Jordan Cunliffe fails in judicial CCRC and tariff reviews

One of the killers of Garry Newlove – who was kicked to death outside his home after confronting vandals – has lost a High Court action in his fight to have his conviction overturned.

Leading judges rejected a challenge by Jordan Cunliffe against a decision by the independent body, which investigates possible miscarriages of justice, not to refer his case to the Court of Appeal for review.

Sir Brian Leveson and Mr Justice William Davis, sitting in London yesterday, dismissed a claim for judicial review by 27-year-old Cunliffe against a decision last year by the Criminal Cases Review Commission (CCRC).

Cunliffe is serving life for his part in the alcohol-fuelled killing of 47-year-old father-of-three Mr Newlove in 2007.

He was one of three teenagers found guilty of murder by a jury at Chester Crown Court in January 2008. He was 16 at the time of conviction.

Mr Newlove, who had overcome stomach cancer, suffered massive head injuries in the attack at his home in Warrington, Cheshire, and died two days later.

The ruling was the second blow in a week for Cunliffe, who failed to persuade another High Court judge to reduce his 12-year minimum term – the least he must serve before becoming eligible to apply for release on parole – which expires in August.

Sir Brian, ruling in the CCRC case, said it was submitted on Cunliffe’s behalf that “there was nothing in the evidence” to show that he was a participant in the attack on Mr Newlove at the time of the fatal blow.

He went on: “This submission is untenable.”

Sir Brian said: “The evidence as a whole showed that he was participating throughout the incident involving Mr Newlove.”

He added that the trial judge’s direction to the jury “made it perfectly clear that a defendant could not be convicted unless he were proved to be party to the joint enterprise when the fatal blow was struck”.

Earlier, Mr Justice Spencer, ruling on Cunliffe’s application for a tariff reduction, said he had “undoubtedly made very good progress across a wide range of areas”, but it could not be said that “overall his progress has been both exceptional and unforeseen”.

He added: “The absence of true remorse and the complete lack of an acceptance of any responsibility for the part he played in the murder is an important negative factor, although not conclusive in itself.”

It was “greatly to his credit” that Cunliffe had developed into a “mature and responsible young man”.

Mr Justice Spencer said: “The confidence which the Parole Board has shown in the applicant by transferring him to a category D prison, in open conditions, and by approving significant periods of release on temporary licence, is also greatly to his credit.

“The process of parole will have to take its course once the applicant has served the minimum term set by the trial judge, which expires in just a few months’ time in August 2019.

“The fact that the date is so imminent would not have deterred me from recommending a reduction in his minimum term had that course been justified, but it is not.”

Mark Leech, Editor of The Prisons Handbook and Converse newspaper, said Jordan Cunliffe’s case had been ‘littered with serious flaws’ every time it came before the courts.

Mr Leech said:  “From the wrongful directions on joint enterprise given to the jury in Jordan’s case, made clear in the later case of Jogee which even the CCRC accepted could have made a difference at his trial, to secret victim impact statements handed to the High Court under the table by the now ‘Baroness’ Newlove, the deceased’s wife, and later roundly criticised by the Court of Appeal – Jordan’s case has been littered with serious flaws every time it has come before the courts.

“it’s hard to understand what more this young man has to do to ensure justice is done in his case.”

Read the court’s judgement here http://prisons.org.uk/cunliffevCCRC.pdf

Prisoner takes smoking case to the Supreme Court

smoking in prison

Extra. Personal View: Mark Leech

A prisoner with health problems is taking his battle to make smoking in jails a crime to the UK’s highest court.

The move by Paul Black, an inmate at HMP Wymott in Lancashire, follows his defeat at the Court of Appeal last year.

He originally won a High Court declaration in 2015 that the legal ban on smoking in public places under the 2006 Health Act must also be applied to state prisons and other Crown premises in England and Wales.

But Court of Appeal judges later allowed a Government challenge against that decision.

The judges said the Crown was not bound by the Act and the ban, which came into force in July 2007, did not apply in public sector prisons.

