Binyam Mohamed and five former prisoners are claiming damages against the Government for alleged complicity in torture and extraordinary rendition. The Government and security services wanted to use confidential information in their defence at the High Court, which in effect would have meant the case being held in secret. They filed an “Open Defence”, in which, while admitting that each of the claimants was detained and transferred, the defendants put in issue any mistreatment which the claimants allege, and, in any event, denied any liability in respect of any of the claimants’ detention or alleged mistreatment. “The issue on this appeal is whether Silber J was right to conclude, as the defendants contend, that it is open to a court in England and Wales, in the absence of statutory authority, to order a closed material procedure for part (or, conceivably, even the whole) of the trial of a civil claim for damages in tort and breach of statutory duty”.

The men’s lawyers argued that use of the “closed material” procedure, normally confined to criminal cases, would undermine the basic concepts of a fair and open trial. The court of appeal agreed with them, stating: “We have concluded that we should allow this appeal, and that we should say firmly and unambiguously that it is not open to a court in England and Wales, in the absence of statutory power to do so or (arguably) agreement between the parties that the action should proceed on such a basis, to order a closed material procedure in relation to the trial of an ordinary civil claim, such as a claim for damages for tort or breach of statutory duty”. They gave as their primary reason for their conclusion that, by acceding to the defendants’ argument, the court, while purportedly developing the common law, would in fact be undermining one of its most fundamental principles. Under common law a party to litigation should know the reasons why he won or lost, and trials should be conducted, and judgments should be given, in public. “In our view, the principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law, that, in the absence of parliamentary authority, no judge should override it, at any rate in relation to an ordinary civil claim”.

The judges gave the attorney general, MI5 and MI6 28 days to appeal to the supreme court. It will fall to the new government to decide whether or not to appeal, but, according to the ‘Guardian’, the former detainees are now likely to be offered compensation of millions of pounds in out-of-court settlements, that being preferable to having embarrassing evidence of the security and intelligence agencies’ complicity in abuse being exposed.

The full text of the judgement by the Master of the Rolls, Lord Justice Maurice Kay and Lord Justice Sullivan in Neutral Citation Number: [2010] EWCA Civ 482 can be found at:

http://www.bailii.org/ew/cases/EWCA/Civ/2010/482.html

The bungled armed robbery of a Menzies World Cargo warehouse in February 2004, in which the four men are alleged to have taken part, has already given rise to three trials at a cost of over £20 million, which is more than ten times the amount stolen. The third trial collapsed after what the judge called a “serious attempt at jury tampering” and led to the application for a judge-only trial. Last March Mr Justice Calvert-Smith concluded that a package of measures to provide jury protection would be sufficient to reduce the risk to an acceptable level. The Court of Appeal disagreed. Even if such steps were taken, the likelihood of tampering was so substantial, the judges said, as to make it necessary for a trial without a jury. The decision that there should be a judge-only trial was made by the Lord Chief Justice and two other judges in an historic ruling which was the subject of blog ‘Trial without Jury’, posted last November. In summary, they held that the two conditions required by s. 44 Criminal Justice Act 2003 were met:-

“…
(4) The first condition is that there is evidence of a real and present danger that jury tampering would take place.

(5) The second condition is that, notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering, the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury.”

Writing in ‘The Times’, Frances Gibb says that a series of special arrangements and procedures have been devised for the trial because of the absence of a jury. The trial is expected to be far shorter and is listed for three months, whereas the last trial to collapse had already run for six months and reached only the end of the prosecution case. “Mr Justice Treacy will be both judge and jury: he will resolve matters of law and have to do ‘mental gymnastics’, as one barrister put it, if he excludes evidence as inadmissable — trying to put it out of his mind and to pretend he has never seen it”. He will have available before him all the witness statements, whereas juries have no such access. The four defendants are expected to be cross-examined in the usual way but barristers are preparing to adapt their style to take account of the absence of a jury. They will be briefer and less painstaking. At the end, the verdict will be pronounced not by a foreman of the jury but by one judge of the High Court.

In his decision last June Lord Judge took into account the cost of protection for jurors, concluding that “it would be unreasonable to impose that package with its drain on financial resources and police manpower”. Writing in the ‘Guardian’, Marcel Berlins expresses his concerns about “money being a factor in a case in which an accused’s liberty is at stake…the suspicion exists that the right to jury trial will, in future, be increasingly affected by the cost of justice and not its content”.

