Monday, 16 October 2017

"Victoria" TV series ~ Daniel M'Naghten

Daniel M'Naghten
The second series of the television programme "Victoria" ended on Sunday 15th October.  (There is to be an extra episode at Christmas).  At times, the series touched upon some of the great issues of those days.

Victoria (1819-1901) was Queen from June 1837 until her death on 22nd January 1901.  The final episode of Series 2 touched upon the Parliamentary struggle for the repeal of the "Corn Laws" which prevented imports of grain and therefore had come to protect wealthy landowners.  A poem of the time summarised the situation: "Ye coop us up, and tax our bread, And wonder why we pine; But ye are fat, and round, and red, And fill'd with tax-bought wine."

The Corn Laws were repealed during the premiership of Robert Peel (1788-1850).  Peel's private secretary was the civil servant Edward Drummond (1792-1843).  Drummond was shot by Daniel M'Naghten (1813-1865) whose name still lives on in English criminal law due to the much-criticised M'Naghten Rules which set out the requirements to establish a defence of "insanity."  Drummond was actually shot from behind and he died of complications which arose following surgery to remove the "leaden bullet" fired from M'Naghten's gun.

Friday, 13 October 2017

Ian Stewart-Brady

" .....even in the sordid history of crimes against children the murders committed by Hindley jointly with Ian Brady, were uniquely evil" - Lord Steyn in R (Hindley) v Secretary of State for the Home Department [2000] UKHL 21.


On 15th May, the "Moors Murderer" Ian Brady died - previous post 18th May 2017.  He was convicted at Chester Assizes in 1966 (Fenton Atkinson J and a jury) of the murders of John Kilbride (12), Lesley Ann Downey (10) and Edward Evans (17).   Myra Hindley, who died in 2002, was convicted of the murders of Lesley Ann Downey and Edward Evans.

Thursday, 12 October 2017

Brexit Notes - Round 5 and other items

Round 5 of the Brexit negotiations has concluded with statements by the EU Chief Negotiator (Michel Barnier) and the Secretary of State for Exiting the EU (David Davis).  Some British politicians will be most unhappy to have heard Mr Barnier state - " ... as things stand at present, I am not able to recommend to the European Council next week to open discussions on the future relationship."

Although the talks clearly made a certain amount of progress, the major sticking point appears to be the financial settlement which Mr Barnier said had not been discussed apart from some technical details.  He said, "We are, therefore, at a deadlock on this question. This is extremely worrying for European taxpayers and those who benefit from EU policies."

Tuesday, 10 October 2017

Brexit - Theresa May's statement to Parliament 9th October

Brexit negotiations are entering the 5th Round and, on 9th October, the Prime Minister made this statement to the House of Commons - see Hansard 9th October.

Mrs May emphasised that the government wishes to secure "a new, deep and special partnership with the European Union which spans both a new economic relationship and a new security relationship" but the UK will not be part of the EU single market or customs union. Also, the idea is rejected of "something based on European Economic Area membership."   Instead, the UK is seeking "a unique and ambitious economic partnership" which will "reflect our unprecedented position of starting with the same rules and regulations."  The UK will maintain its "unequivocal commitment to free trade and high standards."

Saturday, 7 October 2017

Suicide Act 1961 ~ Mr Noel Conway

Mr Noel Conway is 67 years old and suffers from Motor Neurone Disease (MND) which he described as "a relentless and merciless process of progressive deterioration."   When the time is appropriate, he wishes to have assistance to end his life but assisting suicide is a criminal offence in England and Wales - (Suicide Act 1961 section 2).  In the High Court he argued that section 2 of the Suicide Act is incompatible with Article 8 of the European Convention on Human Rights and he asked the court to make a declaration of incompatibility as permitted by section 4 of the Human Rights Act 1998. The court held that section 2 is compatible with the Article 8 rights of Mr Conway and declined to make the declaration.

The Queen (Noel Douglas Conway) v Secretary of State for Justice and others [2017] EWHC 2447 (Admin) - Sales LJ, Whipple and Garnham JJ.  The judgment is also available in pdf format via the Judiciary website.

