Tuesday, 30 December 2014

Debbie Purdy - RIP

The death of Debbie Purdy (1963-2014) has been anounced. Her wikipedia entry is here.

The very last judgment of the House of Lords was in R (Purdy) v Director of Public Prosecutions [2009] UKHL 45; [2009] EWCA Civ 92.  In October 2009, The Supreme Court replaced the Appellate Committee of the House of Lords as the highest court in the United Kingdom.

In Mrs Purdy's case,

Monday, 29 December 2014

Riding to Hounds ~ the Hunting Act 2004

The various Hunts came out on Boxing Day - BBC 26th December.  Twitter came alive with comments that, if they have a majority after the 2015 general election, the Conservative Party would, at some stage, allow a free vote on whether the Hunting Act 2004 should be repealed.

The Act does not prevent hunting other that of wild animals with dogs and even that is lawful if carried out in accordance with the conditions of an exemption.  Section 1 makes it an offence for a person to hunt a wild mammal with a dog unless the hunting is exempt. 

Wednesday, 24 December 2014

Christmas 2014

Best Wishes  for Christmas 2014 and New Year 2015

Enjoy the Festive Season - think of those less fortunate and, if you can, help them.  In the restless world of the law, there will be much more to write about in the coming days and months.   This blog will continue to follow at least some of the many stories and 2015 promises to be a most interesting year given the forthcoming general election which may bring about some new directions in government legal policy.  Here, I touch on four areas: Access to Justice; the European Convention on Human Rights; Devolution; and the EU.  

Will the EU accede to the European Convention on Human Rights?

There has been a Treaty obligation requiring the European Union (EU) to accede to the European Convention on Human Rights (E Conv HR) - Treaty on European Union Art 6(2)

On 18th December, the Court of Justice of the European Union (CJEU) ruled that the draft agreement on the accession of the European Union to the European Convention on Human Rights (ECHR) was not compatible with EU law.

See the Court's Opinion 2/13 and the associated Press release.

Tuesday, 23 December 2014

Strasbourg decides FOR the UK government

The Criminal Justice Act 2003 Part 11 Chapter 2 (CJA) enacted major changes to the law relating to the admissibility in criminal trials of hearsay evidence.  The changes were based on Law Commission proposals though Parliament did not completely follow the Commission's scheme.  Since they came into force, the CJA provisions have been the subject of extensive case law.  In an article in The Guardian 17th December, Joshua Rozenberg looked at certain cases where the CJA provisions were examined at the European Court of Human Rights - ECHR cases won by UK government show flexibility of the human rights system

With the General election looming in 2015, voters would do well to ask candidates what they or their party plan to do about human rights protection.  I will leave it to a later post to look more closely at just what the various parties are proposing.

Tuesday, 16 December 2014

The truth, the whole truth and nothing but the truth

The Torturer has long been regarded as the enemy of mankind (Hostis humani generis).  Those who authorise the use of torture or who, when in an official capacity, condone it or turn a blind eye to it should also be condemned - see, for example, Prosecutor v Furundzija

The US Senate "Torture" report:

The US Senate Select Committee on Intelligence has released an important summary of a report covering the period September 2001 to January 2009 - Committee Study of the Central Intelligence Agency's Detention and Interrogation Program .  The document contains the Executive Summary, Findings and Conclusions of a much larger report that remains classified though declassification may be considered later.  In the Foreword to the document, the Chairman of the Committee (Senator Dianne Feinstein) stated - " .... it is my personal conclusion that, under any common meaning of the term, CIA detainees were tortured ....".  She goes on to add, " ... conditions of confinement and unauthorised interrogation and conditioning techniques were cruel, inhuman and degrading ..."   See the comments of 9th December by Senator Feinstein on her website.

Criticism and and concerns:

Friday, 12 December 2014

R v Teret ~ "Historical" sexual offending

The Judiciary website has published the sentencing remarks of Mr Justice Baker in the case of R v Teret.

"Disc jockey" Ray Teret was well-known in the North West of England during the 1960s and 1970s.   He has been sentenced to a total of 25 years imprisonment.  He will serve half of that in custody and then be released on licence.  He is subject to the notification requirements of the Sexual Offences Act 2003 section 80.  He was convicted of 11 counts of indecent assault and the applicable maximum sentence for each of those offences was 2 years.  Baker J imposed sentences of 18 months imprisonment on each of five of the counts and 12 months imprisonment on each of six counts.  Teret was also convicted of seven counts of rape and he received 25 years imprisonment on each count.  ALL of the sentences will run concurrently - thereby making 25 years in total. 

The sentencing may seem severe

Thursday, 11 December 2014

Supreme Court ~ taking into account Strasbourg decision but not bound

The Supreme Court judgment in R (Haney, Kaiyam and Massey) v Secretary of State for Justice and R (Robinson) v Governor of HMP Whatton and Secretary of State for Justice [2014] UKSC 66 concerns individuals who had been sentenced to Imprisonment for Public Protection (IPP) under the regime imposed by the Criminal Justice Act 2003 s.225 (in force 4th April 2005) but now abolished by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 s.123.   IPP applied to those convicted before 3rd December 2012.

Supreme Court judgment and associated press release.

