36 Bedford Row
London
WC1R 4JH
DX 360 LDE
T +44 (0)20 7421 8000
F +44 (0)20 7421 8035
www.36bedfordrow.co.uk
chambers@36bedfordrow.co.uk
Our Criminal and Family Teams are recruiting
Due to our existing and expanding workloads, the 36 Bedford Row Criminal and Family Teams invite applications from senior and junior practitioners, either individually or in groups between 5 years call to Silk.
Chambers has members from a wide range of cultural backgrounds and members have recently undergone Bar Council approved diversity training. All applications will be treated in the strictest confidence. To apply, please contact recruitment@36bedfordrow.co.uk.
36 Bedford Row has a strong history of career development. Recent appointments include HH Judge David Farrell QC, HH Judge Lynn Tayton QC, HH Judge Rosa Dean and District Judge Rebecca Crane to the bench and Amjad Malik QC and Jonathan Kirk QC as Queen's Counsel.
Our Door Tenant, Professor Gary Slapper, formerly Professor of Law and Head of the Law School at The Open University has recently been appointed as Global Professor at New York University, and as Director of New York University in London. The NYU buildings in London are in Bedford Square.
Professor Slapper's latest book, published next month and co-written with Dr David Kelly, is The English Legal System. This 800-page volume is now in its 13th edition.
This latest edition analyses changes made to the legal system by the coalition government, and digests recent legislation and case law. The Constitutional Reform and Governance Act 2010, the Crime and Security Act 2010, Terrorism Prevention and Investigation Measures Act 2011, the Police (Detention and Bail) Act 201, new European law, and the latest decisions of the Supreme Court are all incorporated into the text.
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Caroline Bray successfully prosecutes a six day stranger rape case at Northampton Crown Court before the new Resident Judge
 In brief the facts were that an 18 year old female had been out drinking with friends. She went home early as she had had too much to drink. She got a taxi and had enough money to get home. Presumably in pursuit of a quick fare the driver did not take her home and instead dropped her on a main road 5 minutes walk from her house. The driver refused to take her home saying she hadn't paid enough and so she was left in the street with no money. She started to walk home when she bumped into the Defendant John McMillan. He seemed friendly and she recalls chatting with him but not what about. She then recalls being at his flat where he put her face down on the floor and raped her anally. This lasted a few minutes and she cried and said no. After it ended she went out into the street crying and called a friend who came and found her. The police were called and a complaint made. The defence was consent. DNA supported anal intercourse. The defendant was convicted by a majority jury and sentenced to 7 years and 2 months. In his sentencing remarks His Honour Judge Mayo expressed his concern at the actions of the taxi driver in apparently leaving a young girl alone and under the influence of alcohol in the street at night.
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Books by 36 Bedford Row members
Click on the covers to order your copies
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Trading Standards: Law and Practice
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Sexual Offences Handbook: Law, Practice and Procedure
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Unlocking Matrimonial Assets on Divorce
by Simon Sugar and Andrzej Bojarski |
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Commercial and Mercantile Courts Litigation Practice
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The Proceeds of Crime Act 2002: A Practical Guide
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We have earned our reputation through continued professional excellence.
William Harbage QC
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36 Bedford Row is organised into a number of specialised areas of practice:
Click on the links above for further information about each area.
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Link up with us
Members of 36 Bedford Row have joined
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"36 Bedford Row operates with real pride and strength in depth"
LEGAL 500
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36 Bedford Row welcomes Mary Loram
Chambers are pleased to welcome Mary Loram who joins our Criminal Team from Citadel Chambers. Mary was called in 1995 and is a very experienced criminal practitioner with a thorough and up to date knowledge of criminal law and procedure which she puts to very good use.
Mary is an advocate on whom the judge can rely for accurate submissions of law. Her appearances in court are of a consistently high standard: she is well prepared, knows her case and is well focussed on the issues. She has a very good presentational style with just the right mix of gravitas and good humour and is a persuasive advocate with juries and judges alike. She is a careful examiner of witnesses, both in chief and in cross examination and has presented serious sex cases, for prosecution and defence. Her approach to vulnerable and "difficult" witnesses is always sensitive, careful, gentle or firm where required and effective. Her questioning is always appropriate - she remains calm and does a thoroughly good job.
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William Harbage appears in Court of Appeal guideline case on loss of control in murder
William Harbage QC appeared for the second Appellant Parker in the case of R v Clinton, R v Parker, R v Evans (2012) EWCA 2, a guideline case on the partial defence of loss of control in murder. Sections 54 and 55 of the Coroners and Justice Act 2009 abolished the old partial defence of "provocation" in murder cases and replaced it with a new partial defence of "loss of control". This was widely regarded as "difficult" legislation, poorly drafted and open to interpretation. The case of Clinton and others was the first opportunity for the Court of Appeal to consider the legislation and provide guidance on it. The importance of the case can be seen by the fact that three separate appeals were conjoined and dealt with by the Lord Chief Justice in a 57 page judgment. This case is now essential reading for anyone prosecuting or defending a case of murder where loss of control is or might be an issue.