Monday, 2 October 2017

Judiciary ~ Swearing in ceremonies

Sir Ian Burnett LCJ
The new Lord Chief Justice of England and Wales - Sir Ian Burnett - has been sworn in today (2nd October) - see the Judiciary announcement and the short video statement made by Sir Ian. The Lord Chief Justice holds the office of President of the Courts of England and Wales and is Head of the Judiciary of England and Wales - Constitutional Reform Act 2005 section 7.   Sir Ian is also Head of Criminal Justice but it is permissible for the him to appoint another to that position - CRA 2005 section 8.

Sir Ian is the 19th Lord Chief Justice since the major court reforms of 1875 and he is the 12th since the end of World War 2.  He is the youngest appointee since Lord Parker of Waddington who was appointed in 1958 at the age of 58.

Note 12th October - It has been announced that Sir Ian Burnett will receive a life peerage - Downing Street Press release

Change also took place at the Supreme Court .....

Friday, 29 September 2017

EU (Withdrawal) Bill - Delegated powers - Important House of Lords report



Previous posts have noted concerns in Parliament about the European Union (Withdrawal) Bill.  See 12th September - Deep concerns as EU (Withdrawal) Bill passes second reading in House of Commons;  7th September - House of Lords Constitution Committee - Interim report on EU (Withdrawal) Bill; and 6th September - Massive powers for Ministers under the EU (Withdrawal) Bill.

Numerous amendments put forward:

As at 14th September, the list of proposed amendments to the Withdrawal Bill extends to 74 pages!  See Notices of Amendments.

Delegated powers report:

An important further report contains trenchant criticism of the Bill.  It has been issued by the 

Brexit Negotiations Round 4

Following on from the Prime Minister's speech in Florence, Round 4 of Brexit negotiations have concluded.  The Secretary of State's close of talks statement is HERE and the EU Negotiator's (Michel Barnier) statement is HERE.  The Prime Minister's speech was said by Mr Barnier to have "created a new dynamic in our negotiations."  Talks will resume on 9th October.

In his Round 4 closing statement, Mr Davis referred to publication of an updated table showing many areas of agreement.  For this see Department for Exiting the EU - Joint Technical Note

The Florence Speech was notable

Wednesday, 27 September 2017

R v Lavinia Woodward

Addendum 28th September + Addendum 29th September

TOFF JUSTICE is how The Sun newspaper described the sentencing of Lavinia Woodward who, in December 2016, had used a bread knife to wound her boyfriend- The Sun 26th September.  The report is riddled with comments implying that the Judge - His Honour Judge Pringle QC - was far too lenient on Miss Woodward.  She was "spared jail" and she "tearfully mouthed “thank you” to Judge Ian Pringle as he let her off with a suspended sentence - then walked out of court with a huge smile."  The Sun points out that - " ...  the judge’s leniency infuriated justice campaigners, who said offenders from less privileged backgrounds were regularly locked up for similar attacks."  The newspaper also offers three examples of women who had committed similar offences but they are "not posh" and so were jailed.  Those included the case of Angela Stead - 2 years for slicing her victim's artery causing severe blood loss.

Once charged with the offence,

Tuesday, 26 September 2017

"Double the powers of Magistrates" - said LCJ.


Magistrates' Courts should have their power of imprisonment doubled.  This view was put forward by the Lord Chief Justice (Lord Thomas) when opening a new Magistrates Association National Office at St. George Wharf (Vauxhall).  If adopted, the Magistrates' Court would be able to impose a sentence of up to 12 months imprisonment for a single imprisonable offence instead of the current maximum of 6 months.  Around 10,000 additional cases per year would remain with the magistrates  rather than being sent to the Crown Court.  The financial saving would be considerable because, at around £900 per day, Magistrates' Courts are a cheaper form of justice than trial on indictment in the Crown Court - (about £3400 per day).

Monday, 25 September 2017

Prison Reform Trust - Prison: The Facts 2017



On 22nd September 2017, the prison population of England and Wales was 86,200 against an operational capacity of 87,387 - Ministry of Justice Weekly - Prison population figures.

The Prison Reform Trust has published a briefing - Prison: The facts.  The briefing (16 pages pdf) is well worth reading in full.

