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Smacking your child – a place for the law?

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13 January, 2014
Alicia Jones, Criminal Law, North East Law Review Blog Competition
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Dr Maggie Atkinson, the Children’s Commissioner for England, believes all smacking should be illegal (source: http://www.independent.co.uk/news/uk/politics/smacking-children-should-be-illegal-says-childrens-tsar-maggie-atkinson-9027588.html)

– Alicia Jones (LLB Law, Newcastle University) a.v.jones@newcastle.ac.uk

In today’s society many struggle to comprehend how smacking one’s child could be considered legal. However, for others the age old phrase ‘I was smacked and I turned out fine’ still rings true. Dr Maggie Atkinson, the Children’s Commissioner for England, has recently expressed her poignant personal view that the current law gives pets and adults more rights to be protected from violence than children. A view which for many is heart-wrenching. In stark contrast, Tottenham MP David Lammy has suggested that the law regarding smacking children should be relaxed so ‘working-class parents could still instil discipline in their homes without fearing prosecution’. However, I would be interested to hear why Mr Lammy believes that this is a problem only faced by the working-class? In the UK, parents can mildly smack their child if it can be regarded as reasonable chastisement.  However, the law regarding smacking one’s child remains a grey area; particularly with regard to the linguistic frailties that the term ‘reasonable’ offers. For example, when does reasonable chastisement become child abuse? For some, a punch in the face is equitable to a slap on the bottom.

For many the advantages of an outright ban on smacking children are clear. It protects vulnerable children from corporal punishment which could cross the boundary into abuse. John Cameron, the Head of Child Protection Operations at the NSPCC has suggested that ‘there is a greater likelihood of children being involved in criminal and antisocial behaviour if they have been in receipt of smacking as a standard form of parenting’. It is common knowledge that if one adult hits another adult this is regarded as assault in the eyes of the law. Moreover, it is widely accepted that children learn their own behaviour through imitating their parents. Therefore, Cameron’s statement is entirely comprehendible. It can also be suggested that if an outright ban on smacking is enforced, an individual’s internal beliefs and morals could be changed. For some, this may mean their beliefs of what is right and wrong regarding child chastisement could be entirely shifted and the horrific violent crimes against children, we so often read about in the media, reduced.

Although there are many benefits to an outright ban on smacking children, there are also many practical implications of such a law being enforced. Perhaps, as Dr Atkinson describes, the most significant implication being that ‘no public body can be behind the front door of every family in the land’. Therefore, it would be practically impossible to ensure that no parent ever breaks the law and does not hit their child through frustration or anger. In fact, such a law, could potentially hide the problem behind the front door of the child’s own home, ironically where the child should feel most safe. Thus, although in the abstract legal sense the problem would appear solved, in reality the problem would just be hidden further by those who are responsible for protecting and nurturing their offspring. Arguably, this could result in even more violent crimes towards children becoming undetectable by Social Services. A further implication would be the number of parents that would be labelled a criminal if an outright ban was enforced. A recent poll on parents.com found that 81% of parents have smacked their child at least once. Although this statistic seems unbelievably high, if it is true, it would be incomprehensible to legislate a law which criminalised 81% of parents. Moreover, even if the problem of criminalising 81% of parents was dismissed; it would be practically impossible for Social Services to intervene in every single case where a parent was convicted for hitting their child. This would further heighten the risk of Social Services missing the crucial cases where a child’s life is in danger, whilst they are focusing on a parent who had hit their child through frustration and despair.

If Tottehnham’s MP Mr Lammy is correct in stating that the law should be relaxed to allow parents to instil discipline, I would suggest that the law is not the problem; arguably, smacking is primarily used to replace inadequate parenting. As an individual who has never been hit, the methods of punishment avoiding physical chastisement are obvious and satisfactory. When one reads the opinions of the public on this controversial issue it is clear to see public opinion is largely in favour of Lammy and the majority appear to believe that smacking is a valid punishment. This could suggest that the problem lies in the parenting skills of individuals who neither know nor understand alternative methods of discipline and are not equipped to teach and guide a child to understand that frustrations are a normal part of everyday life and that through communication, patience and understanding we can modify our feelings and frustrations to co-exist in a community without corporal punishment. This prepares a child to integrate into today’s society whereby no one can assault another member of the public without prosecution.

