Unduly lenient manslaughter sentence of Thomas Hughes increased (Arthur Labinjo-Hughes' killer)

My discussion of the sentences in this case was published on this blog in December 2021. I went through the sentences of Emma Tustin and Thomas Hughes in turn and reasoned that whilst Tustin's sentence was probably appropriate, I stated it might also be appropriate to increase Hughes' term to reflect the severity of the case. 

It can be viewed here: https://joeslegalblog.blogspot.com/2021/12/lenient-sentences-for-arthur-labinjo.html

Today, 29th July 2022, the Court of Appeal increased Hughes' sentence, deciding it was unduly lenient and raised his custodial term from 21 years to 24 years. It decided not to increased Tustin's sentence. 

The decision, which deals with a number of other appeals of high profile cases including Wayne Couzens (Sarah Everard's murderer) can be found in full here: https://www.bailii.org/ew/cases/EWCA/Crim/2022/1063.html

The discussion of the Arthur Labinjo-Hughes case begins at para 146.  

In its reasoning for increasing Hughes' sentence, the Court of Appeal drew upon similar points to that of the linked blog post. Notably, the seriousness and cruelty of Hughes' offending and 'that in encouraging Tustin to harm Arthur in the way he did there was a substantial risk that she would do something that would kill him' (para 189) justified increasing the sentence to reflect one of murder, despite being a manslaughter conviction. It acknowledged that the sentencing guideline was applied correctly, though it acknowledged the mechanistic application of the guideline was not always appropriate, particularly for cases such as this one, which involve exceptional cruelty and therefore justify an exceptional sentence. 

See paras 183-190 of the judgement for the full discussion and reasoning in increasing Thomas Hughes' sentence. 

Cameras in courts

As of 28^th July 2022, the sentencing remarks of the judge in the Old Bailey in London will be recorded and published for members of the public to watch on the internet. For some years most sentencing remarks of high-profile criminal cases have been published in written form on the Ministry of Justice’s website and will continue as such. Whilst journalists, families concerned with the proceedings and members of the public were and still are allowed to attend, they are not permitted to photograph or record the sentencing and this rule will remain unchanged. Only the officially installed cameras in the court will record, only the judge will appear in the video and only the sentencing remarks will be recorded. The jury, victim(s), witnesses, lawyers and defendant(s) will not appear in the video. 

Since 1992, Scotland has allowed filming of sentencing remarks but seldom broadcasts due to the strict rules surrounding publication. The Supreme Court has allowed cameras since its inception in 2010 and the Court of Appeal has more recently followed in 2013. 

A positive change

First, accessibility of information. It allows members of the public to look at the sentencing in its complete form, without the influence of newspapers picking and choosing what bits to report and what bits to leave out. Whilst most will still learn of sentences via media outlets, there is at least the opportunity to view the sentencing in the most convenient and digestible format of video, rather than having to read a document of several pages. Publishing the video of the sentencing remarks allows members of the public to further scrutinise certain sentences which they may view as ‘too lenient’, or, less commonly, ‘too harsh’.

Second, the legitimacy of the court is improved with greater transparency. Whilst the pre-trial and trial stages still remain a mystery to most, this does move forward in bringing greater understanding of the process in a criminal court. The ability to watch trials in person from the public gallery, for free, is perhaps all too frequently forgotten, yet understandably intimidating for those unfamiliar with the process. 

The criminal courts are often viewed as disconnected to the public. Especially some of the older courts, the Old Bailey notably with its oak panelled walls, Oxbridge educated judges and lawyers donned in peculiar regalia of wigs and gowns not commonly seen since the 18^th century; its continuance often justified in the name of ensuring the public users of the court respect the institution they find themselves in. Yet in contrast, the Supreme Court appears much more modern, the judicial panel more resemblant of a corporate shareholders conference or Comicon Q&A panel in business suits, yet still commands the respect of the public. Whilst the reasons for maintaining the traditions and archaic clothes of the criminal courts have merits unique to that very sector of the legal process, they undoubtedly come at the expense of alienating the public. In acknowledging that alienation, broadcasting certain parts of the process helps to clear the mysteriousness, re-connect the public to the criminal courts that they pay for and in turn, increase the legitimacy one of the most important sectors of the state. 

Some caveats

Recordings of the sentencing can only be published when select news outlets request them. The BBC, ITN, Sky and the Press Association are currently the only organisations allowed to request recordings. The video footage will then be published on YouTube. An improvement would be to expand access to a wider group of organisations, especially charities or campaign groups, and even to members of the public. That would ensure accessibility beyond the limited news organisations, which some may feel have their own biases when selecting the sentencing remarks for a publication request. It is accepted, however, that in a continued time of tremendous financial pressure on the courts, this expansion would effectively result in most, if not all, sentencing at the Old Bailey being requested for publication. In consideration of much more pressing strains, such as the extreme backlog of criminal cases or dismal pay for practitioners, the considerable expense such expansion would involve ought to be low down on the list of financial priorities for the MoJ. 

Concluding remarks

Many tout this as an important step and I agree, although use of the word ‘step’ should perhaps be used with caution, as I think it is undesirable to have a ‘progressive’ approach of recording more and more parts of the criminal trial. Lawyers representing those accused of particularly emotive crimes especially may receive adverse attention for their work; their faces and mannerisms on video makes them much more identifiable in public as opposed to just their names in a news story. As for the importance of maintaining the anonymity of witnesses and the jury, hoc ex se intellegitur. Moreover, challenging consequences of recording parts of a trail involving high profile individuals may arise, such as the Depp v Heard civil defamation trial in the US, which resulted in intense public scrutiny and highly charged analysis. Ensuring jurors do not conduct their own research, especially when almost all news and social media outlets are covering the case in great detail may be an especially difficult challenge for the judge to wrangle with, and, albeit unsuccessful, nonetheless provided fuel for an appeal for Heard’s legal team. 