England and Wales has the highest imprisonment rate in western Europe. In 2016, nearly 68,000 individuals were sent to prison and the majority of those (71%) were sentenced for non-violent offences.  Sentences of 6 months or less accounted for almost half that figure.

Friday, 22 September 2017

Retiring LCJ to review Welsh justice system and policing


On 7th September, the retiring Lord Chief Justice, Lord Thomas of Cwmgiedd, issued his final annual report HERE and, on 14th September, he gave evidence to the House of Commons Justice Committee.   His appearance before the committee may be viewed HERE and a transcript is available.

I believe that Lord Thomas is the first Lord Chief Justice to have been born in Wales since Alfred Lawrence (Lord Trevethin) who served as LCJ briefly from 1921-22.  Interestingly, Lord Trevethin's third son was Geoffrey Lawrence who presided at the Nuremberg Trials.

The Welsh Government

Tuesday, 19 September 2017

R v Charlie Alliston

Charlie Alliston - now aged 20 - has been sentenced to 18 months detention in a Young Offenders Institution for an offence contrary to the Offences Against the Person Act 1861 section 35.

On 12th February 2016, Mr Alliston was cycling at approximately 18 mph down Old Street (London).  As he approached the junction with Charlotte Road the traffic lights were at green in his favour.  Mrs Kim Briggs was trying to cross Old Street.  Mr Alliston ran into her causing injuries which proved to be fatal.  It appears from the sentencing remarks of Her Honour Judge Wendy Joseph QC that Mr Alliston saw Mrs Briggs, swerved, slowed to 10-14 mph and was shouting to Mrs Briggs - "Get out of the fucking way."

Friday, 15 September 2017

Grenfell Tower Inquiry underway but criticisms persist

Formal opening:

The Grenfell Tower Inquiry formally opened on Thursday 14th September and the Chairman (Sir Martin Moore-Bick) made his opening statement which may be read HERE or viewed via Youtube.

List of Issues - NOT exhaustive:

The Inquiry has published a List of Issues but the list is NOT exhaustive - it is described as a Guide to the issues on which the Inquiry's investigations will focus.

Terms of Reference:

Wednesday, 13 September 2017

Under attack - the Conservative - DUP "confidence and supply" deal

Following the General Election 2017 and the weakening of the Conservative Party's position in the House of Commons, a "confidence and supply" deal was arranged between the Conservative Party and the Democratic Unionist Party (DUP) in Northern Ireland - Telegraph 26th June.

The agreement is available HERE and it is notable that the DUP agreed to support the Conservative government on

Tuesday, 12 September 2017

Deep concerns as EU (Withdrawal) Bill passes Second Reading in House of Commons

For all the sound and fury, the European Union (Withdrawal) Bill survived its Second Reading in the House of Commons by 326 votes to 290 - (majority 36).  The debate and the voting may be seen at Hansard Online - European Union (Withdrawal) Bill - Day 2 .  Day 1 of the Second Reading was on Thursday 7th September - Hansard.   The House of Commons debate highlighted serious concerns about the Bill including the way in which Parliament is in danger of becoming akin to a rubber stamp for Ministers.

Deep concerns remain:

Thursday, 7 September 2017

House of Lords Constitution Committee - Interim report on EU Withdrawal Bill

The House of Lords Select Committee on the Constitution has issued an Interim Report on the European Union (Withdrawal) Bill - 3rd report Session 2017-19.  The five Chapters in the report an Introduction, EU Law and Exit Day, Delegated powers, Court of Justice of the EU and Devolution.

The report identifies three broad constitutional themes - the relationship between Parliament and the Executive; the rule of law and legal certainty and, thirdly, the stability of the UK's territorial constitution.

The Bill gives the executive

Wednesday, 6 September 2017

Massive powers for Ministers under the EU (Withdrawal) Bill

I recall a thinly attended "Constitutional Law" lecture held on a chilly winter's day almost 50 years ago.  The lecturer, a pleasant and elderly gentleman, turned to "Delegated Legislation."  Here was a topic guaranteed to make even the brightest of young eyes glaze over or, as some did, skip the lecture and head for the bar!

