UK: Criminal justice and immigration bill 2007
01 November 2007
The Criminal Justice and Immigration Bill 2007 is the 55th bill of its kind introduced by the Labour government since 1997. Currently in the committee stage in the House of Commons, it continues Labour's arduous and apparently endless reform process of the legal system. Despite its name, the bill is fundamentally concerned with criminality. With just one out of twelve parts dealing with immigration, and even then in connection with criminality, it seems as rational to have called it the Criminal Justice and Policing Bill. It can only be assumed that its actual title is a result of the governments continued reaction to right-wing, anti-immigration sentiments that demand action and continually conflate immigration with criminality.
The following is a summary of the controversial measures it proposes. In particular the prevention of the overturning of convictions due to flaws in the original trial, adjustments to compensation for miscarriages of justice, the creation of a new form of control orders for the convicted after their release, an extension of the role of case workers in trials and a new immigration status.
Technical quashing of conviction
The bill proposes the amendment of the Criminal Appeal Act 1968 to allow convictions to stand in spite of technical flaws in the original trial. It states in clause 26, "a conviction is not unsafe if the Court of Appeal are satisfied that the appellant is guilty of the offence". That satisfaction could, in theory, be based on evidence obtained unlawfully, thus undermining due process. In the second reading of the bill, Jack Straw accepted the need for a review of this clause, but maintained that an "error of process, which might have been relatively serious" should not force the appeal court to quash a conviction.
The government argues that this is justified because an error of process does not necessarily make the ruling incorrect. However, the line between an "error" of process and "abuse" of process, which makes a judgment fundamentally unsafe, is very unclear.
Compensation for miscarriages of justice
In clause 62, the bill proposes amending the Criminal Justice Act 1988 in regards to compensation for miscarriages of justice. It includes the requirement that any application for compensation for miscarriages of justice must be made within 2 years of the conviction being overturned.
However, if "there are exceptional circumstances which justify" an application being made outside this time frame, the Secretary of State can allow for it to be made.
The question to be asked is why there is a need for any limit at all?
The bill also proposes that a conviction should not be decreed to be reversed if a retrial is ordered and either the defendant is not acquitted on all charges facing them or the prosecution decide not to pursue the case. The possibility therefore arises that an individual could have a murder conviction quashed only for a theft conviction to prevent them from receiving compensation for the excessive way in which they were dealt with. Also, the prosecution could decide not to pursue a retrial because they accept that the evidence is not sufficient to prove guilt. Therefore under the eyes of the law, the individual could be innocent yet prevented from applying for compensation for any sentence served.
In regards to the amount of compensation granted to the wrongly accused, several more worrying proposals are made.
It can be argued that guidelines are needed to regulate what is awarded and reduce irregularities between awards. The damage done as a result of the severity of the punishment and conviction as well as the conduct of the investigation and prosecution of the offence must to be taken into account, and the bill proposes that these are the factors that the assessor should pay special regard.
However, it is proposed that deductions can be made on the basis of "(a) any conduct of the person appearing to the assessor to have directly or indirectly caused, or contributed to, the conviction concerned; and (b) any other convictions of the person and any punishment suffered as a result of them" .
In all but an extreme minority of cases, it must be assumed that the person concerned has not deliberately incriminated themselves. By taking (a) into account it may be presumed that the person is in some way responsible for the conviction due to their behavior and pay for this blame in loss of compensation. This could mean that suspicious behavior on the part of an individual, which had since been found an unproven suspicion following the acquittal, could be continued to be held against them in the form of withheld compensation.
In the case of (b), it is totally unwarranted to justify a reduction of compensation because the individual had, in an unrelated incident, acted unlawfully. It must be assumed that the individual has served their sentence for the other crime(s) and therefore paid their debt to society and should not continue to have to suffer by forfeiting compensation.
The most controversial proposal in this clause is to cap the maximum award for miscarriages of justice at £500,000. This totally disregards the harm that a mistaken conviction can cause an individual and their family. When set against years spent in jail and public vilification £500,000 is not a great deal of money. A psychiatrist found that several years after their release, Gerry Conlon, one of the Guildford Four, and four members of the Birmingham six "were suffering from irreversible, persistent and disabling post-traumatic stress syndrome. He compared their mental state with that of brain damaged accident victims or people who had suffered war crimes" . The solicitors of the Guilford four argued that their compensation settlement of £500,000 awarded to each was unfair. "In these cases there should be no penny pinching" Oliver Kelly, Paul Hill's lawyer argued .
