Saturday, 1 August 2015

Human rights placing the nation in peril ? Don't be ridiculous !

The Nation truly in Peril - 1940
The Daily Mail Comment 1st August 2015 - "A Nation imperilled by the Human Rights Act."  The Mail describes the Human Rights Act 1998 as a "toxic piece of legislation, which allows (lawyers) to profitably ride roughshod over the wishes of Parliament and the British public."  One of the cases used in support of this statement is the Supreme Court's decision in R (Bourgass and another) v Secretary of State for Justice [2015] UKSC 54.  The case is discussed in my post of 29th July  and, even more eruditely, by Dr Mark Elliott in his excellent post on Public Lawyers for Everyone -  Bourgass in the Supreme Court: Solitary confinement, the Carltona Doctrine and Procedural Fairness 
.

The issue in the case was who could authorise the segregation (solitary confinement) of a prisoner: the Prison Governor or the Secretary of State for Justice?  The relevant regulations (links are in the 29th July post) were actually clearly worded.  The Governor could authorise segregation up to 72 hours.  Beyond that, the regulations required segregation to be authorised by the Secretary of State for Justice and it could be authorised up to a maximum of 14 days.  Two men - (and, yes, both men were in prison following conviction for very serious offences including terrorism-related offences) - were segregated for way beyond even 14 days without the authority of the Secretary of State.  The Supreme Court held that to be unlawful.

The reasoning was that COMMON LAW

Friday, 31 July 2015

Modern Slavery ~ a modern scourge

Exploitation of human beings is an age-old scourge and is certainly well and truly with us today as this short video illustrates all too well - Modern slavery is closer than you think.

"Modern slavery is a brutal form of organised crime in which people are treated as commodities and exploited for criminal gain. The true extent of modern slavery in the United Kingdom, and indeed globally, is unknown. Modern slavery, in particular human trafficking, is an international problem and victims may have entered the United Kingdom legally, on forged documentation or clandestinely, or they may be British citizens living in the United Kingdom. Modern slavery takes a number of forms, including sexual exploitation, forced labour and domestic servitude, and victims come from all walks of life. Victims are often unwilling to come forward to law enforcement or public protection agencies, not seeing themselves as victims, or fearing further reprisals from their abusers. In particular, there may be particular social and cultural barriers to men identifying themselves as victims. Victims may also not always be recognised as victims of modern slavery by those who come into contact with them" - (Extract from Explanatory Notes to the Modern Slavery Act 2015).

International concern about exploitation has resulted in a number of significant actions:  the UN Palermo Protocol 2000;  the Council of Europe Convention on Trafficking in Human Beings (Warsaw 2005) and the European Union's Directive 2011/36/EU.

In the UK, the Modern Slavery Act 2015 (mostly) came into force on 31st July 2015 - Explanatory Notes and Commencement Order.  The following selection of articles make for interesting reading and they draw attention to some of the perceived deficiencies in the legislation.  Examination of the considerable amount of legal detail must await another occasion but the Act is to be welcomed as a major step in combating this serious problem. 

Thursday, 30 July 2015

Criminal Courts Charge



There are certain situations where the charge may NOT be imposed (see Regulation 2) such as where the court deals with an offence by way of an absolute discharge.  However, in most situations a charge must be imposed.  The Regulations do not provide for any discretion on the part of the judge or magistrates and there is no means test applicable to this charge.  Consequently, some defendants on minimal means will have the charge imposed.

A few examples will illustrate the charge that must be imposed in the Magistrates' Courts:

Wednesday, 29 July 2015

Solitary Confinement in Prisons + Legal aid for prisoners

The UK Supreme Court has handed down judgment in R (Bourgass and another) v Secretary of State for Justice [2015] UKSC 54.

Two prisoners - Bourgass and Hussain - had been held in solitary confinement for lengthy periods well in excess of the 72 hours which a Prison Governor may order and well in excess of the 14 days maximum that the Secretary of State for Justice may authorise.

The Supreme Court (Lord Neuberger, Lady Hale, Lords Sumption, Reed and Hodge) held unanimously that the decisions to keep the men in solitary confinement ("segregation") for substantial periods were not taken lawfully.

The decision rests on essentially English common law principles. 

Cut off without a penny ... not necessarily !

May your will be "overturned" by the court?  The basic principle remains that an individual making a will is free to distribute his property and money in any way he or she desires.  It has been possible for certain categories of individuals to apply to the court for "reasonable financial provision" under the Inheritance (Provision for Family and Dependants) Act1975.  The categories include a child of the deceased.

Melita Jackson chose, in her will, to give some £500,000 to various animal charities.  Her daughter (Heather Ilott) has succeeded in the Court of Appeal in obtaining reasonable provision - Telegraph 28th July - Could Your Will be overturned by a court?  