The little we needed to learn about Delegated Legislation in order to pass the subsequent constitutional law examination could have been written easily on a single side of Foolscap Folio paper and copied using a Gestetner machine.  Acts of Parliament quite often granted powers to Ministers to legislate.  These "delegated powers" left it to Ministers to do lots of seemingly harmless things such as to decide when sections of the Act came into force and fill in the extensive detail needed to implement the Act.  Occasionally,

Tuesday, 5 September 2017

Grenfell Tower ~ Panel and Assessors

The Grenfell Tower Fire Inquiry Chairman wrote to the Prime Minister on 10th August regarding the Inquiry Terms of Reference.  His letter referred to appointment of assessors - (Letter to PM).  Sir Martin wrote - " ... I think is is likely that I shall wish to appoint a diverse group of people whose experience extends to the occupation and management of social housing and the administration of local government more generally, as well as to matters of a more scientific nature.  At a later stage I may also wish to appoint others to assist on particular aspects of the investigation."

The Inquiries Act 2005:

Saturday, 2 September 2017

EU (Withdrawal) Bill ~ House of Commons Paper

The House of Commons Library has published a report on the European Union (Withdrawal) Bill which had its First Reading on 13th July 2017.

House of Common Briefing Paper No. 8079, 1st September 2017 - The European Union (Withdrawal) Bill by Jack Simson Caird, Vaughne Miller and Arabella Lang.  The Paper, which extends to a summary and 11 sections, begins by noting the Bill will bring about a complex mixture of constitutional change and legal continuity and states that it is the most significant constitutional bill introduced since the European Communities Act 1972.  Of that there can be no doubt.

Friday, 1 September 2017

Brexit negotiations - brief note on Round 3

A field in North Yorkshire

Five clear months have elapsed since the Prime Minister notified the EU that the UK would be leaving the EU.  On 22nd May the EU Council finalised its negotiating objectives for the starting phase of negotiations.

A first round of talks was held in June and a second round in July.  Some progress has been made but  Round 3 of the Brexit negotiations ended in Brussels on Thursday 31st August without major progress in the three areas set by the negotiating objectives - Citizen's Rights, the Financial Settlement and the Situation in Ireland.

The EU's principal negotiator - Mr. Michel Barnier - made a statement (HERE) noting that there was "useful clarification on many issues" but no decisive progress on the main subjects.  "At the current rate, we are far from seeing sufficient progress to be able to recommend to the European Council that we begin the discussion on the future relationship between the United Kingdom and the European Union at the same time as we will finalise throughout the year 2018 the withdrawal agreement."

The statement by the UK Secretary of State for Exiting the EU is HERE.

Thursday, 31 August 2017

UK - EU financial settlement - a note

The UK-EU financial settlement, citizens' rights and the situation of Ireland are the key areas under discussion in the present round of Brexit negotiations.

In March 2017, the House of Lords EU Committee 15th Report for session 2016-17 "Brexit and the EU budget" examined the potential financial demands in Chapter 3 and the UK's legal obligations in Chapter 4. At para. 137 the report said - " ..., the political and economic consequences of the UK leaving the EU without responding to claims under the EU budget are likely to be profound.  If the UK wants a preferential trading relationship with the EU, including a transitional arrangement, the EU partners may well demand a financial contribution post-Brexit."

On 13th July, David Davis MP said to the House of Commons - "On the financial settlement, as set out in the Prime Minister’s letter to President Tusk, the Government have been clear that we will work with the EU to determine a fair settlement of the UK’s rights and obligations as a departing member state, in accordance with the law and in the spirit of our continuing partnership. The Government recognise that the UK has obligations to the EU, and the EU obligations to the UK, that will survive the UK’s withdrawal—and that these need to be resolved."  (Hansard - Statement).

Wednesday, 30 August 2017

Disclosure Survey ~ Interim results - Disturbing results emerge

How should the legal system deal with your case if YOU were charged with a criminal offence?  You would be certain to wish for a fair hearing within a reasonable time by "an independent and impartial tribunal."  The quoted words are from the European Convention on Human Rights and they reflect the position as it is established in the legal systems of the United Kingdom.

In England and Wales, that "independent and impartial tribunal" will often be the Magistrates' Court where around 90% of criminal cases are dealt with but it seems that all is far from well in those courts. 

