Law School Blog

By David Rosen, Solicitor-Advocate, Partner and head of Litigation at Darlingtons Solicitors. Visiting associate Professor of Law, Brunel Law School.

I read with eager anticipation, the ‘Executive Summary’ published by The Right Honourable Lord Justice Leveson, on 29th November 2012, following the #Leveson Inquiry.

It is a good read, which goes to the nub of relationships primarily between the Police with the Press, and Politicians with the Press.

 Leveson, LJ concluded that both the Press and Politicians were too close to the Police.

‘…with freedom of speech, comes responsibilities to the public interest: To respect the truth, to obey the Law, and to uphold the rights and liberties of individuals’.

The Press are an integral part of our culture. What they investigate and report upon ought to ‘add diversity of perspective’, to educate, inform, and at times to entertain the public.

The objective of the Inquiry was twofold:

1. To expose what has been going on;

2. To make recommendations moving forward.

 Considerations of the Press and their relationship with the Police, is contained at paragraphs 77 to 101 of the Executive Summary. I commend that irrespective or not as to whether you are a member of the Police force, or a member of the public, that you read it.

First and foremost, Leveson, LJ concludes (para 78), that:

 ’I am satisfied that I have seen no basis for challenging at any stage the integrity of the Police, or that of senior Police Officers concerned…what is equally clear is that a series of poor decisions, poorly executed, all come together to contribute to the perception that I have recognised’.

At paragraph 85, Leveson LJ perceptively and insightfully draws upon Peelian principles of Policing that the Police are for the Public, and the Public are for the Police. It is essential that both the Police and the Public remember that this relationship above all else, is fundamental to our democratic Society. That relationship necessarily requires that:

1. Policing must be with the consent of the Public;

2. The Public must be kept aware of policing concerns and must engage in the debate;

 Leveson LJ, recognised and acknowledged that the Press has a vital role therefore to play in holding the Police to account, acting as the ‘eyes and ears’ of the public.

 ’There needs to be a constructive tension and absolutely not a self-serving cosiness’.

 Lord Justice Leveson asks at paragraph 86: Did the relationship come too close?

There is a need clearly for guidelines and distance. There are many occasions where good work is done together between the Police and the Press. What is clear, is that exposure is limited to a certain ‘few’, and that is not healthy. At times, there have to be embargoes on investigations to protect and serve the public, but on the whole, there needs to be clarity, and openness.

Considerations were given as to gifts, hospitality, and entertainment between gentlemen of the Press and the Police. Lord Justice Leveson concluded that he found no evidence of corruption per se, but perhaps this point is the subject of a different and ongoing operation which has yet to draw conclusions.

At paragraph 96, Lord Justice Leveson stated:

 ’The issue is about perception, more than integrity’.

During the Inquiry, Chief Constable Port, referred to the ‘blush test’. That was a good test in itself. For those who are lost by these words, it means this:

 One should not offer or receive entertainment, gifts or hospitality which either party would be embarrassed to disclose to colleagues, clients, or regulators.

I think that this test applies good common-sense and logic to an otherwise grey area, where there are no useful guidelines. Police are, and need to be seen as being people of honesty and integrity. If not, we are doomed to a future of insecurity, instability and corruption.

I welcome ACPO’s guidance notes on engaging with the Press in the future, although sensibly, it may just say 2 words: ‘blush test’. If too regulated, our Police will lose their effectiveness. That, however, needs to be weighed carefully against the public perception of accountability to the public, through sensible and responsible reporting.

By David Rosen, Solicitor-Advocate, Partner and head of Litigation at Darlingtons Solicitors. Visiting associate Professor of Law, Brunel Law School.

What do we mean, when we refer to ‘necessity’ as a Defence?

This is a socio-legal reflection:

Necessity is the need to do an act or thing, which would otherwise be illegal/ a criminal offence.

RED LIGHTS:

How is it otherwise, that a Police Car, or other emergency service vehicle, can drive on the wrong side of the road at high speed, and go through red traffic lights, if not that necessity dictates that they must do this, in order to avoid a greater evil: Alternatively put: Choosing the lesser of 2 evils.

So it is ok for a Police car to go through red lights, but not for anyone else?

What if, heaven forbid, your passenger was suffering a heart attack, and you had dialled 999 to be told there was no one available to get to you, and that you should make your own way to an Accident and Emergency department? Your passenger is in a bad way, and you drive like the wind, going through red lights, triggering a set of speed cameras. You hear nothing of it.

You make it in time to the Hospital, where your passenger was in a life-threatening condition but for your quick response, she is now making a speedy recovery.

Some 5 months later, you receive a letter asking you to identify the driver of your vehicle on that day, and at at time. You promptly give your full name and address, and then receive a Summons for speeding, and another for going through a red light.

You say in your response that you were driving lawfully given all the circumstances, and rely upon the theoretical defence of necessity. If you had obeyed normal traffic rules and regulations, and stopped properly at all red lights, your passenger may possibly have died. The Emergency Doctor also writes a letter confirming the same.

