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.”

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.”

Terrorist Inmate Wins Go-ahead For Category A Review

Tanvir Hussain
Tanvir Hussain

One of three men serving life for a plot to blow up liquid bombs on flights from the UK to North America has won permission to challenge his designation as a “high escape risk” prisoner.

Tanvir Hussain was given the go-ahead by a High Court judge to apply for judicial review against Justice Secretary Chris Grayling on the grounds that there was unfairness in the risk assessment process.

His QC argued the fact that Hussain maintained contact with other prisoners jailed for terrorism offences did not necessarily mean he was high risk.

Currently held at Long Lartin Prison in Worcestershire, the high risk assessment has remained in place since his arrest in August 2006.

It involves significant intrusion into his daily life, including being woken at night due to hourly checks, the judge heard.

Hussain, from Leyton, east London, was ordered to serve a minimum 32 years in jail when sentenced in September 2009 for being involved in a conspiracy to murder by planning to destroy seven trans-Atlantic aircraft.

Hussain, then aged 28, was convicted at Woolwich Crown Court along with Abdulla Ahmed Ali, 28, and Assad Sarwar, 29, of conspiring to activate bombs disguised as drinks.

The plot was disrupted in August 2006 when the men were arrested. The discovery of the cell, which was based in London and High Wycombe, was described by counter-terrorism officials as an al-Qaida-inspired suicide mission.

It led to restrictions being imposed on the liquids that travellers can take in their hand luggage.

Trial judge Mr Justice Henriques said the aim of the plotters was a terrorist outrage to “stand alongside” the 9/11 attacks on the US.

The latest decision to continue treating Hussain as a high escape risk prisoner – the middle ranking risk for Category A prisoners – was taken in July this year.

High Court judge Mr Justice Ouseley said Hussain had played “a substantial part in a wicked conspiracy”.

But he went on to rule there were arguable grounds for allowing his judicial review application to go to a full hearing.

Hugh Southey QC said the key reason given for the July 22 decision was Hussain’s continued contacts with other terrorist prisoners.

That was viewed as indicating he was maintaining the ideologies which motivated his offending.

The QC submitted it was obvious that his association did not necessarily mean that he was a high escape risk, and it was the “nature of the association” that mattered.

Hussain had made representations saying all associations were entirely innocent. He had been told those representations would be considered.

But the July decision against him did not address those representations or provide adequate reasons, argued Mr Southey.

A high standard of procedural fairness was required when escape risk was assessed, including disclosure of the information taken into account by the decision maker.

He contended that full information on the case suggested that Hussain posed a low risk.

Mark Leech editor of the national prisons newspaper Converse (www.markleech.com) said a ‘high’ escape risk assessment was only one of three risk levels that were capable of being imposed under the Category A regime.

Mr Leech said: “Most Category A prisoners are ‘Standard Risk’ which means escape would pose a significant threat to the public or national security – but where they neither have the contacts nor the planning ability to carry it out.

“‘High Risk’ is imposed where it is felt that the person concerned has contacts with people, and therefore access to possible resources, by which an escape could become a possibility.

“Finally, ‘Exceptional risk’ is imposed where there is creditable evidence or intelligence that a Category A prisoner is actively planning an escape attempt – this hapened two years ago to cop killer David Bieber who was flown by helicopter during the night from one maximum security prison to another when evidence of an escape plot came to life.”

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)

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