence that the company could be trusted to do so.

On the basis of what the Chief Inspector found at Doncaster prison, we should hope that those affected by Sercos other services receive a better deal than the 1,105 men and boys unfortunate enough to be at the receiving end of their treatment at Doncaster prison. Serco claims in its values statement that: “We encourage social responsibility and try to treat people in the way we would wish to be treated”. I think we can assume with reasonable certainty that the senior executives at Serco do not have to sit in dirty offices, with graffiti on the walls and use broken toilets.

Sadly, the problems identified by the Chief Inspector are not unique to Doncaster and have been found in other private prisons. Deficits in safety at Rye Hill prison, Warwickshire, were so serious that the Chief Inspector felt compelled to inform the Home Office immediately on completion of the inspection in 2005. She found that an unsafe and unstable environment was primarily caused by the prison employing too few staff, the majority of whom were inexperienced and out of their depth to the extent that prisoners “knew the workings of the prison better than the staff”. Staff were unable or unwilling to challenge prisoners’ inappropriate or intimidating behaviour or to seek to remove illegal possessions such as mobile phones, drugs, alcohol and knives. Intimidation of staff was also reported at Forest Bank prison in Manchester during an inspection last year.

Supporters of private prisons will say they can point to equal – or worse - failings in public sector prisons. They will say that poor conditions and negative treatment in prison are not problems unique to the private sector. This is a spurious argument, and merely reflects the failed policy pursued by successive governments of mass imprisonment which has resulted in the degrading, overcrowded conditions we find in the majority of our prisons today. It neatly sidesteps the fundamental qualitative difference between the two private and public prison sectors: public sector prisons are not making a profit out of their failures and are more accountable for them.

There is contradiction between the Governments objective of reducing the unnecessary use prison and the objective of a private prison to maximise profit for its shareholders. Evidently, it can only do this increasing the number of people it incarcerates, or, if the proposed changes to the probation service go ahead, by taking control of community sentences. The declared aim of the government is to reduce re-offending by re-balancing the correctional system to:

• to reduce short term sentences
• increase confidence in community sentences
• and revive the use of the fine as a sentence.

Private companies do not have a vested interest in this rebalancing act. They scent an opportunity for further profit by keeping the scales tilted firmly in favour of the status quo: overuse of prison and community sentences for people who hitherto would have received a fine. The only difference will be they will also be profiting from supposedly unpaid work in the community.

The Equality and Human Rights Commission’s Human Rights Work

By David Ruebain, Director of Legal Policy at the Equality and Human Rights Commission

The Equality and Human Rights Commission (EHRC) opened for business 1st October 2007. With an express remit to:
• Encourage good practice in relation to human rights
• Promote awareness, understanding and protection of human rights
• Monitor the effectiveness of laws relating to human rights
• Encourage public authorities to comply with section 6 of the Human Rights Act
It has a wide range of powers to give effect to these duties. Together with the Northern Ireland Human Rights Commission (NIHRC) and the new Scottish Human Rights Commission (SHRC) – responsible for devolved matters – the EHRC provides a new enforcement and enhancement framework for human rights in the UK. Below is a summary of our work in our first year.

1. United Nations Treaty Monitoring
The EHRC has developed its work with the United Nations Human Rights Treaty Bodies. In February 2008 we submitted a report on the UK government regarding its first examination under the Universal Periodic Review (UPR) process. We also attended and engaged in the UK oral examination at the UN in April 2008.

The EHRC has submitted independent parallel reports on:

• the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW);
• the International Covenant on Civil and Political Rights (ICCPR); and
• the Convention on the Rights of the Child (CRC).

The EHRC’s report on CEDAW highlighted key areas of concern, including: Equal Pay; Violence against Women; Work Life Balance and Education. We consulted with a variety of human rights NGOs including Amnesty International, Human Rights Watch and the Women's National Commission (WNC) to gain their views on the Government's performance on CEDAW and explore ways of working together on areas of mutual concern. The EHRC also took part in the CEDAW Committee's Examination of the UK in July 2008; participating in the briefing session with NGOs and NHRIs, and using the opportunity to meet with members of the CEDAW Committee.