The defendant was alleged to have been involved in a very substantial VAT “carousel” fraud and the arrangements made for laundering the proceeds. His was the tenth trial in which different aspects of the fraud, and the roles of numerous different individuals, were examined. Many of them were convicted. Following conviction, sentences were imposed, and confiscation proceedings conducted. Judge A presided over all these trials and post trial hearings. In the first of this group of trials the Crown alleged that the appellant was one of those directly involved in the conspiracy to defraud with particular responsibility for laundering the proceeds. He was acquitted of conspiracy to cheat the Revenue and of one count of money laundering and the jury was unable to agree verdicts on two counts of money laundering. The Crown proceeded to a fresh trial of the appellant on substantive counts, adding two further similar counts to the indictment. After the jury had retired, the judge concluded that tampering had taken place and ordered the jury to be discharged. He found that it would be fair to the defendant for the trial to continue without a jury, and ordered accordingly.

Delivering the judgment of the court, the Lord Chief Justice, Lord Judge, said that it was an unusual and indeed an extreme case. By the time this tenth trial was coming to an end Judge A was inevitably aware of a vast body of information affecting their client of which the defence would have been ignorant and which therefore would not have been addressed in the present trial. “Everyone of those identified in the counts in the present indictment were said to have been jointly involved with the appellant. Each of them was convicted in trials over which Judge A had presided. Some of his observations about the appellant himself in the course of his sentencing remarks were specific to and critical of the appellant. None of these considerations, even taken together, prevented him acting as the trial judge when the jury was vested with the responsibility for the verdict. However taking them together, and examining them in their overall context, we have concluded that the objective bystander, considering the question which arose when the judge himself became responsible for the verdict, would be left with precisely the same concerns articulated by the judge in the course of the argument and which, in the result, he was persuaded with some hesitation to set aside…For these reasons this appeal will be allowed.”.

In an interesting postscript, the judgement concluded that “the layout of X Crown Court, and the opportunities for smoking available for those who wish to smoke, are unsatisfactory. They must be reconsidered, at any rate in relation to trials lasting more than a day or two, so as to avoid the inevitable risk of jury contamination where jurors and members of the public congregate together to have a smoke”. The full text of the judgement can be found at:

http://www.bailii.org/ew/cases/EWCA/Crim/2009/2377.html

So held the Court of Appeal, Criminal Division, in a recent reserved judgment, allowing an interlocutory appeal by the Crown against the refusal by Mr Justice Calvert-Smith at the Central Criminal Court on March 11, 2009, of its application under s.44 of the Criminal Justice Act 2003 for an order that the trial of John Twomey, Peter Blake, Glen Cameron and Barry Hibberd, be conducted without a jury because of the danger of jury tampering. They have been charged with possession of a firearm with intent to endanger life, possession of a firearm with intent to commit robbery, robbery and conspiracy to rob, at the Menzies World Cargo warehouse, Heathrow, in 2004,

The Lord Chief Justice, giving the judgment of the court, said that “in this country trial by jury is a hallowed principle of the administration of criminal justice. It is properly identified as a right, available to be exercised by a defendant unless and until the right is amended or circumscribed by express legislation”. But he added that the constitutional responsibilities of the jury are flouted if the integrity of an individual juror, and thus of the jury as a whole, is compromised. Any attempt at interference with the jury constitutes an abuse or misuse of the process. The Criminal Justice Act 2003 has imposed fresh restrictions on the right to trial by jury, identifying two particular situations in which such a trial on indictment may be conducted not by a judge and jury, but by a judge sitting alone. These are:-

s.44 (4) The first condition is that there is evidence of a real and present danger that jury tampering would take place.
(5) The second condition is that, notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering, the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury.

The Lord Chief Justice said that the legislation is unequivocal and unambiguous and the judge is required to make the order if the conditions in s.44(4) and (5) are fulfilled. After reviewing and considering the history of the case to date, he concluded that “the first pre-condition to the order sought by the prosecution is emphatically established. By that we mean that the danger of jury tampering and the subversion of the process of trial by jury is very significant”. The estimated cost of protective measures was estimated to be £1.5 million, with the loss of 32 police officers from their other duties for six months or longer. “But in our judgment these protective measures do not sufficiently address the extent of the risk…Even if it did deal with the dangers posed to the integrity of trial by jury, it would be unreasonable to impose that package with its drain on financial resources and police manpower on the police, and, no less important, it would be totally unfair to impose the additional burdens consequent on the deployment of this package on individual jurors”.

The full text of the judgement, Neutral Citation Number: [2009] EWCA Crim 1035, Case No: 2009/01566, b e f o r e the Lord Chief Justice of England and Wales, Lord Justice Goldring and Mr Justice McCombe, can be found at:-

http://www.bailii.org/ew/cases/EWCA/Crim/2009/1035.html

Their Lordships had before them three cases which had in common the proper approach to hearsay evidence. In the first (Horncastle and Blackmore), the witness was dead, but had made a full written statement before he died. In the second (Marquis and Graham), the witness, who again had made detailed statements, refused to attend because she was frightened for her safety, indeed for her life. In the third (Carter), what was sought to be introduced as evidence was the product of business records in a large public company. The principal argument raised in these appeals was that the admission of hearsay evidence meant that the convictions involved an infringement of the right to a fair trial under Article 6, and in particular a breach of Article 6(3)(d), of the European Convention on Human Rights (ECHR), as the convictions were based solely or to a decisive degree on the hearsay admitted as evidence. In consequence, it was argued, the convictions were unsafe and ought to be quashed.