WHAT HAPPENS NEXT?

The Crown Prosecution Service, (‘CPS’), or delegated traffic department, will consider what you have to say. They then need to consider 2 things: Have you satisfied evidential burdens? Is it in the public interest to prosecute you?

It is likely that so long as your passenger really was that unwell, and there is medical evidence to support this, that the CPS will accept your explanation and the case will not go to Court.

WHAT IF YOU ARE LYING?

Well…you, and anyone who helped you make up such a story, including your passenger and the Doctor, will likely find yourselves being prosecuted for attempting to pervert the course of Justice. This is a serious offence, and the Courts will probably show little sympathy with the facade of your Defence. If you gave a statement to the Police, and subsequently that statement proved false, you may also find yourself in Contempt of Court which is punishable with a fine, and/or imprisonment.

IS THERE A DIFFERENCE BETWEEN DURESS AND NECESSITY?

The difference is that necessity is a threat from something occurring imminently naturally, whereas duress is where you are ordered to do something by another, or else something bad may happen to you, or someone you know. With duress, you act against your own will, but for a greater power making you do something you do not want to do.

STEALING TO PAY A DEBT:

In the case of R v Co1e [1994] Criminal Law Review, Lord Justice Simon Brown had to consider whether someone who robbed 2 Banks/Building Societies because he had no other way or repaying debts he had incurred, was justifiable by way of ‘duress of circumstance’. The issue went to the question as to whether repaying the debt was imminent, and whether ere was a causal link between the immediacy of robbing others to repay his debts. The Court was not convinced and the defence failed.

The argument could have been better put by way of pleading guilty to theft, but saying in mitigation that he felt he had no choice but to rob these Banks, such was his desperation, but ultimately what he did was wrong.

HUNGER:

How about the following scenarios?

Scenario 1:

A young boy, without family or friends, finds himself living on the streets, living on hand-outs, but one Winter’s day in the cold and rain, there were no passers-by. He had not eaten for days. He had no alcohol or drugs problems: He was just plain hungry. He broke into a shop, and took some chocolate. He is arrested.

Scenario 2:

You are walking in the street, eating a bag of chips, when a young Mother carrying a small child, grabs the chips from you and runs away. She is arrested.

Scenario 3:

Your ship sinks, and you and 3 others are the only survivors. You have been at sea without sight of land or another ship for days, and realise quite quickly that unless one of you is eaten, that the others will not survive. The cabin boy is eaten, and when a ship finally does come along to rescue you and other survivors, you are all arrested.

Taking the 3 scenarios in reverse order:

Scenario 3:

In the case of Crown v Dudley and Stephens [1884] 14 QBD 273 DC this actually happened, 3 adults and one child. They were not all prosecuted because one of the survivors did not take part in the killing of the cabin boy, but did participate in their…meal. Cannibalism was not considered a criminal offence. The 2 who killed the boy, we’re found guilty, and their protestations of necessity, fell on deaf ears. Why?

It was accepted that there was a threat of starvation, but they were floating in a recognised trade route and could have been rescued at any time. Had they waited a little while longer, they would have been rescued, hungrier, admittedly, but nevertheless with all 4 survivors ultimately saved.

The principles that flowed from this case were that the theoretical defence of necessity can not be used for murder. If it was the case that someone was trying to kill you, and you killed them, your defence would be self-defence, not necessity.

Scenarios 1 and 2:

So, is hunger by way of necessity, a defence?

Lord Denning in the case of Southwark London Borough Council v Williams [1971] 2 All ER thought not. If such a defence were allowed as a general rule, it may open the floodgates to all manner of cases where if someone went hungry that they could always justify taking from those who have.

Lord Denning considered that if such a defence were allowed, that anarchy and disorder would follow.

Since hunger does not arise spontaneously, and other ways exist to prevent such hunger, through charities and welfare packages, necessity ought not to be allowed as a defence to hunger, to prevent malnutrition from arising.

When is it necessary and justifiable to steal food from another?

There are few situations, if any, when it is necessary or justifiable.

Perhaps, when  breakdown of family-life, an absence of community, no job, no charity, and no welfare benefits exist: Or when there is a total breakdown of Society and Government, might it  be necessary to take food, or else face the prospect of malnutrition and death.

Thankfully, we have not reached that stage in England. There was a poignant moment during the London riots, when a young lady walked out of a ransacked shop with a box of nappies. Was that necessity? Could she have received nappies from elsewhere? Did things get so bad in broken Britain, that this young lady had no choice?

So long as charity exists, and we take time not to ignore those in need of help, through hunger, debt, or medical emergencies, all of these scenarios could have been avoided. One should not take the view that such a concern is only for the Local Authority and Government. It is, rather, something that we should all be responsible for, to understand that we all have a responsibility to help one another.

