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Blood on our hands – part 2

Sir Justice James Munby, who sits as president of the High Court’s family division, in his judgment of 3 August said he felt “ashamed and embarrassed” that no hospital place had been found that could take proper care of an unnamed 17-year-old known as X when she was due to be released from youth custody in 11 days’ time.

The judicial intervention drew attention to the state of mental health provision in the UK. The judge said it demonstrated the “disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services.” He ordered his judgment in the private case be made public and sent to NHS England and senior Government ministers to expose the “outrage” that is the “lack of proper provision for X – and, one fears, too many like her.”

His judgment explained that the girl has made a large number of “determined attempts” on her life. She is due to be released from a secure unit, referred to as ZX for legal reasons, and doctors believe she needs to be placed in further care for her own protection. But, so far, none had been found.

None of England’s 124 places in low secure units were currently available and there was a six-month waiting list even though X was due to be released within days. Judge Munby wrote: “If, when in 11 days’ time she is released from ZX, we, the system, society, the state, are unable to provide X with the supportive and safe placement she so desperately needs, and if, in consequence, she is enabled to make another attempt on her life, then I can only say, with bleak emphasis: we will have blood on our hands.”

One can imagine the reaction at senior levels in the Department of Health to this judgment, along the lines of “get this judge of our backs – fast.” And, surprise surprise, on Monday morning NHS England finally submitted a detailed plan to keep her in a low secure unit, by creating new beds from those in a psychiatric intensive care unit, instead of trying to care for her in the community. The NHS plan is now to move X this Thursday into the unit. Munby has now approved the plan which also includes new funding for her care, which requires a three-to-one staff ratio.

Sir James has no doubt that this is not a matter for congratulation. He was scathing that the decision to find her a bed only followed his outspoken warnings that a failure to do so could result in her taking her own life. He said that without his intervention last week, NHS England would not have acted as effectively or speedily.

The case of X has proved an embarrassment to the NHS in revealing the lack of resources to cope with the most extreme mental health cases. Munby himself wondered who else might be at risk as the country’s mental health system strains to deal with rising demand from young patients at a time when the supply of beds as not been able to keep up. Away from public sight some other poor patient will probably have slipped down a place to make room for patient X.

Judge Munby wrote: “We are, even in these times of austerity, one of the richest countries in the world. Our children and young people are our future. X is part of our future. It is a disgrace to any country with pretensions to civilisation, compassion and, dare one say it, basic human decency, that a judge in 2017 should be faced with the problems thrown up by this case and should have to express himself in such terms.”

Nationally we stagger under the burden of four major projects of questionable value – HS 2, Heathrow, Trident replacement and a Nuclear Power station. They will each consume trillions of pounds. No wonder there is nothing to spare for the humanitarian programmes required for people like X.

And down the side of the Treasury sofa can be found £1.5 billion to persuade the DUP to support the government. How’s that for priorities.

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“Blood on our hands”

The nation will have “blood on its hands” if an NHS hospital bed cannot be found within days for a teenage girl, known only as X, who is at acute risk of taking her own life, according to the UK’s most senior family judge.

Sir Justice James Munby, who sits as president of the High Court’s family division, in his judgment said he felt “ashamed and embarrassed” that no hospital place had been found that could take proper care of the unnamed 17-year-old when she was due to be released from youth custody in 11 days’ time.

The judicial intervention draws attention to the state of mental health provision in the UK. Munby said it demonstrated the “disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services”. He ordered his judgment in the private case be made public and sent to NHS England and senior Government ministers to expose the “outrage” that is the “lack of proper provision for X – and, one fears, too many like her”.

The judge added: “We are, even in these times of austerity, one of the richest countries in the world. Our children and young people are our future. X is part of our future. It is a disgrace to any country with pretensions to civilisation, compassion and, dare one say it, basic human decency, that a judge in 2017 should be faced with the problems thrown up by this case and should have to express himself in such terms.”

His judgment explains that the girl, named only as X, has made a large number of “determined attempts” on her life. She is due to be released from a secure unit, referred to as ZX for legal reasons, and doctors believe she needs to be placed in further care for her own protection. But, so far, none has been found.

Staff have warned that her “goal is to kill herself” and has intensified in recent weeks, believing that if she is sent back to her home town “it will not take more than 24 to 48 hours before they receive a phone call” saying she is dead. She has attempted to swallow items including stones, screws and clothing to take her own life. She has also attempted to use her hair and clothing to hang herself, and has self-harmed by cutting, banging her head, biting and punching her own body.