As outlined above, this change is a rare positive development in the administration of the criminal courts, however it is wise to remind ourselves there is good reason not to permit further recordings of either the trial or even the pre-trial stage at the Magistrate’s Court. Some parts of a criminal trial are much better kept away from the overexposure of the internet. 

The advent of no fault divorce in the UK

The Divorce, Dissolution and Separation Act (2020) has ended the need for couples separating to assign blame for the breakdown of their marriage. Contrary to popular belief, there is only one ground for divorce: that the marriage has 'irretrievably broken down'. Previously, there were five defined reasons, one of which had to be shown to demonstrate the marriage had irretrievably broken down. Those reasons were:

• Adultery 
• Unreasonable behaviour 
• Desertion  
• Separation period of two years if other partner consents to divorce 
• Separation period of five years, consent not required 

The first three are fault based reasons for divorce, unreasonable behaviour being the most common. Rather than requiring that one of these five reasons is shown, the new law will ask a couple simply to write a written statement explaining why the marriage has irretrievably broken down. It can no longer be contested. Previously, to obtain a 'no fault' divorce, a two year period was required if the other party consented or five years if they did not, as outlined in the five reasons above. 

A couple can now make a joint application for divorce, which potentially removes an imbalance of the previous system where one party would file for divorce. The new law sets a minimum period of 20 weeks from the initial divorce application and the conditional order, and then a further six weeks from the conditional and final orders. In practice, this means the quickest divorce will take six months, which is longer than the process before taking four months at its quickest. 

Petitioning under unreasonable behaviour required a two year wait since the marriage began before being able to start divorce proceedings. Even though the processing time has increased by two months, the reality is many unhappy marriages will resolve sooner since the two year time limit has been reformed. There is no required period of waiting under the new rules.  

Reception for this change has been largely positive. The fault based system requiring blame would generate animosity between the couple, making it harder for parties resolve parental issues which could negatively impact their children. Additionally, the blame based system had the consequence of making the division of assets more acrimonious. 

In 2018, the Supreme Court was forced to refuse Trini Owens, 68, permission to divorce her husband, 80. They had been married for 40 years. Mrs Owens had cited unreasonable behaviour, yet her husband contested the divorce. Whilst the original judge accepted the marriage had broken down, he found her examples of unreasonable behaviour to be 'flimsy and exaggerated'. 

The case attracted significant public attention, highlighting how the law forced a woman who was unhappy in her marriage to stay in that marriage until she had lived separately from her husband for five years. I tweeted about this, and my support for no fault divorce at the time. 

The Supreme Court found in Mr Owens' favour, albeit expressly stating they were reluctant to do so but were required to follow the law. Mrs Owens made the legal argument that she should not have to prove that her husband behaved unreasonably, rather that she should not 'reasonably be expected' to remain in the marriage. The Supreme Court rejected this argument. 

Since Mrs Owens had only lived separately from her husband since 2015, she was required to wait the full five years until 2020 to get an uncontested divorce. Financial circumstances can often hinder the speed at which an individual is able to move out of the matrimonial home. This is a clear example of how the required time and conditions of the old no-fault legislation impacted people's lives, especially when there was an imbalance of resources. The Supreme Court stated it was a matter for parliament to change the law regarding divorce and with this reform; that change has now, thankfully, taken place. 

Lenient sentences for Arthur Labinjo-Hughes' killers

Arthur's case shocked and distressed me. Arthur Labinjo-Hughes, 6 years old, was killed on 16th June 2020. The jury found his step-mother Emma Tustin guilty of his murder. Tustin was the partner of Arthur's father, Thomas Hughes who was found guilty of Arthur's manslaughter. 

Be advised, the details of Arthur's abuse are particularly upsetting. 

Background

Arthur was poisoned with salt, deprived of food and water and subjected to severe beatings. Tustin was additionally found guilty of a cruelty charge where she laced his food with salt. The jury was told that the incident that caused his death involved Arthur being repeatedly shaken in a violent manner and his head was banged against a hard surface by Tustin. After examination, Arthur's body was found to have 130 separate injuries due to the aforementioned beatings, which included a brain injury so severe it resulted in his death. An image of his body taken by Tustin was sent to his father. His father was shown to have encouraged the abuse via text messages to Tustin, one message in a previous incident of abuse said "end him". 

Hundreds of hours of Arthur's abuse was recorded via voice message and sent from Tustin to Hughes when Hughes was out. A particularly distressing piece of evidence that has stayed with me for days since reading it is where Arthur is heard crying out "I want my Uncle Blake. Please help me, help me Uncle Blake, they're not feeding me, I need some food and a drink." It still affects me now. I am at a loss to think how they could have been so monstrously callous to a vulnerable child who pleaded for help. 

When sentencing, the judge said the case was "one of the most distressing and disturbing" he had ever dealt with. Both Tustin and Hughes pleaded not guilty, and both were to have said they showed no remorse, although Hughes issued a statement of apology as his sentence was handed down.

The sentences 

Since Tustin was convicted of murder, she was handed a mandatory life sentence, with a minimum term of 29 years. As of 2021, she is 32. She will be 61 before she is eligible to apply for parole. 