A panel of five Supreme Court justices, headed by president Lady Hale, will hear the latest round of the litigation on Tuesday.

The issue they are being asked to decide is whether the Crown is bound by the Health Act “by necessary implication”.

Black, a sex offender serving an indeterminate sentence since 2009, launched legal action complaining that prison smoking rules were being flouted and should be legally enforceable.

The Health Act places restrictions on smoking in public places and workplaces, making it a criminal offence to smoke in an unauthorised place and also an offence for those in charge of the premises to turn a blind eye to the smoking.

Black argues he and other prisoners should have confidential and anonymous access to the NHS Smoke-Free Compliance line which enables members of the public to report breaches of the law to the local authority.

The Justice Secretary has refused his request, contending it would serve no purpose since the Act does not bind the Crown, which administers the prison.

Government lawyers had warned the appeal court that a ”particularly vigorous” ban in state prisons could cause discipline problems and risk the safety of staff and inmates.

A Prison Service spokesman said after the appeal court’s ruling that it meant smoke-free prisons could be rolled out in a “safe and secure way”, ensuring that staff and prisoners “are no longer exposed to second-hand smoke, while not compromising the safety and security of our prisons”.

When given the go-ahead to take his case to the Supreme Court, Black said in a statement: “I simply wish non-smoking prisoners and prison staff to have the same level of protection from the risks of second-hand cigarette smoke as non-smokers living in the wider community.”

His lawyer Sean Humber, head of human rights at law firm Leigh Day said: “In this case, the issue is whether the restrictions on smoking indoors introduced by the Health Act 2006 apply to over a thousand Government owned and operated premises, including prisons, throughout the country.

“Our client simply believes that those living, working and visiting these premises should have the same protections from the health risks posed by passive smoking as everyone else.”

A Prison Service spokeswoman said: “We have long been committed to a smoke-freeprison estate and this is being phased in over a long period of time.

“This phased introduction will reduce the risk to staff and prisoners of exposure to second hand smoke and prisons will only become smoke-free when it is appropriate to do so.”

Court of Appeal allows charities to challenge legal aid cuts for prisoners

legalaidcutsTwo charities have today (Tuesday 28 July) won the right to challenge legal aid cuts for prisoners after the Court of Appeal ruled there was a risk that the system could be unfair and unlawful.

The Howard League for Penal Reform and the Prisoners’ Advice Service (PAS) have been inundated with requests for help from children and prisoners since the cuts were introduced in December 2013.

The cuts have coincided with an unprecedented deterioration of safety standards in English and Welsh prisons and a rise in suicides, compounded by staff shortages.

A challenge by the Howard League and PAS was blocked by the High Court in March 2014 – but that decision was today overturned by Court of Appeal judges Lord Justice Leveson, Lord Justice Tomlinson and Lady Justice Sharp.

The Court of Appeal’s decision means that the case can now proceed to a full trial. 

The charities argued in court that there were seven key areas of work cut from the ambit of legal aid that carry an unacceptable risk of unfairness. These included:

  • cases where prisoners appear before the Parole Board about their suitability for a move to open prison (but not release);
  • cases about pregnant prisoners being allocated to mother and baby units;
  • segregation;
  • access to offending behaviour work;
  • having a suitable home to go to on release from prison.

Unlike other cuts to legal aid, where a safety net was introduced to allow people to apply for legal aid in exceptional circumstances, the cuts for prisoners were absolute: there is no lifeline for even the most vulnerable or incapacitated prisoner to apply for legal aid for prison law matters.

In its detailed decision, the Court of Appeal recognises the risk of systemic unfairness as a result of the legal aid cuts to prison law. Lord Justice Leveson concludes: “The question of inherent unfairness concerns not simply the structure of the system which may be capable of operating fairly, but whether there are mechanisms in place to accommodate the arguably higher risk of unfair decisions for those with mental health, learning or other difficulties which effectively deprive them of the ability effectively to participate in, at least, some of the decisions to which [the applicants’ counsel] Ms Kaufmann refers.”