Justice Munby said staff were doing their best in a dire situation, but also said the girl’s treatment could violate articles of the European Convention on Human Rights on “inhuman or degrading treatment” and the right to private and family life. “Of course, this is all driven by the imperative need to preserve X’s life, but how is this treatment compatible with her humanity, her dignity, let alone with her welfare?” he asked.

Sir James said: “For my own part, acutely conscious of my powerlessness – of my inability to do more for X – I feel shame and embarrassment; shame, as a human being, as a citizen and as an agent of the State, embarrassment as President of the Family Division, and, as such, Head of Family Justice, that I can do no more for X.”

The judgment In the matter of X (A Child) (No 3) was handed down in Liverpool on 3 August 2017 when Sir James wrote that: “If, when in 11 days’ time she is released from ZX, we, the system, society, the State, are unable to provide X with the supportive and safe placement she so desperately needs, and if, in consequence, she is enabled to make another attempt on her life, then I can only say, with bleak emphasis: we will have blood on our hands.”

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How went the battle?

It is quite something when the deliberations of 11 very senior judges is the hottest ticket in town. There should be twelve judges but at the moment there is one unfilled vacancy. Nevertheless this is the first time that that all Supreme Court members have convened to decide a case.

There was standing room only as the battle for Brexit began. At issue is whether the government, through its executive powers, or parliament, can trigger article 50 of the treaty on European Union. The four-day hearing on the divisive constitutional issue was broadcast live. The High Court had ruled that parliament was sovereign in this case and the government was appealing that decision.

Emotions are running high. Ukip has accused those behind the claim of being “arrogant federalists” intent on blocking Brexit, the Daily Mail has branded the high court judges who found against the government in the first round as “enemies of the people”, and individual challengers – such as Gina Miller – have received death threats.

Before legal argument began the president of the Court, Lord Neuberg, stressed the court’s determination to assert its impartiality in the proceedings. He went on to say “various individuals have received threats of serious violence and unpleasant abuse on emails.” He warned that there are “legal powers designed to ensure that access to the courts is available to everyone.”

Labour’s shadow attorney general, Shami Chakrabarti, told BBC Radio 4’s Today programme: “the political aspect of the case had been hyped in parts of the media.” She said: “This is about process. It is not about outcomes.” She said it was unfair for newspapers to delve into the personal lives or supposed opinions of the judges.

Opening the government’s submission, the attorney general, Jeremy Wright QC and MP, said that royal prerogative powers were an essential part of the UK’s unwritten constitution and the high court had been wrong to rule last month that article 50 could only be triggered following a vote in Parliament.

Wright was followed by James Eadie, known as the Treasury Devil, but he ran into a barrage of queries from the justices in the court challenging the source of the royal prerogative.

Lord Pannick, QC, opening the argument on behalf of the lead claimant of the case, Gina Miller, dismissed as “inherently implausible” the government’s assertion that it was entitled to deliver notice of the UK’s intention to leave the EU under article 50. He described the referendum as “plainly an event of considerable political significance”, but was not a matter for the court because “it was irrelevant to the legal issue of whether ministers enjoy prerogative powers to set aside the 1972 Act.”

‘Guardian’ sketch writer John Crace had fun with the performing personnel. Of Lord Pannick he said: “Seldom has a man been less well named…a Pannick attack is a thing of zen like beauty.” Lord Keen, for the Scots, was described as being “breathless in a way that only a tortoise could ever know. Glaciers move more quickly than Lord Keen.” John Larkin, attorney general for Northern Ireland “dropped his bundles and lost his place to deliver one of the more hapless performances ever witnessed by the supreme court. Still his job was done. By making himself appear so useless, he might just have made Eadie and Keen look a little better.”

Judgement is expected mid- January.

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Queen’s speech

The Queen has spoken. The government’s annual legislative programme includes 20 bills, on topics ranging from streamlining housebuilding to tackling extremism. There are also three bills carried over from the previous session, including the investigatory powers bill, which will make it easier for public bodies to monitor communications.

This is a light programme, undoubtedly leaving plenty of room for the overriding European referendum. But many of the proposed bills have a direct influence on crime and justice.

The Prison and Courts Reform Bill relates only to England and Wales. It promises new “reform” prisons, with emphasis on training, rehabilitation and education. The Governors of the new prisons will have freedom to agree service contracts and establish their own boards. There will be more statistics on post-release offending and employment rates will be published, and Courts and tribunals will be modernised, with greater use of technology to reduce delays. This is the centrepiece of David Cameron’s agenda for social reform. It could draw criticism that it takes a step towards privatisation of prisons by the back door.