Article 6 of the ECHR states that:

(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
…..
(3) Everyone charged with a criminal offence has the following minimum rights:
….
(d) to have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.>/font>

These provisions of the ECHR have been given specific effect in the law of the United Kingdom by means of the Human Rights Act 1998.

The judgment details how the law in England and Wales had always insisted that it is ordinarily essential that evidence of the truth of a matter be given in person by a witness who speaks from his own observation or knowledge. The weakness of hearsay evidence is that “the fact finder never sees the person who gives the evidence which he must evaluate, and the parties cannot ask supplementary or testing questions”. The default rule of the criminal law of England and Wales had always been that hearsay was inadmissible. Unmodified, however, it was held that such a blanket rule created many examples of injustice. The 1993 Royal Commission on Criminal Justice recommended that reform must be considered. Its detailed recommendations were adopted by Parliament which passed a new comprehensive statutory code relating to all issues of hearsay in criminal proceedings in the form of Part 11, Chapter 2 of the CJA 2003.

Their Lordships held that in each case before them the admission and use of the evidence was governed by the provisions of sections 114 to 136 of the Criminal Justice Act 2003. They concluded that “the principled solution provided for by the 2003 Act in relation to hearsay evidence is consistent with article 6(3)(d) and is not further qualified by a separate test relating to whether the evidence was sole or decisive in the case.”

* The full text of the judgment, dated 22 May 2009, in Horncastle & Blackmore; Marquis & Graham; Carter; and Regina, before Lord Justice Thomas, Lord Justice Hughes, Mr Justice Penry-Davey, Mr Justice Irwin and Mr Justice Wyn Williams, Neutral Citation Number: [2009] EWCA Crim 964, can be found at:

http://www.bailii.org/ew/cases/EWCA/Crim/2009/964.html

The MOJ and the LSC have accepted “and will not challenge the decision of the Court of Appeal in favour of The Law Society’s (TLS) arguments that clause 13.1 of the Unified Contract is incompatible with the Public Contracts Regulations 2006 (the Regulations).”

There was an element of humble-pie eating in their admission that they “regret that the implications of those Regulations were not recognised earlier and acknowledge that TLS was justified in commencing those proceedings. MOJ and LSC further acknowledge and accept that the Court of Appeal judgment means that the only power of amendment which now remains in the civil Unified Contract is the power in clause 13.2.”

The Law Society was more triumphalist, claiming that it had “secured significant benefits for the civil legal aid system”, and that the agreement would “give many legal aid firms a much needed period of stability and certainty in which to plan their futures.” Des Hudson, Law Society chief executive, said “our talks with the LSC and the Ministry of Justice have not only helped ensure legal aid will receive vital financial support, they have also shown that we can work together in an effort to establish a more balanced system that is workable and accessible. However, we still have serious concerns about the future of legal aid and welcome the LSC’s commitment to a more open approach of better engagement with legal aid practitioners and the Society.”

Unified Contract Agreement – the details

The Law Society’s press release highlighted the following points of the agreement:-

• Best value tendering (BVT) in criminal legal aid will be delayed by six months to a date not before July 2009.
• an increase of 2% on all legal help fixed fees and underlying hourly rates from 01/07/08.
• care level 2 fee increases from £347 to £405.
• a 5% increase in CLR (controlled legal representation) fees and rates for mental health.
• a 5% increase in CLR fees and rates for immigration.
• a delay in implementing private law family litigators’ graduated fees.
• a closed list of all CLACS and CLANS (Community Legal Advice Centres and Networks) planned for the period ending April 2010.
• the LSC will, with effect from today, not seek to recoup historic unrecouped payments on account over six years old and where the amount outstanding is less than £20,000 – restrictions apply (see the full deed of settlement).
• a new process on standard monthly payments, designed to prevent changes happening so often, so unpredictably and with such large variations.
• LSC’s commitment to publish a route map setting out the outline of its proposals for the next five years, including a commitment that there will be no price competitive tendering for civil or family work before 2013.
• Reviews of the contract compliance audit process and the operation of peer review and other quality assurance mechanisms.

For full details and relevant links see:-

http://www.legalservices.gov.uk/civil/unified_contract.asp
http://www.lawsociety.org.uk/newsandevents/pressreleases/view=newsarticle.law?NEWSID=394906