Law in Practice

The prevailing idea that the British courts are losing control to Strasbourg is to view the situation the wrong way around, argues Dean Spielmann, the President of the European Court of Human Rights.  

Hardly a day goes by without some reference in certain sectors of the British press to the European Court of Human Rights (“the Court”) in less than flattering terms. This criticism is often relayed by leading politicians. Recently some senior judges have also voiced unease about the Court. There is undeniably a problem in the way the work of the Court is currently understood and perceived in the United Kingdom. This is of particular concern to members of the Court and to me, its President, because of the outstanding contribution that the United Kingdom has made to the human rights protection system set up by the European Convention on Human Rights (“the Convention”) and the leading role it has played more generally in the development of human rights standards. I am therefore grateful to Counsel for this opportunity to try to dissipate some of the misconceptions that have arisen. I will seek to address two main criticisms of the Court - firstly that it is undemocratic, and secondly that it has excessively expanded the scope of the protected rights and freedoms. 

Significant changes have occurred in the way vulnerable witnesses are treated by the courts. Eleanor Laws QC considers the recent case of R v F [2013] EWCA Crim 424.  

Helen” is a 24 year-old deaf woman who lives with her parents. She cannot speak and has a limited ability to use sign language as a result of having learning difficulties and suffering from cerebral palsy restricting the use of her right hand. She has a limited number of friends and family and spends much of her time with her parents, either at home or in the local pub. 

Tracy Ayling QC, an Inner Temple Advocacy Trainer, explains the new and necessary way of cross-examining vulnerable witnesses and the training available to advocates to help them to follow the rules.  

It is true that there are some excellent and informative CPD courses at the end of every year. It is possible to collect your points whilst trying to assimilate rafts of cases and notes, delivered to you by experts in the field. How much of it you retain may be open for debate. 

Paul Marshall on Andrew Mitchell MP v News Group Newspapers Ltd and the stripping of judicial discretion.  

  “‘Sit down!’ roars the captain. “Ye sot and swine, do ye know what ye’ve done? Ye’ve murdered the boy!’  

 Mr Shuan seemed to understand; for he sat down again and put his hand to his brow.  

 ‘Well,’ he said, ‘he brought me a dirty pannikin’  

 At that word, the captain and I and Mr Riach all looked at each other for a second with a kind of frightened look….”  

Counsel’s consultant editor, David Wurtzel, pays a tribute to the former Lord Chief Justice and looks back at the contribution he has made to the Bar, the law and the country.  

It was Hugh Davies QC who summarised Lord Judge’s tenure as Lord Chief Justice as “beyond the brilliance and clarity of his judgments and progressive thinking in the vulnerable witness area, it is his appreciation of the changing culture in how trials should work and the respective roles and duties of judges/counsel. Directions to the jury on rape myths; and understanding of modern crime such as cyber and organised sexual offending against children. He is often more progressive in all this than the counsel who claim to be ‘front line’.” 

Slavery and trafficking are now the leading and most profitable international criminal enterprises, outstripping both drugs and fraud. Lewis Power QC and Ross Talbott explore the problem and the steps being taken against these crimes.  

Today’s human rights abusers commonly hide behind entrenched cultural idiosyncrasy. Barbaric acts of stoning, the death penalty and child executions are said to have been carried out under the guise of cultural essentialism. Such arguments are even used to facilitate the rule of undemocratic regimes where parliament is powerless, the rule of law non-existent and corruption rife. With globalisation, the visibility of human rights abuses has increased worldwide due to escalation in cross-border economic, social and cultural activity. It is therefore vital that each and every nation or state claiming to respect the rule of law and human rights acts immediately to combat the colossal problem of contemporary slavery. 

Joyce Plotnikoff and Richard Woolfson explain the new ground rules for counsel and the recently launched advocacy toolkits designed to help.  

Counsel will need to “up their game” when dealing with vulnerability at court, thanks to recent guidance which requires greater fl exibility and advance planning. New Criminal Procedure Rule 3.8(4)(d) requires courts to take “every reasonable step” to facilitate the participation of witnesses and defendants. This includes ground rules hearings (GRHs), at which the judge, advocates – and intermediary, if any – discuss how a vulnerable person should be questioned, or how a vulnerable defendant can be enabled to participate effectively in the trial. Decision-making at the GRH is given a high profile in the Lord Chief Justice’s Criminal Practice Direction 3E and the Judicial College’s Equal Treatment Bench Book chapter 5, both issued this autumn. While GRHs have been obligatory in intermediary trials since Part F.1 Application for a Special Measures Direction was introduced in 2010, the new guidance emphasises that a GRH should be scheduled in any case involving a vulnerable witness or defendant,  whether or not an intermediary takes part in the trial. 

In his final Court of Appeal judgment as Lord Chief Justice, Lord Judge gave significant guidance to counsel on how to conduct a criminal trial. David Wurtzel explains  

At the very moment that the Operation Chalice trial was taking place in Stafford, over in Manchester another trial, equally worrying in terms of advocacy, was underway. R v Farooqi and others [2013] EWCA Crim 1649 concerned a trial of four men charged on a 10-count indictment alleging terrorism and soliciting to murder. 

Just because a witness has lied once does not mean they will always be lying, argues Deborah Gould, who explains the new Guidelines issued after the collapse of the Stafford Case  

In May 2011 the trial of Operation Chalice began at Stafford Crown Court only to collapse 16 weeks later. The first of a string of similar multi-handed trials, the indictment charged counts of sexual abuse, traffi cking, “grooming” and prostitution of numerous teenage girls. 

How does a drug addict who yearns to change their life around do so? HH Michael Baker QC explains one police force’s pioneering scheme.  

Drug addicts do not have an easy life. Class A drugs do not come cheap. Purloined property can only be fenced for a fraction of its value. Thousands of pounds worth of goods may have to be burgled or otherwise nefariously acquired each week in order to feed a Class A drug habit. And the addict is constantly looking over his shoulder, suspicious, insecure and afraid. Not surprisingly many addicts yearn for a quieter, easier and better life. In 2006 Hertfordshire Police pioneered an interviewing technique based on this desire for a changed way of life. By befriending suitable addicts and respecting their aspirations they persuaded them to admit to all their past offending in a series of drive-rounds and interviews. So effective was this that, by the time they got to court, they often had scores – sometimes several hundreds – of offences waiting to be taken into consideration.