Also relating to England and Scotland is the Counter-Extremism and Safeguarding Bill. A new civil order regime will be introduced to restrict extremist activity. Ofcom will have power to regulate internet-streamed material from outside EU. The government will be able to step in where councils fail to tackle extremism, subject to consultation, and there will be new powers of intervention to tackle radicalisation of children in unregulated education settings. The measures to crack down on extremism are quite vaguely worded.

The Digital Economy Bill provides for improved broadband and promises protection for consumers from spam email and nuisance calls by ensuring consent is obtained for direct marketing. It also provides for the protection of children from online pornography by requiring age verification on the internet for adult material.

The Criminal Finances Bill will create a new criminal offence making companies liable for stopping their staff facilitating tax evasion. The Suspicious Activity Reports regime will be refocused, with emphasis on tackling systemic money laundering, and there will be changes to laws on the proceeds of crime making it easier for the police and courts to recover criminal assets.

The Investigatory Powers Bill, carried over from the last session of Parliament, overhauls laws governing how the state gathers and retains private communications or other forms of data to combat crime. Broadband and mobile phone providers will be compelled to hold a year’s worth of communications data, and there will be an Investigatory Powers Commissioner. Known by critics as the snoopers’ charter, there is still concern about the number of agencies that will get access to the communications data and other privacy issues.

Also carried over from last session of Parliament, the Policing and Crime Bill provides for closer collaboration between the emergency rescue services, the overhaul of the police complaints and disciplinary systems and a ban on under-18s being held in police cells as a “place of safety.”

The Bill of Rights is to replace the Human Rights Act. It will be published in “due course” and subject to consultation, provide for a new framework of human rights, based on those set out in the European Convention on Human Rights. The final proposals are only likely to become clear after the EU referendum.

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Regulating cybersecurity

Recently the FBI called Apple’s headquarters in Cupertino, California. The agency wanted Apple to help them hack an iPhone. Apple refused.

The request stepped up a level when a federal magistrate ordered Apple to help the FBI unlock a single iPhone. The phone belonged to Syed Rizwan Farook, one of the killers in the December mass shooting in San Bernardino, California. Investigators have maintained that terrorists are hiding behind the safety of encryption to plan attacks, putting lives at risk.

Apple again refused. Read the full story

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Marital coercion

The special defence of marital coercion has a long history, though 1922 was the last time that the common law defence was used in the UK. Then Mr. Justice Darling in the case of R v Peel (1922) held that the “melancholy doctrine” that a wife can be coerced by her husband into the commission of a crime was still the law of the land whenever husband and wife are jointly indicted of a crime.

This legal doctrine was founded on the assumption that a wife would not dare to contradict her husband. Read the full story

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The Gareth Williams inquest

Last week the coroner in the Gareth Williams case delivered a damning verdict, highly critical both of the Metropolitan police’s counter-terrorism branch and MI6

Dr Fiona Wilcox levelled excoriating criticism at Williams’s employers at MI6 who failed to report him missing for seven days when he did not turn up for work. It took Williams’s sister, not his workmates, to call the alarm. Wilcox detailed what can only be interpreted as incompetence or callousness by his employers in respect of one of their young high fliers. And these are the very people who are supposed to be looking out for us. Read the full story

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Reform of community sentences and probation services

Announcing two new consultations in the Commons last week – on radical proposals to strengthen community sentences and improve the Probation Service – justice secretary Ken Clarke said: “The Government’s goal is to reform sentences in the community and probation services so that they are able to both punish and reform offenders much more effectively.” Read the full story

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Assisted suicide debate

The Backbench Business Committee meets every week to consider requests for debates from any backbench Members of Parliament on any subject. The motion selected for debate on Tuesday concerned assisted suicide.

The proposed motion welcomed the Director of Public Prosecution’s Policy to Prosecutors in Respect of Cases of Encouraging or Assisting Suicide, which was published in February 2010. The policy identifies sixteen public interest factors in favour of prosecution. These include: Read the full story

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Clare’s Law?

The ninth day of line-by-line consideration of the Legal Aid, Sentencing and Punishment bill at Committee stage in the House of Lords last week, which was midwife to the birth of Jane’s Law, might also lead to Clare’s Law.

Baroness Gale moved an amendment to the bill which would insert a new clause providing for ‘disclosure of information about convictions etc. of violent abusers to members of the public’. As with Jane’s Law, the amendment results from shocking events. Read the full story

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