IPP caused serious problems for the Prison Service and the Parole Board - see Oxford Human Rights Hub - James, Wells and Lee v UK.  The House of Lords

"Drink / drive" ~ lower limits apply in Scotland

From 5th December, the alcohol limit for driving in Scotland has been reduced - see Scottish Government - Lower Drink Drive limits and also Scottish Government - New Drink drive limit.  It appears that prosecutions are likely to be brought even in marginal cases where the reading is just above the limit - Why the new Scottish Drink Drive Limits are even tougher than you think.

The relevant Scottish legislation is the Road Traffic Act 1988 (Prescribed Limit)(Scotland) Regulations 2014 and the new limits are:

a) 22 microgrammes of alcohol in 100 millilitres of breath ... 35;
b) 50 milligrammes of alcohol in 100 millilitres of blood ... 80
c) 67 milligrammes of alcohol in 100 millilitres of urine ... 107

The figures in red show the corresponding limits for England, Wales and Northern Ireland. 

Monday, 8 December 2014

Was this entirely right? A mother's dilemma.

There will not be too much public sympathy for Yusuf Sarwar and Mohammed Ahmed who were recently sentenced to a custodial term of 12 years 8 months for Preparation of Terrorist acts - Terrorism Act 2006 section 5.  Under this extended sentence (Criminal Justice Act 2003 section 226A*) there is a custodial term and, thereafter, an extension period during which time the offender is on licence.  The extension period here is 5 years.  One aspect of an extended sentence is that the the court must 'consider that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences.'

I have not been able to find publication of the sentencing remarks of His Honour Judge Topolski QC who sentenced the men at the Crown Court sitting at Woolwich.  It is a pity that sentencing remarks are not readily available and that we are in the position of having to rely on media reports.  Clearly, from the fact of an extended sentence, prime concerns of Judge Topolski would have been deterrence and prevention of further offending.  The whole purpose of the extension period is to give further protection to the public from serious harm occasioned by the commission by the defendant of further 'specified' offences.

Here are three reports offering details of the case:  The Guardian 5th December 2014;   BBC 7th December;   Birmingham Mail 9th July 2014.

Tuesday, 2 December 2014

Judicial Review at Bay ~ Criminal Justice and Courts Bill ~ Ping Pong

Update:  On Tuesday 9th December, the House of Lords will consider whether to back down in the 'ping pong' over the judicial review proposals.

Update 10th December:  The House of Lords "ping pong" took place on 9th December and the House remained firmly opposed to the government's plans to make access to judicial review more difficult.  The debate may be read here.  See also Law Society Gazette - Grayling admits misleading Parliament as JR reforms defeated again where it is noted that the matter will return to the House of Commons in the New Year.

Update 21st January 2015:  Ping pong in the Lords 21st January and also Parliament Criminal Justice and Courts Bill 22nd January 2015
-------

Judicial review has been described by Liberty as - “a crucial tool which allows ordinary people to challenge decisions by the authorities—either because they’re unlawful, irrational, or made in the wrong way.”  This crucial tool has come under attack from the government.  In this post, I look at the House of Commons debate on 1st December when House of Lords amendments to the Criminal Justice and Courts Bill were considered.

At times, the process referred to a "ping pong" (or "consideration of amendments") can be rather like a showdown in a western movie.  Parliament's description of "Ping Pong" states that - "When a bill has passed through third reading in both Houses it is returned to the first House (where it started) for any amendments made by the second House to be considered."  A bill may go back and forth between each House until both Houses reach agreement on the exact wording of the bill.

"Ping pong" is the present stage

Thursday, 27 November 2014

Magna Carta


The UK Human Rights blog has drawn attention to a new book - "Magna Carta and its progeny" - Hart Publishing, October 2014 - details here

The authors are  Anthony Arlidge QC and the former Lord Chief Justice  - Lord Judge.

Magna Carta was the subject of my blogpost on 17th June - Magna Carta - is she still alive?

The real historical importance of Magna Carta lies in the fact that later generations saw embedded in the Charter the important ideas that those who govern must abide by the law and also that the governed would have access to justice.  There is no doubt that the document came to be venerated and it has had a wide ranging influence through the common law world and perhaps beyond.  Indeed, its influence has been far greater than the actual legal merit of the charter deserved.  After all, the document was essentially concerned with the feudal rights of some of the wealthiest people of the day.   

The need for access to justice is as important as ever and, in today's society with highly complex law, legal representation should be a basic right.  The government will wish to capitalise on 2015 being the 800th Anniversary of Magna Carta BUT it cannot and must not be forgotten that the government has minimised legal aid and, as a consequence, access to justice for the majority of the population.  For the very rich, the legal system continues to offer a "Rolls Royce" service as discussed here in this excellent post on the Steve Cornforth blog.


The Independent - Magna Carta: Contemporary account of the signing of historic document discovered

Addendum 15th June 2015:

For a more recent speech on Magna Carta see Lord Sumption's address to the British Library - Magna Carta then and now - 9th March 2015

The Counter-Terrorism and Security Bill ~ Overview

Once enacted, the latest Counter-Terrorism and Security Bill will be the 6th terrorism-related Act since year 2000.  The announcement of the need for additional legislation was covered in my blogpost of 15th November.   Earlier this week the Home Secretary spoke about the terrorism threat to the UK, the Intelligence and Security Committee issued a report relating to the murder of Fusilier Lee Rigby and the Prime Minister spoke in the House of Commons about the report (Law and Lawyers 25th November).