Sunday, 27 August 2017

Brexit - one year on

Here are two interesting presentations reflecting on Brexit a year after the referendum.

Vernon Bogdanor Lecture- Brexit: One year on (2017)

Professor Michael Dougan - Project fear to project reality


Both are on Youtube and are well worth listening to.  There is also the "Kingston Smith debate" held on 28th June 2017.

Brexit - Negotiations Round 3 ~ Government publishes further papers


The Department for Exiting the EU (DExEU) has published a programme for the Third Round of Brexit negotiations to be held in Brussels from 28th to 31st August 2017.  In addition, the DExEU has published papers dealing with various aspects of Brexit - Article 50 and Negotiations with the EU

  Papers on Future Customs Union and Northern Ireland were the subject of this previous post (18th August).

The EU side of the negotiations basically operates in accordance with the European Council (Art. 50) Guidelines issued on 29th April 2017 and other official documents – see LIBRARY below.  At this stage, the EU guidance requires their negotiators to focus on Citizen's Rights, Financial Settlement and the Situation of Ireland.  The UK side appears to be keen to move the talks into other areas though the financial settlement ("divorce bill") is likely to be a major sticking point - The Guardian 28th August.   This May 2017 post looked at the financial situation as it appeared at that time. 

Friday, 18 August 2017

Brexit ~ Government Papers


Brexit will place the UK outside the EU Customs Union and Internal Market both of which, under the EU Treaties, are key features of the EU's structure.  The Department for Exiting the EU has published a "future partnership paper" - Future Customs relationship with the EU

A "position paper" deals with Northern Ireland and Ireland and proposes no physical infrastructure at the border - Pledge to protect the Belfast Agreement and Common Travel Area

Law Society Report on the state of legal aid


Four years ago, the coalition government implemented the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Hundreds of thousands of people who were eligible for legal aid on 31 March 2013 became ineligible the very next day.   Four years on, the Law Society has conducted a review of the legal aid changes introduced under the act. This review concludes that:
1. Legal aid is no longer available for many of those who need it
2. Those eligible for legal aid find it hard to access it
3. Wide gaps in provision are not being addressed
4. LASPO has had a wider and detrimental impact on the state and society
The review includes 25 recommendations to government, focusing on issues including increasing children's access to legal aid, reintroducing legal aid for early advice, and improving Exceptional Case Funding and the legal aid means test.  The report is available via  Law Society 29th June 2017.

Disclosure ~ an on-going problem in criminal cases

The unhappy state of affairs regarding Disclosure is yet again highlighted by a survey being undertaken by the Criminal Law Solicitors Association (CLSA) - CLSA Disclosure Survey.

Disclosure problems appear to beset the criminal justice system - previous recent posts - Stories from the Criminal Courts (6th August) and 19th July 2017 - Making it fair - the crucial matter of disclosure in criminal cases

Tuesday, 15 August 2017

Grenfell Tower Fire - Inquiry terms of reference published

Updated 16th August:

The Terms of Reference for the Grenfell Tower Inquiry have been published by the government and may be read on the Grenfell Tower Inquiry website (HERE).  The terms are those recommended by the Inquiry Chairman - see page 4 of Sir Martin Moore-Bick's letter to the Prime Minister - (HERE).

Over 550 written responses were received in response to the terms of reference consultation and they are summarised at pages 5 to 7 of Sir Martin Moore-Bick's letter to the Prime Minister

Monday, 14 August 2017

EU (Withdrawal) Bill - Devolution and other points

This post looks at Legislative Consent and some other matters raised by the European Union (Withdrawal) Bill which was presented to Parliament on 13th July.  Explanatory Notes are available - HERE.  Previous posts considering aspects of the Bill are OVERVIEW , ECA Repeal and Exit Day , Retention of Existing EU Law, , Clause 6 - InterpretationFrancovich and Ministerial powers to legislate.

: Clause 1 :

"The European Communities Act 1972 is repealed on exit day."  As noted in this previous post, Clause 1 will repeal the mechanism by which EU law has been able to enter the domestic legal systems of the United Kingdom.  The Bill does not set out a single date to be Exit Day and it is for Ministers to decide.