Hughes was convicted of manslaughter, where there is not a mandatory life sentence. He was handed a sentence of 21 years. Subject to good behaviour, it would be typical to serve half of the sentence in prison and half on remand. Hughes could serve just over 10 years in prison before before released on remand. He is currently 29 and could be approximately 40 when he is released from jail. He will be 50 when he has completed serving his sentence. 

A link to the sentencing guidelines for manslaughter can be found here: https://www.sentencingcouncil.org.uk/wp-content/uploads/Manslaughter-definitive-guideline-Web.pdf

Rationale amidst rage's red mist

First, examining Tustin's sentence, she has received a mandatory life sentence as is mandated by law. As her hand inflicted the blow that caused Arthur's death, it seems right her conviction should be for murder and her sentence should reflect that. 

The minimum term of 29 years does not mean she will automatically be released when this time is reached. The parole board will review her case, investigate if she is a risk to the public and make a determination based on their assessment. It is almost certain that if she is ever released, she will be subject to a swathe of conditions that will either completely exclude contact with children, or heavily restrict it on a very defined basis. It would be inconceivable that, at the very least, a supervision component of her release were not part of any access to children if she is given parole. The children of her own will be adults by the time she is released. If she is still considered a danger to children or even adults, subject to any future change in the law, she will remain in prison until her death. 

Second, for Hughes' sentence, this may be one most ripe for reconsideration. Although 21 years is a considerable length of time, and seems to have followed the relevant sentencing guidelines, the reality of Hughes potentially being released after 10 and a half years of imprisonment sits uncomfortably in what is a highly distressing case.  Release at the half point is of course not presumed, and a parole hearing will be necessary to determine the appropriateness of Hughes' release, however, it is the fact that Hughes will be eligible for release after this period of time that has attracted scrutiny. As with Tustin's release, it would be expected that the terms added to his release regarding contact with children would be extremely strict, and perhaps most likely to be completely exclusionary of all contact with children. 

Concluding remarks: What sentence is 'enough'? 

Sadly, no punishment will ever bring back the life of this child. For those who truly loved Arthur, justice can never be done. For Uncle Blake, who had to read Arthur's harrowing calls for his help, yet never have the chance to come to his recuse, grief will surely never leave him. For them no sentence will be enough. All the court can do is find a term that is as proportionate as it can within the law, and in perspective of other grim and distressing cases that bear similarity to this one.

Tustin

Proportionality when sentencing has become ever more important in maintaining the legitimacy of the justice system. Considering Tustin's lengthy minimum term and the earliest age she will be at the point of her parole eligibility, the proportionality of her sentence is within the realm of reasonable expectation. To increase the minimum term, for instance to 35 or even 40 years, would place her at quite an advanced age by the time of her first potential release. She would face even greater employment, income and housing difficulties than a typical newly released prisoner, which would almost certainly become the burden of the state to care for her. Although these difficulties will be experienced with her existing sentence, those would become insurmountable if the court extended the minimum term. Housing and income support would be a practical certainty rather than a mere probability, placing a greater burden on the taxpayer.

A further possibility is changing the minimum term to a 'whole life term' with there being no possibility of parole but this encounters difficulties of comparison and context. As distressing as this case is, there are unfortunately worse offenders with many victims, many serious previous convictions and where the abuse is even more heinous and cruel than that of this case. Raising this sentence to that level not only dilutes the severity of those sentences, reserved for the most depraved offenders or very high risk individuals, but also decreases the overall legitimacy of sentencing decisions as was mentioned previously. Therefore, a meaningful increase to Tustin's sentence could be seen to be disproportionate. 

Though Boris Johnson among others have called for a "whole life" term under an Arthur's law reform, this I believe would be ill-advised. Law created in response to a specific case with specific facts can often be ill-equipped to deal with the differing complexities and nuances of cases that may follow its namesake, restricting the judge's discretion even further than it already has been.

Hughes

With Hughes' sentence, matters might be different. It is important that his sentence is lower than that of Tustin's as his involvement in Arthur's death was not as direct. However, considering release at half time served is commonplace, his particularly chilling encouragement of abuse and the part that he played in Arthur's death, there are perhaps reasons to see his sentence as lenient. If Tustin is to serve 29 years at a minimum, then it might appropriate that what Hughes serves is much nearer to the 29 years that she will service as opposed to the10 and a half years he currently faces as an absolute minimum, adjusting the whole sentence with that in mind. 

The evidence shows us how extreme Arthur's abuse was with over 130 separate injuries. Hughes was shown to encourage that abuse. Not just that, but the case showed recordings and the reporting of Arthur's abuse were sent to him by Tustin whilst he was at work, as if to win his approval. From this it could be said that the purpose of the abuse was for his gratification, and at least intensified by his encouragement. From that, he enabled and empowered the horrendous abuse of his own son.  It is difficult to know if this is an accurate characterisation based on the limited evidence that has been reported, but based on the presumption it is an accurate depiction, it would be sensible to see his sentence increased with greater resemblance of that given to Tustin's.

It should be noted however that from an examination of the sentencing guidelines for manslaughter shows a sentence that does correctly fall into a range of what is prescribed for this kind of case. It is the particular degree of cruelty and severity this case involves which, I think, warrants a sentence exercising discretion above that of the normal range. Only in exceptional cases should such a discretion should be exercised, but I believe this is such a case that justifies that.

Future of this case

The Attorney Generals Office has referred both sentences for review under the unduly lenient scheme in December 2021. The government also announced there would be a national enquiry into the case, as a specific part of investigating the protection of children in the country as a whole. 

