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Posts Tagged ‘criminal’

Fatimah Miah is a mother recently acquitted of the charge of manslaughter in relation to her baby son who died in May 2007. The Telegraph reports here that she is to make an application to the High Court for the return of the baby’s three siblings who are now in care.

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Of course the mere fact of her acquittal is in itself not enough to secure the return of the children. The family court within care proceedings will have heard evidence, including medical evidence, and most likely made a finding of fact that she was more likely than not the perpetrator of the non-accidental injuries to the child. In order to secure a return of her children she will have to go further than persuading the court that the evidence is insufficient to be satisfied of her actions to the criminal standard – she will need to persuade the court that the new evidence she seeks to rely upon is such that the balance of probabilities now falls in her favour. It is quite possible that whilst evidence is insufficient to secure a conviction in criminal the same evidence can be sufficient to satisfy the lower standard of proof in civil and family proceedings. And before the court will re-open the findings made in the family case it will need to be persuaded that there really is important new evidence that may well undermine the findings.

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It is impossible to tell from the reported material whether any of this is likely to happen, but one thing is for certain – seeking the return of children in these circumstances is a road fraught with potential difficulties even if one is armed with an acquittal. And even more so if the children have already been adopted.

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Just reading about the recent ruling that the use of anonymous witnesses is incompatible with a fair trial, and specifically to the right of the accused to see and challenge his accusers. Can someone who does criminal law tell me why it took the House of Lords to set that straight? Well, DUR! (as they say)  

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But the scariest part was this quote from Bob Quick, head of Scotland Yard’s Counter Terrorism Command, who said the ruling was “catastrophic”: “There is too much principle and not enough pragmatism in the criminal justice system,” he said.  

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Yikes – when up on a murder charge I jolly well hope to be tried according to principle not pragmatism, but at least its not someone in a position of leadership or authority in the police speaking with such disregard for the importance of a robustly fair trial system …

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NB: I have no plans to be up on a murder charge in the near future.

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Read the quote in its original context here.

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Last week the Ministry of Justice announced a consultation on the Forced Marriage (Civil Protection) Act 2007 which is due to come into force in the autumn of this year (date to be appointed). It will be enacted by way of amendments to Part IV of the Family Law Act 1996, which contain existing powers to make non-molestation orders and occupation orders (often referred to in the press as ‘restraining orders’ or ‘injunctions’).

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Forced Marriage Orders look set under the Act to be wide injunctive type orders which can be tailored to meet the needs of an individual case and which will be enforceable by way of imprisonment or fine. The terminology and framework used is in many respects borrowed from the original Part IV (for example the courtmust have regard to all the circumstances including the need to secure the health, safety and well-being of the person to be protected), but obviously new definitions are added (‘forced marriage’, ‘free and full consent’) which will have to be tested by caselaw. Applicants may include the victim her/himself, any other person with permission or any ‘relevant third person’ (as defined by the Secretary of State, and without the need for permission).

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The consultation concerns the relatively limited issue of who should be a ‘relevant third party’. Under the Act such a person or organisation will be allowed to make an application to the court for an order on behalf of the victim (prospective or actual) of a forced marriage, without first obtaining the permission of the court. I anticipate that social services departments are likely to be on the list, but I wonder how consistently or assiduously they are likely to make such applications where the victim is a young adult as opposed to a child. In cases involving children the local authority has clear statutory duties towards children in need or children who are at risk of significant harm, and although to some extent protection against forced marriage for a child could be obtained via s31 care proceedings no doubt these provisions will be helpful for local authorities in cases where young girls (and boys) disappear from school or where there are other markers of a possible abduction and / or forced marriage. Indeed the prospect of using these powers in the first instance as opposed to care proceedings may well be very attractive to a local authority wishing to avoid the exorbitant court fees of several thousand pounds which come into force under the new Public Law Outline as of April. The fee for this type of application looks likely to be set at a far lower figure, although I suppose it is likely that in due course someone will get wise to this and up the fee where a local authority is concerned. Outside the statutory framework of duties towards children, how often will Local Authorities consider it appropriate to intervene in this kind of case?

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Shaken Babies

Last night Panorama featured the case of Keran Henderson, convicted of the manslaughter of Maeve Sheppard by violent shaking. Unfortunately I managed to catch only part of it but the programme clearly covered an important and controversial topic – shaken baby syndrome.

Although the programme included footage regarding apparently credible evidence that suggests that shaken baby syndrome simply does not exist – that is to say that the violent shaking of a baby cannot produce enough force to cause the types of injuries with which it is associated (brain and retinal bleeding) – it is apparent from the BBC article linked above (and probably from the section of the programme that I missed) that the research in question has yet to be peer reviewed or indeed even published. We will have to wait and see what its significance really is, but if this research is correct it will probably not just be Keran Henderson who launches an appeal.

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And either way it is not just Keran Henderson and her friends and family that this affects. I have perhaps been more conscious of this case than I would otherwise have been because those involved live so close by to my home.

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