Given that repeal of the ECA 1972 will bring about major constitutional and legal change, it might have been prudent for Parliament to retain some form of control over the specific date on which the European Communities Act 1972 is repealed but the Bill does not appear to do so.

Sunday, 13 August 2017

The EU Collection

13/8/2017 - Few topics have produced as much commentary as Brexit.  Here is a link to my various posts on this crucially important topic.  Please also see the LIBRARY (below) for links to relevant official material.

The posts are my attempt to set out events as they have occurred, to offer my viewpoint and to offer links to the views of others.   I will add to the list as things develop.

EU and the UK - Collection of Posts - Law and Lawyer posts from 20th February 2016 to 23rd July 2017.

The European Union (Withdrawal) Bill

EU (Withdrawal) Bill - Henry VIII at his best - Ministerial powers to legislate

Henry VIII

The European Union (Withdrawal) Bill, as presented to Parliament on 13th July, sets out to (a) repeal the European Communities Act 1972 on "exit day", (b) preserve legal continuity (but with notable changes) and (c) to define various forms of "retained" law and to specify how such law is to be interpreted.

Clauses 7 to 9 - "Main powers in connection with withdrawal" and Clauses 10 and 11 (Devolution) - are the subjects of this post.

Clause 7 is about legislation to deal with "Deficiencies arising from withdrawal".  Clause 8 is about legislation to comply with international obligations and Clause 9 is Implementation of the Withdrawal Agreement.   The late (despotic) Tudor Monarch - Henry VIII (1491 to 1547) - would have been proud of those clauses which enable secondary legislation to do anything that could be done by Act of Parliament.  The Delegated Powers Memorandum lists 14 separate powers in the Bill.

EU (Withdrawal) Bill ~ It will be goodbye to Francovich

Francovich 1991
This post continues my look at the European Union (Withdrawal) Bill  with a particular focus on Schedule 1 to the Bill which is entitled "Further provision about exceptions to savings and incorporation."   Legal effect is given to the Schedule by Clause 5(6)

Explanatory Notes are available - HERE.  Previous posts considering aspects of the Bill are OVERVIEW , ECA Repeal and Exit Day , Retention of Existing EU Law and Clause 6 - Interpretation.

Schedule 1 makes frequent appearances in the Bill - see Clause 2(3), Clause 3(5), Clause 4(3).  The wording, on each occasion, is - "This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation).  Tucked away in this Schedule are some very important matters:

Saturday, 12 August 2017

EU (Withdrawal) Bill ~ Clause 6 - Interpretation



Labyrinthine Legislation
With masterly understatement, Dr. Paul Daly (University Senior Lecturer in Public Law, University of Cambridge) wrote that - "Even seasoned lawyers are not going to enjoy navigating these provisions"

This post looks at Clause 6 of the European Union (Withdrawal) Bill  - Interpretation of Retained EU law.  Explanatory Notes are available - HERE.  Previous posts considering aspects of the Bill are OVERVIEW , ECA Repeal and Exit Day and Retention of Existing EU Law.


Definitions in Clause 6:

Friday, 11 August 2017

EU (Withdrawal) Bill ~ Retention of Existing EU law

This post continues my look at the European Union (Withdrawal) Bill as introduced into Parliament on 13th July 2017.  Previous posts are HERE and HERE.  Very little of this complex and cumbersome Bill is easy reading.  Nevertheless, it is of crucial importance for the state of our law in the future. 

Since accession to the EU in 1973, an enormous amount of law has flowed into the UK via the European Communities Act 1972 (the ECA) - referred to in the Miller judgment (para 65) as a 'conduit pipe.'  The general scheme of the EuropeanUnion (Withdrawal) Bill is to retain, with important exceptions, EU law as it exists immediately before exit day and then to give (extensive) powers to Ministers to alter things.   Clauses 2 to 6 are concerned with Retention of Existing EU law.  The Explanatory Notes offer assistance with their interpretation.

Thursday, 10 August 2017

Looking at the EU (Withdrawal) Bill ~ Clause 1 (ECA 1972 repeal and Exit Day)

EXIT DAY
On 13th July, the European Union (Withdrawal) Bill had its first reading in the House of Commons.  A previous post is an overview of the Bill and also offers links to commentaries by several other writers.

