Monday, 31 August 2015

A new facet of child protection: London Borough of Tower Hamlets v B


London Borough of Tower Hamlets v B [2015] EWHC 2491 (Fam)- Heydon J.

B is an "intelligent, educated and ambitious" 16 year old who has been subjected to serious emotional harm, and, at the very least, continues to be at risk of such in her parent's care.  She was prevented by the Police from departing to Syria where she would have involved herself with Islamic State.  The emotional harm arose from material (found at her home) of a disturbing nature including video of beheadings and "smiling corpses."  B's parents had, at first, seemed to be a protective force but the reality proved to be something altogether different.  Heydon J noted at paragraphs 4 and 5:

Imprisonment in England and Wales

The Howard League has published interesting data about the Prison Population in England and Wales at week ending 28th August 2015- Howard League Prison Watch

There are disturbing aspects to the figures.  For example, the fact that 4,614 people are held on the now abolished indeterminate IPP sentences, of whom 3,532 (77 per cent) have passed their tariff expiry date.  Also, the number of deaths in custody continues to be high.

See earlier posts on IPP sentences - 27th October 2011- 20th September 2012 - 11th October 2012 and 11th December 2014 -



 Ministry of Justice statistics show that on 30 June 2015 there were:

  • 11,785 men, women and children are held on remand in prison
  • 6,279 people are serving short sentences (less than 12 months)
  • 4,614 people are held on the now abolished indeterminate IPP sentences, of whom 3,532 (77 per cent) have passed their tariff expiry date

Saturday, 22 August 2015

Magistrates under attack !

"The Secret Barrister" makes out a case for the abolition of "lay magistrates" - Why this 70p Mars Bar shows we should abolish magistrates  In this post I offer brief comment only.

The author points to the case of Louisa Sewell:

Thursday August 6th 2015, Louisa Sewell appeared at Halesowen magistrates’ court and immediately pleaded guilty to stealing a pack of Mars bars valued at 75p. In mitigation, it was submitted on her behalf that, due to her state benefits having been sanctioned, the Defendant had been left penniless and, having not eaten for four days, stole “the cheapest item in the shop” to eat. Due to the date of the commission of this offence, the Criminal Court Charge applied, meaning the magistrates were obliged to charge £150, on top of the discretionary punishment of a £73 fine, £85 prosecution costs, £20 victim surcharge and, with no hint of irony, 75p compensation for the shop. So, the headline ran, a £328.75 bill for a Mars bar.

The author rightly condemns

Friday, 21 August 2015

Action by lawyers over criminal legal aid and two-tier contracts

Mark Fenhalls QC (Chairman-elect of the Criminal Bar Association has announced that "no returns" is suspended with immediate effect and there is no reason why barristers should not accept any fresh instructions.  This announcement follows on from solicitor's organisations suspending their action pending further discussions with the Secretary of State and his officials.

Read the complete announcement


Thursday, 20 August 2015

Chief Constables and Police Discipline

The Police and Crime Commissioner for Avon and Somerset (Sue Mountstevens) has commenced the process under the Police Reform and Social Responsibility Act 2011 section 38(3) to require the Chief Constable of the Force - Mr Nick Gargan QPM - to "retire or resign" - see Avon and Somerset PCC 19th August 2015.  This follows an independent misconduct panel which found against Mr Gargan on 8 counts of breaching of standards of professional behaviour contrary to Schedule 2 of the Police (Conduct) Regulations 2012 .

The Commissioner's website provides links to a number of documents including the misconduct panel report (the panel hearing was in private) and the Independent Police Complaints Commission (IPCC) report.   The IPCC acted on a referral from the Commissioner.


Tuesday, 18 August 2015

Stop and Search ~ concerns being addressed

Updated 19th August

Stop and Search powers:

Parliament has - rightly - given the Police "stop and search" powers.  As with any police power they must be exercised responsibly and lawfully.   Lawful exercise includes avoidance of unlawful discrimination - see Equality Act 2010 s.149.

The Police and Criminal Evidence Act 1984 Part 1 (Stop and Search) is an important general stop and search power.  Code of Practice A is applicable.  There are further powers granted to the Police by other legislation - see the details set out in Code A.

The use of Stop and Search powers has often been controversial.   One article (The Independent 6th August 2015 - Stop and Search: Can transparency end this abuse of Police powers?) states that: "The excessive and discriminatory use of stop-and-search powers is among the sorriest episodes in the history of the police over the past 30 years."
  

