Tuesday, 31 December 2013

A brief look back at 2013 ~ A selection of posts

Royal Courts of Justice, London
2013 has been a most interesting year marked by the limitation imposed on civil legal aid by the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012; the on-going fight for legal aid for criminal cases and the ceaseless attacks on the system of human rights protection offered to all of us by the European Convention on Human Rights and the European Court of Human Rights.  Here are some of the posts on this blog during 2013:


January

Hillsborough - Fresh Inquests - the question of Article 2 compliance - In December 2012, the original Hillsborough Inquest verdicts were quashed by the High Court.  Progress is being made toward holding the new inquests in 2014.

The trial and execution of Derek Bentley - 60 years on

New Year's Eve 2013 (1) - Are Human Rights approaching a knife edge?

Striding Edge, Helvellyn
The protection of human rights is, yet again, in the headlines following  an interview on the Radio 4 TODAY programme by former Lord Chief Justice of England and Wales (Lord Judge) - see The Telegraph 28th December 2013 - European Courts have too much power, says former Lord Chief Justice.   An extract from the interview is available via this Radio 4 link.  

There is much in Lord Judge's comments to take issue with but his views will undoubtedly lend succour to those in the present coalition government who harbour an intense dislike of the European Court of Human  Rights.  After all, it acts as a brake on the massive power that the doctrine of Parliamentary Supremacy (or Sovereignty) confers, in practice, on the executive branch of government.  The latest views of the Secretary of State for Justice and Lord Chancellor are covered by an article in The Guardian 30th December - Grayling says European Court of Human Rights has lost legitimacy.   Some serving judges have also been critical of the European Court of Human Rights.  The recent views of Lord Sumption and Lord Justice Laws were considered here and here (respectively).

There is some counterbalance in the views of Lady Hale and Lord Mance - considered here and see here (pdf).  Lord Mance points out that Parliamentary Sovereignty is unconstrained by any written constitution or document containing fundamental rights.  He highlights some of the changes to law brought about since the Human Rights Act 1998:

Wednesday, 25 December 2013

Christmas Day 2013

Manchester Christmas Markets 2013
Christmas Day!  The Houghton Weavers once asked- "What's Christmas without a brass band" and so here is a superb selection of carols played by musicians of the Salvation Army.  I hope you enjoy it.  There is also a light-hearted item played by a world famous brass band from West Yorkshire - Brighouse and Rastrick play SANTA.

Let us hope that 2014 proves to be a peaceful and happy year.  There is much to work for if access to justice and the generally high standards of our legal system are to be maintained.  There is much to be done for the less well-off in our country and across the world there are massive challenges. 

Here is a quick glance at a few items of interest ..... 

Monday, 23 December 2013

Nigella Lawson and section 100 of the Criminal Justice Act 2003

The trial of sisters Elisabetta and Francesca Grillo became a media circus because television celebrity Nigella Lawson (pictured) was the key prosecution witness. The Grillos were accused of fraudulently using the credit cards of Charles Saatchi's private company - Telegraph 27th November.   They were acquitted.  The sisters claimed that Lawson had permitted them to use the credit cards in exchange for their silence regarding her drug use.  R v Grillo and Grillo. This was a claim which brought into play the "bad character" provisions in the Criminal Justice Act 2003 Part 11 Chapter 1.

The 2003 Act replaced common law rules relating to bad character evidence and essentially made a fresh start with regard to when evidence of bad character might be used at trial.  Bad character evidence of non-defendants and defendants is addressed by the Act.

Thursday, 19 December 2013

Prisoner voting - Joint Committee report and also Scottish Independence Referendum

Prisoner Voting - Draft Bill:

The Parliamentary Joint Committee on the Draft Voting Eligibility (Prisoners) Bill has reported – (PDF/HTML/conclusions).  The report recommends:

...  that the Government bring forward a Bill, at the start of the 2014 -15 session of Parliament, to give legislative effect to the following conclusions:

R v Reynolds - sentencing by Mr Justice Wilkie

Crown Court at Stafford
R -v- Jamie Reynolds
Sentencing remarks of Mr Justice Wilkie

Mr Justice Wilkie has imposed a whole life term on Jamie Reynolds for the murder, on 26th may 2013, of Georgia Williams (aged 17 years 9 months).  The facts of the case are particularly disturbing and there can be little doubt that a whole life term is justified.  Nevertheless, in the light of the European Court of Human Rights judgment in Vinter v UK (Grand Chamber - 9th July 2013), an interesting point is (yet again) raised.

Having set out the facts of the case, Wilkie J referred to the Criminal Justice Act 2003 section 269 and to Schedule 21 of that Act.  He then referred to the cases of Jones [2005] EWCA Crim 3115, Mullen [2008] EWCA Crim 592, Bieber [2008] EWCA Crim 1601 - endorsed by the House of Lords in Wellington [2008] UKHL 72 and also to Oakes [2012] EWCA Crim 2435.  The learned judge said:

Tuesday, 17 December 2013

Assisted Suicide ~ appeals to the Supreme Court of the UK

This week, a nine judge strong Supreme Court of the UK has been hearing appeals concerning aspects of the Suicide Act 1961 section 2(1) Complicity in another's suicide Suicide.  It is perhaps the Nicklinson case which attracted the greater publicity (previous post) though, in this appeal, a Mr Lamb was also joined as an appellant.

