Extradition to the United States; success for JFH Crime
John Howey, Partner at JFH Crime, has secured the discharge of a client wanted for extradition to the United States. Warrants for countries such as the United States are known as Part II warrants. Our client, an American citizen, was arrested earlier this year after a warrant was issued by the Federal Court in California. It is alleged that he had made a ‘false statement involving international terrorism’.
Why was he arrested?
In 2013, he was detained by the FBI in Rome airport. He allegedly travelled to Syria to join a group opposed to President Assad. At that time, the group in question was backed by the US Government. The FBI suspected that he had been fighting there and he was questioned about his activities. He was refused permission to continue his journey back to the United States and put on a ‘no-fly’ list.
In 2016 a Grand Jury in California indicted him on a single count, involving the making of false statements involving international terrorism. For extradition proceedings involving the USA, the US Government is not required to provide evidence of a prima facie case against the requested person, they simply have to show that the offence is an extradition offence.
What was the argument?
In this case, we argued that the alleged conduct would not amount to an offence in this country. If that was found to be the case. it was therefore not an extradition offence. The Government argued that it was equivalent to an offence of perverting the course of justice. There was nothing to suggest that our client was aware that making a false statement was an offence. Nor was there any evidence that he had in fact actually made a false statement. Nothing he allegedly said to the FBI could be shown to be untrue.
Although there is a body of case law in this country dealing with sentencing for perverting the course of justice, there is very little case law that deals with what constitutes perverting the course of justice. As a result, the District Judge decided that the United States Government had not proved that this was an extradition offence and our client was discharged.
What happens next?
The US Government have already indicated an intention to seek permission to appeal.
This case has now been reported by CNN and other news outlets in the USA.
In this case, John Howey instructed Mr Ben Cooper of Doughty Street Chambers.
If you have an extradition case and would like our assistance, then please contact John Howey on 0207 388 1658 or jhowey@jfhlaw.co.uk.
John Howey, Senior Solicitor
Read More
Certificate for Counsel in Extradition
In both Part 1 and Part 2 extradition proceedings, there is scope for an application to be made to Court for a ‘certificate for counsel’ pursuant to Regulation 16 of the Criminal Legal Aid (Determinations by a court and Choice of Representative Regulations 2013/614).
The test under Regulation 16 is whether there are circumstances in the extradition proceedings which make the case ‘unusually grave’ or ‘difficult’, meaning that representation by an advocate is ‘desirable’. There is no need for the case to be considered uniquely difficult or grave.
An application should be made in writing and sent to the dedicated email address for extradition matters at Westminster Magistrates’ Court. The Court’s current practice is to list the case for an application for a certificate for Counsel so that oral submissions may be made. However, it is advisable to include as much detail as possible in the written application; set out a background of the history of the case, issues to be raised, brief instructions and conclude why the case is complex and requires counsel’s input.
If a certificate is granted by the court, the Legal Aid Agency will send an assigned counsel Representation Order. All communications to Counsel and clerking may be claimed in the CRM7 bill.
Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.
Cheryl Low, Solicitor
Read More
Habeas Corpus in Extradition
European Arrest Warrants (EAW) strictly speaking, have no operative value in England and Wales. Instead, we have the Extradition Act 2003 that allows one’s extradition to be acted on if there is a Part 1 or a Part 2 warrant. Part 1 warrants are presently only for EU territories and therefore EAWs are incorporated through the Act.
To qualify as a Part 1 warrant, section 2 of the Act must be complied with. Part 1 warrants are separated into two categories – accusation and conviction cases. The information required for accusation and conviction cases is set out in section 2 in very clear terms.
What happens if a Part 1 warrant does not comply with section 2?
Cando Armas
It has been argued that if the warrant does not comply with the requirements in section 2, then there is no power of arrest and remand, and that person should be discharged immediately. This was the position in Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1. Strict compliance was necessary; at paragraph 24, the Court said ‘the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statue.’ Cando Armas is very clear that there is no scope for correcting any deficiency in the purported Part 1 warrant.
However, since the UK opted back into the Framework decision on EAWs, there has been a sea-change in this interpretation. The position and practice at Westminster MC now, is to allow the CPS, acting on behalf of the Judicial Authority, to obtain further information to correct the deficiencies in the purported Part 1 warrant. In the meantime, a person may be remanded into custody or on bail. Some EU countries are very cooperative and will provide further information quickly, others not so. In the meantime, a person’s liberty is at stake.