Similarly, the EHRC’s report on the UK government’s performance under ICCPR raised a number of concerns, including that it should:
• abandon its proposed legislative measures to increase the possible length of pre-charge detention to 42 days (which the Government has since reconsidered);
• undertake a review of stop and search powers under section 44 of the Terrorism Act 2000 to ensure that their use does constitute unlawful racial discrimination;
• in relation to Memorandums of Understanding and any possible deportations, fully abide by its international obligations regarding the prohibition on torture and inhuman and degrading treatment;

• accede to the Optional Protocol on Individual Petition.

As with CEDAW, the EHRC participated in the oral examination of the UK at the ICCPR’s Human Rights Committee in July 2008. The EHRC, together with the NIHRC, met with the Committee and spoke at the separate formal session of the Committee together with NGOs. We sent further written submissions to the Committee after the oral examination of the UK government.

Finally, the EHRC submitted its report on the government’s performance under the CRC in August 2008. We attended the UK examination in September 2008 and followed the same processes as for the treaty monitoring under CEDAW and ICCPR.

The EHRC plans to engage with the three UK treaty monitoring examinations in 2009: the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention against Torture (CAT) and the Convention on the Elimination of All Forms of Racial Discrimination (CERD).

2. Engagement with other international human rights institutions
Within the European regional system the EHRC aims to play its part in the European Group of NHRIs and in the network of contact persons established in 2007 by the Council of Europe (CoE) Commissioner’s Office. In January 2008, Dr Nicola Brewer, the EHRC’s Chief Executive met with the Thomas Hammerberg, the CoE Human Rights Commissioner. The EHRC attended the CoE roundtable event with NHRIs in September 2008 and participated in the first meeting between the Fundamental Rights Agency and NHRIs in April 2008.
In November 2008, Nicola Brewer and Commission officials met with Ms. Navanethem Pillay, the UN High Commissioner for Human Rights.

The Commission submitted its application to the ICC for ‘A’ status NHRI accreditation in September 2008. We expect to know the outcome in January 2009.

3. UN Convention on the Rights of Persons with Disabilities
The EHRC is seeking to ensure ratification and effective implementation of the UN Convention on the Rights of Persons with Disabilities, building on the work carried out by the Disability Rights Commission. We seek ratification without reservations or interpretive declarations which would impair full implementation. The EHRC is planning to take up the monitoring role envisaged in the Convention for national human rights institutions and has also agreed to act as the formal Independent Monitoring Mechanism under the Convention.

4. The Human Rights Inquiry
In April 2008 the EHRC launched a major human rights inquiry using its formal inquiry powers under section 16 of the Equality Act 2006 into the state of human rights in Britain today. Its terms of reference are:
• to assess progress towards the effectiveness and enjoyment of a culture of respect for human rights in Great Britain ; and
• to consider how the current human rights framework might best be developed and used to realise the vision of a society built on fairness and respect, confident in all aspects of its diversity.
Dame Nuala O’Loan, the former Police Ombudsman for Northern Ireland, has been appointed by the Commission to chair the Inquiry. The Lead Commissioner is Prof Francesca Klug OBE, professorial research fellow at the London School of Economics and Political Science, and Francesca is joined by two other Commissioners, Sir Bert Massie and Dr Neil Wooding, in guiding the inquiry.
The inquiry called for written evidence, which resulted in approximately 200 responses. It carried out face to face group meetings with around 200 representatives of service users in the UK regions and proactively sought responses from national key stakeholders and grassroots voluntary sector organisations and specific groups such as Gypsy and Traveller representatives. Three research projects were commissioned: monitoring the implementation of human rights standards in public service delivery; the role of inspectorates; and on the effect of human rights cases in the appeal courts and the European Court of Human Rights. There were eighteen days of oral evidence sessions from ministers, the media, lawyers, inspectorates, regulatory bodies and service users, including key organisations in the UK human rights arena.
The Inquiry is expected to report in spring 2009.

5. European Convention on Human Rights
The EHRC has called on the government to sign and ratify relevant optional protocols to the ECHR which the government has to date refused to do: optional protocol 12 (the freestanding right to non-discrimination) and optional protocols 4 and 7. The combination of such ratification and incorporation via the Human Rights Act would give significant enhanced protection – similar to that provided by the ICCPR.