In Nicklinson/Lamb, the issue is whether the prohibition on assisted suicide in s2(1) Suicide Act 1961 is incompatible with the appellants’ Article 8 right to respect for private and family life. If the answer is yes, the appellants argue that in order to comply with their Article 8 rights s 2(1) Suicide Act 1961 should be read as including a defence of necessity, so that it would not be unlawful for a doctor to assist, or to have assisted, in the suicide of Paul Lamb and Tony Nicklinson where they had made a voluntary, clear, settled and informed wish to end their lives but were unable to do so without medical assistance. Alternatively, if no such defence is available, they seek a declaration that s2(1) Suicide Act 1961 is incompatible with the appellants’ Article 8 rights, in so far as it prohibits assisted suicide in their circumstances.

A further appeal, being heard at the same time, is that of AM ("Martin").

Sunday, 15 December 2013

Sentencing Council - New Guideline Document for Sexual Offences

For individuals convicted of sexual offences, a new sentencing guideline document has been issued by the Sentencing Guidelines Council - Guideline.   The guideline is issued in accordance with section 120 of the Coroners and Justice Act 2009 and applies to all offenders aged 18 and over who are sentenced on or after 1 April 2014.
The Crown Court document is lengthy because of the considerable number of sexual offences which it seeks to address.  The majority of the offences are as defined by the Sexual Offences Act 2003.

With regard to a convicted individual's previous "good character", the new guideline says something which is rather interesting.

Consider the guidance for offences of rape.  The listed mitigating factors are: 

Thursday, 12 December 2013

Scientology - religious worship and marriage

R (on the application of Hodkin and another) (Appellants) v Registrar-General of Births, Deaths and Marriages (Respondent)
Judgment (PDF)
Press summary (PDF)
    This was a "leapfrog" appeal (under Part II of the Administration of Justice Act 1969) from a decision of Ouseley J in the High Court to the UK Supreme Court.   The "leapfrog" was used because a decision of the Court of Appeal - R v Registrar General ex parte Segerdal [1970] 2 QB 697 (Lord Denning MR, Winn and Buckley LJJ) - was binding on the Court of Appeal.  Unlike the UK Supreme Court, the Court of Appeal is bound by its own previous decisions with certain exceptions: Young v Bristol Aeroplane Company 1944.  The House of Lords used to regard itself as bound by its own previous decisions but that was altered by a Practice Direction of 26th July 1966 - [1996] 1 WLR 1234.  The UK Supreme Court did not re-issue the practice direction because it was not necessary - see UK Supreme Court Practice Direction 3.

    The Hodkin case concerned an apparently straightforward question of statutory interpretation.  Were premises

    Wednesday, 11 December 2013

    Differences with Strasbourg ~ are "battle lines" now drawn?

    The Court of Appeal (Civil Division) has considered two appeals by men subject to continuing detention after their "minimum terms" or "tariff periods" have expired. Haney and Khaiyam v Secretary of State for Justice

    Mr Haney is serving an automatic life sentence for robbery.  He had a minimum term of 3 years which expired on 13th November 2012.  He claims that his Article 5 and 14 rights have been breached as a result of the delay in his transfer to open prison conditions (such transfer being a condition for his being realistically considered suitable for release by the Parole Board).

    On 30th July 2006, Mr Kaiyam was sentenced to Imprisonment for Public Protection. A minimum term of 2 years 257 days was ordered.  He claims

    Jurors and the internet

    The Law Commission has published a report - Juror misconduct and internet publications - (pdf 141 pages) - which includes a recommendation for a new criminal offence for jurors conducting prohibited research.   In total, the report contains 31 recommendations.

    Clearly, a case must be decided on the basis of the evidence presented to the court and extraneous material should not be taken into account - The Guardian - Law Commission floats plans to stop jurors researching cases online.

    In recent times, a number of jurors have been punished for contempt of court. 

    Tuesday, 10 December 2013

    Human Rights Day ~ 65 years since the Universal Declaration of Human Rights

    10th December - Human Rights Day.  In a letter to The Telegraph, leaders of many 'civil society groups' have urged that Britain stands firm on the European Convention on Human Rights and the  Human Rights Act. Both of these were inspired by the Universal Declaration of Human Rights.  The British Institute of Human Rights Press Release calls for leaders to stand firm on human rights at home.

    It was 65 years ago, on 10th December 1948 that the General Assembly of the United Nations adopted the Universal Declaration of Human Rights - 'recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.'

    In the UK,

    Monday, 9 December 2013

    Lady Hale on Human Rights law ~ her lecture at Warwick

    "The British used to be proud of their record on human rights. We are, after all, the land of the Magna Carta, signed by King John at Runnymede in 1215."


    "The idea that the citizen might have rights which he could assert against the State was unknown to us"

    "The puzzle was how to combine enforceable convention rights with the sovereignty of the UK Parliament"

    " ... there are other politicians, some of them now in government, who have identified the Human Rights Act as the problem"  - Lady Hale. 

