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History >
2005 > UK > Law, Justice
Legal review will mean
fewer murder charges
Many killing cases could be downgraded
Monday December 19, 2005
Clare Dyer, legal editor
The Guardian
The first comprehensive review of the law of
murder for more than 50 years will recommend a fundamental change that would see
many killings downgraded to manslaughter, the Guardian has learned.
Under the proposal, only homicides where the killer intended to kill will be
classified as murder. At present, murder also includes cases where the killer
intended to cause serious bodily harm. Restricting murder to cases where death
was intended would remove a large number of cases where the victim dies as a
result of a fight or an attack during a robbery or burglary which proves fatal.
Changing the definition of murder is the key recommendation to be published
tomorrow in a report by the Law Commission, the official body drafted in by the
Home Office to assist in the review of the laws governing the crime.
According to one QC, if the change is accepted "you will remove from the
category of murder a very, very large proportion of the cases which currently
are found to be cases of murder". In one House of Lords case it was suggested
that fewer than half of convicted murderers were convicted on the basis that
they had intended to kill.
The reform the commission recommends would mean that only the most serious
killings would attract a mandatory life sentence. For those where death was not
intended, judges could still sentence the killer to life but would have a
discretion to impose a lesser sentence.
The recommendation is the main plank of the first stage of a review announced in
October 2004 by David Blunkett, then home secretary. His announcement was a
response to a Law Commission report on provocation and diminished responsibility
in August 2004, which said the law on murder was "a mess" and needed to be
looked at as a whole. Many judges and academics believe much of the mess would
disappear if the mandatory life sentence were scrapped, leaving it to the judge
to sentence according to the circumstances of the offender and the crime.
The commission wanted that as an option but the Home Office insisted in its
terms of reference for the review that the automatic life sentence should remain
for murder. The Home Office review team will now consider the wider public
policy issues and take into account the views of the public. The ultimate aim is
new legislation to replace the Homicide Act 1957, widely regarded as outdated.
Ken Macdonald, the director of public prosecutions, has complained that
prosecutors currently had to choose between charging murder or manslaughter and
ran a greater risk of losing the case and allowing a guilty defendant to go free
if they opted for the more serious charge.
Under the new definition, many recent high-profile cases may not have been
prosecuted as murders, including the death of Damilola Taylor. In that trial,
the youths who were accused of attacking the 10-year-old with a knife were
charged with murder. They were all cleared.
The Law Commission report will also recommend simplifying and clarifying the
current "partial defences" of provocation and diminished responsibility which
reduce a charge of murder to manslaughter. Judges have called for urgent reform,
arguing that the state of the law risks miscarriages of justice because it is
too complicated for juries to apply. The report is not expected to recommend
putting mercy killing in a separate, lesser category of homicide. Although mercy
killing is murder, juries are reluctant to convict and defendants usually
successfully plead diminished responsibility, reducing the offence to
manslaughter and allowing the judge to pass a non-custodial sentence.
Legal
review will mean fewer murder charges, G, 19.12.2005,
http://www.guardian.co.uk/crime/article/0,2763,1670390,00.html
Smokers forfeit legal rights
December 17, 2005
The Times
By Lewis Smith and Sam Lister
SMOKERS are legally responsible for their own
ill-health because of their negligence in failing to give up, the High Court
ruled yesterday.
In a groundbreaking decision, a judge said that those who had smoked since 1971
were guilty of risking their own health because of the clear evidence that had
emerged since then about the dangers posed by tobacco.
Lawyers gave warning last night that the decision could also hit compensation
claims for ill-health made by other groups, such as heavy drinkers and obese
people.
The court’s ruling came as a study published yesterday showed that, for the
first time, more women now smoke than men. The Health Survey for England
disclosed that 22 per cent of men smoke compared with 23 per cent of women.
Overall numbers for both genders fell but the proportion of men giving up was
twice as high as that for women.
Smoking was declared a form of negligence by Mr Justice Stanley Burnton as he
ruled on a claim for asbestos-related lung cancer made against the Ministry of
Defence. The judge concluded that while Reginald Badger’s widow, Beryl, was
entitled to compensation for his death the award should be cut by 20 per cent
because as a heavy smoker he was guilty of contributory negligence.