6. Human Rights Case Work

The EHRC has used its legal powers to intervene as amicus curiae in legal proceedings relating to human rights in a number of cases to date. In particular:

Van Colle v Chief Constable of Hertfordshire Police and
Smith v Chief Constable of Sussex Police

Both cases were joined in the House of Lords and heard in May 2008. Van Colle concerned the murder of a witness to a trial by the accused and the circumstances in which the Article 2 right to life will impose a positive obligation on public authorities to take steps to protect a person's life. Smith involved the relationship between common law negligence claims and a failure to discharge a positive obligation to protect life under Article 2.

RJM v Secretary of State for Work and Pensions

The case was heard in the House of Lords in June 2008. The House of Lords found that “other status” under the Article 14 provision on non-discrimination can include homeless persons, but stated that while disentitling homeless persons from receiving the disability premium to income support amounted to discrimination within article 14, such discrimination was lawful as it could be justified on policy grounds.

JL v Secretary of State for Justice

This was heard in the House of Lords in October 2008 and the issue was whether Article 2 (right to life) requires the government to conduct an investigation into JL's attempted suicide in prison which meets certain requirements in terms of independence and public scrutiny.

R (C) v Ministry of Justice (Court of Appeal)

The Ministry of Justice changed rules concerning the circumstances in which restraint can be used on children in custody. In July 2008, the Court of Appeal found, inter alia, a Breach of Article 3.

In addition, the EHRC is intervening in the following forthcoming cases:

R(Smith) v Oxon Asst Deputy Coroner, regarding a soldier who died of hyperthermia in Iraq, and the application of the Convention and the Human Rights Act to soldiers in Iraq and the point at which a procedural requirement for an Article 2 investigation arises.

G, R v Notts Healthcare Trust, regarding the prohibition on smoking in high security prisons for those in England detained under the Mental Health Act, which raises a discrimination issue as those detained in prisons are allowed to smoke.

R (JA and ors) v London Borough of Enfield, regarding four people with severe mental health conditions who face being moved from a residential home against their wishes by their local authority. The case raises Articles 8 and 14 issues.

R (Treacher) v Ministry of Justice
The claimant is a wheelchair-using prisoner who has experienced inaccessible prison facilities and services over a number of years. The Case is considering both discrimination and Articles 8 and 14 issues.

Seal v UK
This is an intervention in the European Court of Human Rights; concerning access to justice and the right to a fair trial under Article 6 for people with mental health impairments.

7. The Special Educational Needs and Disability Tribunal / Special Educational Needs Tribunal for Wales

A consortium of organisations, including the Disability Rights Commission, lawyers and children's organisations have raised the issue that looked after children with special educational needs (SEN) have no effective appeal rights to the Special Educational Needs and Disability Tribunal and the Special Educational Needs Tribunal for Wales (SENDIST and SENTW). The EHRC is preparing a formal inquiry, with reference to potential breaches of the Human Rights Act and UN Convention of the Rights of the Child; specifically the right to education, the right to a fair trial and non-discrimination.
8. Parliamentary Work

The EHRC has undertaken substantial work relating to a number of Bills passing through parliament that have potential implications for human rights, as well as responses to inquiries being conducted by Parliamentary Committees, including:

- The human rights implications of provisions in the Counter-Terrorism Bill, particularly opposition to the proposed extension of detention without trial to 42 days.
- The Health and Social Care Bill which was enacted in July 2008. The EHRC carried out substantial work to influence the government to adopt an amendment to the Bill to ensure that private and voluntary sector care homes providing services under contract to public authorities, such that private social and voluntary care providers are deemed to be public authorities for the purposes of the human rights act.
- The creation of a new criminal offence under the Criminal Justice and Immigration Bill relating to incitement to hatred based on sexual orientation.
- The Joint Committee on Human Rights inquiry into a Bill of Rights for Britain.
- The Witness Anonymity Bill, concerning Article 6 rights.
- The Planning Bill concerning Article 8 rights.

9. Other Work

The EHRC has also engaged with human rights NGOs in response to a series of counter-terrorism measures introduced by the government over the last eight years (including stop and search). It consulted with Muslim organisations on the effect of the Government’s counter-terrorism policy on community cohesion.

Finally, the EHRC has collaborated with a number of human rights organisations within Britain, including the British Institute of Human Rights (BIHR), Justice and Liberty, sharing information, meeting to discuss particular human rights issues and collaborating on projects. The EHRC also welcomes and encourages secondment opportunities from NGOs and the EHRC has recently hosted a secondment from BIHR in its legal policy team.