Arguably, Cando Armas is still good law but there is certainly conflict and tension in the interpretation of section 2 of the Act, especially so with the case of Di Benedetto and Alexander [2017] EWHC 1392 (Admin) which we explored in our articles Can further information be admitted in Appeal hearings? and Extradition ordered for Tarik Chadlioui; what next?
Habeas Corpus
A habeas corpus application may be an appropriate remedy if you have someone in custody on an invalid and/or deficient Part 1 warrant. The availability of this remedy was confirmed in Pinto v the Governor of HMP Brixton [2004] EWHC 2986 (Admin).
However, if a person is remanded on conditional bail following an invalid and/or deficient Part 1 warrant, perhaps an appeal by case stated may be an appropriate avenue. Westminster MC’s practice is to remand a person on stringent bail condition in extraditions proceedings. Conditions of residence, curfew, reporting and a security are the norm. They too interfere with a person’s liberty, albeit in a less intrusive manner. As far as we are aware, this has not yet been litigated in the courts.
It is important that anyone facing extradition has a specialist extradition solicitor study the EAW/Part 1 warrant to ensure that it complies with section 2 of the Act. The onus lies on the requested person to raise this issue, if there is one, at the initial hearing. Ideally, the issue of the validity of the warrant should be dealt with ahead of the full extradition hearing.
Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.
Cheryl Low, Solicitor
Read More
MET; a cut too far?
The MET police in London announced this week that it was ‘not practical’ to investigate certain low level crimes in London due to a strain on budget and future savings that are required to be made.
According to New Scotland Yard, there would be a shift towards ‘empowering our officers’ to assess for themselves whether it was proportionate to investigate offences such as shoplifting, criminal damage and car crime. If the complainant in a case was not willing to attend court or the value of the loss/damage was relatively low there could be a decision not to even investigate.
The MET current working procedures
Currently when a complaint is made the police will investigate and make an arrest, or interview voluntarily, if they have reasonable grounds to suspect a particular person’s involvement. If a decision cannot be made about that particular case, the suspect is either bailed to return to the police station or ‘released under investigation’ (RUI). In bail cases the police will work towards making a decision by a particular date; in RUI cases the matter is left open indefinitely whilst investigative work continues.
Increasingly, often due to workload, we have found that RUI cases do not appear to be actively investigated by officers as they do not seem to be high priority. This leaves both suspects and complainants not knowing what will happen to their case. For a complainant, this could leave them feeling justice is not done; for suspects, there will be no way of knowing whether they will face charge and potential criminal proceedings.
Has the MET really thought about the negative consequences of this cut?
There are numerous concerns we have with the proposals laid out by the MET. One of which is the stage at which the decision not to investigate will be made. If made at the point of complaint the effect is likely to be that there are no arrests; this could potentially lead to an emboldening of suspects. If a person inclined towards theft knows that there is a no investigation policy for theft below £50 they are likely to more carefully plan their theft so that it falls below that particular threshold. What is likely to happen is that there is a shift towards lower value theft but in far greater volumes.
If there is no investigation, and of course no arrest, charge and sentence to follow, victims will be left out of pocket and with a feeling that justice has not been done. This could lead to shops and retailers having to tighten their own security, the cost of which is almost inevitably going to pass to the innocent consumer.
Perhaps more worrying is the possibility that retailers and individuals alike may dispense their own justice. If a low-priority theft is not investigated, will it follow that a low-level assault committed on a suspected shoplifter also not be investigated? With budget cuts likely to continue will the new policy be extended; ie the threshold extended to £100?
Policing and law enforcement must not be cut: the criminal justice system is in danger!
We have all had to deal with the years of austerity and cut-backs, but policing and law enforcement is one of the key areas that simply cannot be cut. The criminal justice system is already at breaking point with decrepit prison conditions, prosecution failings, legal aid cuts and court closures. Of course there has to be prioritisation of certain criminal offences, but it should not be at the cost of properly policing and enforcing lower level offences.
If you require representation at the police station or court contact our team on 020 7388 1658 or lawyers@jfhlaw.co.uk
Duncan Roberts, Solicitor
Read More
Abuse of process in Extradition cases
Criminal lawyers will be familiar with the term ‘Abuse of process’. To those unfamiliar with it, it is a situation where there is something so wrong and so unfair with a case that it should not be allowed to go ahead. It is not found in any legislation, and it doesn’t appear in the Extradition Act. However, the Courts in this country have decided that it is something that can be used in extradition proceedings, although it is not something that is used very often.