The court's judgment is Ilott v Mitson and others [2015] EWCA Civ 797 (Arden. Ryder LJJ and Sir Colin Rimer).  

The case has raised a considerable amount of comment in the media. 

Monday, 27 July 2015

Expulsion or suspension of members of the House of Lords

Update:  Lord Sewel resigned from Parliament - BBC News 28th July.

The short House of Lords (Expulsion and Suspension) Act 2015 came into force in June 2015.

This Act begins - section 1(1) - "Standing Orders of the House of Lords may make provision under which the House of Lords may by resolution - (a) expel a member of the House of Lords, or (b) suspend a member of the House of Lords for the period specified in the resolution."

A person expelled as a result of such a resolution ceases to be a member.  Those suspended are not entitled to receive writs of summons to attend the House and are disqualified from sitting or voting in the Lords - see section 1(2) and 1(3).  

Any resolution

Friday, 24 July 2015

All rather confusing ...!

Addenda - Sunday 26th July 2015 and Tuesday 28th July

On Thursday 23rd July, representatives of the solicitor side of the legal profession met with the Lord Chancellor (Michael Gove) over their concerns about fee reductions for criminal legal aid work and government plans to introduce "dual contracts" - (see previous post of 12th July).

The Criminal Bar Association (CBA) had balloted its members and obtained a vote in favour of supporting the solicitors - (Law Society Gazette - Criminal bar announces date for legal aid action ).   CBA had instituted a "no returns" policy to be effective from 27th July.

The CBA was not present at the meeting with the Lord Chancellor.  On Tuesday 21st July, the solicitor organisations updated the CBA as to a change of direction in the action being taken by solicitors - Statement - and here are the details of the revised tactics. The new tactics focus the protest of solicitors on Crown Court work.

A statement by the Chairman of the Criminal Bar Association was issued on the morning of  24th July.  The CBA Executive Committee is to convene for an emergency meeting on Monday 27th July to consider the effect of the situation created by the new tactics of the solicitors.

Addendum 26th July 2015:


Thursday, 23 July 2015

An Extremism Bill this autumn and a Counter-Extremism Strategy

In a speech delivered on 20th July, the Prime Minister outlined his views, concerns and plans relating to "Extremism" - Speech at Ninestyles School, Birmingham on 20th July 2015.  An Extremism Bill is promised in the autumn along with announcement of the government's Counter - Extremism Strategy.  This is a subject with massive political ramifications.  This post looks briefly at some of the possible legal aspects of the strategy as outlined in the PM's speech.  Any new "Extremism Act" will add to the already considerable volume of counter terrorism legislation on the statute book and demands for new or extended powers seem to come almost daily.

The Prime Minister's speech was focused on "tackling Islamist extremism – not Islam the religion" and he praised the contributions of many British Muslims to British society.  The PM described "British Values" by saying:


Sunday, 19 July 2015

Mr Gove, "Will policy come to match the rhetoric?"

The Secretary of State for Justice / Lord Chancellor (Michael Gove) has spoken about prisons and reform - The Treasure in the Heart of Man - Making prisons work.  All that remains, in this difficult financial climate, is to match the splendid rhetoric with suitably effective action.  At least, it seems that Mr Gove has read and noted the contents of the highly depressing Annual Report from HM Inspector of Prisons for England and Wales.  This report ought to stand as a shameful indictment of government policy over recent years.

In many areas of prison law, legal aid for prisoners was removed by the coalition government.  In March 2014, the High Court refused to allow a challenge to this policy.  On 7th July, the Howard League for Penal Reform went to the Court of Appeal to try to overturn the High Court decision -  Howard League - Legal Aid for prisoners


Thursday, 16 July 2015

Many stories ... here are some ...

There is a lot happening - here is some of it ...

The tragic "assisted dying" cases of Nicklinson and Lamb v United Kingdom have been ruled inadmissible by the European Court of Human Rights.  The court's reasons are summarised here and here is the decision of the Fourth Section of the Court.  Law and Lawyers post of 25th June 2014.


In the autumn, the Ministry of Justice will publish proposals for a British Bill of Rights.  Standpoint has published an example of what a British Bill of Rights could look like - Standpoint - A British Bill of Rights - Geoffrey Robertson   It is most unlikely that the government's proposals will be as extensive as this.

There is some kind of rose coloured spectacles nonsense

Axeing the Court Estate

A very large number of court buildings will be closed across both England and Wales.  Today, a consultation was issued by Ministry of Justice in conjunction with Her Majesty's Courts and Tribunal Service and it puts a case for closure of a further 57 Magistrates' Courts, 19 County Courts, 2 Crown Courts, 4 tribunal hearing centres and 9 combined courts.