Parliament's website has this PDF version of the Bill as introduced on 26th November.  The publication of the Bill is accompanied by Explanatory Notes (PDF 56 pages).   Matters such as the need for the legislation and the need for fast-tracking it through Parliament are addressed in the first 54 paragraphs.  Thereafter is a more detailed look at the clauses in the Bill.  The Explanatory Notes are well worth reading in full by any reader requiring a detailed look at the Bill.

The Bill is divided into 7 Parts and 5 schedules. The following paragraphs take a brief look at each Part.

Wednesday, 26 November 2014

The Birmingham Pub Bombings 1974

21st November 1974 is another day that should live in criminal infamy.  Two explosions in Birmingham wrecked the Mulberry Bush and the Tavern in the Town.  21 people were killed and 182 injured.  A third explosive device failed to detonate.  Six men - (Hugh Callaghan, Patrick Joseph Hill, Gerard Hunter, Richard McIlkenny, William Power and John Walker) - were arrested and subsequently tried in the Shire Hall of Lancaster Castle (pictured) before Bridge J and a jury.  The trial commenced on 9th June 1975 and the men, having been convicted, were sentenced on 15th August 1975.  Bridge J rejected legal argument to the effect that the men's statements ought not to be admitted in evidence.  The statements were later shown to be unreliable.  It was not until 14th March 1991 that the convictions were finally quashed by the Court of Appeal (Criminal Division).  Financial compensation was subsequently paid.  Bridge J went on to eventually become Lord Bridge of Harwich and he sat in the Appellate Committee of the House of Lords from 1980 until 1992.

The Birmingham Six case, as it came to be known, has resulted in extensive literature including the book by Chris Mullins - "Error of Judgment: The truth about the Birmingham Bombings" - (see London Review of Books) and Chris Mullins' own comments about his book).

Tuesday, 25 November 2014

Terrorism ~ Report on the Murder of Fusilier Lee Rigby

The need for legislation to give Ministers more anti-terrorism powers was announced earlier this month - Further anti-terrorism powers (15th November).  The new Anti-terrorism and Security Bill is to be presented to Parliament on Wednesday 26th November.  Comment to follow when its contents are fully known.  However, this week has seen a number of other terrorism-related matters.

1) On Monday 24th November, the Home Secretary (Theresa May MP) spoke of the terrorism threat facing the UK.
 
2) Parliament's Intelligence and Security Committee (ISC) has issued a report on the intelligence relating to the murder of Fusilier Lee Rigby - and see BBC 25th November - Woolwich murder: Lee Rigby's death 'not preventable'.  Michael Adebolajo and Michael Adebowale were convicted of the murder and sentenced to life imprisonment with, respectively a whole life term and a 45 year minimum term. - see Sentencing Remarks of Sweeney J (26th February 2014)

Saturday, 22 November 2014

A few items of interest ...

A little list of items of interest ............

1. Severe cuts to legal aid have taken place in England and Wales.  The impact of these cuts is certainly being felt by many people who need access to law and must now try to fight their own case amid the thicket of law or, alternatively, who must simply give up the fight against the more powerful opponent with deeper and often publicly funded pockets.  In a report by the National Audit Office, the Ministry of Justice has been accused of slashing legal aid without understanding the impact of the cuts.  According to the National Audit Office, the £300m cuts to legal aid ‘cannot be said to have delivered better overall value for money for the taxpayer’.  
  • Read the full report here
The report's conclusions are not surprising

Tuesday, 18 November 2014

Reforming the role of magistrates

This morning I draw attention to an article in Modern Law Review (November 2014) - Reforming the role of Magistrates: Implications for summary justice in England and Wales

The article may be obtained (£) from the Wiley Online Library.  The Library website offers the following introductory paragraph.


"The role of lay magistrates in England and Wales has been progressively undermined by protracted processes of reform over the last two decades. Current government proposals aim to reorient and ‘strengthen’ their function through the creation of new magisterial responsibilities such as oversight of out of court disposals and greater involvement with local justice initiatives. This article argues that while these proposals embody necessary and important areas for reform, taken in isolation they will fail to consolidate the role of magistrates in summary justice unless they are enacted alongside other measures which aim to reaffirm the status of lay justices, and which seek to reverse the trend which has prioritised administrative efficiency at the expense of lay justice. Rapidly declining magistrate numbers together with continuous (and continuing) programs of court closures are irreconcilable with the future viability of a lay magistracy."

Some of the "reforms" have included:

Saturday, 15 November 2014

Further anti-terrorism powers

The Government is particularly concerned about UK citizens who travel to conflict zones and perhaps return to the UK with skills and intentions acquired from fighting or training with terrorist groups.  In a speech to the Australian Parliament, the Prime Minister (David Cameron) indicated that a new Counter-Terrorism Bill is to come before the UK Parliament with a view to getting it on the statute book by January 2015.  The Prime Minister noted that Australia had already passed new legislation to tackle foreign fighters - see the Australian Counter Terrorism Legislation Amendment (Foreign Fighters) Bill

According to Mr Cameron, the UK Bill will contain - "New powers for police at ports to seize passports, to stop suspects travelling and to stop British nationals returning to the UK unless they do so on our terms.  New rules to prevent airlines that don’t comply with our no-fly lists, or our security screening measures, from landing in the UK."  See The Guardian 14th November and  BBC 14th November


Wednesday, 12 November 2014

Law Commission ~ Offences against the Person

The Law Commission has commenced a "scoping consultation" about Offences against the Person - Law Commission 12th November 2014.  and also see Law Commission Offences against the Person.  The consultation remains open until 11th February 2015.  The Commission comments that :

"Offences of violence are some of the most common in our criminal justice system: those covered in our paper are charged anything up to 200,000 times each year.  It is, therefore, essential that the laws in this area are clear, fit for purpose in the 21st century and (ideally) collated together in a single, readily-accessible statute. This is especially so in an era with increasing numbers of litigants in person, even in criminal cases.