Harry Dunn, Diplomatic Immunity and the Law

Update (4th Feb 2021) - There is now some doubt as to whether Anne Sacoolas was entitled to diplomatic immunity at the time of her offence. This arises from a civil case brought in the US by Dunn's family seeking damages from Sacoolas for Dunn's death. Her immunity status is in question since the US proceedings revealed she was employed by the CIA in addition to her husband, and not simply just the spouse of a CIA operative. This employment may have changed her immunity status at the time, as certain CIA employees such as administrative workers or technicians are not entitled to the same level of immunity as other operatives. This post, however, is written under the presumption that Sacoolas had diplomatic immunity. 

This short post discusses the Harry Dunn case and the law surrounding diplomatic immunity.

Facts of Harry Dunn’s case

Anne Sacoolas a 42-year-old American woman is reportedly the spouse of a US intelligence official and was entitled to diplomatic immunity by virtue of her marriage.

Harry Dunn, a 19 year old British man, was involved in a collision with Mrs Sacoolas. Most reports suggest that Mrs Sacoolas was driving on the wrong side of the 

 at the time of the accident, but stayed at the scene until emergency services arrived. Harry Dunn tragically lost his life as a result of the injuries he sustained in the collision.

Although Mrs Sacoolas cooperated with Northamptonshire Police, three weeks after the crash she legally returned to the USA after being granted permission to leave due to her diplomatic immunity.

Northamptonshire Police applied to waive her diplomatic immunity, but the application was refused. Reports suggest this was refused on account that Mrs Sacoolas had already returned to the United States.

According to the Foreign Office, now that she has returned to her home country, foreign Secretary Jeremy Hunt states that Mrs Sacoolas can now return to the UK to be tried for whatever charge may be appropriate, as her immunity is no longer relevant.

What would the charge be?

Most likely, death by dangerous driving. Northamptonshire Police have passed the case to the CPS to consider a prosecution for this very offence, (death by dangerous driving under s.1 of the Road Traffic Act 1988) but no charge has been brought as of yet due to the complicating feature of immunity.

Considering a sentence, the facts are very unclear at this stage, although as Donald Trump suggested in a press conference it appears that Mrs Sacoolas was driving on the wrong side of the road in error due to her familiarity of driving on American roads.

With a glance at the sentencing guidelines, death by dangerous driving at its lowest level of severity, where the driving created a significant risk of danger, has a starting point of 3 years custody, with a range of 2-5 years custody. This goes up progressively where the dangerous driving created a substantial risk of danger, with a starting point of 5 years, and there is an even higher starting point for the most serious offences such as 8 years, the maximum for the offence being 14 years imprisonment.

As with all sentences, aggravating and mitigating features will influence the final sentence.

Mitigating factors include matters like lack of experience contributing to the offence – not being used to driving on UK roads may be relevant in mitigation, and aggravating factors such as being under the influence of drink or drugs, previous convictions for motoring offences will aggravate the sentence.

There is another lesser known offence however which may be relevant, notably causing death by careless or inconsiderate driving, where the maximum sentence is 5 years, but with a much greater possibility of a community order for offences where the careless or inconsiderate driving results from momentary inattention and there are no aggravating factors.

However, were she convicted of an offence of death by dangerous driving, there would be a risk that she would face a custodial sentence. Therefore, Mrs Sacoolas' avoidance of a criminal charge, by way of immunity is both appreciable from her perspective, but equally, if not more so, abhorred by the family of Harry Dunn.

But what is diplomatic immunity, and how has Mrs Sacoolas seemingly appeared to avoid the criminal justice procedure?

The legal framework: What is diplomatic immunity?

Diplomatic Immunity stems from an International Treaty called the Vienna Convention on Diplomatic Relations 1961. It protects foreign diplomats who work abroad without fear of persecution from the host country.

In practice, this means that anyone who is not a British citizen that has diplomatic immunity cannot be subject to prosecution for a criminal offence, or even for a civil case.

Art 29 states that ‘diplomats’, such as an intelligence officer for example, must not be liable to any form of arrest or detention and are immune from civil or criminal prosecution.

Another relevant provision is Art 9 – the host nation can for any reason declare a diplomat to be persona non grata – the state where the diplomat is from must recall them within a reasonable time frame or the diplomat could lose the status of immunity.  

Under Art 32. Those who benefit from diplomatic immunity can lose their immunity if the foreign government agrees to a request to waive such immunity by the Foreign office of the host nation. The beneficiary of the immunity cannot waive it by themselves.

Around 23,000 people in the United Kingdom have diplomatic immunity.

The Vienna convention does state that those who receive immunity are expected to abide by the laws of the receiving nation. However, as previous cases have demonstrated, this does not always occur. 

Could someone actually ‘get away with murder’ then?

Theoretically, yes.

The most notable example is that of the murder of PC Yvonne Fletcher in 1984. PC Fletcher was attending a protest outside the Libyan Embassy, but was fatally shot from a window by someone inside of the Embassy.

In a message intercepted by intelligence services, the Libyan government had instructed the embassy to open fire on the demonstrators, who were protesting the executions of Gaddaffi opponents in Libya. Automatic gunfire from the windows of the embassy wounded eleven protestors and killed PC Fletcher.

The political fallout was massive.

Upon learning of the shooting, Libya placed the British embassy in Tripoli effectively under siege, using military guard to trap the occupants of the embassy. Whilst this was short lived, diplomatic relations with Libya broke down after failed negotiations, and ties between the nations were cut, resulting in both embassies being abandoned in Tripoli and London.

The event was part of Margaret Thatcher’s decision to support US bombings of Libya, using Air Force Bases in the UK.