Lord Justice Leveson adds in the judgment that the Howard League and PAS are “pre-eminent in this field” and have “the very highest reputations”.

In the year following the cuts, calls to the Howard League’s advice line increased by 45 per cent. The legal team, which provides the only dedicated legal service for children and young people in prison in the country, is overwhelmed with requests from young people with nowhere else to turn.

Prisoners’ Advice Service (PAS) represents adults (over-21s) and receives thousands of letters and calls each year. The charity simply does not have the physical or financial resources to deal with the large amount of requests that it now receives for pro bono assistance and representation.

The first key point of the case argues that the removal of legal aid for a small number of important Parole Board cases is unlawful. These cases affect prisoners on life sentences and imprisonment for public protection (IPP) sentences who can only progress to open conditions if the Parole Board advises that it would be safe for them to do so. This is important because, once in open conditions, prisoners can apply to work and receive education in the community. This step is key for prisoners’ rehabilitation and public safety. Making prisoners go through this stage without legal advice and representation is counter-productive and increases the risk to the public.

The second argument concerns the removal of legal aid for prisoners facing particular difficulties such as mothers threatened with separation from their babies, children and disabled prisoners who need a support package so they can be released safely, and mentally ill prisoners held in isolation. Managing people through long prison sentences is a skilful business which needs to be handled with extreme care so that they can resettle safely into the community.

Frances Crook, Chief Executive of the Howard League for Penal Reform, said:
“We welcome today’s decision, which offers hope to children and young people in prison.

 

“The Howard League’s legal team has represented many hundreds of children in prison and we want them to thrive inside and on release. Legal aid gets them the best help to achieve that.”

Deborah Russo, Joint Managing Solicitor at the Prisoners’ Advice Service, said: “We are delighted with the outcome of today’s hearing. The legal aid cuts to prison law have resulted in prisoners’ access to justice being severely curtailed with the consequence of further isolating an already very marginalised sector of our society.

“We therefore welcome today’s judgment, which now allows for a full hearing of the case and are thrilled to be now given the opportunity to put forward our case for legal aid for the most deprived and disadvantaged of prisoners.”

Notes to editors

  1. The Court of Appeal heard oral argument on 7 July 2015.  The case was before Lord Justice Leveson, Lord Justice Tomlinson and Lady Justice Sharp.
  2. The seven key areas of cuts to legal aid under challenge are:

    (1) Cases before the Parole Board about a move towards open conditions, otherwise known as pre-tariff reviews and return to open condition cases;

    (2) Prisoner eligibility for one of the few available places in mother and baby units;

    (3) Prisoner segregation and placement in Close Supervision Centres;

    (4) Category A reviews;

    (5) Access to offending behaviour courses

    (6) Resettlement and licence conditions

    (7) Disciplinary proceedings (where no additional days may be awarded)

  3. The Justice Committee’s year-long inquiry into the impact of the Government’s programme of reforms and efficiency savings across the prison estate raised concerns about the deterioration in safety. The report was published in March 2015 and is available here: http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news/report-prisons-planning-and-policies/
  4. The Howard League for Penal Reform is the oldest penal reform charity in the world. It is a national charity working for less crime, safer communities and fewer people in prison.
  5. The Prisoners’ Advice Service is an independent registered charity which provides legal advice and information to prisoners in England and Wales regarding their rights, the application of the Prison Rules and conditions of imprisonment.
  6. The Howard League for Penal Reform and the Prisoners’ Advice Service are jointly represented in these cases by Simon Creighton of Bhatt Murphy Solicitors, Phillippa Kaufmann of Matrix Chambers, and Martha Spurrier and Alex Gask of Doughty Street Chambers.

Further information

 

Rob Preece

Press Officer

The Howard League for Penal Reform

Tel: +44 (0)20 7241 7880

Mobile: +44 (0)7714 604955

Email: robert.preece@howardleague.org

ISDN line available on 020 7923 4196 – uses a G722 system

For enquiries outside normal office hours, please call +44 (0)7918 681094.