 The scope of the consultation is limited to

R v Max Clifford - Appeal against sentence


On 2nd May 2014 Frank Maxwell Clifford ("Max Clifford") was sentenced to a total of 8 years on eight counts of indecent assault contrary to s14(1) of the Sexual Offences Act 1956.   He appealed against the sentence and his appeal was dismissed.  The judgment is worth reading in full - R v Frank Maxwell Clifford [2014] EWCA Crim 2235

The judgment is considered in an interesting article by Joshua Rozenberg - The Guardian 12th November 2014 - Appeal court ruling on Max Clifford shows how far defendants can go 

Addendum 24th November:

Silence if Golden -  Law Society Gazette - David Corker comments - "Some may regard with alarm the establishment of this sentencing principle; essentially whether the defendant showed adequate respect for the criminal justice system. Bearing in mind the presumption of innocence, it seems inapt to hold that those who reiterate that by claiming to be so should be exposed to the risk of punishment."

Thursday, 6 November 2014

European Arrest Warrant and other EU measures

Update 11th November:  The Criminal Justice and Data Protection Regulations were approved in the House of Commons. This completed the transposition into domestic law of 11 of the 35 measures that the government wished to retain.  The debate was dogged by procedural tactics and, to the annoyance of many MPs, there was no separate vote on the European Arrest Warrant even though there had been political assurances in advance that there would be.  Nevertheless, legally, a vote was not required on opting back into the EAW and so it will remain in force in relation to the UK.

Update 8th November: Parliament -  The UK's 2014 block opt-out decision: Joint Commttee Statement  and see the DRAFT Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014
 ---

On Monday 10th November, the House of Commons will vote on a package of EU measures and one concern is whether the European Arrest Warrant (EAW) will continue to have force in the UK- BBC News 6th November 2014.   This is to be part of a one day debate relating to the opting out by the UK of some 110 EU Police and Criminal Justice measures and the opting back into 35 including the EAW - please see the post on 5th September.  

Monday, 3 November 2014

Three questions needing satisfactory answers

1.  Why should lawyers continue to offer pro bono work as a means of covering up the fault-lines in government lack of legal aid policy?

Steve Cornforth blog - Who needs legal aid when lawyers do it for free?


Friday, 31 October 2014

Family Court and (lack of) legal aid

Sir James Munby P
Government 'washing its hands' of legal aid problem for vulnerable parents - Owen Bowcott - The Guardian 31st October 2014

The legal aid regime currently in place for "public law" family cases has this, to say the least, highly bizarre effect:

A parent whose child is subject to an application for a care order under Children Act 1989 s.31 is automatically entitled to legal aid, irrespective of means. Not so a parent whose child is living at home under a care order and who wishes to challenge a local authority's proposal to remove the child.


Here are two parents who are beset by problems and face the possibility of their child being adopted.  They do not qualify for legal aid and lawyers have acted for them without remuneration (pro bono).

The President of the Family Division (Sir James Munby) has handed down a very robust judgment - Re D (A Child) [2014] EWFC 39.  Please read it in full.  He said [para 3]:

'What I have to grapple with is the profoundly disturbing fact that the parents do not qualify for legal aid but lack the financial resources to pay for legal representation in circumstances where, to speak plainly, it is unthinkable that they should have to face the local authority's application without proper representation.' [My emphasis].

The EU Referendum Bill has been "killed off"

Amid various political shenanigans within the coalition government, the EU Referendum Bill has been "killed off" - Telegraph 28th October. The Bill was discussed in the Law and Lawyers post of 19th October. The German Chancellor - Angela Merkel - stated that she would not support changing the fundamental EU policy of freedom of movement of individuals though she was prepared to support some reform to welfare benefit claims by migrants so as to try to prevent abuse - Reuters 25th October

Thursday, 30 October 2014

Abdul-Hakim Belhaj and Fatima Boudchar v Jack Straw and others

Belhaj
The Court of Appeal (Civil Division) - Lord Dyson MR, Lloyd-Jones and Sharp LJJ - has affirmed the right of Mr Abdel-Hakim Belhadj – an opposition commander during the Libyan armed conflict of 2011 and now leader of the Libyan Al-Watan Party – and Ms Bouchar, his wife, to pursue a claim in the domestic courts against the UK officials allegedly involved in their abduction from China through Malaysia and Thailand and their transfer to Libya.  The Court stressed that a failure to allow UK courts to consider the complaint would unacceptably result in a denial of a legal remedy for very grave allegations of human rights violations. The Court dismisses the view that the risk of displeasing other States could outweigh the imperative of providing access to justice to victims of such alleged violations.