Ultimately, it can be seen that this debate will rumble on for decades, with both sides having strong opposing arguments.  However, it could be suggested that the conclusion of this debate will not be found in a change in legislation. Rather, the need to educate parents on how to guide a child’s behaviour and the rather poignant issue of inadequate funding to local services; which have already been drastically cut in the austerity measures in recent times. Which have consequently reduced access to classes and programmes which teach families alternative methods to discipline their children and mechanisms to control their anger.

Medical Malpractice, NHS Liability and Proving Causation

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8 January, 2014
Medical Law, Zia Akhtar
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– Zia Akhtar (Grays Inn, London, UK) plawgraduate@gmail.com

Introduction

The government is to propose a new law in 2014 that will criminalise breach of the duty of care by those medical staff who are grossly negligent or who abuse their patients.  There will be a sanction of a five year jail term when there is a finding of culpable negligence that results in serious injury or death.

The offence would transfer liability to hospitals or those involved in providing aftercare who are ‘guilty of willful or reckless neglect or mistreatment’ if they perform their task negligently. The intention of the statute would be to punish those who fall well below the standard of care expected of medical professionals.  The scale of penalties would reflect the regime established in the Mental Capacity Act 2005, which allows for fines, imprisonment for a maximum of five years, or both.

This upcoming legislation, announced in December 2013, has followed the report into the deaths that occurred in the Mid Staffordshire hospital between the period of 2005-09. There were an estimated 1,200 people who died due to poor care of patients who were left in the wards without any supervision. It resulted in two inquiries chaired by Robert Francis QC into the cause of the deaths at the hospital.

The Francis report disclosed that the hospital hierarchy was more concerned with meeting their targets of resource allocation than the basic levels of primary care of the patients. The Report which was published in February 2013 made 290 recommendations for improvements in NHS healthcare but not one medical professional faced prosecution as a result of findings of what went wrong at the Mid Staffordshire Hospital.

In a review of criminal investigations into medical error conducted by a University of Manchester Law department team, it was shown that it is difficult to convict doctors and nurses for deliberately failing their patients. Of the 75 Crown Prosecution Service files they studied, just 5% resulted in prosecutions of those medical staff who were reported for criminal negligence.

These findings were set out in Professor Margaret Brazier’s public lecture  ‘My Doctor is a Criminal’ on 23 April 2013  which expressed the view that ‘bad’ doctoring should be a crime.  She stated that the reasons why charges are not being brought for criminal negligence is the requirement that the case is the causation and the burden of proof. This is dependent on the omission or the commission of an act that may have made a substantial contribution to a patient’s death.

There are mitigating circumstances, such as the patients’ previous poor health, infirmity or old age, which can present a difficulty for the prosecution, and were a  factor in the indictments were being withheld in the Mid Staffordshire deaths. This was despite there being evidence of deliberate or reckless infliction of unnecessary suffering on the patients. It did not lead to a single negligence based action but the announcement of the Mid Staffordshire NHS hospital trust that served 275,000 people in the region to be closed at the end of 2013.

Need for extending the breach of duty

There are increasing concerns being expressed in the UK of hospitals providing sub-standard care and there has been an incremental increase in the level of claims to the NHS from patients. The NHS litigation authority official figures for the year 2012-13 showed a 20% rise in the number of patients seeking compensation from the previous year.

The level of damages sought from the NHS was approximately 19 billion from patients, nearly 1/5 of its budget based on claims of negligence. There was a sum of £1bn spent on settlements last year, but around one quarter of costs were absorbed by legal fees, mainly in payments to claimants’ lawyers under a “no-win, no fee” system which means legal firms can charge up to £900 an hour for their services if claims are successful.