Despite Libya admitting culpability for the shooting in 1999, and paying compensation, no charges were brought. Reports suggested that sufficient evidence was held by the police to bring a charge, but it could not be made due to issues of national security.

This however, under the Vienna Convention, would still have required the Libyan government to waive diplomatic immunity.

In civil cases too…?

Immunity becomes more complicated where the individual in question is a permanent British resident. In 2016, The court of Appeal heard that Saudi billionaire Sheikh Walid Juffali used diplomatic immunity as a defence to a claim on his fortune made by his ex-wife. He was appointed as the permanent representative to the International Maritime Organisation (IMO) by Saint Lucia, the tiny Caribbean island. His immunity came from this position.

He separated from his wife in 2013, but was appointed to the IMO in 2014.

The Court of Appeal ruled that the court below was wrong to dismiss the notion that Juffali was entitled to immunity, but that since he was a permanent resident in this country, he was not immune from civil actions, and therefore was not immune from the claim against his wife. This is because permanent residents who are diplomats are only immune from prosecution for official acts.

This particular case demonstrates a slight wrinkle, but had he not been a permanent resident, and enjoyed a more conventional diplomatic immunity, it is possible, and even likely, such immunity would have protected him from a civil claim.

Similar to Harry Dunn’s case, another tragic incident from 1997, this time in the United Sates, involved a Georgian diplomat who drove whilst heavily intoxicated. The diplomat caused a large accident which resulted in the death of a 16 year old girl and injured four other people. Media coverage proved highly influential, and caused a national outrage as the diplomat had been held before for two previous driving offences, one of which was drink driving (he tested over the blood-alcohol limit). These previous two charges were both dismissed on account of his diplomatic immunity.

It is perhaps ironic here that the United States government requested the Georgian government to waive his immunity, which Georgia agreed to. The diplomat was charged and pleaded guilty to involuntary manslaughter, receiving a custodial sentence.

What could happen now with Harry Dunns case?

As Mrs Sacoolas has returned the United States, Domonic Raab states that her diplomatic immunity is no longer relevant, and she could be extradited to the United Kingdom, should the US government agree.

The US and UK do have an extradition policy, so even if unlikely, this is nonetheless technically possible.

However, there still remains the argument that at the time of the offence, Mrs Sacoolas had diplomatic immunity. In that sense Dominic Raab’s opinion, that the question of immunity is no longer relevant, seems misplaced. If she was extradited, she would almost certainly argue this in her defence.

However, as with the case of the Georgian diplomat in the United States, it would not necessarily be a successful defence. The diplomat did in fact have immunity at the time of his offence, and yet his immunity was waived after the offence, but he was still convicted.

The Vienna Convention can operate to remove immunity retrospectively, so that where an offence was committed with immunity, yet it has been waived by the home country government, immunity is no longer defence.

This makes sense as waiving immunity in response to an offence would in almost all conceivable cases be arbitrary, unless it were simply to remove protection from future offences. It makes more sense that applications to waive immunity would be in response to crimes already committed.

This of course is distinguished from the present case, where the question of revoking immunity is not presently on the table.

It is very uneasy to hear of how a young man has lost his life, and that the law does not provide an avenue for justice where immunity is held by the defendant. It is entirely understandable the campaign the family is making to seek justice, in what is unquestionably a tragic case.

Should diplomatic immunity be changed then?

Diplomatic immunity has gathered a considerable degree of controversy, though as cases from the 80s have shown, this disquiet is not new.

William Hauge as Foreign Secretary revealed that in 2010 alone, diplomats had been accused of 18 crimes which included sexual assault, human trafficking and drink driving. Highly respected human rights barrister Geoffrey Robertson QC argues diplomatic immunity should be severely limited, and entirely inapplicable to civil cases. He states the Vienna Convention is a product of the Cold War and is no longer relevant in peacetime.

The arguments for and against diplomatic immunity are better placed in a separate discussion, as this is just intended to be a brief overview of how immunity has operated with some extra legal details about this particular case.

Brexit: A threat or an opportunity for UK lawyers and legal London? (Times Law Award Submission)

A fog of Brexit uncertainty for lawyers may thaw in expected ways. Whilst there is no doubt substantial work for lawyers will be generated, our questioner errs by proposing a false binary. Greener pastures for some might be put out for others.

Legal London is experiencing an exponential increase of Brexit related work. Many firms have recruited academics, business advisors and extra practitioners, bolstering their expertise and strengthening their offering. Clients looking to side step the consequences of Brexit are wisely instructing lawyers for assistance in navigating the unknown. In the short-term, this growth will only continue. From corporate clients requiring complex advice on business reorganisation, to private individuals seeking to best position their assets post Brexit. Whether their clients stand to gain or lose money, lawyers will be both available and invaluable. 

International dispute resolution is an area likely to grow. Judgements from such cases will still be entirely enforceable outside of the UK, as they encounter similar procedures of enforcement as in non-EU member states. The differing procedures however will create new challenges and thus legal work for this area. Also, the simplicity of enforcement within the EU is replicable through creating alternative reciprocity arrangement, which would produce further work in this field. Moreover, the suitability of English law for commercial transactions, coupled with the renowned integrity of English courts will not dissolve after Brexit, unaffecting the UK’s attraction as a destination for dispute resolution.

Despite having a withdrawal agreement signed, the negotiations for the Chequers proposal are yet to take their first steps. As Chequers is painfully vague, the eventual agreement itself is almost impossible to predict. Consequently, areas like mergers and acquisitions have slowed in anticipation of acting on the relevant trade agreement when made. However, mergers and acquisitions litigation will ignite once the future trade agreement is reached, and much like international dispute resolution, business is likely to grow in the long-term. However, opportunities may not come to all. 