The government argues that the compensation awarded can often be more than what is awarded to victims of crimes. A more reasonable response would be to increase the latter rather than reduce the former.
Super ASBOs after release
The act enables courts to enforce "prohibitions, restrictions or conditions" on violent offenders after they have completed their custodial sentence . This exceeds the sentence originally given for the offence, and therefore undermines the original trial and continues to punish the offender after they have served their punishment.
Case workers to conduct trials
As a result of the legal aid changes that the government has made that have restricted the fees available for lawyers' payment under a grid system; the availability of qualified lawyers to act in cases has been reduced and can be expected to continue to be reduced. It is a situation exacerbated by the explosion in number of offences and the reforms that have taken place under the Labour government which has increased the complexity of many cases without providing the additional payment for the added work required. The bill attempts to deal with this by allowing Designated Case Workers a greater role in judicial proceedings. Their minimal training will inevitably weaken the ability of the court to administer justice.
Restricted immigration status for criminals
Part 11 of the bill creates a new "special immigration status" and is amongst the most controversial proposals in the bill concerning human rights. The Immigration Law Practitioners' Association (ILPA) argues that "the new status is wholly unnecessary and highly undesirable" .
The new status applies to individuals that would be deported due to their behavior but cannot due to the incorporation of the European Convention of Human Rights into British law by the Human Rights Act 1998. Article 3 of the Convention leads to the prohibition of the removal of individuals when they face the risk of torture or other serious mistreatment and Article 8 prohibits removal if it will cause disproportionate harm to their family or private life.
Once the status is applied various conditions may be imposed on the individuals concerned. ILPA identify several control powers the authorities would be granted under clause 118 of the bill including electronic monitoring of the individual and extensive restrictions over residence, employment, occupation and reporting which could be used in conjunction with counter-terrorism legislation . A failure to meet these conditions can result in a criminal conviction and custodial sentence of up to 51 weeks with various powers of arrest, search and entry without warrant applicable.
Clause 119 and 120 outline the support that will be available to people under the status. According to ILPA, "The Government intention is to exclude persons subjected to the new status from working or receiving social security." Instead, they will be supported in a similar way to which asylum seekers have been since 2000 with several differences including the use of vouchers rather than cash. The reason vouchers are no longer used for asylum seekers is that they were discredited as a system and it was abandoned.
Clause 115 (1) states that the application of this status is determined entirely by the Secretary of State. It may be imposed on individuals who pose no threat to the national security of the UK or its public and have instead been convicted of minor offences. The status can be held indefinitely and can be imposed when the individual is appealing such a conviction. The fact that their families, including children who, as the ILPA point out, are totally blameless, will also be subject to those controls is highly contentious. It could lead to a scenario where the daily life of an entire family is severely restricted due to the conviction of one member of crime as minor as vandalism.
The government argues that the bill is a continuation of their efforts to redress the justice system in favor of the victim. However, as is often the case, the motives and explanation of the government's policies are very different. In regards to the new immigration policy, the government argues the system is too complicated which leads to a lack of public confidence. ILPA point out that creating a whole new status will in fact add to the complexity of the system.
The true motives can only be suggested but we can be more certain of the likely effect of the proposals contained in this bill. Allowing a conviction to stand despite serious faults with the original trial seriously damages the right to a fair trial with correct procedures, while the adjustments to compensation for miscarriages of justice ignore the severe effect that a misruling can have. Proposed control orders for violent offenders' amounts to a double punishment exceeding what the trial decided would be appropriate. Allowing case workers to have an extended role in trials reduces the ability of people to get suitable, qualified representation. Overall, the bill moves the justice system in the wrong direction, away from just treatment of individuals and towards increased authoritarianism. The lack of public criticism or even mention of the proposals contained in the bill in the mainstream media is one of the most worrying aspects.
Criminal Justice and Immigration Bill
(full-text, as at 7 November 2007, pdf)