    On 28th November, Lady Hale (Deputy  President of the Supreme Court) delivered the Warwick Law Lecture 2013 (PDF) entitled "What’s the point of human rights?"  The lecture looked at how the European Convention on Human Rights has been developed by decisions of the European Court of Human Rights (E Ct HR) and how the House of Lords and now the Supreme Court have responded to the challenges set by the Human Rights Act 1998.  Without doubt,

    Saturday, 7 December 2013

    Thoughts on the Hamlyn Lecture by Lord Justice Laws

    Some judges are now expressing (extrajudicially) their opinions about the European Court of Human Rights. On 20th November, Lord Sumption (Justice of the Supreme Court) delivered the 27th Sultan Azlan Shah Lecture in Kuala Lumpur - The Limits of Law.   His lecture was considered in my previous post.   

    Lord Sumption's lecture was followed by Lord Justice Laws on 27th November in the Hamlyn Lectures 2013 - see Lecture 3 Common Law and Europe.   Note - Lecture 1 was entitled Common Law and State Power: Lecture 2 was Common Law and Extremism.

    On 28th November, Lady Hale (Deputy  President of the Supreme Court) - Warwick Law Lecture 2013 (PDF) - What’s the point of human rights?

    The following is my look at the lecture by Laws LJ.  I express my view as a citizen who quite likes the human rights protection that we have.  I certainly do not wish to see it weakened.

    Lord Justice Laws - Common Law and Europe.

    There is much of interest in this lecture.

    Friday, 6 December 2013

    Royal Marine sentenced for murder

    On 11th November, the case of "Marine A" (as he was then to be known) was covered - Murder in Helmand.   The Court Martial has imposed  a sentence of life imprisonment with the minimum term of imprisonment before eligibility for parole set at 10 years (less some time on remand).  The sentencing remarks of His Honour Judge Jeff Blackett are here.  In addition, the Marine is to be reduced to the ranks and dismissed with disgrace from Her Majesty's service.

    The sentencing remarks state that the court felt it important to send out a strong deterrent message.  Service personnel who commit crimes of murder, or other war crimes or crimes against humanity while on operations will be dealt with severely.  The deterrent message was also intended to reassure the international community that allegations of serious crime will be dealt with transparently and appropriately. 

    Thursday, 5 December 2013

    ... and now a look at Lord Judge's entry to the competition

    Almost as soon as one speech touching on human rights is digested, another appears.  This time it is former Lord Chief Justice, Lord Judge who delivered an address at University College London - 4th December 2013 - Constitutional Change: Unfinished Business

    In fact, Lord Judge's speech is wide ranging and his views about the European Court of Human Rights come in the final paragraphs.

    In the first two-thirds of the speech, Lord Judge asserts that all power must be based on law and that independence of the legal professions, press and media and also the police is essential to the maintenance of the rule of law.  The Judges are the guardians of the rule of law.  Lord Judge notes the influence of the executive over Parliament (para 8) and he reiterates the traditional (Diceyean) theory of the sovereignty of Parliament (9). He is clearly highly concerned at the way in which various changes, affecting the administration of justice, have been brought about with some proposals being deliberately withheld from the judiciary (15 and 18).  He deprecates

    Wednesday, 4 December 2013

    My thoughts (as a citizen) on Lord Sumption's Azlan Shah lecture

    On 20th November, Lord Sumption (Justice of the Supreme Court) delivered the 27th Sultan Azlan Shah Lecture in Kuala Lumpur - The Limits of Law.  This was followed by Lord Justice Laws on 27th November in the Hamlyn Lectures 2013 - see Lecture 3 Common Law and Europe.   A further lecture on human rights was delivered in Warwick by Lady Hale (Deputy President of the Supreme Court) on 28th November - Lady Hale at the Warwick Law Lecture 2013 (PDF) - What’s the point of human rights?

    These speeches / lectures are not only legally informative but they reveal something of the personalities of the speakers and their attitudes to the vastly important topic of human rights protection as it applies both in Europe and in the UK.  Given the fact

    Lady Hale joins in ~ speech at Warwick 28th November ~ and the Attorney-General's view on 'Europe'

    Following hard on the heels of Lord Sumption and Lord Justice Laws, Lady Hale (Deputy President of the Supreme Court) has joined the fray on human rights.  Here is a link to her speech at Warwick on 28th November.   Here is an antidote to the speeches of her male judicial colleagues.

    Lady Hale at the Warwick Law Lecture 2013 (PDF)
    What’s the point of human rights?
    28 November 2013

    The Attorney-General has spoken about The future of Europe: Opportunities and Challenges - (Published 3rd December 2013).  Attorney General says that he believes that European institutions should ensure they abide by the rule of law.


    Tuesday, 3 December 2013

    Sumption and Laws ~ Background Notes

    Lord Sumption

    Laws LJ
    We have become accustomed to various government Ministers raising questions about the European Convention on Human Rights (E Conv HR), the European Court of Human Rights (E Ct HR) and the future of UK human rights protection.  See, for example, Theresa May and Chris Grayling on Human Rights - (Public Law for Everyone 30th September 2013).

    Some judges are now expressing (extrajudicially) their opinions about what the proper role of the European Court of Human Rights should be.  On 20th November, Lord Sumption (Justice of the Supreme Court) delivered the 27th Sultan Azlan Shah Lecture in Kuala Lumpur - The Limits of Law.  This was followed by Lord Justice Laws on 27th November in the Hamlyn Lectures 2013 - see Lecture 3 Common Law and Europe.

