Tuesday, 29 July 2014

Roundup of News

Over recent days a considerable number of legal "stories" have appeared.  Here are a few - Enjoy ....!

1.  Efficiency review

The Judiciary has announced details of a Review of Efficiency in Criminal Proceedings which is to be led by Sir Brian Leveson (President of the Queen's Bench Division of the High Court).

2.  Criminal Practice Directions will be revised from October 2014

3.  The Guardian newspaper (and its associated website) cover many aspects of law.

a)  Judges have been warned that the government is trying to obtain impunity over torture. 

Thursday, 24 July 2014

Moohan and another v Lord Advocate - Supreme Court of the UK - Serving Prisoners and the Independence Referendum

18th September 2014 is the date set for the referendum on Scottish Independence.  The referendum is being held by virtue of the Scottish Independence Referendum Act 2013 and those entitled to vote are detailed in the Scottish Independence Referendum (Franchise) Act 2013 - section 2 of which states:

A person is entitled to vote in an independence referendum if, on the date on which the poll at the referendum is held, the person is -

(a) aged 16 or over,

(b) registered in either -

Sharon Shoesmith - Reported compensation

"Accountability" is not synonymous with "Heads must roll" - per Maurice Kay LJ in R (Shoesmith) v Ofsted and others [2011] RECA Civ 642 at para 66.

In December 2008, Sharon Shoesmith was dismissed as Director of Children's Services for Haringey Council.  This followed the tragic death of "Baby P" on 3rd August 2007 for which his mother (Tracey Connelly) and two males (Steven Barker and Jason Owen) were found criminally liable under the Domestic Violence, Crime and Victims Act 2004 section 5.  (Note: section 5 has been subsequently amended with effect from 2nd July 2012 but the original enactment applied at the time). 

Shoesmith claimed compensation for unfair dismissal and was eventually successful in the Court of Appeal.  The judgment is here and see Law and Lawyers 30th May 2011 for discussion. 

An article published by The Telegraph on 23rd July 2014 indicates

Monday, 21 July 2014

A written constitution for the United Kingdom? Have your say ...

Writing in the Law Society Gazette 21st July 2014, Joshua Rozenberg takes a look at a report by the Political and Constitutional Reform Committee of the House of Commons.

This is a lengthy report of 423 pages - A New Magna Carta?  Second Report of Session 2014-15 (3rd July 2014).

Much of the report is informed by the work of Robert Blackburn - Professor of Constitutional Law, King's College London.  As Joshua Rozenberg's article states -  'Blackburn [offers] us three illustrative blueprints. The first, which he describes as a constitutional code, would be no more than a handbook, with no statutory authority. The second, consolidating legislation, would bring together existing statutes and codify constitutional conventions. Only the third would be a true constitutional document, governing the way the country is run.'

Major consultation by Parliament on "A New Magna Carta" - 10th July 2014.   See also Competition to write a preamble for modern written constitution

Earlier posts on Written Constitution - 3rd February 2010 and 19th April 2010

Sunday, 20 July 2014

Some recent decisions in the Family Court

Since the creation (on 22nd April - see post of 24th April) of the new Family Court for England and Wales, cases are being reported by Bailii under the headings of-
The following three reported decisions illustrate all too well the complex and difficult decisions required in this area of legal practice.   The decisions do not raise any new points of law but they are of interest because they illustrate well the anxious consideration given to the detail of the case by the judges involved.

Wednesday, 16 July 2014

The proposed Privacy and Civil Liberties Board - more on DRIP - the Reviewer's review

NOTE 17th July:  DRIP received Royal Assent today and is now the Date Retention and Investigatory Powers Act 2014.   For a blogpost which is scathing about how this was rammed through Parliament see Paul Bernal - DRIP: Parliament in disrepute.   The Act is (mostly) in force from today - (Note: section 1(6) - concerned with disclosure of data - requires a commencement order).  It is also worth noting that section 1(3) gives the Secretary of State power to issue regulations making further provision about retention of relevant data.  As things stand at the moment, sections 1 to 7 will repeal on 31st December 2016 (the "sunset" provision).  The government claims that the Act is compatible with Convention rights.  Time will tell ! 

Read the Data retention and Investigatory Powers Act 2014

1) The PCLB - An element of the package announced by the government along with the Data Retention and Investigatory Powers Bill (DRIP) was that there is to be a Privacy and Civil Liberties Board (PCLB) along the US model.  In a tweet today, Mr David Anderson QC (Independent Reviewer of Terrorism Legislation) drew attention to the proposed remit of the PCLB and suggested that 'the devil may be in the detail.'  At first sight, the remit appears to be a rather narrow one - essentially focussing on powers relating to terrorism policy and a specific list of Acts. 