Acting ‘in good faith’
When considering whether or not something amounts to an abuse of process, the Judge hearing the case starts with an assumption that whichever country is asking for extradition is acting ‘in good faith’. It can be very difficult to prove otherwise, even where there is an obvious mistake or evidence is clearly missing from the warrant.
Zakrzewski sets out the circumstances in which an abuse argument will be permitted
We recently dealt with a case where extradition was asked for in a case where the sentence imposed was said to be one of over 5 years. The warrant had details of the offence and the sentence that was passed, and everything seemed to be in order. However, it became clear that there were other offences involved that were not listed in the warrant, as they should be. The reason the sentence was as long as it was, was because the client had been recalled on licence for other more serious offences. The sentence for the offence in the warrant was actually only 6 months. The authorities in the requesting country confirmed that this was correct, but the District Judge decided that even though the warrant was clearly missing information, she had to assume it was correct. We argued that this was an abuse of process. Although the District Judge decided it was not, we were given permission to appeal in the High Court. Before the appeal could be heard, the warrant was withdrawn and a new warrant issued containing all of the information needed.
By the time the new warrant came to court, our client’s position had changed somewhat and there were fresh arguments to put forward. The case is still going on, well over two years after he was first arrested.
Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.
John Howey, Senior Solicitor
Read More
Can further information be admitted in Appeal hearings?
FK v Stuttgart State Prosecutor’s Office
In our last e-alert, we reported on the case of Tarik Chadloui who is facing extradition to Spain. In his case, the Spanish Judicial Authority were able to adduce further evidence to cure deficiencies in the EAW. In September, the High Court considered a similar question in the case of FK v Stuttgart State Prosecutor’s Office, Germany. Except in this case, the question is whether or not further information can be provided during the course of an appeal.
In FK’s case, he was wanted by Germany for 26 offences of fraud. It appears that he was accused of running a Ponzi style investment scheme. The EAW did not make it clear exactly where the conduct had taken place. In order to be an extradition offence, some of the conduct involved in the commission of the offence had to have taken place in Germany.
Permission to Appeal was granted in February, and in March the Judge asked the German authorities to clarify the position.
Circumstances of the further information request
Under the terms of the Council Framework Decision, which established the EAW process, the ‘executing judicial authority’ can request further information from the requesting state. The ‘executing judicial authority’ for this country is defined as ‘a District Judge (Magistrates Court) designated by the Lord Chancellor’. Following the cases of Goluchowski v District Court in Elblag, Poland, Poland and Alexander v Public Prosecutor’s Office, Marseilles; Di Benedetto v Court of Palermo, Italy (which were relied on in Chadliou’s case) there is no difficulty with the Magistrates Court requesting further information.
The problem in this case was that the High Court is not an ‘executing judicial authority’. The High Court’s jurisdiction in an extradition appeal is similar to that of the Court of Appeal when considering an appeal from the Crown Court. It is not a re-hearing, it is an assessment of whether or not the decision made by the District Judge was wrong.
Lord Justice Hickinbottom ruled that the ‘High Court has an inherent jurisdiction to regulate its own procedure’ and that the further information could be admitted. The Extradition Act already sets out the circumstances in which an appellant can submit new evidence. It would, as a matter of logic, be absurd if the Appellant was able to produce fresh evidence but the Respondent was not able to respond to that fresh evidence. Although in the majority of cases the Appellant will be the person whose extradition is sought, that is not always the case. If a requested person is discharged, the Judicial Authority have a similar right to seek permission to appeal.
Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.
John Howey, Senior Solicitor
Read More
Mass Spectrometry; the future of the fingerprint evidence?
A new technique for identifying criminals could be in use ‘within months’ following years of development by Sheffield Hallam University. But what is it and could there be problems?
Mass Spectrometry: analysing the ridges of the fingerprints
Fingerprints on crime scenes, weapons and stolen property have been the undoing of many a criminal over the years. With evidence being corroborated by DNA, CCTV and cell-site analysis the commission of crime, for the petty criminal at least, is getting harder and harder to get away with.
The latest development in fingerprint testing could potentially take prosecution evidence to a new level. Researchers have developed a technique called ‘mass spectrometry’, which analyses traces of substances ‘on or within the ridges of the fingerprints’.