    Monday, 2 December 2013

    A mother was given a caesarean section while unconscious

    Updated 4th December

    Christopher Booker in Sunday Telegraph (1st December 2013) - "Operate on this mother so that we can take her baby" - 'A mother was given a caesarean section while unconscious - then social services put her baby into care.'  The mother had been "sectioned" under the Mental Health Act 1983 s.3.

    Some more light is thrown on the case by a response from Essex County Council dated 2nd December 2013.   According to this response it was the  Health Trust's clinical decision to apply to the court for permissions to deliver her unborn baby by caesarean section because of concerns about risks to mother and child.  (The application would have been to the Court of Protection).

    A fuller article about the case is at Marilyn Stowe Blog where caution is urged in relation to comments -

    'Unless and until the full judgment is released, (which I hope it is) we will find out exactly what did happen and until then I would urge no wild speculation, no unwise comment and only the greatest caution. It is not my experience that a High Court judge would make any order unless absolutely satisfied such action was in the best interests of both mother and child and there was no alternative. Furthermore that sectioning a patient is also never done unless there is the greatest need ....'

    Of course, the matter raises acutely the need for judgments to be published in all cases by the Court of Protection so that the public can see the reasoning for particular decisions.  Many judgments are available via Bailii - Court of Protection.

    Friday, 29 November 2013

    Weekend reading ~ a "conference" of speeches

    3rd December - Updated with further links

    Whether or not there is a collective noun for "speeches" - (perhaps a "conference" of speeches?) - there have been many in recent days. 

    Lord Judge - former Lord Chief Justice - Bar Council Annual Law Reform Lecture 21st November - The evidence of child victims: the next stage

    Speeches by Supreme Court Justices:

    Tuesday, 26 November 2013

    Scotland ~ Independence White Paper

    Sgurr na Banachdich, Skye - 3166 ft
    On 18th September 2014 (the 700th anniversary of the Battle of Bannockburn - see post of 26th January 2012), a referendum will be held in Scotland to enable the Scottish electorate to decide whether to proceed to an independent Scotland.  If there is a YES vote then the aim is to create an independent Scotland from 24th March 2016 (BBC - Proposed date for Scottish independence named).  24th March 1603 was the date of the Union of the separate Crowns of England and Scotland.

    The Union of England and Scotland dates from 1st May 1707 - see  Act of Union with Scotland 1706 and the Act of Union with England Act 1707 ). Those Acts stated: 'That the Two Kingdoms of Scotland and England shall upon the first day of May next ensuing the date hereof and forever after be United into One Kingdom by the Name of Great Britain And ...'   Independence would bring to an end this historic Union which has withstood the fierce furnaces of major events for over 300 years.

    The Scottish government  has put forward the case for independence in a White Paper - Scotland's Future (670 pages).  here is some of the media reaction to the White Paper:  BBC; The Scotsman; The Telegraph; Daily Mail

    Monday, 25 November 2013

    HS2 ~ Hybrid Bill published

    There is already an Act of Parliament relating to the proposed High Speed 2 rail project -High Speed Rail (Preparation) Act 2013.   It is an Act to make provision authorising expenditure in preparation for a high speed railway transport network.

    A Bill, in two parts, has now been presented to Parliament - see Department of Transport.   The Bill may be read via the website of Parliament - High Speed Rail (London - West Midlands) Bill 

    Bill (as introduced) - The Bill has 65 sections and 31 very detailed Schedules.


    The Department of Transport said:

    Friday, 22 November 2013

    Northern Viewpoint ~ Scotland and the corroboration rule

    One of the fascinations of the British Isles has to be the diversity of its legal systems.

    Scotland has its own Parliament (operating under devolved powers) created by the Scotland Act 1998.  There are Scottish Ministers.  There is a Scottish Judiciary, system of courts and legal profession.  Scots Law developed separately to the law of England and Wales and it has its own principles and procedures.

    When the Scotland Act 1998 was enacted, what was known as 'devolution jurisdiction' was given to the Judicial Committee of the Privy Council.  This jurisdiction was transferred to the Supreme Court of the UK following the creation of that court by the Constitutional Reform Act 2005.  A 'devolution' case decided by the Supreme Court in 2010 seemed to send seismic shock waves through the Scottish legal system - Cadder v Her Majesty's Advocate [2010] UKSC 43 - [Press summary].

    The question

    Thursday, 21 November 2013

    Home Secretary's 'certificate' did not terminate judicial review

    R (Ignaoua) v Secretary of State for the Home Department [2013] EWCA Civ 1498 (Lord Dyson MR, Richards and Sullivan LJJ) is a most important decision relating to judicial review.   

      Lord Justice Richards (delivering the court's unanimous judgment) said - (links to legislation added):

    1. The appellant is the subject of a direction by the Secretary of State of the Home Department excluding him from the United Kingdom on the ground that his presence here would not be conducive to the public good for reasons of national security. He was informed of that direction in July 2010 (a decision to maintain the exclusion was made in March 2011). There was no right of appeal. In October 2010 he brought proceedings against the Secretary of State for judicial review of the direction. Those proceedings were held up by problems arising out of the Secretary of State's reliance on closed evidence. There were still outstanding issues of disclosure when, on 16 July 2013, the Secretary of State certified the direction under section 2C of the Special Immigration Appeals Commission Act 1997 ("the 1997 Act"), as inserted by section 15 of the Justice and Security Act 2013 ("the 2013 Act"), which came into force on 25 June 2013.