It appears that Legislation to put the Independent Privacy and Civil Liberties Board into place will be brought forward in this session of Parliament.  The PCLB is to replace the Independent Reviewer legislation.

101 Uses for an Independent Reviewer

2) The Data Retention and Investigatory Powers Bill -

Law Officers of the Crown

Prime Minister David Cameron has reorganised his government.  "Reshuffle" is the more usual word but this is hardly a "reshuffle" - more like a cull.  New faces, including a considerable number of women, have been appointed to Ministerial Office.  Shakespeare's play Henry VI Part II contained the line - 'The first thing we do, let's kill all the lawyers.'  Well, they may not have been killed but the reorganisation will have certainly made them less influential within government.

Both of the Law Officers of the Crown have been replaced - (for their roles, see Attorney General's Office website).   Attorney-General Dominic Grieve has been replaced by Jeremy Wright.  Solicitor General Oliver Heald is replaced by Robert Buckland.  Interestingly, Mr Buckland is (or has been) Chair of the Conservative Human Rights Commission.

There can be little doubt that Mr Grieve was highly regarded as a lawyer and as a fearless Attorney-General.  A very good analysis of Mr Grieve's performance as Attorney-General is at Head of Legal Blog - Dominic Grieve as Attorney-General: 2010-14.   Grieve was called to the Bar in 1980

Monday, 14 July 2014

DRIP ~ a torrent of mass surveillance seems more likely!

Update 15th July - DRIP has also produced a torrent of comment !  In an addendum, I have added some further links.

Last week, the Home Secretary announced that, with all party agreement, the Data Retention and Investigatory Powers Bill - (DRIP for short) - would be introduced into Parliament.  Much of that is covered in the previous post of 10th July. Since then, criticism has mounted in relation to the late introduction of the Bill prior to the summer recess.  Further criticism is that the Bill is far from being just a limited Bill to close what may have been a legal gap left by the decision of the Court of Justice of the EU to invalidate the Data Retention Directive 2006/24/EC.   The UK's 2009 Regulations, implementing the directive into domestic law, could well have been at risk via judicial review even though the Home Secretary asserted in the House of Commons that the government believed they remained valid.  Critics point to the Bill being a considerable extension of State power.  Here are links to the draft Bill, to the provisional regulations to be made under the Bill and to the explanatory notes.

The draft Data Retention and Investigatory Powers Bill  - Draft Regulations -Explanatory Notes - 15 pages 

A very good analysis of the Bill has been made available at Cyberlegal blog - Dissecting DRIP: the emergency Data Retention and Investigatory Powers Bill..

Even the most cursory

Thursday, 10 July 2014

Data Retention ~ Background / Materials

8 x Updates - latest TODAY:

The detection, prevention and investigation of serious crime and national security are matters of enormous concern to government.  Legislation requiring retention by service providers of matters such as telephone communications information (but not content of calls) has been considered necessary.  Such data retention clearly impinges on the privacy of individuals.  Following the 2004 Madrid Bombings, the European Union introduced new rules relating to data retention.  The rules were in the Data Retention Directive 2006/24/EC.

In April 2014, the Court of Justice of the EU (CJEU) ruled that the directive was unlawful because it was held that there was a disproportionate interference with the right to respect for private life and with the right to the protection of personal data, enshrined in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union respectively.  The Court's judgment is here

Any new EU Directive would have to comply with ten requirements - see the Open Rights Group Briefing to MPs on Data Retention Legislation.

The 2006 Directive was implemented

Wednesday, 9 July 2014

Joint Enterprise (3) - Update

The problematic aspect of criminal law referred to as "Joint Enterprise" has been in the news recently as a result of a televised drama by Jimmy McGovern - COMMON.  The programme may be viewed over the next few days on BBC iPlayer - 'When 17-year-old Johnjo gives his cousin and his friends a lift, he finds himself implicated in a stabbing.'

On Youtube, Professor Graham Virgo (Cambridge University) offers an explanation of Joint Enterprise law - (28 minutes).

Some background to Joint Enterprise may be read at The Guardian 1st April 2014  and at BBC 7th July 2014

A post on The Justice Gap blog - Journalism can be the driving force in injustice is also of interest. See also Justice Gap - John Robbins - Joint Enterprise: confusing juries and courts.

Earlier posts relating to Joint Enterprise include 4th April 2014 - Joint Enterprise (1) - Setting the scene and 25th April 2014 - Joint Enterprise (2) - Involvement in Crime

There can be no proper objection

Friday, 4 July 2014

Sentencing - the Phone Hackers - Rolf Harris

It has been quite a day for sentencing.  Sentences have been handed down in relation to very different forms of offending.