Pros
It is claimed that the technique can reveal whether the print belongs to a male of female, whether there are traces of drugs and whether a person has handled a condom, the latter claim being so specific that the brand can be identified. This is a significant leap on from the current position of simply identifying the owner of a particular print.
Certain crimes should therefore be more detectable, for example a defendant denying that he/she has handled drugs will have a far more difficult time in court if the evidence shows that drugs have been taken.
Cons
Our concern is that unless the match is so precise it will be difficult to show a direct correlation between drugs seized and drugs taken. Any given batch of drugs is likely to have differences which could, of course, be reflected in the print it leaves. However, taking the condom claim, which is clearly intended to improve the quality of evidence in rape and sexual assault cases, an item such as that will be produced in a factory with rigorous quality controls. Deviations in product are, we expect, likely to be far fewer.
That of course brings us on to the obvious question; although the test can deduce that a suspect handled a brand ‘A’ condom is it able to provide any clue as to when? What if the complainant is mistaken and actually a brand ‘B’ condom was used in the assault? Will that negate their complaint and offer a defence.
Current problems associated to fingerprint evidence
Similar problems already exist with the use of fingerprint evidence as we currently know it. Whilst a fingerprint may well show that a suspect has a link to a particular place it does not provide the date/time on which it was left at the scene. Unless mass spectrometry is able to provide a specific date and time as to when the identified substance was handled by the suspect its use will face the same limitations as current methods. Although a significant jump forward the value of the evidence it produces will be limited unless there is other corroborating evidence against a suspect.
For years DNA was seen as infallible but recent reports show that the evidence it yields is not as clear-cut as it could be. Although an admirable leap forward and one which will no doubt be refined in years to come we should exercise caution in the reliance of mass spectrometry evidence as being the smoking gun in cases.
The biggest limitation though is the database itself. A print or sample is only ever going to be effective if there is a match on a database entry. There are numerous unsolved crimes committed each year ranging from murder and rape to theft and public order. Some will naturally lend themselves to having some form of physical evidence such as DNA or fingerprint. However, even a murder case with a fingerprint on the weapon and the perpetrator’s blood on floor means nothing if that person is not on the police database.
Duncan Roberts, Solicitor
Read More
Kidnapping of Chloe Ayling; guilt or innocence is irrelevant in extradition proceedings
A high-profile extradition was ordered on 29 September 2017 by District Judge Goldspring. Mr Michal Herba’s extradition is sought by Italy for the alleged kidnapping of Chloe Ayling. His lawyers argued that the details of the warrant were deficient, extradition would be in breach of his human rights and that it would be an abuse of process.
Case of publicity stunt?
The arguments against extradition rest largely on the suggestion that the allegations made by Chloe Ayling were a scam. However, DJ Goldspring’s written judgment makes it clear that the Italian Judicial Authority based their decision to prosecute Herba on evidence obtained from DNA, video footage, computer analysis and Chloe Ayling’s statement.
Herba’s lawyers argued that the alleged kidnapping was a publicity stunt and therefore his extradition breaches his right to a fair trial (Article 6 of the Human Rights Act 1998) and/or amounts to an abuse of process. He served newspaper articles and reports that were described as ‘open source material’ to challenge the veracity of Chloe Ayling’s statement to the Italian authorities.
The onus lies on Herba to prove both the Article 6 breaches and the abuse; he has to prove that he is at a real risk of suffering a flagrant denial of a fair trial in Italy for his Article 6 claim or provide cogent evidence to prove that the extradition process is being usurped, resulting in prejudice against him. The newspaper articles and opinions that Chloe Ayling’s kidnap may be a publicity stunt do not satisfy the high threshold for both arguments. Herba faces an uphill battle to prove both arguments evidentially and legally, especially against the presumption that an EU member state will comply with the European Convention of Human Rights.
The fact: culpability is irrelevant in extradition
Despite Herba’s protest of innocence, it is simply not a matter for the English courts to consider whether he is guilty or not. A person’s guilt or innocence is irrelevant for the purposes of extradition. That decision lies with the Requesting state and the English courts are slow to consider any evidence of guilt or innocence when determining whether extradition should be ordered or not.
Herba’s lawyers have stated that they intend to appeal against DJ Goldspring’s decision. They will now have to persuade the High Court that they have an arguable case for permission to appeal.
Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.
Cheryl Low, Solicitor
Read More
Gun control – US gun laws; who pays the price?