The impact of the below standard care in the UK is that elderly patients face a higher risk of death when placed in general wards instead of critical care wards after unplanned surgery. The European Surgical Outcomes Study (EuSOS) Mortality after Surgery in Europe: A 7 day cohort 2012 (published in the Lancet’s  September 2012, vol.380, no. 9847, pp.1059 – 1065), found that hospital inpatients had a 3.6% chance of dying, whilst in Germany the figure was a very low at 2.5%. The patients who died were in the main elderly, and the findings also stated that there were insufficient resources being invested in the facilities at the hospital to care for the critically ill which increased the mortality rates.

The study coordinator Dr Rupert Pearse from the London School of Medicine at the Queen Mary College, University of London states in the report:

‘The substantial variations in mortality between countries highlight the urgent need for national and international strategies to improve care for this group of patients. Nearly three-quarters of patients who died were never admitted to intensive care. Failure to allocate critical care resources to patients at greatest risk of death is a serious public health concern for patients undergoing surgery in Europe.’

There will have to be substantial improvements in the infrastructure and quality of medical treatment.  This can be inferred from the Channel 4 news special report on September 2013 prepared by emeritus Professor Barry Jarman of Imperial College whose input went into the Bristol Royal Infirmary Inquiry and Mid Staffordshire hospital scandals. These are about the level of care and mortality rates in UK hospitals. The study demonstrates that death rates in UK hospitals were considerably higher than in US hospitals and among the worst anywhere in Europe.

The average HSMR for England was 122.4, making it the highest of the seven countries examined. The average HSMR for the US was 77.4. The HSMRs in the NHS were 58% higher than the most favourable country, the US, and in 2012 a patient in the average NHS hospital was still 45% more likely to die in hospital than if they had been admitted to a US hospital.  The figures also confirm that patients in hospitals aged over 65 fared worse and were five times more likely to die of pneumonia in hospital in England and twice as likely to die from a blood infection (septicaemia) than if they were admitted to a hospital in the US.

Establishing Causation in the injury   

The reason for the high threshold in proving any wrong doing against medical health professionals that establish their liability is the casual link between the act and the resulting death or injury.  There are three elements in an action for negligence which need to be satisfied claim which are: if there was a duty of care, causation and proof of actual damage. The majority of claims in negligence cases fail because of the lack of sufficient causation between the injury or death and the negligent conduct of the staff.

In the medical profession the decision of what is acceptable care and what is substandard care is measured by reference to whether a responsible body of medical opinion considers a particular instance of care was substandard. The subsequent advances in medicine have to be ignored. If the hospital trust finds a reputable medical expert who states that the care was acceptable then the burden of proof on the claimant is very onerous to discharge in order to succeed in a civil claim. The breach of duty of care has to be of such degree that no reasonably competent medical expert in the same discipline would have acted in that way.

The higher degree of immunity extended to the medical profession was originally intended so that a hospital authority could not be liable for negligence in matters involving the complex exercise of professional skills.  Under English law there is a legal precedent known as the Bolam principle where if the hospital trust can provide a witness who is a reputable medical expert, who states that the care was acceptable, then the claim fails unless it could be shown that the expert acting was wrong.

In Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582, Lord McNair in his judgment stated as follows:

‘A medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art . . . Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.’ pp 586-587

This test has been moderated by the House of Lords’ judgment in Bolitho v City & Hackney Health Authority [1997] 4 ER771 whereby the court will be the arbiter of fact, determining whether the injury had been caused by the defendant’s negligence and not the medical practitioner. However, their Lordships emphasised that they would hold a procedure that was in accordance with a sound body of specialist opinion to be negligent only in “a rare case”.

The question of a hospital authority’s negligence is one of primary liability for breach of its own duty to the patient.  The court determines the actions of the individual who is a servant of the hospital on the basis of vicarious liability but the claimant of the burden of showing the procedural and legal causation. This is the most arduous task where the patient or their representatives fail where it is not prima facie evident that there had been negligence by the medical practitioner who was carrying out a duty imposed by law.

Lack of a Duty of Candour

In English medical law there is no legal duty of candour and the courts have rejected any imposition of a duty of care to the parents and the matter. This matter has been the subject of appeal to the European Court of Human Rights under Article 2, granting a Right to Life.  The parents of the patient who had died applied for the hospital to disclose to them the records of his illness.