    Wednesday, 20 November 2013

    Henriques J


    This excellent article about Mr Justice Henriques (who retired in late October) requires no further comment - Justice has been done and been seen to be done - Blackpool Gazette

    Judiciary - Retirements - Sir Richard Henriques

    Cockler Gangmaster gets 14 years - BBC 28th March 2006

    Met Police guilty over De Menezes shooting  - The Guardian 1st November 2007

    R v Irfan Naseer - terrorist plot - The Independent 26th April 2013 


    Tuesday, 19 November 2013

    Does the EU Charter of Fundamental Rights apply in UK or not - the Lisbon "opt out" (so called)

    The British government are openly talking about the possibility of the UK withdrawing from the European Convention on Human Rights (the convention) which is a limited menu of fundamental rights.  The convention system comes under the aegis of the Council of Europe and it is designed to underpin human rights by requiring governments to protect such rights.  The Council of Europe (with 47 member states) is to be distinguished from the European Union (EU) (with 28 member states).  The judicial body of the Council of Europe is the European Court of Human Rights (E Ct HR) based at Strasbourg.  The distinct judicial body for the EU is the Court of Justice of the EU based at Luxembourg.  

    The EU is itself on a road toward becoming a signatory to the convention - Council of Europe.  It is argued by the Council of Europe that the EU's accession will strengthen the protection of human rights in Europe, by submitting the EU’s legal system to independent external control. It will also close gaps in legal protection by giving European citizens the same protection vis-à-vis acts of the EU as they presently enjoy from member states.  The Court of Justice of the EU (CJEU) has also recognised and applied human rights when making decisions in particular cases - see, for example, the article by Elizabeth F. Defeis "Human Rights and the European Court of Justice" (2007) 31 Fordham International Law 5.

    A further

    Monday, 18 November 2013

    Legal aid ~ Special General Meeting of the Law Society


    There is to be a Special General Meeting of the Law Society.  The meeting will be held on Tuesday 17 December 2013, at 10.30 am.

    Here is the motion:

    'That the meeting has no confidence in the ability of Nicholas Fluck, President of the Law Society of England and Wales, and Desmond Hudson, Chief Executive of the Law Society of England and Wales, to properly and effectively represent those members of the Society who undertake publicly funded legal aid work in negotiations with the Lord Chancellor as to the future and extent of criminal legal aid in England and Wales on the grounds that they purported to enter into an agreement with the Lord Chancellor without a mandate from those members of the Society who practise publicly funded criminal law and in circumstances where the purported agreement was to the detriment of and against the will of those members and to the maintenance of a sustainable legal aid service to those subject to criminal proceedings.'

    The Law Society's stance on criminal legal aid has been set out on their website.

    The Law Society Gazette 5th September - This is best deal possible - reaction to amended legal aid plan

    The Virtual Lawyer (Steve Cornforth Blog) - Divided we fall

    The Lincoln's Inn 'Legal Aid Rally'

    Nigel Lithman QC is the present Chairman of the Criminal Bar Association.  In his 'Monday Message' he reports about a Rally at Lincoln's Inn last Saturday.  The meeting was attended by barristers from all over the country.  They are united in opposition to the government's plans for legal aid as revealed in two consultations - (discussed previously on this blog - First consultation 4th June and Second consultation 1st November).  Lithman makes the point that the Ministry of Justice is not listening to the many voices raised in opposition to their savage proposals (e.g. the first consultation received around 16000 responses) and he goes on to set out the resolutions agreed by the meeting.

    The issues raised are immensely serious ones for the future of a fair system of criminal justice in England and Wales.  One of the most serious effects of the government proposals is that the junior bar will cease to be financially viable for the vast majority of junior barristers.  Already, the point may now have been reached where a career at the criminal bar is out of the question for many talented young people of modest means.  This will impact on the diversity of the legal profession and, in the longer term, on the quality of legal representation available to accused persons and, of course, on the eventual quality of the judiciary.

    Please read the 'Monday Message' fully.   The resolutions are also set out here. They include this:

    Thursday, 14 November 2013

    View from Strasbourg ~ Paul Mahoney

    At the European Court of Human Rights, each member State of the Council of Europe has a judge from that State.  Paul Mahoney is the judge from the UK.  In the Law Society Gazette he has set out some of his views - Law Society Gazette 11th November - The UK’s judge at the European Court of Human Rights explains how it ‘insures’ nations against ‘backsliding into totalitarian government’

    'The Strasbourg court is no longer like some satellite in outer space,’ the UK’s judge at the European Court of Human Rights, Paul Mahoney, tells the Gazette. Its rulings have become ‘almost the common law of Europe’, he says, as the 47 member states of the Council of Europe (CoE) integrate them into their national laws.

    That is a bold statement

    Wednesday, 13 November 2013

    Justices of the Peace

    The office of Justice of the Peace is one of the oldest known to our law.   I wrote about the justices in June 2011 as part of a series of posts about our legal system.  Today, a considerable number of the justices are members of the Magistrates' Association and its recently elected chairman has suggested that there be a debate about allowing some former offenders to become magistrates - Law Society Gazette 11th November - Let ex-offenders sit as magistrates.  The article is worth reading since the suggestion is more nuanced than the headline would suggest.  Nevertheless, I disagree with any weakening of existing policy in this area.  (Existing policy does not necessarily exclude those with minor convictions).  It has to be paramount that the bench maintains not only legal authority but also moral authority to sit in judgment on the actions of fellow citizens.