Friday, 14 August 2015

Chilcot and the difficult question of fairness ~ Maxwellisation is not there 'to make a lawyer's holiday'

The Iraq Inquiry was set up in 2009 under the Chairmanship of Sir John Chilcot.  It is a committee of Privy Counsellors tasked with considering the period from the summer of 2001 to the end of July 2009, embracing the run-up to the conflict in Iraq, the military action and its aftermath.

February 2015:

Sir John gave evidence to the House of Commons Foreign Affairs Committee in February 2015 - view the session.  He explained that rigour was necessary in establishing the facts and producing the report.  The inquiry was of unprecedented scope (covering an 8 year period) and a reliable account was required.  Over 150 witnesses had given evidence and over 150,000 government documents had to be examined.  There had been difficulties with the release of some material, notably communications between Prime Minister Tony Blair and President G W Bush, but those matters had been dealt with by September 2014.  After that, the process known as "Maxwellisation" could begin and Sir John clearly saw this as an essential step in ensuring the rigour of the final report.  In his evidence to the committee, Sir John would not say how many individuals were involved in "Maxwellisation."  It was necessary to allow a "reasonable time" - but not indefinite time - to deal with this and the time scale might depend on the precise nature of criticisms addressed to individuals.  


Thursday, 13 August 2015

Lord Greville Janner ~ Procedure in criminal cases

Updated 14th August

Criminal procedure is a complicated subject !  It may well prove to be daunting for most of the increasing number of individuals who, with restricted availability of legal aid, sometimes find themselves before the courts unrepresented by a lawyer.

No such consideration arises in the case of Lord Greville Janner.  He has first class legal representation and his case continues to raise interesting points.  For the background, see the posts of 18th April 201525th April 2015 and 29th June 2015.  In those earlier posts it is explained why a decision of the Director of Public Prosecutions (DPP) NOT to prosecute Janner was reversed.   Reversal of the decision meant that, given the serious nature of the charges, Janner had somehow to be brought to the Crown Court.

Wednesday, 12 August 2015

Reporting Restrictions in Criminal Courts

"It is essential requisite of the criminal justice system that it should be administered in public and subject to public scrutiny"

That statement by the present Lord Chief Justice (Lord Thomas of Cwmgiedd), is in the foreword to the April 2015 Reporting Restrictions in the Criminal Courts Guide (the Guide).  See also the Supplementary Note dated 30th July and which applies to Children and Young Persons.  Although the "Open Justice" principle remains as a foundation stone of the criminal justice system, it will be seen from the Guide that numerous exceptions exist.  Various recent legislation has come into force and this is addressed in the guide.

A commonly imposed order was a "section 39" order - under the Children and Young Persons Act 1933 s.39.  This no longer applies in criminal cases and is replaced by the Youth Justice and Criminal Evidence Act 1999 s.45.  The public is generally excluded from Youth Courts (Children and Young Persons Act 1933 s.47) but exceptions exist for media representatives.

Thursday, 6 August 2015

United Nations Human Rights 7th UK Report

The Office of the United Nations High Commissioner for Human Rights has issued its latest report relating to the United Kingdom - "Concluding observations on the 7th periodic report of the United Kingdom ..." (Ref: CCPR/C/GBR/CO/7).

The report contains a number of criticisms of the United Kingdom and makes some relevant recommendations.  In particular, the UN expressed concern at the government's plans to replace the Human Rights Act 1998.  A further serious concern relates to adequate investigation of events in Northern Ireland during "The Troubles."  The report is worth reading in full.

The Guardian 3rd August 2015 -  The legacy of The Troubles lives on ....

BBC News Northern Ireland 24th July 2015 - UN concern over Troubles legacy ....



Tuesday, 4 August 2015

LIBOR ~ "Absence of integrity which ought to characterise banking" - (per Cooke J)

LIBOR is the London Interbank Offered Rate and money market traders found themselves able to earn money for their bank (and, through their personal pay structure, for themselves) by subtle manipulations of the rate.  Very small alterations in the rate equated to considerable sums of money.  The process is well described by Alex Bailin QC in The Guardian 4th July 2012 The Law catches up with LIBOR

The first trial of a LIBOR trader has ended with Mr Tom Hayes (see BBC 3rd August) being convicted on 8 counts of conspiracy to defraud.  The trial judge, Cooke J, sentenced Hayes to a total of 14 years imprisonment.  The sentencing remarks are available via the public Judiciary website.  The activities of Hayes concerned LIBOR rates set for the YEN (¥ ).  Cooke J said that the case had shown the "absence of integrity which ought to characterise banking." 

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