 

Deborah Russo

Joint Managing Solicitor

The Prisoners Advice Service

Tel: +44 (0)20 7253 3600

Tel: deborah.russo@prisonersadvice.org.uk

 

Terror prisoners segregation was unlawful

Kamel Bourgass
Kamel Bourgass

Two high-profile terrorist prisoners, including one held in Cambridgeshire, who were segregated for extended periods have won challenges at the UK’s highest court.

Five Supreme Court justices in London allowed appeals by Ricin plot conspirator Kamel Bourgass, detained at HMP Whitemoor, and ”liquid bomber” Tanvir Hussain.

In March 2012 the pair failed to persuade appeal judges that their treatment was unlawful.

They were alleged to have intimidated and bullied other inmates over matters of faith, and authorities in their respective jails had considered it was necessary to separate them from other prisoners ”for good order and discipline”.

Both men denied accusations that they tried to influence and dictate the beliefs of other prisoners.

The Supreme Court unanimously ruled that their segregation was not lawful after initial periods of 72 hours.

The judges granted declarations in each case that the “appellant’s segregation beyond the initial period of 72 hours was not authorised, so was unlawful”.

The pair had also raised human rights issues – they claimed their rights had been violated – but that aspect of their case was rejected by the Supreme Court.

Bourgass, an Algerian, is serving 17 years for conspiracy to commit public nuisance by using poisons or explosives in relation to the 2002 Ricin terrorist plot.

He is also serving a life sentence for murdering Detective Constable Stephen Oake, 40, with a kitchen knife during his 2003 arrest at a flat in Manchester.

He injured four other officers during that attack and is serving sentences for attempted murder of two officers and wounding a third.

Hussain was one of three men convicted of a plot to launch suicide attacks on flights from Heathrow to America and Canada using liquid bombs made of hydrogen peroxide hidden in soft drink bottles. He is serving life with a minimum tariff of 32 years.

While detained at HMP Whitemoor, Bourgass was segregated from March 10 2010 until April 22 and again from April 23 until October or November of that year.

Hussain was segregated at HMP Frankland in County Durham from April 24 2010 until October 2010.

Mark Leech editor of the national prisons newspaper Converse said this was an important judgement with far reaching consequences.

Mr Leech said: “Put aside the understandable distaste that we all have for terrorist prisoners, this case is about fairness and an independent process.

“Of course its right that we should be able to segregate those who pose a threat to good order and discipline inside our prisons – but a part of that process must be that the prisoner concerned has the right to know why he is being segregated and have the opportunity to contest the case against him – that doesn’t happen and has now been ruled unlawful.

“I once spent the best part of two years in this kind of segregation, solitary confinement, which has devastating emotional and mental health effect on a person and certainly did so on me.

“There are segregation review boards which meet to consider whether the segregation should continue, but it is not independent, it doesn’t examine the original allegations and the prisoner has no opportunity to answer or contest the case against him – which cannot as a matter of basic human rights be right.”

open Prison Absconder Policy Upheld On Appeal

Michael Wheatley
Michael Wheatley

A High Court ruling that a policy of excluding prisoners with a history of absconding from being transferred to more lenient open conditions is unlawful has been overturned.

The Government’s policy was introduced following high-profile media reports last year of prisoners with a history of violence absconding while on release on temporary licence (ROTL) from open prison.

Among them was Michael Wheatley, an armed robber nicknamed the Skull Cracker.

In May last year, the then justice secretary Chris Grayling publicly announced that the Government was ”tearing up the system as it exists at the moment” and introduced his absconder policy.

But in April this year two senior judges at London’s High Court ruled that excluding transfers – save in exceptional circumstances – for prisoners with a history of absconding, escape or “serious ROTL failure” was inconsistent with his own directions to the Parole Board.

The long-standing directions state that ”a phased release” from closed to open prison is necessary for most inmates serving indeterminate sentences ”to test the prisoner’s readiness for release into the community”.