Proposal on the provision of court and tribunal estate in England and Wales

The consultation runs from 16th July to 8th October.  There is little doubt in my mind that these buildings WILL close unless some exceptionally good case can be advanced for keeping a particular court.  Whilst the Secretary of State (Mr Gove) spoke to the Justice Committee about courts being within an hour's travel for the public, this consideration will not count for much when set against the Treasury imperative of saving money.   In fact, in some parts of the country, the hour - even by car - is but a pious hope!  No part of the country seems to escape this axemanship.

Here are just three of the potential victims .....

Wednesday, 15 July 2015

Wrong, Mr Gove !

This morning, the Secretary of State for Justice and Lord Chancellor gave evidence to the House of Commons Justice Committee.  He would not offer a guarantee that the government would keep the UK in the European Convention on Human Rights.  Gove also indicated that common law protects human rights and that there is no need for the European Convention on Human Rights.

The Justice Committee session may be viewed at Parliament.TV

The following tweets from Jack of Kent and Adam Wagner show that Mr Gove's view is misleading and incorrect:




Tuesday, 14 July 2015

Is the UK in any way liable to pay up for the Greek bailout?

Assurances were given to Parliament by the Prime Minister (David Cameron) and other Ministers that the UK would not be obliged to contribute to any financial "bail-outs" under the European Stability Mechanism (ESM).  On this see (1) House of Commons - EU (Approval of Treaty Amendment Decision) Bill and (2) the similar House of Lords Paper. The resulting UK legislation is the European Union (Approval of Treaty Amendment Decision) Act 2012See also David Cameron's statement to the House of Commons on 20th December 2010.  It is possible for the UK to decide to assist in any bail-out but, according to those Ministerial assurances, it is not compulsory. 

 

It is reported that the EU is now "demanding" that the UK joins in the Greece rescue package - Telegraph 14th July 2015 - where it is stated that: "EU officials this morning said that deal – arguably Mr Cameron’s greatest diplomatic coup in Europe to date – had been assessed by lawyers as nothing more than a “political” accord with no legal force." 

 

Certainly there appeared to be political accord that the UK

Sunday, 12 July 2015

Criminal Bar and the fight for legal aid

Update 15th July: Ballot result via Criminal Bar Association -  the vote in favour of no new work and 'no returns' to support solicitor's action was 982 to 795 - equating to 55% in favour and 45% against.  Francis Fitzgibbon QC was elected to the position of Vice-Chair of the CBA.
 


The Criminal Bar Association (CBA) is conducting a ballot intended to give the executive of the Association a suitable mandate as to whether to support solicitors over the 8.75% cut in litigator's fees imposed by the government from 1st July 2015.  (It is the second such cut).  As things stand, further changes to criminal legal aid provision will take place from 1st January 2016.  The question being asked in the ballot is:


Solicitors face an 8.75% cut to litigators’ fees. In support of solicitors, do you wish to go back to ‘no returns’ and also refuse all new work with a representation order dated from 1st July 2015 until such time as solicitors decide not to take further action in respect of that cut?

 

Opinion on this is to be found via the links below.  The ballot has some 4000 members eligible to vote and voting closes on 14th July.   Interestingly, the CBA ballot refers only to the 8.75% fee cut and not to the connected issue of Dual Contracts (Own Client Work and Duty Provider Work) for solicitors - explained here.  Dual contracts will reduce from about 1600 to 527 the number of solicitor firms undertaking duty provider work. The government has already held a bidding process for this new contractual regime.

Friday, 10 July 2015

Hunting Act 2004 ~ Government amendments to be debated

Update 14th July.  The Guardian 14th July - Government shelves foxhunting vote after SNP Opposition

"Fox-hunting in this country is an emotive and divisive subject" - Lord Bingham of Cornhill - [2007] UKHL 52

Henry VIII - King of England from 1509 to 1547 - pursued power ruthlessly and it is said that he wore out eight horses a day when hunting!  One way in which his name is remembered in legal circles is the so-called "Henry VIII" power.  This is a very prevalent method by which Parliament grants to Ministers sweeping powers including, sometimes, power to amend primary legislation.  The power is usually exercised by way of a Statutory Instrument and it is usual for a draft of the instrument to have to be "laid before Parliament" for a period prior to it becoming law.  In some instances, both Houses of Parliament must vote to approve the instrument (known as "affirmative resolution procedure").


Thursday, 9 July 2015

Criminal Cases Review Commission ~ Powers to investigate ~ Private Members' Bill

The Royal Commission on Criminal Justice reported in 1993 and made a key recommendation that a Criminal Cases Review Commission (CCRC) be created.  It was duly created by the Criminal Appeal Act 1995.  The present day commission investigates suspected miscarriages from magistrates courts, the Crown Court in England, Wales and Northern Ireland and the Court Martial and Service Civilian Court.