Mr Badger had been exposed to asbestos while working as a boilermaker in
Gibraltar and at Devonport dockyard from 1954 to 1987. He had been a smoker
since the age of 16.
Mr Justice Burnton said that no one could blame Mr Badger, who died aged 63, for
starting to smoke in 1955 because at the time the risks were not widely known.
From 1971, however, he said that the introduction of health warnings on
cigarette packets enabled him to infer that the public were aware of the hazards
of smoking. Lawyers, including the judge, said that the ruling was the first in
the High Court to consider the contributory effect of tobacco in negligence
claims and would affect similar cases.
The ruling has been seen as a victory for insurance companies that have fought
to try to reduce the cash payouts they have to make to victims of negligence.
But Adrian Budgen, a personal injury specialist at the solicitors Irwin
Mitchell, said: “It’s an unhelpful precedent. It will result in greatly reduced
damages in a lot of cases. That’s very sad and unfortunate.”
Smokers forfeit legal rights, Times, 17.12.2005,
http://www.timesonline.co.uk/article/0,,2-1936975,00.html
3.45pm update
Torture evidence inadmissible
in UK courts, Lords rules
Thursday December 8, 2005
Staff and agencies
Guardian Unlimited
Evidence that may have been obtained by
torture cannot be used against terror suspects in British courts, the House of
Lords ruled today.
A panel of seven Law Lords voted unanimously
to allow an appeal by eight detainees who are being held without charge on
suspicion of being involved in terrorism, against a controversial Court of
Appeal judgment passed in August 2004.
The appeal court voted last year that if evidence was obtained under torture by
agents of another country with no involvement by the UK, it was usable and there
was no obligation by the government to inquire about its origins.
But today's ruling means such evidence is inadmissible under British law. It
also means the home secretary, Charles Clarke, must re-examine all cases where
evidence from abroad has been obtained by torture.
Commenting on the ruling, Mr Clarke said the government did not condone torture
in any way, so the Law Lords' decision was "hypothetical".
"We accept this judgment, which will have no bearing on the government's efforts
to combat terrorism: we have always made clear that we do not intend to rely on
or present evidence ... which we know or believe to have been obtained by
torture," he said.
The detainees, most of whom have been in custody since 2001, were held under
Anti-Terrorism Crime and Security Act, which was passed soon after the September
11 attacks in the US.
With the backing of a coalition of human rights groups, they challenged a ruling
by the special immigration appeals committee (SIAC) that the Home Office had
"sound material" to back up the decision that they posed a threat to national
security.
The panel said all eight cases should be sent back to SIAC to be reconsidered.
Lord Bingham of Cornhill, the former Lord Chief Justice who headed the panel,
said English law had regarded "torture and its fruits" with abhorrence for more
than 500 years.
"The principles of the common law, standing alone, in my opinion compel the
exclusion of third-party torture evidence as unreliable, unfair, offensive to
ordinary standards of humanity and decency and incompatible with the principles
which should animate a tribunal seeking to administer justice," he said.
The human rights groups welcomed the announcement. Amnesty International, which
led the coalition on the detainees' behalf, said the decision meant the
government must reaffirm its ban on torture and evidence obtained by torture.
An Amnesty spokesman said: "This is a momentous decision. The Law Lords' ruling
has overturned the tacit belief that torture can be condoned under certain
circumstances.
"This ruling shreds any vestige of legality with which the UK government had
attempted to defend a completely unlawful and reprehensible policy introduced as
part of its counter-terrorism measures."
Shami Chakrabarti, the director of civil rights group Liberty, said: "This is an
incredibly important day, with the Law Lords sending a signal across the
democratic world that there is to be no compromise on torture.
"This is also an important message about what distinguishes us from dictators
and terrorists. We will not legitimise evidence obtained by torture by using it
in our justice system."
The shadow attorney general, Dominic Grieve, said the judgment was a
"restatement" of a law that had existed for hundreds of years.
"We always knew that evidence obtained under torture was unable to be used in
court. The question was whether such evidence was admissible in an SIAC case.
The Law Lords' ruling today echoes our own view - that it is not," he said.
Sir Menzies Campbell MP, the Liberal Democrat shadow foreign secretary, said the
announcement by Britain's highest court of law was a "landmark judgment".