A summary of the court's judgment and the full judgment are available on the Judiciary website or Bailii at [2014] EWCA Civ 1394.  The appealed judgment of Simon J in the High Court is at [2013] EWHC 4111 QB.  

See also JUSTICE -  Court of Appeal confirms access to court in torture cases.  JUSTICE was one of six interveners in the case.  The submissions of the interveners may be seen via REDRESS.

The UK Government

Tuesday, 28 October 2014

It is not just human rights that the government dislikes .....

“Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably” - Lord Bingham (The Rule of Law)

It is not just all things "Europe" in the cross-hairs of the present government.  An important bit of the common law has also come under attack.  Today, it is called Judicial Review a term which came into use following some important changes to procedure introduced in 1977.  The common law had developed the principle that all public authorities (including the government itself) are liable to have the lawfulness of their acts and decisions tested before the courts.  The power of judicial review rests with the High Court ( and, to some extent, with the Upper Tribunal).  Decisions can be appealed to the Court of Appeal and Supreme Court.  At the heart of judicial review lies the notion of the rule of law so that official decision-makers possess only those powers bestowed on them by the law.  It is the independent judiciary who interpret the law though Parliament has the final say on the law itself.

Friday, 24 October 2014

Parole Board decides Harry Roberts to be released

In 1966, at the Central Criminal Court, Harry Roberts was sentenced to life imprisonment for each of the murders of three Police Officers - Police Constable Geoffrey Fox, Detective Constable David Wombwell and Sergeant Christopher Head.   The trial judge (Wyn-Jones J) made a recommendation that he serve a minimum of 30 years imprisonment.  The judge also expressed the opinion -  "I think it likely that no Home Secretary regarding the enormity of your crime will ever think fit to show mercy by releasing you on licence."

In a decision condemned by the Police Dependants' Trust, the Parole Board for England and Wales has decided that Roberts may be released - The Independent 23rd October 2014

In 1966, the release of a prisoner such as Roberts

Tuesday, 21 October 2014

Where we are with human rights

Several recent post have looked at various aspects of human rights and its protection in the UK.  This is an absolutely vital area of law and one where there is a clear political schism as to the future of human rights law in the UK.

Barrister Adam Wagner of 1 Crown Office Row has kindly made available this excellent infographic showing the basic system of human rights protection in the UK as it is at present.

Please read it in conjunction with  - Human Rights Protection in Britain - 10 key points


In the event that a Conservative (majority) government comes into power following the 2015 General Election,  they will be committed to making changes and these are discussed at some length in Human Rights - a look at the Conservative Party proposals where many links to other commentaries will be found.  A draft bill has been promised in the near future.  The Conservative Party proposals are devastatingly and masterfully analysed by Francis Fitzgibbon QC - London Review of Books - Short cuts

The Labour Party position appears to be set out in the short conference speech by Sadiq Khan MP (Shadow Justice Secretary) where Khan indicated that his Party would block attempts to abolish the Human Rights Act 1998.


Sunday, 19 October 2014

The EU ~ Referendum Bill

Update 31st October:  Amid various political shenanigans within the coalition government, the EU Referendum Bill has been "killed off" - Telegraph 28th October.

In his recent speech to the Conservative Party conference, David Cameron referred to renegotiating British terms of membership of the European Union.  He said - "... we’re going to go in as a country, get our powers back, fight for our national interest ... and yes – we’ll put it to a referendum … in or out – it will be your choice ..."

The Conservative Party is supporting a Private Members Bill to enable a referendum to take place at a date to be appointed but no later than the end of 2017.  It would ask - "Do you think that the UK should be a member of the EU."   The Private Member who introduced the Bill is Robert Neill MP.   He said that it was not a bill about whether we should, in the longer term, stay in or leave the EU.   It was an opportunity for people to have a say.

At least on the part of the Conservative Party, there seems to be a political commitment to renegotiation of some aspects of the UK's membership.  Presumably, the electorate would be presented with information about what the renegotiation had actually achieved.

In the event of a NO answer,

Saturday, 18 October 2014

The West Lothian Question ~ a few thoughts !

The so-called West Lothian question is a political and not legal question.  It was asked as long ago as 1977 by Tam Dalyell MP who represented West Lothian from 1962 to 1983 and Linlithgow from 1983 to 2005. The question asks whether MPs from Northern Ireland, Scotland and Wales, sitting in the House of Commons of the United Kingdom, should be able to vote on matters that affect only England.

In the immediate aftermath of the Scottish Independence vote, the Prime Minister said:  "So this is my vow: English votes for English laws. The Conservatives will deliver it."

Voting on matters that affect only England may be a different issue to voting on laws affecting England only.   In other words, much might depend on how the West Lothian question is actually phrased !  Let's leave those semantics to one side.

It's interesting to find out

Tuesday, 14 October 2014

Lord Neuberger ~ Two interesting speeches



Update - Addendum 15th October -  

A "Constitutional Convention" to address further reform?



The President of the Supreme Court of the United Kingdom (Lord Neuberger) has delivered a couple of rather interesting speeches.  Please read them in full.