To conduct investigations, adequate powers are required to obtain documents or other material which the Commission believes to be held by others. This is addressed by the Criminal Appeal Act 1995 section 17 but this section is limited to documents or other material held by PUBLIC bodies. 

Tuesday, 7 July 2015

In Memoriam - 7/7

Today is a day to remember those who died in the London Bombings of 7th July 2005 - The Guardian 5th July 2015.  Over 700 others were injured.

Inquests were conducted by Lady Justice Hallett who was appointed to the role of Assistant Deputy Coroner for Inner West London.  The National Archives website has details of the Inquests.  The Coroner issued a Rule 43 Report and a Review of progress report was issued by the government in May 2012.

Law and Lawyers 2011 post 6th May 2011 - Inquest into London Bombings of 7th July 2005


Ceremonies to Remember Victims - BBC News

Monday, 6 July 2015

Some thoughts about the wearing of an ISIS flag on a London street

A man walks near Parliament wearing the flag used by "Islamic State" and carrying a young child on his shoulders. The child is carrying a small ISIS flag.  The Police, so it seems, did not think that the law had been broken - The Guardian 5th July 2015.   The Guardian (quoting a Metropolitan Police statement) commented:

"The man was spoken to by officers, with consideration given to relevant legislation, particularly the Public Order Act. The decision was taken by officers at the time that the man was acting within the law. He was not arrested.  Wearing, carrying or displaying of an emblem or flag, by itself, is not an offence unless the way in which, or the circumstance in which, the emblem is worn, carried or displayed is such as to cause reasonable suspicion that the person is a supporter or member of a proscribed organisation. While support of and membership of ISIS is unlawful it is not a criminal offence to advocate the creation of an independent state."

So, was any offence potentially committed?  Here are some observations:

Sunday, 5 July 2015

Legal advice in Police Stations ~ is it too much to ask that it be properly funded?

For those arrested and detained by the Police, access to legal advice is an important right.  English law does not go so far as to force the detainee to obtain advice but they ought not to decline it too readily.  Many solicitors are protesting at cuts to payments imposed by the government for both legal advice at Police Stations and representation in the criminal courts.  Some are declining to attend Police Stations to advise detainees.   Duty Solicitor Schemes may or may not be affected by this action. 

The Police and Criminal Evidence Act 1984 s.58(1) - (PACE) - states:

A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time.  Section 58(4) states - If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable.  Section 58 goes on to set out certain instances where the Police may delay access to legal advice but these need not concern us here.  Section 58 must be read along with PACE Code C  (2014).

Friday, 3 July 2015

Human Rights ~ Parliament

I
The present government has committed itself to reform of human rights law.  In particular, it seeks to repeal the Human Rights Act 1998 and introduce a British Bill of Rights.  This week, two debates in Parliament were of considerable interest.  These are well worth watching in their entirety.

30th June 2015 - Westminster Hall debate and Hansard transcript of the debate  At 3.58 pm the response by Dominic Raab MP (Parliamentary Under-Secretary of State for Justice) may be seen in which he sets out the government's concerns about the present human rights system.   Raab noted - in a problematically worded statement - "...  a Bill of Rights is perfectly possible, but it will not solve the problems or issues that have been the driving force behind the Government’s current project unless we intend to decouple ourselves from the European convention, which, mercifully, I understand not to be our policy."  He later referred to three concerns - (1) "exponential expansion of rights" that the design of the Human Rights Act has promoted, imposing "obligations on the State rather than constraining it"; (2) the effect that some of the "haphazard case law" has had on legal certainty and (3) the Human Rights Act has exposed us to "too much judicial legislation from Strasbourg" (e.g. regarding prisoners and voting). At the end of the debate, Raab refers to an article by Baroness Falkner dated 15th May in Prospect magazine - A British Bill of Rights is a good idea.

2nd July 2015 - House of Lords debate on Human Rights and Hansard transcript of the debate

and see also the House of Lords Library Note dated 26th June 2015 - Human Rights and Civil Liberties in the UK  The Lords debate is notable for the contributions by a number of eminent lawyers - Lord Wallace QC, Lord Lester QC, and former Lords of Appeal in Ordinary - Lord Carswell and Lord Brown. The Minister of State for Justice (Lord Faulks QC) clearly stated that leaving the European Convention was not part of the government's plans.  There would be full consultation on proposals and the government would be engaged with the devolved administrations and also the government of the Republic of Ireland (a party to the Good Friday Agreement).  The government's aim was to achieve a fair and just "One Nation" Bill of Rights that had public confidence.  The UK would continue to adhere to its many international obligations such as those under the Torture Convention.