The crux of the case is that where sexual infidelity is the only potential trigger for loss of control it has to be disregarded pursuant to s.55(6)(c) but where sexual infidelity is central to the facts taken as a whole and just one of a number of factors which potentially caused a defendant to lose control then it can be considered by the jury. As was widely anticipated, it is clear that it will be much more difficult for a defendant to bring himself within the new partial defence of loss of control than it was under the old law of provocation.
36 Bedford Row in the media on the law of loss of control
William Harbage QC, David Herbert and Felicity Gerry published articles on defences to murder in 2011 in Solicitors Journal and CBQ Magazine and their podcasts on loss of control and diminished responsibility are currently available at www.CPDcast.com. Felicity was interviewed in January 2012 on talkSPORT radio by George Galloway on issues of sexual infidelity in murder ( listen here and published an article on crimes of passion with Halsbury's Law Exchange ( here).
36 Bedford Row will be providing Pro Bono Legal Services for the Olympic and Paralympic Games.
The advocacy service is intended to represent athletes at short notice at hearings at the 2012 Games. This includes hearings at all Courts and Tribunals and the Court of Arbitration for Sport (“CAS”).
The main difference between the Olympic Games and Paralympic Games is one of scale, with almost four times as many athletes competing at the Olympic Games compared to the Paralympic Games. Other differences in requirements may arise in the areas of classification appeals and TUE-related matters (sports advocacy section) and disability discrimination (general section). Chambers will provide a rota of members available 24 hours a day to meet the requests organised through Sport Resolutions for advice and representation to accredited athletes, coaches, team officials, National Olympic Committees, National Paralympic Committees and International Federations participating in the London 2012 Olympic and Paralympic Games between 9 July and 12 September 2012.
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Extradition
 Extradition is in the news with the high profile case of Julian Assange and other more recent cases. It is a relatively small but growing area of law and a knowledge of the law and procedure is essential to those with an international practice in crime or family work.When one country requests the return of an individual extradition law is the framework within which that person is returned. An application for the return of an individual can only be made on the basis that the individual should face trial, or sentence if already tried, but importantly not for the purposes of answering questions. Apparently straightforward, and this was the issue in the Assange case. However in a number of European countries, those with an inquisitorial system, interrogation by enquiring judges is regarded as part of the trial process itself.Extradition is governed by a single act of parliament: the 2003 Extradition Act. The 2003 Act is broken into three parts:
- Part one concerns extradition to European Union countries and deals with the European Arrest Warrant.
- Part two deals with everyone else, or more particularly those countries "designated" by the Secretary of State as countries we will extradite to.
- Part three deals with requests by the UK government to bring individuals back to the UK.
Part one: European Union countries and the European Arrest Warrant
The European Arrest Warrant removes the power of the UK courts to look at the substance of allegations made. Evidential issues cannot be raised; there is no requirement to demonstrate a prima facie case against the individual in question. It was designed to ease the process of extradition between member states. It enshrines the principal of "mutual recognition of judicial decisions", creating a fast track process for extradition. It sets out 32 "list offences" for which dual criminality is not required, in other words it doesn't matter whether the offence alleged would be an offence in the UK. No offence is officially excluded, but the test is the punishment that might be received. If an offence is on the list, and punishable by three years imprisonment or more, then it is an extradition offence. Additionally, where it is not on the list and/or it is punishable by one year's imprisonment or more it is also an extradition offence. With regard to part two of the Act the test is that dual criminality must exist and the offence must carry a sentence of one year imprisonment or more.
Part two: designated countries, 92 in all
These are non-European Union countries, which are designated as countries to which the UK will extradite. They fall into two categories:
- Those who are required to provide prima facie evidence, And,
- Those who are not.
In addition there are special extradition arrangements or "ad hoc" arrangements used in circumstances for instance when a serious terrorist crime has been committed.
US/UK agreement
The treaty was signed by the two countries in 2003. The US is designated as a part two country. By treaty it does not need to provide prima facie evidence of the offence alleged; it simply needs to specify the individual, the circumstances, and when, where and how the offence occurred. However if the UK wishes to extradite a citizen from the US it is necessary for the UK to show reasonable cause to believe that the person was involved in criminal activity. However once again the situation is not quite as clear cut, and it should be noted that the US itself applies a „reasonable cause to suspect test, it is simply that the UK is not in a position to scrutinise the evidence relied on to meet that test. In addition the US has greater and wider powers to prevent extradition to the UK.
Non-designated countries
This is no bar to extradition but the individual is likely to be in a safer position. There is a "London scheme" that deals with extradition between Commonwealth countries, e.g. Pakistan.