    In 1307 and 1308 Keepers of the Peace

    Newspapers, spooks, a naked man, a PCSO, undercover cops, sex in prisons.

    Here is a roundup from my surveillance of legal stories.

    The Daily Mail on the naughty step:

    Back in October some law bloggers took issue with the Daily Mail's article - 'Human Right to make a killing'.  Please see my post of 8th October - Human Rights attacked again - the thorny issue of just satisfaction.  No less a body than the Council of Europe considered it necessary to also take issue - Court concern at seriously misleading UK news articles.  The Daily Mail has now admitted that the article was misleading.  Not a front page admission of course but an admission nevertheless though the damage to human rights and respect for the European Court of Human Rights has been done as was, I suspect, intended.  Adam Wagner (UK Human Rights blog) comments on the Daily Mail's correction.    The Mail's pathetic correction is here.   It is so brief that I may as well quote it in full:

    Monday, 11 November 2013

    Murder in Helmand

    Conviction:

    The Court-Martial has found Marine 'A' guilty of murder of an already wounded Taliban fighter-  see The Independent 8th November.   Two other Marines were acquitted.  The Court Martial has jurisdiction over the case by virtue of the Armed Forces Act 2006 section 42.   Upon a conviction for murder, English law requires that a sentence of life imprisonment be imposed.  The term to be served before 'A' may be considered for release remains to be set by the Judge (His Honour Judge Jeff  Blackett who is also the Judge Advocate General).  In setting the term, the judge is able to consider any aggravating and mitigating features*.  Following the conviction, the Service Prosecuting Authority (SPA) issued a statement:

    Thursday, 7 November 2013

    Parliament ~ Prisoner Voting ~ Evidence from Secretary-General of the Council of Europe and the Attorney-General

    On Wednesday (6th November) a Joint Committee of both Houses of Parliament resumed its work considering the draft Prisoner Voting (Eligibility) Bill.   The Bill contains 3 options but also notes that there 'will no doubt be other possible options.'  The options put forward are: a ban for prisoners sentenced to 4 years or more; a ban for prisoners sentenced to more than 6 months or a ban for all convicted prisoners.  The third option is, of course, the status quo and cannot be compatible with the European Convention on Human Rights Protocol 1 Article 3 in the light of the Strasbourg case law (e.g. Hirst No 2) and note the Supreme Court's recent decision in Chester and McGeogh.  In our domestic law, it is open to Parliament to legislate contrary to the European Convention but doing so in this matter will place the UK in breach of its international obligations. 

    The committee took

    Tuesday, 5 November 2013

    Northern Viewpoint ~ Tuesday round up

    Legal aid:

    The recent legal aid (2nd) consultation (Transforming legal aid: next steps) has ended and the response from the Ministry of Justice is awaited.  Some of the contributions to the consultation are collated on my earlier post

    Maura McGowan QC addressed the Annual Bar Conference last Saturday - Still much to fight for and it's worth the fight.  The Bar must ‘jealously guard and preserve’ its values of ‘integrity, excellence and independence’ said Maura McGowan QC to a packed Annual Bar Conference on Saturday.   Delivering a defiant keynote speech, the Chairman of the Bar Council criticised the ‘contemptuous disregard’ with which the publicly-funded Bar is held by the Lord Chancellor

    Whilst relieved that the Ministry of Justice (MoJ) has abandoned its plans to introduce Price Competitive Tendering (PCT) into criminal legal aid, McGowan warned the conference: ‘But the MoJ cannot go on pretending that there will be no damage to the public good by the cuts it has, and continues, to make. Nor that the profession will survive these cuts undamaged.’

    See also Halsbury's Law Exchange - Defence Lawyers condemn planned cuts to criminal legal aid 

    Sunday, 3 November 2013

    Home Affairs Committee threatens use of contempt powers

    Some matters seem to go for an interminable time.  Some might say, for far too long.  Such a case is now referred to as Plebgate - The Guardian 3rd November.  On 23rd October, the House of Commons Home Affairs Committee heard evidence from three Police Officers and has now issued a very critical report which threatens the possibility of using the power of Parliament to hold individuals in contempt.  The report is at Leadership and standards in the Police: follow up - (10th report, Session 2013-14).  The report begins:


    'On the evening of Wednesday 19 September 2012, the Government Chief Whip, Rt Hon Andrew Mitchell MP, was involved in a brief altercation with a police officer as he left Downing Street on his bicycle. What exactly was said during the incident is contested and is the subject of a Metropolitan Police investigation, Operation Alice, along with various events that happened in its immediate aftermath. We make no comment on the events of 19 September and the following days. This Report concerns a meeting which took place on 12 October 2012, in Mr Mitchell’s constituency office in Sutton Coldfield with three representatives of his local Police Federations: Inspector Ken MacKaill of West Mercia Police Federation, Detective Sergeant Stuart Hinton of Warwickshire Police Federation, and Sergeant Chris Jones of West Midlands Police Federation.'