There was an admissibility hearing before the Strasbourg Court  in Powell v UK Application (1999)  no 45305/99  where the ECHR held that the ‘doctors have no duty to give parents of a child who died as a result of their negligence a truthful account of the circumstances of the death, nor even to refrain from deliberately falsifying records’.

In the aftermath of the decision, the General Medical Council has issued guidelines to medical practitioners to have a more informed relationship between the patient and the doctor.  However, it stops short of the legal obligation of disclosure. The UK Government refused the attempts to introduce a statutory Duty of Candour in the Health & Social Care Act 2012, which has brought in the role of the Quality Care Commission and developed Monitor, the body that currently regulates the NHS. It has not established a legal duty of candor but only an ethical duty that exists between the doctor and the patient that is privileged.

There is consensus in the medical profession that there is no relationship between the tort system and patient safety that requires a duty of candour. J Miola, in ‘The tort of negligence and patient safety’ (pp 41–52 in J Tingle and P Bark, Patient Safety, Law Policy and Practice (Abingdon, Routledge, 2011)) states that ‘the law of tort is  not designed for patient safety, and is only a retrospective remedy to compensate those who bring legal actions.  The deterring of bad practice is secondary to the main purpose of compensation’.

The main justification for not imposing this duty of candour as a legal requirement is that the compensation is that the hospital trust does not want to be held accountable for failure of the procedures at the hospital which are an administrative matter. The law of tort offers only limited protection for patient autonomy despite seeming to punish the negligent failure to disclose required information such as prior to surgical operations.

Statutory offence and causation element 

The government’s proposal of a new offence of ‘willful or reckless neglect or mistreatment’ will come on to the statute books in the foreseeable future. The difficulty of proving a causal link to the injury or death of the patient and the breach of legal duty of the doctors and medical professionals is that the principle of corrective justice serves to pay damages to the victim but it does not address the issue of the unsafe environments in which such substandard medical cultures originate.

However, prior to the new criminal offence, which the government has stated it will introduce in the near future, the criminal negligence claims for breaches of patient safety have proceeded on the basis of the failure of a combination of individual and system factors. The offence that most often comes up for possible indictment against individuals is gross negligence manslaughter but the difficulty of proving causation is also very onerous in this case.

The leading cases in establishing individual culpability in defining gross negligence are R v Adomako [1995] 1 AC 171 and R v Misra and Srivastava [2004] EWCA Crim 2375. This is an abstract concept which is incapable of objective measurement and potentially unfair to those indicted given the difficulty of ensuring an objective and consistent interpretation of a common law definition.  The challenge of establishing causation is the main factor, as also appears to be in the case of the statutory offence of corporate manslaughter.

The issue that comes to the fore is whether there is a correlation between the criminal law and patient safety, and does it prevent the unsafe and bad practices of the legal profession. Oliver Quick states in ‘Patient safety and the problem and potential of law’ (Journal of Professional Negligence, Vol. 28 No. 2, 2012 pp 79-99), ‘we might speculate that criminal law is likely to be unhelpful in terms of further fuelling a culture of secrecy and shame about errors. Whilst we lack direct evidence, manslaughter prosecutions are likely to be harmful rather than helpful to safe healthcare’.

The reason for there to be few criminal negligence prosecutions is because of the causation requirement.  The problem that is encountered in bringing charges is that it may encourage the culture of secrecy and will not be able to assist candour. It will be imprudent of an organisation to implicate other members in the crime alleged to have been committed by an individual or some members of the medical trust.  Fatal medical mistakes that may involve the criminal justice system in the form of an indictment for ‘willful or reckless neglect or mistreatment’ may be a way forward but the charges will have to deter and to penalise criminal negligence.