The Conkerton Lecture is essentially Lord Neuberger's look back at the first 5 years of the Supreme Court of the UK.  He looks at several of the cases the court has decided and appeared keen to put the record straight in some areas where there has perhaps been misrepresentation of the decisions of the court.  For example, speaking of Smith v Ministry of Defence [2013] UKSC 41, Lord Neuberger pointed out that the claimant's criticism about provision of equipment for the armed forces was aimed at civil servants in the Ministry and not at battlefield commanders. 

For Lord Neuberger, rights such as those embodied in the European Convention on Human Rights are fundamental to the rule of law, particularly in a time of ever-increasing government powers.  However, Lord Neuberger commented that reliance on the convention has rather hampered the development of the common law which was (and is) open to receive new ideas and concepts.

Here, by way of comment, it may be noted that the Human Rights Act 1998 opened up a new toolbox for lawyers to use and common law approaches  have perhaps been sidelined to some extent - (though it was necessary to use the Act to test human rights arguments).  The common law can be static unless and until an appropriate case arrives at a court with the authority to alter the law.  It is certainly not a dynamic mechanism for securing rights.


The Legal Wales Conference speech at Bangor University

Monday, 6 October 2014

Human Rights ~ a look at the Conservative Party proposals

Updated 7th, 9th, 13th, 16th October and 4th November - Further links added

In this post I offer some comment on the Conservative Party's document "Protecting human rights in the UK"   It has attracted an enormous amount of critical comment already (links at the end).

There is clear dislike (even hatred) by certain Ministers of the European Convention on Human Rights (E Conv HR); the European Court of Human Rights (E Ct HR) and the UK's own Human Rights Act 1998 (HRA 98).  This attitude undoubtedly stems from the simple fact that the system of human rights protection acts as a check on Ministerial (executive) power.  It exists to protect the individual - ALL individuals - from the untrammeled power which the State might otherwise exercise.  It appears that Ministers think it is best to water down or remove the existing protections whilst, if they can, maintaining a facade of adherence on the international scale.

Saturday, 4 October 2014

Human Rights protection in Britain ~ 10 key points

The Conservative Party's document "Protecting human rights in the UK"has attracted a mass of comment.  It sets out the Party's plans for the human rights protection of the British people in the event that the Conservative Party is able to form a government in 2014.  A certain vision of the relationship between every citizen and the State is set out.  It is worth reminding ourselves of some legal facts as opposed to the "spin" adopted in some political and media quarters.


Ten key points:

1. The European Convention on Human Rights (E Conv HR) came into force in 1953 with the United Kingdom being among the first signatories.  British lawyers were involved in its preparation.   It was NOT forced on to the UK.

Liberal Democrats - Doing what works

The Liberal Democrat Party Conference is taking place in Glasgow - 4th to 8th October.  Their views on Criminal Justice policy are presented in a Policy Paper - Doing what works to cut crime

It's an interesting read.  How much of it will actually influence the course of a future government remains to be seen.  There is a possibility that yet another coalition might emerge from the 2015 general election.

On the Conservative Party's human rights plans, the Liberal Democrat Justice Spokesman (Simon Hughes MP) stated that - "“Liberal Democrats have always been 100% clear that we will not allow the Tories to take away the hard-won human rights of British people when in the UK or anywhere else in Europe" - see announcement

Sadiq Khan MP - the Labour Party Shadow Justice Minister - issued a statement criticising the Conservative Party plans for human rights though

Friday, 3 October 2014

Protecting Human Rights ! Don't make me laugh ....!

It is a huge pity that we must take the Conservative Party's document "Protecting human rights in the UK" seriously .......... but, we must!  A considerable number of notable bloggers and commentators have already offered their analyses of it (e.g. Liberty) and they are mostly impressed only by the fact that it is legally illiterate.

It is a plan to do anything but protect human rights.  Rather it is a plan - should there be a Conservative government with a sufficient majority to force this through Parliament - to enhance the power of the executive and to weaken protections given in law to citizens.  The British citizen could end up with less human rights protection in domestic law than the citizen of (say) Germany.  But wait !  It might even be that the English citizen will end up with less protection than those living under the devolved administrations of Scotland, Wales and Northern Ireland.  That's because those administrations may well choose not to accept this policy on behalf of their citizens.

A fuller look at this dog's dinner to follow ...............!

Thursday, 2 October 2014

David Cameron's speech ~ the "European" dimension

On 1st October, Prime Minister David Cameron delivered his speech at the Conservative Party conference in Birmingham.  As expected, the speech ranged over the whole gamut of government policy and contained a number of "promises" which may be delivered during the next Parliament if there is a Conservative majority government.   Cameron was clear enough in saying that much will depend on deficit reduction and it was plain that further spending reductions will be required.  Cameron referred to cuts of some £25 billion in the next two years.  The criminal justice system and other legal areas will undoubtedly have to carry their share of this.  See FULL text of speech.

As widely expected in legal circles, the speech contained headline statements about the European Union (EU) and the European Court of Human Rights (E Ct HR).

On the EU, Cameron stated that he would renegotiate Britain's position and, in particular, he would address the issue of free movement of workers.  He said:

" ... we’re going to go in as a country, get our powers back, fight for our national interest …… and yes – we’ll put it to a referendum …… in or out – it will be your choice…"

Cameron then turned his guns on the E Ct HR saying:

Tuesday, 30 September 2014

Conservative Party Conference Justice and Home Affairs speeches ~ a brief look.