Omar Khadr was captured during the war in Afghanistan in 2002, suspected of throwing a grenade that fatally wounded American soldier Christopher Speer. At the time of his capture he was 15 years old. He confessed to the murder and has been detained at Guantanamo Bay (GMTO) ever since. However, he confessed after being subjected to physical torture and threatened with rape and death. He was held at GTMO for eight years before being charged with a murder that there is no evidence he committed. In fact, the war crime he was charged with is not a war crime at all, and the court he was tried in has been declared illegal twice by the US Supreme Court. After pleading guilty in October 2010, he received an eight year sentence. It is for these reasons that the case of Omar Khadr deserves our attention.

The third Geneva Convention specifically covers the Treatment of Prisoners of War, affording them such measures as protection against inhuman treatment and torture, and “respect for their persons and honour”. Since his capture, Khadr has been denied both prisoner of war (POW) status and any protection under the Geneva Conventions. The US has specified that only lawful combatants are POW once captured, and that those deemed to be affiliated with al Qaeda are, in fact, unlawful enemy combatants. The term unlawful enemy combatant was derived from the US Supreme Court ruling of Ex Parte Quirin (1942), where it was used to define the status of eight Nazi soldiers who went to the US dressed as civilians in order to commit atrocities. Sixty years later, it has been resurrected to deny those captured during the War on Terror (WOT) basic human rights.

It is difficult to defend the notion of an unlawful enemy combatant - seemingly a prisoner with barely any rights. Until the Supreme Court ruling in Rasul v Bush (2004) unlawful enemy combatants were not granted habeas corpus – the right to challenge the legality of their detention. Additionally, in Boumediene v Bush (2004) it was established that the term was so broad it could go so far as to include “a little old lady in Switzerland who writes cheques to what she thinks is a charity that helps orphans in Afghanistan but really is a front to finance al Qaeda activities”. Thus, the term could include any person with a remote connection to the WOT, who could then feasibly find themselves in GMTO without charge. Furthermore, the concept of an illegitimate combatant void of the same rights as other combatants is alien to the Geneva Conventions, which state that there are combatants and non-combatants and no intermediate status. If the US wishes to deny Khadr combatant status, then he can only legally be a non-combatant.

Although charged with five war crimes, Khadr’s main charge was that of murder in violation of the laws of war. During periods of warfare, International Humanitarian Law (IHL) rather than domestic law is applicable. Consequently, soldiers are granted the ‘combatants privilege’ - whereby they may lawfully kill another combatant without facing the domestic charge of murder. IHL does not cover the actions of non-combatants, as they are covered by domestic law with the rest of society. As the US has stressed the fact that Khadr does not fit the criteria of a combatant, by this determination, he is a non-combatant. Therefore any murder he may or may not have committed would be a domestic crime, and not a war crime.

Even if considered to be a combatant, under IHL, murder is only a violation if the person in question purposely targets a protected person, or if the methods used to kill are prohibited. As Khadr is claimed to have used a grenade and Speer was a combatant, neither requirement is met. However, Khadr’s charges did not derive from IHL. They were created in the Military Commissions Act (MCA) 2006, which was updated by the Obama administration in 2009. The MCA defines murder in violation of the law of war as applying to “any person subject to this chapter who intentionally kills one or more persons, including privileged belligerents, in violation of the law of war.” Whereas under IHL murder is only a violation if the victim is a protected person, under the MCA it only has to be of “one or more persons”, with that of a protected person being a mere inclusion. This means that any unlawful enemy combatant (which we have established, could be an old lady from Switzerland) that kills any person during a war, is liable under this act to be prosecuted for a war crime. Additionally, in the comments section of the Manual for Military Commissions, it is stated that an unlawful enemy combatant can be prosecuted even if the act does not violate the law of war. This comment not only contradicts what the crime is in its entirety, but narrows the crime to just murder alone. Effectively, the US has taken a domestic charge and made it a war crime in order to secure a conviction in military courts.

As part of his plea deal, Khadr was granted the right to return to Canada after one more year in GTMO and conclude the rest of his sentence in a Canadian prison. The delay in the Canadian government’s request to transfer Khadr has been heavily influenced by his father, the late Ahmed Khadr. Ahmed Khadr was arrested in 1995 for his alleged funding of the Egyptian group responsible for embassy bombings in Pakistan. Following his arrest the then Prime Minister, Jean Chretien, requested Khadr’s release and transfer back to Canada. His appeal to the Pakistani government was successful, although it was later described as “an appalling political error” once Ahmed Khadr’s increased involvement in the funding of al Qaeda became apparent. This led to what is now referred to as the ‘Khadr effect’ – the Canadian fear of requesting the release of a national from foreign imprisonment. Encouragingly, however, a formal request for the return of Khadr has been received by the Canadian government and he should be transferred in the coming months.

Omar Khadr’s case has tested the limits of IHL. In the course of my correspondence with his Canadian attorney, Dennis Edney, he professed that “the legal journey on behalf of Omar has been a sober reminder about the very limits of justice, itself. The Rule of Law is a wonderfully sounding phrase but is all dressed up with nowhere to go”.