    Friday, 1 November 2013

    The (second) legal aid consultation ~ some responses

    Earlier post - 5th September 2013 - Transforming legal aid ~ a new consultation ~ the fight for fairness is not over.

    Following on from the first consultation (here), the Ministry of Justice consulted on modified proposals which may be read HERE.  The consultation closes today - 1st November.

    Here are some of the responses:

    The Bar Council

    Law Society

    Treasury Counsel at the Central Criminal Court

    Young Legal Aid Lawyers

    Northern Circuit of the Bar 

    Inner Temple 

    Bingham Centre response 

    Ian Unsworth QC (Northern Circuit) - (posted via Twitter) -  'I regret to say from the outset that I fear that this is not a genuine consultation. There is evidence to support that. The fact and content of Next Steps is highly suggestive that the Ministry has simply ignored the thousands of responses to the original Consultation Document.'

    A View from the North 

    Garden Court North Chambers

    Matthew Scott - Barrister Blogger 

    Public Law Project

    Mark George QC - via Criminal Bar Association - (posted via Twitter)

    Mr George's submission is very strongly argued:

    Thursday, 31 October 2013

    The Supreme Court ~ J (Children) [2013] UKSC 9 and Re B (A Child) [2013] UKSC 33

    A difficult area of family law is that relating to Public Law proceedings where the courts are empowered to make orders which could have the result that a child is removed from the natural family.  Various recent cases demonstrate all too well some of the profound difficulties involved.

    Background:

    The Children Act 1989 (CA89) sets the boundaries of State intervention in relation to parents and their children.  The courts are empowered, in defined situations, to issue various orders such as contact orders, residence orders, supervision orders and care orders.  Under the Adoption and Children Act 2002, children may be 'placed' for adoption (placement orders) and then adopted to suitable adoptive parents and this may (not necessarily always) break the child's ties with the natural family.  Given the draconian nature of some of these powers, it may surprise some readers to learn that 23 years after the CA89 came into force the courts are still deciding questions relating to the meaning of the Act, its application to particular cases and the role of the appellate courts in relation to decisions of those judges tasked with the day-to-day application of the law.

    Broadcasting the Court of Appeal

    Recording and Broadcasting of some proceedings in the Court of Appeal commences today - Sky News ~ Cameras to film court after campaign

    Sky News will be broadcasting proceedings from inside the Court of Appeal from 10.30am - watch coverage on Sky 501, Virgin Media 602, Freesat 202, Freeview 82, Skynews.com and Sky News for iPad.

    More detail of the scheme is in the Court of Appeal (Recording and Broadcasting) Order 2013 made by the Lord Chancellor under section 32(1) of the Crime and Courts Act 2013.  The Order applies to the recording and broadcasting of hearings in the Court of Appeal, in open court and before a full court.

    Contrary

    Wednesday, 30 October 2013

    Press regulation ~ a legal challenge fails

    Today, the High Court rejected a challenge by the Press Standards Board of Finance (PressBof) which was aimed at preventing the Privy Council approving the Royal Charter of Self Regulation of the Press - The Independent 30th October

    Richard Gordon QC, representing PressBof, told the court that PressBof had not been given notice of a period of openness in which it could have made representation in support of its charter and that it was not provided with information on the process and the criteria on which its document would be judged.  “This process, we say, was conspicuously unfair,” he told the court. “It’s almost Kafkaesque in terms of not knowing what the next step is intended to be.”

    Tuesday, 29 October 2013

    Sharon Shoesmith ~ reported to have received £600,000 compensation ~ has anything been learned?

    Sharon Shoesmith was Director of Children Services in Haringey at the time of the death of Baby P.   It is reported that she has settled her claim against Haringey and is to receive some £600,000 in compensation - Daily Mail 29th October.  This follows on from a Court of Appeal (Civil Division) decision in May 2011 discussed at Sharon Shoesmith wins her appeal (27th May 2011).and, in greater detail, at Accountability is not synonymous with Heads must Roll (30th May 2011)

    In the Court of Appeal, Maurice Kay LJ said - 'it is our task to adjudicate upon the application and fairness of procedures adopted by public authorities when legitimate causes for concern arise, as they plainly did in this case.  Whatever her shortcomings may have been (and, I repeat, I cannot say), she was entitled to be treated lawfully and fairly and not simply and summarily scapegoated.'

    Monday, 28 October 2013

    Family Law ~ a torrent of recent cases

    There has been a torrent of recent family law cases.  Here is a compilation of some of the recent judgments. It is not a comprehensive list.  Even for the family law specialist, this is a formidable amount of reading.  There is also the View from the President's Chambers (Issue No. 7) and the new Family Court Guide.


    Supreme Court:

    J (Children) [2013] UKSC 9 -  The Children Act section 31(2) threshold is an important measure to protect a family from unwarranted intrusion while at the same time protecting children from harm. The wording of Section 31(2) has been the subject of six appeals to the House of Lords and Supreme Court. Those cases have consistently held that a prediction of future harm has to be founded on proven facts: suspicions or possibilities are not enough. Such facts have to be proved on the simple balance of probabilities.  See Family Law Week.

    B (A Child) [2013] UKSC 33. - a challenge to a care order made with a view to adoption.  Very important with regard to application of Article 8 of the European Convention on Human Rights and the role of appellate courts when an order is challenged on the basis of proportionality.   The making of an order which removed a child from its natural family was a measure of last resort, only to be adopted where it is "necessary" and when "nothing else will do".   Analysis of the case via Family Law Week.