"Set against the background of extraordinary rendition and illegal detention it
marks a return to due process and the rule of law," he said.
Amnesty International is now calling for an end to the deportation of alleged
terror suspects to countries where they are at risk of torture.
Torture evidence inadmissible in UK courts, Lords rules, G, 8.12.2005,
http://politics.guardian.co.uk/terrorism/story/0,15935,1662107,00.html
British Court Rules
Against Evidence
Gained
in Torture
December 8, 2005
Filed at 10:39 a.m. ET
By THE ASSOCIATED PRESS
The New York Times
LONDON (AP) -- Britain's highest court ruled Thursday that
evidence obtained in other countries through torture may not be used in British
courts. The government, which denied using evidence that it suspected was
obtained through torture, said the ruling would have no effect on its efforts to
prevent terrorism.
Seven Law Lords -- senior lawyers in the House of Lords -- unanimously upheld an
appeal brought by people detained without charge on suspicions of involvement in
terrorism.
''This is an incredibly important day, with the Law Lords sending a signal
across the democratic world that there is to be no compromise on torture,'' said
Shami Chakrabarti, director of the civil rights group Liberty.
Home Secretary Charles Clarke said the government did not condone torture in any
way, ''nor would we carry out this completely unacceptable behavior or encourage
others to do so.''
Clarke added: ''We accept this judgment, which will have no bearing on the
Government's efforts to combat terrorism. We have always made clear that we do
not intend to rely on or present evidence ... which we know or believe to have
been obtained by torture.''
Lord Bingham of Cornhill, a former lord chief justice, said English law had
abhorred torture ''and its fruits'' for more than 500 years.
''I am startled, even a little dismayed, at the suggestion (and the acceptance
by the Court of Appeal majority) that this deeply rooted tradition and an
international obligation solemnly and explicitly undertaken can be overridden by
a statute and a procedural rule which make no mention of torture at all,''
Bingham said.
The Court of Appeal ruled last year that such evidence could be used in British
courts if it was obtained by agents of another state, and no British agents were
involved.
The case involves 10 men, most of whom were detained in 2001, who challenged a
ruling of the Special Immigration Appeals Commission that the government had
''sound material'' to support a belief that they were a threat to national
security.
Their lawyers argued that that evidence allegedly obtained by torture in U.S.
camps should have been excluded.
Bingham noted that torture has been outlawed in England since 1640, and unsworn
statements made outside of court have been inadmissible since the early 19th
century.
Lord Hope, in a concurring opinion, said it could be difficult to distinguish
torture from treatment that was cruel or inhuman.
''Views as to where the line is to be drawn may differ sharply from state to
state. This can be seen from the list of practices authorized for use in
Guantanamo Bay by the U.S. authorities, some of which would shock the conscience
if they were ever to be authorized for use in our own country,'' Hope said.
About 500 detainees suspected of links to the al-Qaida terror network or
Afghanistan's ousted Taliban regime are held at Guantanamo. Most have been held
for more than three years without charges.
He said the standard Britain should apply in judging practices in other
countries ''is that which we would wish to apply in our own time to our own
citizens.
Lord Nicholls of Birkenhead said in his ruling that scruples about torture could
be set aside in some circumstances.
''If the police were to learn of the whereabouts of a ticking bomb, it would be
ludicrous for them to disregard this information if it had been procured by
torture,'' he said, but added that legal proceedings were different.
''It is an altogether different matter for the judicial arm of the state to
admit such information as evidence when adjudicating definitely upon the guilt
or innocence of a person charged with a criminal offense.''
Amnesty International hailed it as a ''momentous decision.''
''The Law Lords' ruling has overturned the tacit belief that torture can be
condoned under certain circumstances. This ruling shreds any vestige of legality
with which the U.K. government had attempted to defend a completely unlawful and
reprehensible policy, introduced as part of its counterterrorism measures,''
Amnesty International said in a statement.
------
On the Net:
Ruling,
http://www.publications.parliament.uk/
pa/ld199697/ldjudgmt/ldjudgmt.htm
British Court Rules Against Evidence
Gained in Torture, NYT, 8.12.2005,
http://www.nytimes.com/aponline/international/AP-Britain-Torture-Evidence.html
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