After their decision was announced at the High Court, Lord Justice Bean and Mr Justice Mitting gave the Justice Secretary permission to challenge the ruling.

Today, three judges at the Court of Appeal in London allowed the Government’s appeal.

Lord Justice Sales, announcing the court’s unanimous decision, said: “My conclusion … the various challenges to the lawfulness of the absconder policy must fail.”

Prisoner wins landmark ruling on prison smoking.

PRISON Ship 5

A prisoner has won a landmark ruling that the ban on smoking in public places applies to state prisons and all Crown premises.

A High Court judge made the ruling despite fears that rigorously imposing the ban could lead to unrest in the jails of England and Wales.

The judge rejected Justice Secretary Chris Grayling’s argument that the 2006 Health Act, which makes smoking a criminal offence in enclosed public places and workplaces, does not “bind the Crown” and does not apply in state prisons.

Mr Justice Singh, sitting in London, declared: “In my judgment it is clear from the terms of the 2006 Act…that the intention of Parliament was indeed that it should apply to all public places and workplaces which fell within its scope, including those for which the Crown is responsible.”

Because of the wide-ranging importance of the case, the judge postponed his ruling taking effect to give the Justice Secretary time to appeal to the Court of Appeal.

Giving permission to appeal, the judge acknowledged concerns in the Prison Service over the impact of his decision on “prisoners who feel the need to smoke and may be resistant to the criminalising of that conduct in places where in my view the Health Act does apply”.

His decision was a victory for Paul Black, an inmate at HMP Wymott in Lancashire, who says he suffers from a range of health problems made worse by second-hand smoke.

Smoking ban in prison – legal challenge

prisoner-smoking

A legal battle is being fought by an inmate in Lancashire to give prisoners the right to report unauthorised smoking in jail – including by prison staff – via a confidential health hotline.

Paul Black, an inmate at HMP Wymott suffering from a range of health problems made worse by second-hand smoke, is seeking a judicial review.

He says both staff and prisoners in his prison are guilty of illicit lighting up and not enough is being done to stop them.

He is challenging at London’s High Court a decision of Justice Secretary Chris Grayling backing the prison governor’s decision not to allow prisoners general access to the NHS freephone smoke-free compliance line.

Confidentiality is necessary to avoid reprisals from fellow prisoners who might feel the line is being used to “grass them up”, a judge was told.

Although he now personally has the right to access the line, Black argues that still leaves him vulnerable to being singled out and targeted, and access must be made available to all inmates.

The compliance line enables members of the public to seek enforcement of provisions of the Health Act 2006 which ban smoking in enclosed public places.

Lawyers for the Justice Secretary argue Crown Immunity prevents the Health Act provisions applying to state prisons.

They maintain prison rules and regulations, especially the sanction of withdrawal of privileges, are sufficient to deal with incidents of unauthorised smoking.

Black, who has been at Wymott since 2009 and is serving an indeterminate sentence, is seeking judicial review and accusing the Justice Secretary of breaching his own rules, as well as human rights laws.

Shaheen Rahman, representing Black, told the High Court it was accepted on all sides that about 80% of prisoners smoke.

Black complained of being frequently exposed to second-hand smoke in areas of the prison where smoking was prohibited, in particular on landings, in laundry rooms and in healthcare waiting rooms.

Ms Rahman told Mr Justice Singh it was Black’s case, corroborated by three other prisoners, that prison staff “appeared to turn a blind eye” and failed to enforce the ban on smoking outside designated rooms.

She submitted: “Having regard to the scientific evidence of the dangers of smoking, the claimant’s own health concerns inevitably make him more vulnerable to disease and he should not be exposed to second-hand smoke.”

It was not until Black launched judicial review proceedings that the prison agreed to personally give him access to the compliance line, but that fell short of his request that “all prisoners” should have access, said Ms Rahman.

Although he could personally make calls these might be subject to routine monitoring and lack confidentiality.

Ms Rahman said staff could be among those reported for unauthorised smoking, and the prison officer who had told him he was getting access to the line had referred to it as “the grass line”.