Clause 1 simply states: "The European Communities Act 1972 is repealed on exit day."   This apparently straightforward statement merits closer examination.

The European Communities Act 1972 (ECA) is

Tuesday, 8 August 2017

Patrick Finucane ~ decision not to hold public inquiry reaches Supreme Court

Over 28 years ago, Northern Ireland lawyer Patrick Finucane was gunned down at his north Belfast home whilst he was having dinner with his wife Geraldine and their three children.  Mr Finucane was 39 years old and from a Republican family.  As a solicitor he had advised members of the IRA but he had also represented Protestants accused of terrorist offences.  The British government promised to hold a public inquiry and that promise was made to both Mrs Finucane and to the Government of the Republic of Ireland, the political parties at the Weston Park Conference and to the general public.  See the Good Friday Agreement Implementation Plan 1st August 2001.

In 2010, when the Coalition government was formed, a decision was taken to hold a Review rather than a Public Inquiry. 

Sunday, 6 August 2017

Stories from the criminal courts

Knowing the case against you:

Any person charged with a criminal offence ought to be informed of the prosecution evidence in good time so that the appropriate plea may be entered and, if the plea is not guilty, the defence prepared before trial. This proposition appears self-evident if there is to be a fair trial (as required by English Law as well as Article 6) but, in practice, things do not appear to going too well according to solicitor Robin Murray -  Minted Law - Despatches from the Disclosure Battle Front.   Mr Murray was the winner of the Legal Aid Lawyer of Year Award in 2015. and also winner of Kent Law Society exceptional achievement award 2015.

Friday, 4 August 2017

An abysmal situation - care proceedings - the case of X

Updated 7th August: Re X (A Child) (No. 4)

The case of X (A Child) highlights the lack of clinical, residential and other support services so desperately needed by the increasing numbers of children and young people with mental health problems.  Such children all too frequently come into contact with either the criminal justice system or are the subject of care proceedings or, as in X's situation, both.

X is now 17 years old and she is subject to a care order made on 15th June 2017 by the President of the Family Division - Sir James Munby. The judgment dealing with the care order is X (A Child) (No. 2) - [2017] EWHC 1585 (Fam).

X is also subject to a Detention and Training Order (DTO)

Wednesday, 2 August 2017

Court of Protection

Of all the courts of England and Wales, one of the least understood is the Court of Protection. It is a court empowered by Parliament to decide issues relating to those who lack mental capacity to make their own decisions.  This is a complex field.  The vast majority of people who encounter the Court of Protection will need specialist legal help but it is a regrettable fact that legal aid is not always available under current arrangements.  The absence of legal aid in many important areas can amount to a denial of access to justice and it is a national scandal.  Let's take a closer look at the court.

Tuesday, 1 August 2017

Tony Blair (and others) will not face trial for "aggression"

The war against Iraq began on 20th March 2003.  It caused deep divisions among the people of the UK.  On 18th March 2003, the House of Commons - in which the Labour Party held a large majority - passed a motion supporting the war - 396 votes to 217.  At the time, Tony Blair was Prime Minister; Jack Straw was Foreign Secretary and Lord Goldsmith QC was Attorney General.

In November 2016, District Judge Snow at City of Westminster Magistrates Court was asked to issue a summons to commence a private prosecution of Tony Blair, Jack Straw and Lord Goldsmith for the offence of "aggression."  The District Judge refused to issue a summons on the basis that aggression is not an offence known to the criminal law of England and Wales - see the House of Lords decisions in R v Jones and others [2006] UKHL 16 and R (Gentle) v The Prime Minister and others [2008] UKHL 20.

Sunday, 30 July 2017

Inquiries ~ some updates

Grenfell Tower Update:

The Grenfell Tower Inquiry continues to consult regarding the Terms of Reference.  The consultation period was extended to 4th August 2017 - Grenfell Tower Inquiry website.   The "Inquiry Team" has been appointed. Richard Millett QC is Counsel to the Inquiry.  He has extensive experience of handling complex commercial disputes in a range of specialist areas, with an emphasis on advocacy in court, arbitration and other tribunals. Mr Millett will be assisted by Bernard Richmond QC and Kate Grange QC.