    A (Children) [2013] UKSC 60 - whether the High Court has jurisdiction to order the "return" to this country of a small child who has never lived or even been here, on the basis either that he is habitually resident here or that he has British nationality.   Analysis of the case via Family Law Week.

    Saturday, 26 October 2013

    The Press ~ The Royal Charter ~ (again)!

    I make no apology for returning to the question of the Royal Charter on Self Regulation of the Press.  This was discussed in my earlier post of 14th October - We by Our Prerogative Royal will, ordain and declare as follows

    That post concluded by noting: 'Perhaps the Charter will somehow be challenged before the courts.  Unless that happens, the existence of a prerogative power to regulate the press is likely to become accepted given that the Charter itself effectively claims a prerogative right to do so by using the words:

    NOW KNOW YE that We by Our Prerogative Royal .....will, ordain and declare ....

    It might then be wondered what might be ordained and declared at some time in the unknown future when some further need for State Control over some activity is perceived.'

    The House of Lords has now registered concern - Daily Mail 26th October

    Wednesday, 23 October 2013

    R v Gul - UK Supreme Court - Observations

    'Terrorism' has proved very difficult to define and there is no internationally agreed definition.  For the purposes of law in the United Kingdom, the Terrorism Act 2000 section 1 gives the following definition:

    (1) In this Act “terrorism” means the use or threat of action where -
    (a) the action falls within subsection (2),
    (b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
    (c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.

    Press Regulation ~ View of Journalists

    London Evening Standard 23rd October 

    Media heavyweights have branded the government’s proposed royal charter for press regulation a “medieval piece of nonsense.”

    Speaking at a London Press Club debate last night Guardian editor-in-chief Alan Rusbridger, Daily Telegraph writer Andrew Gilligan and biographer Tom Bower slammed the plans, saying they posed a real threat to press freedom and the future of investigative journalism.  A draft plan to regulate the press includes powers to impose million-pound fines on UK publishers, demand apologies, and set up a new low-fee complaints system.

    It is interesting that the Press Club see a number of threats to investigative journalism - see London Press Club - Can Investigative Journalism survive?

    The Royal Charter

    Tuesday, 22 October 2013

    May a 'whole life' sentence be imposed for murder?

    According to The Telegraph 21st October, Mr Justice Sweeney has ruled that a whole life tariff may not be imposed at the time of sentencing an individual for murder.  The newspaper reported:

    'Ian McLoughlin, 55, was told he must serve a minimum of 40 years in prison, after he admitted murdering 66-year-old Graham Buck in Little Gaddesden, Hertfordshire, in July.  Mr Buck, 66, suffered fatal stab wounds to the neck when he responded to cries from the home of his neighbour, 86-year-old Francis Cory-Wright in the village near Berkhamsted.

    But Mr Justice Sweeney said

    Monday, 21 October 2013

    Thoughts on the Supreme Court's decision in Chester and McGeogh

    The long term legal importance of a case can sometimes have little to do with the actual question which was before the court at the time.  An example of this may prove to be the Supreme Court's judgment in the recent 'prisoner voting' case:

    R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent)
    McGeogh (AP) (Appellant) v The Lord President of the Council and another (Respondents) (Scotland)
    The case itself concerned two appeals by serving prisoners - (serving sentences for murder) - who had found themselves disenfranchised in elections as a result of the statutory prohibition on serving prisoners voting.

    Thursday, 17 October 2013

    Legal Miscellany

    Supreme Court UK ~ 16/10/13
    The Royal Charter on the Press:

    Head of Legal Blog has published an item examining in some detail the drafting of the Royal Charter on Self Regulation of the Press.  See also High Tomlinson QC at Inforrm's blog - Leveson, Article 10 and apologies - another red herring



    Voting by prisoners:

    R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent)
    McGeogh (AP) (Appellant) v The Lord President of the Council and another (Respondents) (Scotland)
    View the judgment being handed down by Lord Mance
    Two prisoners

    Monday, 14 October 2013

    We by Our Prerogative Royal .....will, ordain and declare as follows

    James I - Divine Right
    NOW KNOW YE that We by Our Prerogative Royal .....will, ordain and declare as follows.  These words appear in the draft Royal Charter on Self Regulation of the Press.  The Charter is likely to be issued by the Privy Council at the end of October.
     
    The Privy Council is an ancient and interesting institution.  Some would argue that it is anachronistic: a survival from medieval times.  The Council's website is here.   The government intends to use the Privy Council to issue a Royal Charter in connection with Press Regulation.  A narrow view of the draft Royal Charter on Self-Regulation of the Press would be that it does no more than incorporate a body to be called the Recognition Body.  Viewed in this narrow way, the use of a Royal Charter would hardly be controversial since it is well established that the Privy Council may grant Charters of Incorporation.   There are over 900 such chartered bodies - (list via Privy Council website).  In 2012, the the Chartered Institute of Legal Executives was granted a Royal Charter.  The Institute had been in existence since 1963.  Royal Charters may also be used to create bodies or to continue bodies in existence.  Examples include the Bank of England and the British Broadcasting Corporation (BBC).