The mass murder in Las Vegas on Sunday has brought the issue of gun control to the forefront of public debate once again. The right to bear arms is a fiercely protected right in the USA but would a tightening of controls prevent such tragedies?
In the UK prohibitions on certain types of weapon have been in existence alongside the weapons themselves from as early as 1594; Queen Elizabeth I banned the possession of wheellock pistols near a royal palace through fear of assassination.
Gun control laws in the UK were tightened significantly following the Dunblane School shooting in 1996 when 17 people were killed by a lone gunman in possession of four legally carried handguns, who entered the primary school and opened fire before taking his own life.
Almost immediately in the aftermath of Dunblane the government introduced the Firearms (Amendment) Act 1997, followed the same year by the Firearms (Amendment) (No.2) Act, which banned the possession of handguns by civilians in the UK. This amendment to the gun control put in place in tightened those controls further.
In the 21 years since Dunblane, encompassing a series of changes in legislation, there has only been one further mass shooting. The 2010 Cumbria shootings resulted in the loss of 12 lives before the killer again took his own life. Despite the stricter gun control both weapons in the killer’s possession were also with lawful permission.
Over the years further legislation has brought us to today’s position whereby the possession of most types of firearm carries a minimum mandatory sentence. Murder of course carries a life sentence if such weaponry is used to deadly effect.
Given the need for public protection, particularly with the uncertainty that an attack may be terror based, there is a very high prospect of the perpetrator being killed by police during an incident.
The death of a perpetrator of course renders any minimum sentence ineffective as there will be no prosecution. ‘Death by police’ or suicide will surely be outcomes that a perpetrator will have considered before embarking on their actions; one therefore has to question whether the minimum sentence or control over weapons has any effect on this particular type of perpetrator.
Gun deaths in figures: US vs UK
Firearms offences in the UK do continue to take place albeit, thankfully, not on the scale we have referred to above. In 1996 there were 247 gun deaths in the UK; the last figure available (2013) showed that there had been a fall to 144 deaths in that year but the intervening figures varied from a low of 123 in 2012 to a shocking 234 in 2000.
Not all of those deaths are attributable to the deliberate killing of another person; once accidental and suicide deaths are taken out of the equation the figures again show a general downward trend with 84 homicides in 1996 falling to 23 in 2013.
The figures for the US are unsurprisingly higher given the significant difference in population, however, when taking gun death figures at a rate per 100,000 people the disparity is staggering. In 2013 the UK saw 0.22 gun deaths per 100,000; in the US the figure was 10.63.
When taking suicide and accident out of the picture the comparative rates of homicide deaths with guns involved was 0.04 in the UK for 2013 and 3.54 in the US.
Worryingly the US saw 505 unintentional gun deaths in 2013 compared to just 5 in the UK. The per-capita comparison is 0.18 to 0.01 US:UK. That means that in the US you are over four times more likely to be killed by accident than you are in a deliberate shooting in the UK.
What is just as frightening is the fact that in 2013 a person in America faced almost the same risk of being killed with a gun by accident as a person in the UK faced at all; 0.18 to 0.22.
Another astonishing statistic was that in 2013 the number of ‘justifiable homicides’ in the US was 681; 0.22 per 100,000 of population. That figure as a proportion of population is the same as the total proportion of gun deaths in the UK in the same year.
The comparisons could go on and on. What we believe it shows though is that clearly having greater control of ownership of weapons prevents gun deaths across the board, not just intentional killings.
It is commendable that in the UK we condemn those who seek to use guns through the use of strict, mandatory minimum sentences. It sends a message that those who seek to endanger themselves and, more importantly, others will serve sentences designed to punish them but also to deter others from following their example.
The problem arises when a person decides that they want to break the law and commit a criminal offence. Controls and restrictions can only go so far in those circumstances. Both perpetrators in Dunblane and Cumbria were lawfully in possession of their weapons which killed so many; although the exact type of the 47 firearms in possession of the Law Vegas shooter is still unclear what has emerged is that he purchased more than one and met state and federal requirements in order to do so.
Whether those checks were sufficient will undoubtedly be called into question but the fact remains, those weapons were available to purchase.
Are these crimes preventable?
One of the first reactions from President Trump was that the killer was ‘demented’; an inappropriate term by all accounts but one does have to question what made an otherwise law-abiding citizen kill 59 other innocent people.
Similarly ill-conceived headlines followed the Cumbria murders in the UK with The Sun declaring ‘Psycho Cabbie’s rampage on CCTV’ on their front page.