The Department for Communities and Local Government is publishing information about developments relating to Grenfell Tower - HERE.   One important development is that the government has set up a review of Building Regulations and Fire Safety.  The first results from large scale tests of building cladding systems have also been published. The latest tests simulate a tall building and allow experts to understand better how different types of cladding panels behave with different types of insulation in a fire.  See BBC News - 60 Blocks fail new fire test.

Thursday, 27 July 2017

Baby Charlie Gard

Baby Charlie Gard was born on 4th August 2016 and was found to have a complex inherited condition which may be abbreviated to MDDS.  This poignant case has attracted a vast amount of comment in the media and elsewhere but, to obtain a thorough understanding of the situation, there is NO substitute for reading the judgments of the courts and the position statements of the parties.  The statements may be read via Serjeant's Inn 31st July 2017.

MDDS is described by Mr Justice Francis in his judgment of 11th April 2017 at paragraph 52 - Family Division, Mr Justice Francis judgment 11 April 2017 (transcription published May).  Baby Charlie was receiving medical care at Great Ormond Street Hospital (GOSH). On 24th February 2017, GOSH applied to the High Court for certain orders to be made and this application was opposed by the parents - Constance Yates and Chris Gard.  On 11th April 2017, Francis J granted the hospital's application.  The parents appealed to the Court of Appeal (Civil Division).

Employment Tribunal Fees ruled unlawful

The Rt Hon Chris Grayling MP served in the Coalition Government as Lord Chancellor and Secretary of State for Justice from 4th September 2012 to 9th May 2015.  Today, he is Secretary of State for Transport.  I am not proposing to discuss in detail Mr Grayling's tenure as Lord Chancellor apart from noting that, from the viewpoint of access to justice, it was not a glorious period.

Access to justice was made difficult (perhaps impossible) for many people through the removal of whole areas from legal aid (the Legal Aid, Sentencing and Punishment of Offenders Act 2012) and by the introduction of fees to access the law in, for example, employment tribunals - the Employment Tribunals and Employment Appeals Tribunal Order 2013.  In making this Order, Mr Grayling used powers in section 42 of the Tribunals, Courts and Enforcement Act 2007.  The "fees order" resulted in a large reduction in the number of claims brought to Employment Tribunals including so-called "Type B" claims in areas such as unfair dismissal, equal pay and discrimination.  Due to events in the workplace, women are more likely to have to bring such claims than men. Nevertheless, the reasons for making the Fees Order included a desire to deter vexatious claims.

The Trade Union - UNISON -

Tuesday, 25 July 2017

A reminder of times of old



Shire Hall, Appleby

On 1st January 1972, over 800 years of legal history came to an end with the establishment of the Crown Court of England and Wales.  This was one effect of the Courts Act 1971 - (the link is to the Act as originally enacted).   Since the 12th century, judges journeyed from London to preside at the Assizes in all the counties of England and Wales.  The Assizes tried the most serious cases such as murder.  Other courts with criminal jurisdiction were the Quarter Sessions and the Magistrates’ Courts (or Petty Sessions).  The Courts Act abolished courts of assize and quarter sessions and gave their criminal jurisdiction to the newly formed Crown Court.

Sunday, 23 July 2017

EU view of the Article 50 notice ~ but is it correct?

Extended 26th July: Additional links included.

Information regarding Brexit negotiations is available from the European Commission "State of Play of Article 50 negotiations with the United Kingdom" and at the Commission's dedicated website and also from the UK Department for Exiting the European Union - HERE.

The Prime Minister "triggered" Article 50 on 29th March 2017 - see Plan for Britain.  The Commission's "state of play" document asks whether the Article 50 notification can be revoked and offers the stark answer: ".... once triggered, it cannot be unilaterally reversed. Article 50 does not provide for the unilateral withdrawal of the notification." [My emphasis].

The EU refers here to unilateral withdrawal.  Nothing is said about whether the notification can be withdrawn by agreement and there appears to be no reason why the EU and the UK could not agree to "forget the whole thing."