Lost in Time? Controversy over Police Powers in Northern Ireland

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24 December, 2013
Civil Liberties, Colin Murray, Human Rights Law
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Image Source: http://www.bbc.co.uk/news/uk-northern-ireland-25412487

– Colin Murray (Senior Lecturer, Newcastle Law School) colin.murray@newcastle.ac.uk

This post was first published on Human Rights in Ireland

The Troubles just won’t slip conveniently into history. In recent weeks anyone confident that Northern Ireland has “moved on” will have received multiple jolts to such complacency. A car bomb (and last night a fire bomb, pictured left) and Loyalist protests have disrupted shopping in Belfast’s city centre in the run up to Christmas. And as for the Troubles themselves, they have been a prominent part of the news headlines. Revelations UK army units operating beyond the standard rules of engagement in the 1970s. Outcry over the fate of the “disappeared” and over the strenuous denials by Gerry Adams over his own involvement. Shock over the detail of collusion between members of the Garda and the Provisional IRA in the findings of the Smithwick Tribunal. The risk of more bloodshed today running hand-in-hand with blood continuing to seep under the door marked “the Troubles” with every new revelation.

This barrage of stories has wrong footed many. Most obviously, Sinn Féin has seriously miscalculated in its response to the Smithwick Report’s findings, the Disappeared documentary and the conviction of Liam Adams. The dogmatic adherence to the line that Provisional IRA volunteers were “only doing their duty” in a dirty war has never washed for the UK Government in accounting for the actions of members of the UK security forces, and indeed, in responses to events such as the Saville Report, has now largely given way to outright apologies rather than attempted justifications.

Perhaps, in this atmosphere, Northern Ireland Attorney-General John Larkin misread the auguries when he put his head above the parapet and raised the possibility of calling a halt to investigations of Troubles-era political violence, finding himself alone in the face of a barrage of criticism. Maybe Larkin thought that a stultified debate over what to do about the past could be advanced by someone saying the unthinkable. At the very least he did prove that there are certain things that can unite politicians from all political perspectives in the Province. Victims must never be forgotten went the rallying cry, all the more galling when the Northern Ireland Executive has steadfastly failed to move any proposals to address victims’ issues since the Assembly was restored in 2007.

Still, the furore is nonetheless surprising. Few commentators can predict with any degree of accuracy what reports or comments will catch the attention of Northern Ireland’s politicians. October saw the Northern Ireland Policing Board published its extensive Thematic Review on the use of police powers to stop and search and stop and question under the Terrorism Act 2000 and the Justice and Security (NI) Act 2007. Maybe the title put people off, for the Review (despite being trailed by David Anderson QC, the UK Independent Reviewer of Counter-Terrorism legislation) generated almost no attention, despite the high levels of public concern over stop and search. Just this May the Northern Ireland Court of Appeal ruled that the stop and search under section 21 of the Justice and Security (NI) Act 2007 of a former IRA hunger striker and a brother-in-law of Martin McGuinness were unlawful (the Fox and McNulty Case). The Court concluded (at [45]):

A power vested in the police to openly stop and question a person is not the exercise of a covert surveillance power but it partakes some of the characteristics of surveillance.  The fact that it can lead to open stopping and questioning in circumstances which do not ensure even privacy between the police and the individual adds to the potential for invasions of the article 8 right.  It is a power which does require justification and which provides effective guarantees and safeguards against abuse.

As the Thematic Review found, working with both the Fox and McNulty decision and the jurisprudence of the European Court (ECtHR) on the right to privacy (p.27):

The case law of the ECtHR clearly establishes that covert and secret surveillance by state agencies constitutes a particular threat to democracy and freedom which requires strict justification in the interest of national security or for the prevention of crime. The system itself must provide adequate and effective guarantees against abuse.

It ultimately restated the importance of the ECHR in policing and security operations (p.110):

The debate about the police use of powers to stop and search and stop and question can become clouded by many false assumptions, which it is hoped are challenged in this thematic review, but what is abundantly clear is that the Human Rights Act 1998 does not value individual rights at the expense of the community. Rather, it provides a model for a functioning society within which certain rights can be limited while protecting the human rights of all members of society. The Committee has stressed many times, but wishes to restate its central message that there is no conflict between human rights and policing because policing is the protection of human rights.

Such conclusions should resonate not just through Northern Ireland, but into debates over treatment of individuals such as David Miranda as well. So why did the report get ignored? It must have been the title. Or are we, as a community, better disposed to looking back to the time of the Troubles, rather than considering how its legal framework continues to affect our lives?