First came the sentencing of five offenders convicted in relation to phone hacking - see the Sentencing Remarks of Mr Justice Saunders.   The heaviest sentence imposed was on Andy Coulson (pictured) who received 18 months imprisonment.  Earlier blogpost - 25th June - We underrate juries at our peril.  Other sentences passed were Mr Miskiw and Mr Thurlbeck - 6 months each (with 53 days 'qualifying curfew' counting toward the sentence).  Mr Weatherup 4 months imprisonment suspended for 12 months with a requirement to complete 200 hours unpaid work.  Mr Mulcaire - 6 months imprisonment suspended for 12 months with a requirement to complete 200 hours unpaid work.  [On qualifying curfew see here].

The Guardian 4th July - Andy Coulson jailed for 18 months for conspiracy to hack phones

Secondly, the entertainer Rolf Harris was sentenced on 12 counts of indecent assault committed in the period 1969 to 1986.  He received a total of 5 years 9 months imprisonment which, at the age of 84, will inevitably prove to be a very significant part of his remaining lifetime.  See the Sentencing Remarks of Mr Justice Sweeney.  A reading of the sentencing remarks will reveal that the offending was serious and almost certainly more serious than some media reports of the trial suggested.  Four charges relating to downloading child pornography will not proceed to a trial - see Court News UK.  The earlier blogpost - Rolf Harris - looked at the general sentencing framework for this type of offending.  Harris will be subjected to Notification Requirements under the Sexual Offences Act 2003 Part 2 and is to be considered with respect to the Safeguarding Vulnerable Groups Act 2006.  Sweeney J did not award compensation since the issues were too complex and the information before him insufficient for him to be able to properly do so.

It appears

Thursday, 3 July 2014

Lord Chancellor - a heap of anomalies - Part 2

The ancient role of Lord Chancellor - (full title is Lord High Chancellor of Great Britain ) - was the subject of a blogpost of 8th June - Lord Chancellor - a heap of anomalies.  It has now been announced that House of Lords Constitution Committee is to hold an inquiry into the office of Lord Chancellor.   The Committee is calling for evidence and the call for evidence asks 10 questions.  These include - (Q10) - the fundamental question as to whether there should be a Lord Chancellor.

Written evidence must be submitted by 29th August 2014 and the committee hopes to report in the autumn.  In making a submission, the committee asks for the focus to be on the office and that personal comments relating to individual Lords Chancellor are avoided.

The present day Lord Chancellorship is a rump of its former glory. 

Tuesday, 1 July 2014

Rolf Harris ... historic sexual offences

The famous celebrity Rolf Harris - now aged 84 - has been convicted in the Crown Court at Southwark (Mr Justice Sweeney and a jury) of 12 counts of indecent assault committed in the period 1968 to 1986 - see BBC News 30th June 2014 - Rolf Harris: the charges against him.   Mr Harris is to be sentenced on Friday 4th July and The Telegraph has already proclaimed that he could die in jail.   Sweeney J is reported to have said: '“In reality given the conviction on all 12 counts it is inevitable that the type of sentence that is uppermost in the court’s mind is a custodial sentence and he must understand that.”

Sentencing of Mr Harris will raise similar consideration to those in the Stuart Hall case - previous post of 19th June 2013.  It will be recalled that Mr Hall - now aged 84 - was convicted of 14 counts of indecent assault committed in the period 1967 to 1985/6.  Following the Attorney-General's undue leniency application to the Court of Appeal, Mr Hall's sentence was increased to 30 months imprisonment.  Mr Hall later faced 19 further charges but was convicted on two of them - see the sentencing remarks of Turner J dated 23rd May 2014.  For those, he was sentenced to an additional 30 months imprisonment. 

The sentencing

Monday, 30 June 2014

As June fades into July ... A short roundup ...

As June fades into July, a little food for thought ...

Halsbury's Law Exchange has published an item by Lord Phillips (a former Lord Chief Justice and President of the Supreme Court) on Prisoner Voting - Should Prisoners have the right to vote?

Justice - Resources on the Criminal Justice and Courts Bill which will make important changes to the law including access to judicial review.  See details of the Bill on the Parliament website.
 The British like to believe they are free, but after Snowden, Miranda and the “war on terror”, how true can this be? Are most of us free while those who seek change discover a tenuous grip on freedom?'  See
London School of Economics - The State of Freedom in Britain

UK Human Rights Blog - 'Do not resuscitate' and the Right to Die - the Human Rights Roundup - Celia Rooney 30th June.

