The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.
Advances in England and Wales criminal justice system’s for sexual offenses and offenders.
‘Re-thinking registers’
Reported by Kristy Chan
Burgeoning calls to change the England & Wales criminal justice system’s approach to sexual offenses and offenders are gaining traction. The online movement #justiceforcollettegallacher spearheaded by the sisters of Collette Gallacher, who was murdered by Adam Stein at six years old in a sexually motivated crime, advocates for a retrospective change to the use of the violent and sexual offenders register. At the same time, a new register modelled on the existing one but pinpointing violence perpetrated against women could be in the works.
The UK does not have a public sex offenders list, register, or database, intended to strike the balance between one’s right to privacy and public safety concerns of releasing convicted sex offenders back into society. This information is instead retained by the police under the sexual offenders registry (SOR) which has been in force since 1997. The register ensures a high level of supervision upon the offender’s release. The UK does, however, have ‘Sarah’s Law’ – the Child Sex Offender Disclosure Scheme (2010), named after eight-year-old murder victim Sarah Payne, which allows parents to ask police if someone with access to their son or daughter has been convicted or suspected of child abuse.
- Broadening scope
Collette’s sisters, Claire and Lauren Holmes, have been calling for a retrospective change to the existing sexual offenders registry (SOR). The sisters are campaigning to have all sex offenders added to the register, whether they were convicted pre- or post-1997. Doing so would better address public safety concerns and give distraught families more reassurance. According to The Guardian, such a change is supported by two former Labour home secretaries, David Blunkett and Jacqui Smith.
However, any retrospective changes must be made with caution. Its necessity depends on the effectiveness of existing measures. The Guardian reports that Stein is on the highest level of supervision – for example, his murder conviction and rape on file could be disclosed to anyone considered relevant, including “an employer, landlord or a local school”.
- Narrower focus
Concurrently, a national soul-searching sparked by the death of Sarah Everard has precipitated suggestions of a new registry specifically focused on violence perpetrated against women. The Edinburgh News reports that Justice Secretary Robert Buckland and Home Secretary Priti Patel are exploring plans for a “super-database” focused on the estimated 50,000 men convicted each year of offenses such as stalking, coercive control and harassment.
- Do registers work?
The idea of a database – whether the super database pinpointing crimes against women or the existing Sarah’s Law – could resonate with the public for practical and principled reasons. A database could be of practical use because it can act as an ‘early warning system’ for law enforcement, and offer a sense of safety. As a matter of principle, a sense of justice might be forthcoming because registers act as a public and perpetual condemnation of one’s actions that last long beyond one’s prison term. Finally, registers can recognize the prevalence of particular crimes such as femicide or domestic abuse, highlighting especially potent social issues.
Lists, registers and databases remain front and centre. According to The Edinburgh News, ministers are set to debate an amendment to the Domestic Abuse Bill which would create a database for offenders, while the Police, Crime, Sentencing and Courts Bill – the centre of public demonstrations known as ‘Kill the Bill’ – includes a section which permits judges to consider jailing child murderers, like the murderer of Collette Gallacher, for their entire lives.
Ultimately, the most important factor to consider is what is done with the list. Lauren and Claire had to campaign intensely for Stein to be put on the highest level of supervision under the 1997 SOR, requiring the assistance of Secretary of State for Justice, Robert Buckland. Rather than having a database without much enforcement, any register must be used effectively. As Claire Holmes explains in The Guardian, “What’s so worrying is that the only reason [Stein’s] on much tougher restrictions is because we’ve fought tooth and nail… What might have happened otherwise?”
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ECHR rules compulsory childhood vaccination does not violate human rights
Vavřička and Others v. the Czech Republic (applications no. 47621/13 and five other applications)
Reported by Jasmine Cracknell
The European Court of Human Rights has found that a compulsory vaccination policy for children in the Czech Republic does not violate children’s human rights.
Several parents complained to the ECHR after being fined by the government for not vaccinating their children. They claimed that the policy violates their children’s right to respect for private life under Article 8 of the European Convention on Human Rights.
The Czech Republic’s Public Health Protection Act makes routine vaccinations against nine diseases mandatory and prevents non-vaccinated children from attending pre-schools.
In its judgement, the Court first addressed whether the vaccination policy did in fact interfere with private life under Article 8. The Court found that it did, as compulsory vaccination interferes with a person’s ‘physical integrity’. Furthermore, as the children had borne the direct consequences of non-compliance by their parents (in that they were not allowed to attend pre-school) this constituted an interference with their right to respect for private life.
The Court then addressed the question of whether the interference pursued a legitimate aim. It explained that because the objectives of the vaccination policy were to protect individuals and society against diseases that could pose a risk to health, the policy was compatible with the aim of protecting health and the rights of others, as recognized by Article 8.