Speeches today at the Conservative Party Conference in Symphony Hall, Birmingham included Mr Chris Grayling (Justice Secretary) and Theresa May (Home Secretary).

There is much in the speeches to comment about but I will reserve that for a later post.  Neither speech contained any major announcement about any plans relating to the Human Rights Act 1998 and it may be that this is being left for the Prime Minister's speech at the end of conference (Wednesday morning).

According to Grayling,

Monday, 29 September 2014

Northern Viewpoint ~ the Secretary of State for Justice has plans !

Updated 30th September with links to relevant blogposts

The Secretary of State for Justice has declared that "Europe will no longer rule our courts" and it is expected that he will reveal Conservative Party plans to scrap the Human Rights Act 1998 and to ensure that the European Court of Human Rights cannot "overrule" the Supreme Court of the UK - see The Telegraph 26th September - Chris Grayling: Europe will no longer rule our courts

Here is a Secretary of State who, along with his two immediate predecessors, has presided over the elimination of legal aid in vast areas of civil law and, in relation to criminal law, the High Court has recently ruled that one of his consultations was so unfair as to be unlawful (Solicitors Journal 19th September and see also Legal Business and the judgment of Burnett J).  The removal of legal aid from many family law cases is having a devastating impact on the lives of many children - (views of the Children's Commissioner - The Guardian 24th September).  His "privatisation" reforms

Thursday, 25 September 2014

Labour Party Conference ~ Speech by Sadiq Khan MP (Shadow Justice Secretary)

At the Labour Party Conference held in Manchester (20th - 24th September), the Shadow Justice Secretary delivered a short speech which may be read here.  One clear difference emerged from the stance, at least to date, of the Conservative Party.  This is that Mr Khan gave a commitment to human rights:

'We’ll block attempts to abolish the Human Rights Act – Labour’s Human Rights Act.

.... we won’t walk away from the European Convention on Human Rights.'

Mr Khan also said - ' ... let’s get the European Court working better.'

The speech was essentially headlines of that type and was lacking in detail.  It remains to be seen whether there will simply be maintenance of the human rights status quo or, alternatively, some measure of reform whilst remaining with the core of human rights law.

On the constitution,

Friday, 19 September 2014

Scotland voted NO

Updated 22nd, 23rd September, 25th and 26th September

The Scottish Independence referendum was held on 18th September.  The turnout was 84.5% and NO votes totalled 2,001,926 and YES votes totalled 1,617,989.  For more on the results see BBC News Scotland 19th September.    Independence was therefore rejected but, as mentioned in my earlier post, the status quo cannot remain though the historic Union will remain in place and major problems relating to membership of the European Union (EU)  and currency have been avoided. 

The Scottish people have been promised greater devolution of power and this must be delivered but the precise details of those powers remain to be thrashed out and time is relatively short given the General Election in May 2015.  However, it appears that

Wednesday, 17 September 2014

Scotland ~ the eve of the referendum

18th September 2014 - Referendum Day in Scotland on the question of independence from the remainder of what is now the United Kingdom of Great Britain and Northern Ireland.  "The Union" of the separate Crowns of Scotland and England came on 24th March 1603 when King James VI of Scotland also became James I of England.  However, political union of the two Kingdoms did not arrive until 1st May 1707 with the enactment, by what were then separate Parliaments, of the Union with Scotland Act 1706 and the Union with England Act 1707.   The Acts gave legislative force to the Treaty of Union agreed in July 1706.

'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  ...........'

Monday, 8 September 2014

Ashya King (2)

Mr Justice Baker has handed down judgment in the wardship case of Ashya King - (see earlier post)

Judiciary website - Judgments and Orders

Baker J said that Portsmouth Council had acted "entirely correctly" and the parents had reached a treatment plan for Ashya which was "coherent and reasonable"  Ashya had been admitted to hospital for proton treatment and appropriate funding arrangements were in place.  Ashya was therefore no longer to be a ward of court.  The learned judge chose not to make any comment about the appropriateness of the European Arrest Warrant though he commented that it was not in Ashya's best interests for him to have been separated from his parents in such circumstances.

Friday, 5 September 2014

EU ~ Lisbon Treaty ~ the bloc opt-out and selective opt-back-in

"Whether EU measures covered by the so-called '2014 block opt-out decision' continue to apply to the United Kingdom and become subject to the jurisdiction of the Court of Justice from 1 December 2014 is a profoundly significant issue. Some—including the European Arrest Warrant—raise questions affecting public safety and security, as well as the protection of individual rights" - (First Joint Report from the European Scrutiny, Home Affairs and Justice Committee - 19th March 2014).

The UK government had the right under the Lisbon Treaty to opt-out of some 135 EU measures relating to justice and home affairs - (post of 19th October 2012).  They also had the right to select which ones to opt back into and it seems that the government has chosen to opt back into around 35 of those measures including the European Arrest Warrant which came to the forefront of the news this week in the Ashya King case. 