Marilyn Stowe blog -  The unravelling of the Family Justice System by John Bolch.

Saturday, 28 June 2014

That pesky EU "Presidency" ... what is it?

The European Union (EU) is based on the various European Treaties agreed by the 28 member States.  The EU is now has legal personality so far as international law is concerned but it is NOT a State.  Contrary to what the media sometimes lead us to believe, there is not a President of the European Union.  (Whether "federalists" would like there to be is another matter).  It is perhaps unfortunate that the words "President" or "Presidency" appear quite frequently because the words are used in at least five contexts relating to the various EU Institutions.

Friday, 27 June 2014

The court MAY issue a declaration of incompatibility

On 3rd September 1953, the European Convention on Human Rights came into force with the United Kingdom among the first signatories.  For the next 47 years, the Convention operated almost entirely externally to the domestic legal systems within the UK.  Many a litigant trailed to the European Court of Human Rights (E Ct HR) at Strasbourg during those years and a considerable number obtained a judgment that the UK was in breach of the Convention.  In 1998, the Human Rights Act (HRA 98) was enacted by Parliament as part of an idea of "Bringing Rights Home."  Convention rights were to be a floor and not a ceiling for human rights protection in the UK.  The Act actually came into force on 1st October 2000. 

The HRA98 does a few apparently straightforward things. 

Wednesday, 25 June 2014

We underrate juries .... at our peril !

Saunders J
This morning, Mr Justice Saunders was faced with an application to discharge the jury in the "phone-hacking" trial.  On Tuesday 24th June, the jury returned certain guilty verdicts against Mr Andy Coulson but there were other charges yet to be decided by the jury.  Defendant Miss Rebekah Brooks was acquitted on all the charges against her.  BBC News 24th June.

The Prime Minister - who had employed Mr Coulson at No 10 Downing Street - chose to make a statement about it being a misjudgment to have employed Mr Coulson.  It was therefore no surprise that Mr Coulson's counsel sought the discharge of the jury.  However, Saunders J decided not to do so for reasons stated here:

Ruling on application to discharge the jury in Coulson, Goodman and others.

Later, as events turned out,

Assisting Suicide: the cases of Nicklinson, Lamb and Martin

Mr Nicklinson
Updates: This post will be updated with further materials and comments as they become available ... as they undoubtedly will !

The Supreme Court has handed down judgment in the assisting suicide cases of Nicklinson, Lamb and 'Martin' (a name used for the purpose of the case).  Essentially the court has held that amendment of the Suicide Act 1961 section 2 is a matter for Parliament and no declaration of incompatibility (Human Rights Act 1998 section 4) was issued.  However, the possibility of such a declaration in the future was not ruled out.   Furthermore, the court allowed an appeal by the Director of Public Prosecutions and upheld the legality of the DPP's 2010 prosecutorial guidance.  The guidance was issued following the House of Lords decision in Purdy 2009.

R (on the application of Nicklinson and another) (AP) (Appellants) v Ministry of Justice (Respondent) and R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant)
View the court giving judgment via YOUTUBE
It is now to be hoped that Parliament takes the opportunity to address this matter in the light of the court's judgment.

Previous post 1st August 2013

Phone-hacking trial - charges, verdicts, links to media articles, Leveson and beyond


What were the actual charges in the "Phone-Hacking" trial?  Here they are as published by the Crown Prosecution Service.  The charges arose from two Police investigations referred to as Operations Elveden and Weeting.

CPS - Charging announcement in relation to Operation Elveden
Crown Prosecution Service - Operation Weeting - CPS Charging Decisions


Are summarised at The Independent Phone hacking trial: the verdicts in full and at  Press Gazette

Media links:

Tuesday, 24 June 2014

Protesters arrested ...

Please view the video with this article in a Sheffield newspaper THE STAR - Video - Police arrest protest pensioners  

It appears that there was a protest relating to cuts to rail travel passes.  Such passes are (or have been) very beneficial to many elderly people.

It is not fully possible to properly determine just from the video whether the force used by the Police was "reasonable" (as is required by the Criminal Law Act 1967 section 3 / Police and Criminal Evidence Act 1984 section 117) but it certainly has the appearance of being very heavy-handed on the part of the Police.  See - CPS on Reasonable Force

The powers of arrest of a constable are in section 24 of the Police and Criminal Evidence Act 1984 (as amended by the Serious Organised Crime and Police Act 2005).  

Where an individual is aggrieved, a civil action against the Police may be possible though this is a diffcult legal area of law and practice.  Legal aid may sometimes be available though the rules are particularly complex - see Changes to civil legal aid - Practical guidance for the Bar.  An alternative is the use of Police Complaints machinery