Following this, the ECHR considered whether the interference was necessary in a democratic society. In addressing this point, the Court referred to several factors. One such factor was the ‘margin of appreciation’, which relates to the level of discretion a member state can employ in relation to a Convention right. The Court recognized that even though the Czech Republic’s vaccination policies were more prescriptive than other countries, the Court found that the margin of appreciation in this case should be a wide one due to the need to protect the health of all members of society.
The Court further recognized that there was a pressing social need in the Czech Republic to protect public health and to prevent any downward trend in the rate of vaccination in children.
The Court then considered proportionality in relation to the vaccination policy. It ultimately found that the measures the parents had complained about were proportionate to the legitimate aim of protecting against diseases which could pose a serious risk to health, and that the measures were “necessary in a democratic society”.
Although the case does not discuss Covid-19 vaccinations and is silent on whether the principles could apply to such vaccinations, it raises interesting questions about whether Covid-19 vaccinations could become mandatory and the legalities associated with this.
George Floyd’s trial
Update on the death of George Floyd
Reported by Laurence Tsai
The killing of George Floyd by US police officer, Derek Chauvin, continues to make headlines worldwide. Chauvin is on trial for the following three charges under Minnesota law:
1. Second-degree murder – killing another with intent but without premeditation
2. Third-degree murder – killing another without intent and evincing a “depraved mind” without regard for human life
3. Manslaughter – unlawful killing without intention to harm or kill and the perpetrator’s actions did not involve extreme or reckless regard for human life Chauvin pleaded not guilty to all charges.
- Opening statements
The prosecution’s opening arguments attempt to persuade the jury that this is clearly a homicide, relying on experts, who have determined that the interaction with law enforcement officers caused Floyd’s death.
The defense will attempt to argue that Floyd’s drug use were the main factors that contributed to his death, not Chauvin’s actions and that Chauvin followed his police training and used a proportionate amount of force.
A critical question deliberated at trial was whether Chauvin’s conduct caused Floyd’s death, or whether Floyd died from a heart arrhythmia.
- Expert medical evidence
On Thursday 8 April 2021, Chicago pulmonologist, Dr Martin Tobin, testified for the prosecution that Mr Floyd died from a “low level of oxygen” after Chauvin knelt on his neck for roughly nine minutes. On cross-examination by the defense, Dr Tobin explained that the drugs (fentanyl and methamphetamine) Floyd ingested before his death did not cause his death, contrary to what the defense suggested.
On Friday, the prosecution called Dr Lindsey Thomas to testify that Floyd died from asphyxia due to the force police used to restrain him. She commented that “there’s no evidence to suggest he would have died that night except for the interactions with law enforcement”.
Furthermore, medical examiner, Dr Andrew Baker, who performed the official autopsy on Floyd, ruled his death as a homicide, noting that while the drugs contributed to his death, they were not direct causes of it.
The defense have yet to call their experts. They may call experts who have previously testified in defense of other cases involving fatal violence by law enforcement to argue that this case was a proportionate use of force.
- Burden of proof
The prosecution must convince the jury that the defendant is guilty “beyond a reasonable doubt” to obtain a conviction for any one of the charges. Under Minnesota law, the defendant will be pronounced “not guilty” if the judge or jury has doubts about his/her guilt, and those doubts are not fanciful or capricious.
- Will there be a conviction?
Securing a conviction of police officers for their misconduct is notoriously difficult in the US. Between 2005 and 2020, over 100 offices were arrested and charged for murder or manslaughter due to an on-duty shooting. However, only five were convicted of murder.
There were 11 convictions for manslaughter.
Cases involving video footage capturing lethal force exercised by officers do not always result in guilty verdicts. In 2015, the case against former South Carolina officer, Michael Slager, who was filmed shooting Walter Scott, ended in a mistrial. An 11-1 jury decision to convict did not reach the requisite unanimity to find Slager guilty.
The jury must reach a unanimous decision that Chauvin is guilty of any one of the charges to convict him.
If convicted of second-degree murder, Chauvin will face up to 40 years in jail. If convicted of third-degree murder, then 25 years maximum. Second degree manslaughter carries a maximum of 10 years’ imprisonment. If found guilty, this trial could be a small step toward police reform. However, large-scale reform is unlikely.
The defense must persuade the jury to doubt the prosecution’s case, which may not be an easy feat. Senior police officials are testifying for the prosecution. Lieutenant Richard Zimmerman, who heads the homicide division, described the force Chauvin used as “totally unnecessary”. Chief executive officer, Medaria Arradondo, said the degree of force violated department policy. If the jury doubts Chauvin’s guilt for the murder charges, there is a possibility that Chauvin will be convicted of manslaughter.
When Chauvin’s trial finishes, the other three offices will face their trials for aiding and abetting and manslaughter. Due to Covid-19 restrictions, these trials are scheduled to occur in August.
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