Long-term forecasts for finance and banking lawyers appear more troublesome. Great concern looms over the fate of passporting. Passporting enables Banks and financial services firms to trade freely with any other EU or European Economic Area (EEA) country. If equivalent provisions are excluded from a Brexit trade agreement, some banks and multinational financial service providers could reduce their UK operations, either relocating to another EEA country, or moving subsidiaries there. Inevitably this incurs initial demand, yet the long-term legal work generated by these bodies will leave along with their clients. Though finance is a single area, the vast amount of revenue otherwise generated by financial services work will be noticeably absent, both to firms and the Treasury. 

That said, the City of London will not lose its status as an elite global financial centre. Expect no exodus. Even though London is likely to retain its status, laurels cannot be rested on. As European capitals such as Paris begin to cultivate English speaking courts, competition for cross-border dispute resolution will only become fiercer. A nonchalant legal London could pay a severe price. Whilst the benefits of Brexit may be reaped today, great challenges in ensuring London remains competitive will arrive soon by tomorrow. 

Economic stability post-Brexit will be critical for the continued legal industry buoyance. A no-deal scenario would be most unfavourable. This could potentially shed £3bn from the legal industry by 2025, and, if the Bank of England is correct, could shrink the economy by 8% immediately after Brexit. Despite a recession, a devaluation of the pound could render the UK an attractive investment opportunity for international clients, generating more work for lawyers still. Yet firms heavily reliant on cross-border transactional work would experience profitability decline, as investment into a newly turbulent economy would be highly unlikely to offset the consequences of a recession. Economic downturn potentially has even wider consequences for the legal industry.

Criminal practitioners might suffer indirect consequences from a post-Brexit recession. Austerity measures made a sacrificial lamb out of the criminal justice system after the 2008 recession. It would come as little surprise if the Ministry of Justice’s rhetoric of fat cat lawyers, rich off the public purse, was wheeled out once again to justify another savaging of legal aid. It seems then, Brexit may even be a distant threat to criminal lawyers. Whilst criminal practitioners will not encounter restrictions in practice resulting from Brexit, lawyers with cross-border practises will.

Based on the draft withdrawal agreement reached on 14th November, the apparent willingness of both the UK and EU to compromise suggests a no-deal scenario is unlikely. However, both Chequers and no-deal scenarios appear to leave the UK outside of the single market for services. Also, it seems most likely the UK will fall outside of the EEA. This will have three significant consequences for UK lawyers practising in the EU. First, lawyers qualified in the UK can currently represent clients in the European Court of Justice, a freedom that may require further hurdles once Brexit occurs. Second, legal privilege afforded to UK lawyers in EU cases could potentially be rescinded and third, the current ability to draw up contracts in 15 EU countries could be lost as well. Unless negotiations retain these privileges, UK lawyers will face substantial disadvantages over their EU counterparts. For those with cross-border practices, Brexit presents perhaps the most immediate threat. As such, lobbying robustly to secure mechanisms that enable cross-border practice and financial services freedoms should be prioritised. 

Great caution should be taken not to rejoice blindly on the prosperity Brexit currently brings to the industry. Failure to acknowledge the long-term challenges Brexit places upon lawyers in certain areas is to ignore that Brexit is both, ultimately, opportunity and threat. 

'Defending the Guilty' - Alex McBride | Review (Joe's Budget Books)

My review of 'Defending the Guilty' by Alex McBride is now posted on my Budget Book blog. 

'Defending the Guilty' is centred around the age old question asked to anyone studying or practising law: how can you defend the guilty? With entertaining stories from McBride's career at the bar, Defending the guilty is well worth a read.

If you would like to read my review of the book, you can find it here:

https://joebookclub.wixsite.com/joesbudgetbooks/single-post/2018/07/16/Defending-the-Guilty---Alex-McBride-Review

Reform for Acid Attack Sentences: Is it necessary?

The number of crimes involving the use of acid in the United Kingdom has increased exponentially. Specifically, assaults involving corrosive substances have doubled since 2012. The police state there have been 504 reports of such offences in 2016-17. London has seen the most dramatic rise and is the setting for the vast majority of acid related offences. The injuries resulting from these assaults are typically catastrophic, disfiguring and life-changing. As such, public demand for preventative and punitive measures in order to tackle the rise of acid attacks has increased accordingly.

The Government has responded, entertaining the possibility of new laws, more robust sentences, voluntary restrictions of sale and a consultation. Most recently, acid has been specifically categorised by the sentencing council as a ‘highly dangerous weapon’ in the sentencing guidelines relating to bladed articles and offensive weapons. The ‘two strikes’ rule, whereby offenders convicted twice of possessing an offensive weapon (or threatening to use it twice) receive a six-month prison sentence has now been specifically applied to corrosive substances such as acid.

This post aims to discuss the current legislation, the existing sentencing guidelines relative to those offences including the recent update, and will consider whether proposals for reform, including the calls for tougher sentences, are appropriate.  

The current catalogue of offences

The primary legislation encompassing offences of this kind is covered by s.18 of the Offences Against the Person Act (OAPA) 1861, and s.29 of the same act. S.18 covers intentionally causing grievous (serious) bodily harm, and s.29 deals with throwing a corrosive fluid on a person with the intention of causing serious bodily harm. The maximum sentence for both of these offences is life imprisonment. If, as a result of the assault with the use of acid, the person dies, which, due to the utterly devastating effect acid can have on a human being, is a real possibility, a charge of murder is available, carrying a mandatory life sentence.