Asking the court to dismiss the case, Jonathan Hall QC argued that when it came to state prisons the Crown was not bound by the Health Act, or its criminal sanctions for smoking in restricted areas.

He submitted refusing global access to the confidentiality line did not violate the European Convention on Human Rights or conflict with prison rules.

Prisoners were already allowed confidential access to certain lines, including the Samaritans, but there was a risk that allowing access to more could lead to possible abuse.

Mr Hall argued: “The line has to be drawn somewhere in the interests of security and good order.”

The judge said the case raised important issues and he would give his decision as soon as possible.

Mark Leech, editor of Converse the national prisons newspaper said the Government was in a mess over its no smoking policy.

Mr Leech said: “Personally I don’t smoke but the government is in a mess over its no smoking prisons policy and this case brings that mess into sharp focus.

“They have said for five years they will ban smoking in prison, but for reasons I fully understand they have failed to implement it.

“They either need to get on and ban all smoking in all parts of a prison, dealing with the undoubted dangers in terms of control that policy implementation will bring with it, or do much more to enforce the ban on smoking in communal areas by staff and prisoners which is at the root of this case – what they can’t do is continue to do nothing.”

Legal Challenge – but is there really a ban on prisoners having books?

Prisoner reading a book

The government’s so-called ban on prisoners receiving books is facing a legal challenge, with one prisons expert asserting there is no ban on books at all.

The Ministry of Justice and secretary of state Chris Grayling have been criticised over the Earned Privileges Scheme, which sees prisoners banned from receiving books and other items in the post.

Now a female inmate, known as BGJ, has decided to challenge the ban, according to the BBC.

BBC Newsnight’s political editor Emily Maitlis said: “She [the prisoner] is an epilepsy sufferer, very highly qualified and she has said her life is in despair without access to these books, which have really been taking her through this life sentence that she will serve.”

The MoJ says the legal challenge comes outside of the three-month window for appealing against a new policy, as the scheme was introduced in November.

The BBC said the lawyers would press ahead with the challenge, arguing that the policy had been brought in at different times in different prisons and that BGJ had only been affected in the past 10 days.

Authors and human rights groups have condemned the policy, which Grayling has previously defended as a measure to stop illicit materials being smuggled into prisons.

Writers including Carol Ann Duffy, Ian McEwan, Julian Barnes and Mark Haddon have protested against ther ban, but Mark Leech, editor of Converse, the national newspaper for prisoners in England and Wales said there was no ‘ban on books’ just a restriction on where they could come from.

Mr Leech said: “Anyone who reads Prison Service Instruction (PSI) 30/2013, which brought in the new Incentives and Earned Privileges Scheme, can see there is no ban on books at all – just a general restriction that they cannot be sent in from family because of cases where pages have been doused with liquid drugs which are then cut up and sold to prisoners – but even then Governors have discretion to allow it [para 10.4].

“For example page 46 of PSI 30/2013 states ‘Specialist products including.. books.. may be purchased by prisoners for their own use’.

“Page 56 states Prisoners are allowed a maximum of 12 books in possession for their own use, and page 62 says that Governors may not prevent unconvicted prisoners from having supplied to them at their own expense..books.

“Where is this ban – I am a publisher and we send around 100 books a week in to prisoners, none of which have been withheld.

“I believe that any legal challenge is destined to fail, it would be bizarre if the Secretary of State could not make restrictions on security grounds which limit potential souces of abuse, and the courts have a long history of being reluctant to look behind ‘security grounds’ advanced as reasons for policy.

“Its unlikely that any challenge will get off the ground anyway because the PSI came into force on 1st November 2013 and the rule is that any legal challenge to it must be brought ‘promptly’ and, in any event, not later than 3 months after the grounds to make the claim first arose infact there have been cases brought within the three month time limit which were nonethless ruled out of time because they were not brought ‘promptly’.” (CPR Part 54.5 and ex.p Finn-Kelcey)

psi302013