Extradition applies to escapees but note an individual cannot be extradited to face the death penalty.Where an individual is already being prosecuted in the UK there is an absolute bar to extradition, however extradition can take place post conviction.The benefit of the 2003 Act is said to be a speedier process. The time limits are tight and there is just one opportunity to appeal which must be heard within 72 days by the High Court.
The Home Secretary has very limited powers to prevent extradition once ordered:
- Part one applications - no powers at all
- Part two applications - limited powers (eg death penalty), infringement of human rights.
In short, part one applications are very difficult to challenge at the moment, with an emphasis on co-operation between EU countries taking precedence. However there is room to argue on technical and health grounds, and the scope for challenging part two applications is much greater in the case of some countries.
The future landscape
Extradition throws up a number of issues politically, legally and practically. There are countries, Poland for instance where the prosecuting authorities have no discretion not to prosecute. Imagine the Polish migrant who helps himself to a bar of chocolate in the airport on his way to his new life in Britain only to find himself the subject of extradition proceedings on arrival. There is the thorny issue of the imbalance in treaty arrangements between the USA and the UK. The issue of what is called "forum": where an offence is largely committed in the UK but partially in another country or countries as well. Is it right in those circumstances to extradite? We do not have nationality-based extradition; other countries do. S19(b) Police and Justice Act (Pending) will make provision for a defendant to be tried in the country where he committed the alleged crime.
The extradition provisions are currently being reviewed. The main focus of the review is the operation of the European Arrest Warrant, trivial offences, the balance of powers between the US and the UK, and whether or not prima facie evidence should be provided by all countries seeking extradition. The review was due to conclude at the end of January 2012.
Abuse of process
 The prosecution of historic cases of sexual abuse is now accepted as commonplace. A defendant may face an indictment where offences date back more than 30 years and an application to stay the indictment as an abuse of process should always be considered. The authority of R v F [2011] EWCA Crim 1844 is the leading authority on abuse of process applications in historic sexual offences cases. In summary, this authority, reviewed all the earlier cases on abuse of process based on delay and derived the following propositions:
- An application to stay for abuse of process on grounds of delay and a submission of "no case to answer" are two distinct matters. They must receive distinct and separate considerations.
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An application to stay for abuse of process on grounds of delay must be determined in accordance with Attorney-General's Reference (No. 1) of 1990. It cannot succeed unless, exceptionally, a fair trial is no longer possible owing to prejudice to the Defendant occasioned by the delay which cannot be fairly addressed in the normal trial process. The presence or absence of explanation or justification for the delay is relevant only insofar as it bears on that question.
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An application to stop the case on the grounds that there is no case to answer must be determined in accordance with R v Galbraith.
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There is no different Galbraith test for offences which are alleged to have been committed some years ago, whether or not they are sexual offences.
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An application to stay for abuse of process ought ordinarily to be heard and determined at the outset of the case, and before the evidence is heard, unless there is a specific reason to defer it because the question of prejudice and fair trial can better be determined at a later stage.
When abuse of process submissions on grounds of delay are advanced, provided the principles articulated in Galbraith and Attorney-General's Reference (No. 1) of 1990 are clearly understood, it will no longer be necessary or appropriate for reference to be made to any of the decisions of the Court of Appeal except Stephen Paul S [2006] EWCA Crim 756 and the present decision. These four authorities contain all the necessary discussion about the applicable principles.
The case of Stephen Paul S endorsed the approach of the Court taken in Attorney-General's Reference (No. 1) of 1990. In other words, trial Judges faced with applications to stay on the ground of delay, are asked to bear in mind the following principles:
- Even where delay is unjustifiable, a permanent stay should be the exception rather than the rule;
- Where there is no fault on the part of the complainant or the prosecution, it will be very rare for a stay to be granted;
- No stay should be granted in the absence of serious prejudice to the defence so that no fair trial can be held;
- When assessing possible serious prejudice, the Judge should bear in mind his or her power to regulate the admissibility of the evidence and the trial process itself should ensure that all relevant factual issues arising from delay will be placed before the jury for their considerations in accordance with appropriate direction from the Judge;
- If, having considered all these factors, a Judge's assessment is that a fair trial will be possible, a stay should not be granted.
On 7 February 2011 Jacqueline Matthews-Stroud appeared before HHJ Farrell QC sitting at Luton Crown Court in the trial of R v S. Exceptionally, a stay was imposed when the Judge ruled that that the defence were seriously prejudiced such that a fair trial was impossible. In a fact specific judgement the Judge found fault on the part of the police when, during a 12 month delay in the investigation, an important witness died before any attempt to take a statement had been made. This together with other factors had the cumulative effect of making a fair trial impossible.
Whilst it is still the case that a stay will be the exception rather than the rule this case demonstrates that it remains an important aspect of historic cases.
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