Whilst there are multiple offences specifically relating to acid contained in the OAPA, such as ‘administering a destructive or noxious thing with intent to injure, aggrieve or annoy’ under s.23 of the Act, the maximum sentence being 5 years, it is likely prosecutions would favour s.18 (or s.20 where intention is absent) due to its familiarity with the Crown Prosecution Service and practitioners. S.24 is similarly worded, save for use of the noxious thing must endanger life or inflict grievous bodily harm. The maximum sentences for s.24 and s.23 are 5 years and 10 years respectively, though again, it is unlikely these offences would be preferred over the more well known and established s.18 and s.20.

Other than using acid as a weapon, there are two other situations where regulation is applied to acid: possession and sale. The possession of corrosive substances, is covered under the offence of Possession an Offensive Weapon under s.1 Prevention of Crime Act 1953. Whilst the possession of acid was presumably captured under this offence previously, the sentencing guidelines now makes express reference to acid as a highly dangerous weapon. Additionally, if this conviction is for a second relevant offence, the court must impose a sentence of 6 months imprisonment, unless there are particular circumstances relating to the offender, offence or previous offence that make it ‘unjust to do so in all the circumstances’. The mandatory minimum of 6 months applies to both possession and threats to use offensive weapons. The maximum sentence for such an offence is 4 years imprisonment. 

The recent change to the sentencing guidelines can be found here:

https://www.sentencingcouncil.org.uk/wp-content/uploads/Bladed-Article-Definitive-guideline_WEB-1.pdf

For the sale of corrosive substances, relevant legislation is contained within the Poisons Act 1972. It should be noted however, that whilst the sale of certain corrosive and poisonous substances is regulated to a certain extent by the Act, the sale and purchase of the types of acids typically used in these types of offences is not in itself illegal. The Poisons Act distinguishes between regulated harmful substances and less harmful substances, which are 'reportable'. Substances listed as less harmful on the reportable list include hydrochloric acid, ammonia and various compounds of arsenic, but other arsenic compounds are also listed in the regulated section.

The Poisons Act requires a person to report the sale of one of the ‘reportable substances’ if they have reasonable grounds for believing the transaction is suspicious. The purchase is suspicious if the vendor has reasonable grounds for believing it is ‘intended for illicit use’, which can be evidenced by factors such as the customers inability to explain its use plausibly, arp increase in gang-related violence and acid attacks to not be related to the res could signifiantly   their initial offence. an unwillingness to provide proof of identity or an insistence on using cash. [1] The indicators for illicit use are not exhaustive. As a summary only offence, the maximum sentence is 3 months and/or a fine.

A voluntary ban on the sale of corrosive substances to under-18s has been adopted by major retailers such as Wickes, B&Q and many others after a government recommendation, though this is optional and at the time of writing, remains voluntarily enforced.     

The case for reform

The case for new law and/or tougher sentences in relation to acid attacks themselves may be unnecessary, as s.18 already carries the maximum sentence of life imprisonment. The only possible avenue of increasing severity for such offences would be to impose mandatory life sentences for those that commit acid attacks. However, the only crime that currently carries a mandatory life sentence is murder. If the same were to be applied to acid attacks, this would unavoidably dilute the severity of a punishment reserved for the most serious of all crimes.

Second, the imposition of mandatory sentences disregards the utility of the judge’s discretion. Whilst almost all attacks involving the use of acid will result in truly dreadful injuries, it is possible to obtain a conviction under s.18 if serious harm has occurred, but there may be various degrees of just how serious one’s injuries may be. A person may throw acid on to another causing absolutely horrendous burns and disfiguring scars to the legs of their victim. A proportionally serious sentence would be entirely justified in the aforementioned scenario. Equally though, one may see reason in applying a more severe sentence in the case of Berlinah Wallace, who doused her ex-lover’s face and body in sulphuric acid whilst he slept semi-naked, resulting in burns to 90% of his body, blinding him, paralysing him from the neck down, resulting in the amputation of a leg and ridding him of his ability to speak. She received a life sentence.

Third, the differentiating deterrent effect between knowing one will certainly receive a life sentence if convicted, and there being a mere likelihood of receiving a life sentence is arguably minimal. Whilst the incapacitive and retributive functions of introducing a mandatory life sentence for those who commit such crimes is arguably not without value, it is relatively unlikely to be a measure which would realistically reduce the rate of offences. It is submitted in light of the points above, the current sentencing powers available to judges in relation to acid attacks are sufficient as the only more severe alternative is unjustified.

Whilst specifying that acid attackers are to receive the same 6-month mandatory sentencing for two offences of possessing a corrosive substance as those who carry knives in public do, it is uncertain as to whether this will have either a deterring effect in acid-related crimes. On face value, it certainly seems that as acid can be just as dangerous as knives, if not more so, it is logical to apply the same provisions of sentencing to this type of possession offence. Measures which are in essence preventative should be praised, and it is a welcomed improvement to the current guidelines that corrosive substances, such as acid, are clarified as highly dangerous weapons. Criminalising possession of such substances in public is perhaps a wise measure, in what will hopefully be a wider and comprehensive set of tools in combating such crimes. 

One of the more obvious areas for reform would be the Poisons Act 1972. The offence of not reporting the suspicious transaction of a reportable substance appears to lack teeth and presents clear issues of enforceability. One of the primary issues is that many, if not most, who purchase acid intending to use it as a weapon purchase it online. An online purchase has no shopkeeper to assess suspiciousness, and the Act shows its age in s.3C(4) when listing the indicators of suspiciousness, presuming all transactions will be undertaken in a physical shop.