Proven Guilty: Fame to be Used Against Celebrity Defendants with New Sexual Offences Sentencing Guidelines

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19 December, 2013
Criminal Law, Jessica Randell, Media Law
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Ian Watkins royalties

Image Source: http://www.theguardian.com/uk-news/2013/dec/18/ian-watkins-transcript

– Jessica Randell (LLB Law, Newcastle University) j.m.randell@ncl.ac.uk

In September 2013 I wrote a blog post entitled, ‘Guilty Until Proven Innocent: The Anonymity of Celebrity Defendants in Sexual Abuse Cases’. This served to evaluate the recent, highly publicised sexual offence trials concerning celebrity defendants including Jimmy Saville, Stuart Hall and Michael Le Vell.* These trials have grabbed the public’s attention and opinions are widely varied with respect to the media attention they receive during the criminal law process. Conversely, the aim of this post is to evaluate what happens after a guilty verdict has been reached with a focus on the newly introduced sentencing guidelines for sexual offences.

These guidelines, as issued by the Sentencing Council on the 12th December 2013, will affect over fifty sexual offences including rape, child sex offences and human trafficking. The focus is now on the impact these offences have had, and will have, on the victim(s) and shall generally result in harsher sentences as lengthened by aggravating factors. These changes have come about after consultation with victim groups, medical professionals and those involved in the legal system. It replaces the former guidelines which were issued almost a decade ago after the introduction of the Sexual Offences Act 2003.

This new system, coming into force in April 2014, will introduce higher starting sentences for crimes such as rape which, for top category sentences, will now begin at fifteen years. This had only previously been afforded to those who had committed multiple rapes. There is also a focus on the impact technology has had on sexual offences including, for example, the filming and photographing of the victim during an offence. This will constitute an aggravating factor available to the judiciary when deciding an individual’s sentence. Further, the concept of ‘ostensible consent’ has been removed; meaning a child over the age of thirteen’s consent cannot constitute a limiting factor on a defendant’s sentence. This has occurred because “children do not consent to their own abuse”.

Two of these definitive aggravating factors will, arguably, have a greater impact on the celebrity defendant. These include when there has been an abuse of trust arising from the exploitation of one’s status or image and, additionally, when a defendant’s ‘good character’ has been used to facilitate an offence. There are several questions which arise from this; is it right that a guilty celebrity’s fame should be used against them? Was this change invoked due to the recently publicised celebrity trials? And is this a move in the right direction?

Firstly, it must be emphasised that celebrity status or ‘good character’ will have no direct impact on the decision of the case itself. This is a factor to be brought into play when deciding the sentence of the guilty party who should have previously endured a just, open and fair trial in front of a jury. Thus what is being focussed upon is how these factors have been used to facilitate the offence in the first place; trust, status and ‘good character’ having been exploited to bring about the crime and deter victims from coming forward due to the fear of not being believed. It is submitted that if such factors are found to be present in a case then it is surely correct that they must be recognised in the sentencing process. Generally, these new guidelines have brought about a positive response. Whilst the objections to such measures remain unknown, it is submitted that those who will object to the measures will do so through the claim of miscarriage of justice in the trial process. If this is the case, then there are provisions to deal with this in our legal system which are available by the very nature of our appellate system. Further, it is arguable that it is not just celebrities who will be affected by these changes as, according to defence lawyer Nick Freeman, this may extend to MPs, church leaders and high profile businessmen. Nonetheless, for those who have used their public image to commit abuse, it is essential that this is recognised, whether the guilty party is a traditional ‘celebrity’ or not.

The new guidelines are said to focus on the effect the crime has had on the victim(s) involved, however, arguably, it may be suggested that the guidelines may be unduly harsh on certain sexual offence victims. The argument would run as follows; why should the ‘ordinary’ defendant (of ‘bad’ character?’) receive a lesser sentence than someone exploiting their public image? However, this argument would be a misunderstanding of the guidelines. Instead, all starting sentences, which are much higher than they ever used to be, are the same for all defendants. What the guidelines serve to present are several new aggravating factors which will be applied, or not, dependent on the circumstances of each individual case. This case-by-case basis approach to sexual offence cases is the best way to secure individual justice thus protecting the victim in accordance with the context of the crime that has been committed. This must be recognised as an undeniable positive advancement, particularly in that these aggravating factors will only ever make sentences longer, which is undoubtedly a Good Thing.