The response locally was simply to deter those with diagnosed conditions from getting the help and support they required.
A public inquest into both UK shootings found that neither perpetrator suffered any diagnosed mental health conditions although both had what would reasonably be described as ‘difficult’ backgrounds. The Cumbria killer had suffered a serious attack in his cab and was, according to his GP, ‘starting to get down’ about various ailments and was suffering flashbacks. No further intervention took place.
Similarly the Dunblane killer had no diagnosed mental health condition although that was hardly surprising given the suggestion that he had not been to a Doctor in over 20 years. Local news reported that he ‘did not have a mental illness, but did have a personality disorder’.
Given that a personality disorder is a mental illness we would suggest that the very fact that it was so dismissed is indicative of where the problem really lies.
The problem therefore rests with how ‘mental health’ is portrayed and how it is dealt with. Headlines from influential leaders declaring a person as ‘demented’ to an audience of millions belittles those who suffer with mental illness. Calling a murderer a ‘psycho’ is unhelpful to those who suffer psychotic illnesses but are able to control them.
In no way do we condone the acts any of the perpetrators undertook, or in the case of the Dunblane killer his alleged paedophilic tendencies, but, as a society we have to look at what caused them to take a path which resulted in the killing of over 80 innocent people between them.
Attitude towards guns
Attitudes to mental health need to change to work alongside regulation and control of weapons. Mental health issues are as real and as damaging to their sufferer as physical ailments. All too often depression, for example, is trivialised – ‘smile’, ‘get on with it’, ‘cheer up’, ‘it’s just a bit of sadness’ and so many more are phrases that are aimed at the sufferer by way of well-meaning advice. The sufferer is put off obtaining proper medical advice and things spiral; they may feel unable to speak out and tell friends for fear of trivialisation.
A person with a fractured wrist would not be told to just carry on regardless with a smile. Similarly a cancer patient would not be advised to seek no help at all because it was ‘just a little bit’.
Gun control is an important starting point but the attitude toward guns is just as important. Taking a tough stance on those in possession of them is admirable but we also need to look at the reason why that person is in possession in the first place. Mental health is just one factor.
The US has far less access to free medical care than in the UK; despite concerns that the NHS is failing the fact remains that we have a fundamental right to professional, medical help. Treatment of mental health issues should not be dependent on ability to pay. Instead of choosing to prioritise a right to medical care the US has chosen to maintain a right to bear arms.
Ironically those injured in Las Vegas may have to pay for medical treatment as they are not entitled to it despite being shot by a man who was exercising his entitlement to possess an assault rifle. Regardless of controls or regulations it is clear to see where the problem lies.
Although our own attitudes to guns and the reasons for them could improve we are still far further ahead than our American friends.
Duncan Roberts, Solicitor
Read More
DNA evidence as a reasonable doubt?
An article in the Guardian on 2nd October has highlighted some of the problems surrounding DNA evidence. Since it was first used to secure a conviction in 1986, DNA evidence has developed something of an unshakeable aura about it. It is common to hear in court ‘there is DNA evidence’ as if that somehow proves guilt beyond any doubt, let alone beyond a reasonable doubt.
Whilst science has developed to the extent that in many cases there is no doubt about who the DNA is from, what science cannot yet do is tell us how someone’s DNA found it’s way to a particular place. Some years ago, I defended in a burglary case, where the sole evidence against my client was a cigarette butt with his DNA on it found inside the burgled premises. That was sufficient for him to be charged and the case to proceed to trial. There was no evidence of the circumstances in which his DNA came to be on the cigarette butt or when and how the cigarette had found it’s way into the building. Fortunately, the District Judge trying the case recognised this and he was found not guilty, but both the police and the CPS thought they had the right man.
DNA evidence problems
Scientific developments have brought their own, fresh set of problems. Early DNA profiling was restricted in the profiles it could produce, as it required larger amounts of material for testing. Modern technology can develop a profile from smaller and smaller quantities of cellular material, and can often identify more than one person’s profile within a small sample. This gives rise to problems of cross-contamination, where one person’s DNA finds its way onto a second person, who then deposits the DNA at a different location; or cases where a DNA deposit is left at a location that becomes a crime scene later on.
DNA technology is clearly a vital tool for the police and prosecuting authorities, but there remains a need for caution when a case is substantially dependent on DNA evidence.
John Howey, Senior Solicitor
Read More