It may be appropriate for the Act to be updated to implement further regulation that makes provision for digital sales of acid, as well as whether licensing or a form of robust checking is appropriate for the availability of acid. A consideration of whether an updated list of substances, compiled from the data of previous acid attacks and possession offences is appropriate may also be sensible, and a proper evaluation on whether the strict limitation of the sale of these substances is likely to reduce the rate of offences.

In the Government's consultation on new legislation for offensive and dangerous weapons, respondents to the consultation were highly supportive of introducing restrictions for the sale of corrosive substances. The responses supported bringing in legislation to mirror the restrictions of sales with respect to knives, applicable to online sales as well, with similar defences available to retailers who take reasonable precautions and exercise due diligence. Legislation to specifically define corrosive substances was supported, though with caution added in so far that such changes should be infrequent to ensure certainty and based on scientific evidence. Respondents also emphasised the importance of education and awareness for young people around corrosive substances in order to reduce their usage. It is submitted the latter point may be the most difficult, perhaps even the most expensive, but almost certainly of critical importance in reducing the crime figure.

                                                                                                                                              

A summary of the responses to the Government’s consultation on new legislation relating to the sale and possession of acid can be found here:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/717673/SUMMARY_OF_CONSULTATION_RESPONSES.pdf

Comparative study

Bangladesh experienced a similarly grim rise in the number of acid attacks in early to mid 90s. It passed two measures in response, one criminalising the offence of attacking others with acid,[2] and the second, criminalising the sale, use, importation and unlicensed production of acid.[3] The number of acid attacks in Bangladesh has decreased by an average of 15%-17% each year, from a high of 494 in 2002, to a number of 39 incidents in 2017.[4] Though these statistics could have inaccuracies as they are based mostly on media reports rather than official figures, it is generally accepted that Bangladesh has experienced a notable reduction in acid crimes, and that the laws enacted in 2002 were a contributing factor, despite significant difficulties in implementation.[5]  

Josh Normanton and Elaine Freer, barristers of 5 Paper Buildings, argue that it is the robust penalties for those that possess, sell or produce acid, as set out in the Acid Control Act, that have the greatest potential for replication in the England and Wales, and could make an impact in reducing acid attacks. Increasing the penalties for retailers who do not adhere to the strict controls related to acid is argued for as well, as it is likely to increase diligence and thus further restrict the availability of acid. They also point out that whilst Bangladesh has experienced significant implementation problems, due to various factors such as corruption, England and Wales generally fairs better with implementing new law. As such, similar measures may even result in an improvement over the reduction percentage experienced in Bangladesh.

Josh Normanton and Elaine Freer’s post can be found here:

http://www.5pb.co.uk/blog/2016/08/30/acid_attacks_lessons_to_learn_from_the_indian_subcontinent/

Controlling the availability of acid is perhaps more likely to make the most significant dent in the incident rate of acid attacks above increasing sentences on the logic it would deter other potential acid attackers. As a relatively recent phenomenon, it is unknown if the motivations of acid attackers remain just a potent on their release from prison than at the time of their initial offence. If a high reoffending rate could be shown for acid attackers, reconsidering higher sentences may be warranted, though it would still appear that the availability of a life sentence to a judge is more than adequate for their assessment of dangerousness.

Issues of enforcement

Enforcing new measures for controlling of acid, should such restrictions be introduced, would present a significant difficulty. With police forces suffering significant shortages and limited resources, as well as catastrophic cuts to the CPS and court staff, accommodating and properly investigating crimes related to the sale of acid would inevitably add to the strain. Accordingly, should new measures come in to force, it would be imperative that funding for police and courts to adequately accommodate enforcement is allocated alongside.

It is possible, though unproven, that the sharp increase in gang-related violence and acid attacks is related to the lower number of police constables on the street, as a result of the increasingly stretched and underfunded police force. Considerations for increased funding for police, especially in London, might be of an even higher priority, relative to crime reduction, than introducing new legislation, if acid attack figures are to be combated with any effectiveness.

Conclusion

The current catalogue of legislation criminalising those who use acid to devastating effect is both comprehensive and adequately available to prosecutors and judges who face dealing with such horrendous crimes. Both offences under S.18 and s.29 have a maximum sentence of life imprisonment available, which has previously been used. To increase that maximum to a mandatory life sentence, mirroring that applied to murder, would remove the judge’s discretion, producing unfairness, inconsistent results and would dilute the severity of the offence of murder.

Whilst reform is perhaps unwarranted for tougher maximum sentences in terms of s.18 or s.29, tighter controls and increased penalties for retailers for the sale and unlicensed production of acid have the potential to be effective. These might include requiring identification and reporting sales to the police. Such measures would hope to replicate the reduction of such crimes seen in Bangladesh with similar controls. Amendments to the Poisons Act 1972 or new legislation could facilitate this, though any significant reduction to the number of acid attacks would be unlikely without a holistic package of reforms. Education and awareness regarding consequences for young people would invariably play a crucial role. Most importantly however is the adequate allocation of funding to police forces. Without this funding, accommodating the significant enforcement challenges these measures would inevitably encounter would almost certainly fall short.

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[1] S.3C(4) Poisons Act 1972

[2] Acid Offence Prevention Act 2002 (Bangladesh)

[3] Acid Control Act 2002 (Bangladesh)

[4] http://www.acidsurvivors.org/Statistics

[5]http://www.acidsurvivors.org/images/frontImages/Implementation_status_of_Two_Acid_Acts.pdf, page 7