It has been argued by the Sentencing Council that these changes have not been invoked because of the recent celebrity trials due to the fact that investigations into sentencing guidelines have been on-going for some time. Can it really be said, however, that such trials have had no impact on these significant changes? There has been a public outrage in the wake of these guilty celebrity sexual offenders. Indeed, it is submitted that this outrage has arisen from the inconceivable notion that sexual predators have been able to use their influential background, and the platform provided to them by ever-supportive fans, to take advantage in the most despicable ways. It is hard to imagine that these views have not been taken into account and, if they have indeed been influential, then that is something to shout about not deny. Occurring in the media of late are graphic, disturbing and highly emotive accounts of these cases, including what, to whom and where, and the list of guilty, celebrity sex offenders is ever increasing. It is submitted that the law must reflect this and that these changes will enable that to happen.

If anything, it is a shame that these strict guidelines have not been invoked sooner and that they will only apply to those sentenced on or after 1st April 2014. This sad fact is evidenced by the recent case involving Ian Watkins, the Lostprophets front man. Watkins admitted, in November 2013, to a string of sex offences including the attempted rape of a baby, sexually assaulting a child under 13 and aiding and abetting a female co-defendant to sexually assault a child under 13. This was in conjunction with the finding of 90 images of child abuse on his computer alongside 22 images of bestiality.  Watkins was recently sentenced, on 18th December 2013, for 35 years. Broken down, this constitutes a 29 year prison sentence, of which he will be expected to serve two thirds before being reassessed, alongside spending 6 years on license. The judge in the case, Mr Justice Royce QC, stated the following:

“You, Watkins, achieved fame and success as the lead singer of Lostprophets. You had many fawning fans. That gave you power. You knew you could use that power to induce young female fans to help satisfy your insatiable lust and take part in the sexual abuse of their own children.”

It can, therefore, be seen how the aggravating factors discussed above regarding ‘good character’ and status could have been used against Watkins, resulting in the increase of his sentence. His influence as a famous singer, and the power that came with that position, has been emphasised as instrumental in the crimes he has committed and, ultimately, this is exactly the kind of behaviour which the guidance serves to punish. However, whilst it can be argued that these changes should have been made sooner, they clearly represent a step in the right direction. If, as further investigations into Watkins continue, future convictions arise then one can only hope that the sentencing will occur on or after 1st April 2014. Indeed, it may even mean that the door is thrown open to encourage legitimate claims against this individual, and many others, which is essentially a part of the bigger picture when discussing issues regarding sexual offences convictions. The inciting of non-vexatious claims against sexual perpetrators must be encouraged and if the prospect of an impending, harsher prison sentence creates a world in which that becomes more feasible then these changes deserve to be greatly celebrated.

*Please note that Michael Le Vell was found not guilty On 10th September 2013

 

Help to Buy Homes and the Property Ladder: Getting On and Staying On?

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18 December, 2013
Equity and Trusts, Jade Rigby, Planning Law
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(Image Source: http://www.geograph.org.uk/photo/82859)

– Jade Rigby (LLB Law, Newcastle University) j.k.rigby@newcastle.ac.uk

“For a man’s house is his castle, et domus sua cuique est tutissimum refugium [and each man’s home is his safest refuge].” – Sir Edward Coke

Of course, in today’s modern society, a homeowner does not have to be male, but Sir Coke does make a poignant point. As a society, we aim to own our own property – whether it be a cosy flat or a large house with a sprawling garden, the pressure is on for everyone to move out of the parental nest and create their own home. This seems to be a view which has survived the economic crash in 2008, but it has been affected by the spiralling financial crisis. There are over 2 million unemployed people in the UK, but the average house price between April and June 2013 was just under £250,000. Rising tension between the ideals of society and fiscal reality has led the Government to unveil the Help To Buy scheme this year in order to help people get on to the first rung of the property ladder.