Tuesday, 2 September 2014

Ashya King

Update 5th September -  Judiciary - Court Order of 2nd September

Ashya King is a 5 year old boy who suffers from a brain tumour.  He was undergoing treatment at Southampton General Hospital.  According to an article in the Southern Daily Echo 29th August, Ashya was a "long term patient who was permitted to leave the ward under the supervision of his parents as part of his ongoing rehabilitation.  When the length of time he had been absent became a cause of concern to hospital staff ... they contacted police after a search of the site and attempts to contact the family were unsuccessful."  It appears that the parents were hoping to obtain a treatment (proton beam therapy) for Ashya's condition that is available in some European countries but not in the UK. 

The Police eventually obtained a European Arrest Warrant (EAW) (to which Part 3 of the Extradition Act 2003 applies) having discovered that Aysha had been taken, via France, to Spain.   Issues relating to "neglect" were reported to be a basis for the EAW but precise details of any alleged offence were not stated publicly.  Portsmouth Council also took out wardship proceedings in the High Court - see the Order of 29th August. In accordance with the EAW, the parents were arrested in Spain and held in custody.

Monday, 1 September 2014

Child abuse independent inquiry panel

Child abuse inquiry

On 7th July, the Home Secretary made a statement in Parliament on child abuse investigations.  

'I can now tell the House that the government will establish an independent inquiry panel of experts in the law and child protection to consider whether public bodies – and other non-state institutions – have taken seriously their duty of care to protect children from sexual abuse. The inquiry panel will be chaired by an appropriately senior and experienced figure. It will begin its work as soon as possible after the appointment of the chairman and other members of the panel.'

It was later announced

Rotherham ~ Sexual Exploitation of Children ~ the reports

Updated 3rd September

The last week of August saw an explosion of media comment regarding sexual exploitation* of children in the South Yorkshire town of Rotherham in the years 1997-2013 - see ITV Report finds shocking scale of abuse

The Jay Report:

The comment followed a report by Professor Alexis Jay OBE which was commissioned in September 2013 by the Chief Executive of Rotherham Metropolitan District Council - Independent Inquiry into Child Sexual Exploitation in Rotherham (1997-2013).

The Police and Crime Commissioner:

Much of the media comment demanded the resignation of the Police and Crime Commissioner (Mr Shaun Wright) - for example, The Guardian 29th August.  A number of national politicians also joined in these calls - (e.g. The Independent 28th August).  In 2005 Mr Wright (then an elected councillor) became Rotherham Metropolitan District Council's Cabinet Member for Children and Young People's Services.  The Jay Report notes that,

Friday, 22 August 2014

Serious concerns about British citizens fighting abroad

There is growing and serious concern about British nationals going abroad to take part in armed combat in countries such as Syria, Iraq etc.  There are political calls for the government to increase the use of powers that it has in this area to either withdraw passports or deprive an individual of British nationality (e.g. where the individual has dual nationality).  The law is complex.  The following links will be of interest:

British Nationality Act 1981 section 40 - Deprivation of Citizenship

Immigration Act 2014 section 66 - amending section 40 of the British Nationality Act 1981 - this came into force on 28th July 2014.

Parliament - House of Commons Library Standard Note - Immigration Bill: Deprivation of citizenship

Withdrawal of passports - Government statement of 25th April 2013

Previous post 5th February 2014 - Fighting abroad ~ is it against the law?

In  the event that

Thursday, 21 August 2014

Judicial Appointments ~ How it was: how it is

Professor Gary Slapper is a leading academic lawyer and well-known legal author. Recently, he posted the tweet shown below.  That's how it was.  These days, lawyers apply for posts in the judiciary in response to advertisements from the Judicial Appointments Commission.  Of course, this has got rid of the old "tap on the shoulder" system.  That's how it is.

The change came about as a result of the Constitutional Reform Act 2005 Part 4

Terrorism Law ~ Police warn that viewing terrorist material may be an offence ...

Over recent weeks horrific events have taken place in the Middle East.  These events have included the murder (by decapitation) of journalist James Wright Foley who was captured in 2012.  In many quarters, the word "execution" has been used.  I prefer the word "murder" because that is precisely what it is. It is believed that the alleged killer is British - see The Guardian 21st August 2014.   If that proves to be correct then he could be charged with murder and tried in an English court - Offences against the Person Act 1861 s.9

A further sickening development was that the murder was filmed and the film posted on to the internet. Of course, it is beyond belief that any right-thinking decent person would wish to view such material.  Nevertheless, the Metropolitian Police saw fit to issue the following warning:


'We would like to remind the public that viewing, downloading or disseminating extremist material within the UK may constitute an offence under terrorism legislation.'

This prompted the leading writer on legal matters - David Allen Green - to question whether merely viewing this material could actually be an offence under terrorism law. 

Monday, 18 August 2014

"Real prospect of a custodial sentence" ~ Controversy over remands

Battle has been joined between the Magistrates Association and the Howard League ... allow me to explain.

The Bail Act 1976 determines whether or not a defendant will be granted bail (with or without conditions).  Refusal of bail has to be justified on the basis of one of the grounds set out in the Act.  Unfortunately, this Act has been so extensively amended over the years that it is exceptionally difficult to read.  Perhaps one day, Parliament will see its way to enacting a complete update!

One of the recent amendments relates to the so-called "real prospect" test - that is, whether there is a "real prospect" of the individual receiving a custodial sentence should he be convicted.  I will illustrate this by considering a defendant (James) who is charged with assault occasioning actual bodily harm (section 47 of the Offences against the Person Act 1861).  The alleged offence was not in domestic setting.