So what exactly is the Government offering? Well, the scheme has four separate branches, which encompass different areas of the property market; Help to Buy equity loans, a shared ownership scheme, the NewBuy scheme, and the Help to Buy mortgage guarantee.  The mortgage guarantee is arguably the most controversial branch because it enables people to purchase a property with a deposit of just 5% of the purchase price. The Government provide a five-year interest free loan for up to 15% of the purchase price, which guarantees the mortgage with the lender. Interest is only charged on the loan after the sixth year. Traditionally, most mortgage lenders have asked for deposits between 10-20%, so the Help to Buy scheme is a radical step for many of those who have been unable to meet these requirements. To qualify for a mortgage guarantee, the home you want to buy must not be a second home, or be subject to shared ownership or shared equity, and you cannot plan to rent it out after purchase. Finally, the home must not sell for more than £600,000.

The mortgage guarantee does have many procedural advantages. Although there is a financial cap, the guarantee, unlike the NewBuy scheme, is not limited to particular new builds. This gives the public a wide choice of homes from across the property spectrum. For those hoping to climb further up the property ladder, this is also a great opportunity. Older builds often increase in value, whereas new builds may simply hold their price. Furthermore, potential candidates for the scheme can directly apply to some banks such as NatWest, RBS, Bank of Scotland, HSBC or Halifax. Approaching a mortgage lender can be an intimidating task, so it is particularly advantageous that popular banks are involved with the scheme because a large proportion of the public will already be familiar with their local branch. Significantly, this is a positive step forward in tough economic times for those who want to move without the hassle of saving up a larger deposit amount, or for people trying to get on the property ladder for the first time. There is a hope that the scheme will kick start the construction industry, and fill the lack of affordable homes.

The question is, is this the correct step for the Government to take? Granted, the scheme may be rooted in good intentions, but the practicalities of the mortgage guarantee are causes of concern. 95% mortgages are a huge financial burden in an unstable time. Although there has been a fall in unemployment rates recently, this does not mean that the financial world has time to fall back and relax. Borrowing more than what can a person can afford was an underlying cause of the financial crisis, and there may be an argument that a 95% mortgage is setting the vulnerable up for a fall. Although there will be meticulous checks before a mortgage guarantee is granted, the public perception of banking does not project a trustworthy image.  It may be a case of ‘only fools rush in’ as, at the limit, a 95% mortgage could form up to £570,000 worth of debt. This of course affects the accessibility of the mortgage guarantee; those with a poor credit score, who are arguably the most vulnerable to the property shortage, will be excluded. It is very concerning that the shortage of affordable homes is being met through mortgage schemes. This approach seems to skim over the real issues; inflation, job stability, and the housing shortage.

Indeed, the reaction to the Help to Buy mortgage guarantee has been very mixed. PricedOut – a campaign for affordable house prices – slams the scheme as ‘Help to Sell’ instead of Help to Buy. The low deposit rate fuels concerns that the scheme will create a new housing bubble, which will allow homeowners to sell at inflated rates. Rising house prices and overwhelming levels of debt may prove to discourage the public from participating. This would completely undermine the entire point of the scheme – to help the vulnerable get on, and stay on, the property ladder. Legal mortgages, it must be remembered, include equitable rights for the mortgagor. The equitable right to redeem, and the right to possess, for example, may be considered as powerful tools in the event of someone falling short on their mortgage repayments. The mortgagor always remains the true owner of the property because, historically, mortgages were used for exploitation and extortion. The mortgagee also has duties to fulfil; they must act in good faith, and to attain true market value for the property if a sale is on the cards. These obligations and rights provide a substantial stronghold against potential exploitation stemming from the Help to Buy scheme. The mortgage guarantee has not overridden these equitable rights in any way, so it is possible that fears surrounding the expansion of the scheme are largely overstated.

Ultimately, we will have to wait for further analysis. The Government will make available up to £12 billion of guarantees to support the scheme during its three-year life, so there is huge potential for many people to take their first tentative steps on to, or up, the property ladder. The doom and gloom of the economic crisis is lifting slightly at the end of 2013, but only time will tell how the scheme will fare amongst the wider public and the mortgage lenders.