Tuesday, 11 July 2017
Tuesday morning - roundup of news
The Charlie Gard case is back before the High Court - BBC News 10th July. Great Ormond Street Hospital (GOSH) referred the case back to the High Court after reports of "new" data from foreign healthcare experts suggested treatment could improve his condition. The new hearing is before Mr Justice Francis who also conducted the original High Court hearing held in April. It is particularly notable that legal aid for Charlie's parents is not available at this hearing.
Grenfell Tower - as mentioned in this earlier post, the Grenfell Tower Fire Inquiry is yet to have its terms of reference agreed. Interestingly, Dr Richard Stone has argued that there is no need to spend time on sorting these out - Lessons for the Grenfell Tower Inquiry. Dr Stone served as an Adviser to the Stephen Lawrence Inquiry (Chaired by Sir William Macpherson) and he points out that the Lawrence Inquiry terms were simply to look into "matters arising from the death of Stephen Lawrence." This could be adapted into "matters arising from the fire in Grenfell Tower on [14th] of June 2017."
Dr Stone is probably right to argue that a complex formula is not required for the terms but there is a need for wide terms if there is to be any hope of either the families or general public being satisfied with the outcome of the inquiry. Most importantly, the terms must leave no doubt that the inquiry is able to examine any relevant matter prior to the fire and not just immediate causes and the response.
Barrister Gordon Exall has considered criticisms of the appointment of Sir Martin Moore-Bick as Chair of the Grenfell Inquiry and asks whether this judge is a good fact finder. - see Civil Litigation Brief. This is an important question and Mr Exall provides a well-considered answer.
In CIVIL litigation it is a key part of the judge's duty to "find the facts" and these are often intensely disputed. Evidence can be very complicated and often includes expert technical evidence. The parties will seek to present their version in the light most favourable to their case and evidence is frequently contradictory. Individual witnesses - even for the same side - differ in details. There may also be a mass of documentary evidence to sift. These skills are acquired during a long legal career - particularly a career involving High Court litigation - and there can be no doubt that commercial law litigation can be factually complex. Mr Exall has taken the time to look at cases decided by Sir Martin - e.g. Agapitos v Agnew  EWHC 1558 Com - and concludes that the central task now is to establish the facts and there is no doubt that Sir Martin is well-qualified to do this. Once the facts are found and recommendations made it will then be for the politicians and policy makers to decide what is to be done.
Arms Sales to Saudi Arabia - The sale of arms to nations such as Saudi Arabia is a highly contentious political issue. Judicial review is one of the ways in which English Law keeps public bodies (including the government) within the law. Judicial review is therefore about legality and the courts have developed a complex set of principles by which the actions of decision-makers may be challenged. A key point is that the process is NOT about the courts (judges) replacing the decision-maker or the decision. Provided the decision-maker is within the law then the decision will not be condemned.
The sale of arms to other nations is lawful provided it is conducted in accordance with the relevant law - Export Control Act 2002 and, under section 9 of that Act, EU guidance has been adopted by the British government - (Council Common Position 2008/944). The guidance seeks to prevent exports where there is a clear risk that items might be used in the commission of a serious violation of international humanitarian law. The Campaign against the Arms Trade argued that this criterion was breached but the Secretary of State argued that, on the basis of sophisticated sources of information available to him, this was not so. The court accepted the Secretary of State's argument - R (Campaign against the Arms Trade) v Secretary of State for International Development  EWHC 1726 QB.
It will be noted that there is a publicly available judgment and also a "closed judgment."
Clearly, the trade will continue so long as it is "within the rules." If this trade is to be stopped then it will be necessary to get Parliament to stop it.
The Independent 6th July - Saudi Arabia and Yemen
Non-jury trial in Northern Ireland is back in the news given the decision to extend the possibility of its use by a further two years - BBC News Northern Ireland 5th July 2017. The government consulted about this extension with the outcome that there should be an extension but that an independent reviewer would keep the arrangements under scrutiny. The arrangements are made under the Justice and Security (Northern Ireland) Act 2007. This form of trial is, within Northern Ireland, a lingering effect of the former so-called "Diplock Courts." Non-jury trial on indictment was introduced for England and Wales under the different provisions of the Criminal Justice Act 2003 Part 7.
Deprivation of Liberty - The Coroner's Society for England and Wales has drawn attention to a little-noticed change in the law which came into effect on 3rd April 2017. Deprivation of Liberty under the Mental Capacity Act 2005 is no longer classified as State Detention. See HERE. This comes about with implementation of section 178 of the Police and Crime Act 2017. The effect of this is to remove the duty on coroners to conduct an inquest in all cases where the deceased had an authorisation for the deprivation of their liberty in place either under an Mental Capacity Act Deprivation of Liberty Safeguard (“DoLS”) or a Court of Protection Order or the deprivation of their liberty was otherwise authorised by the Mental Capacity Act. Coroners will continue to have a duty to conduct an investigation into the death of any person who was in custody or otherwise in state detention, or whose death was violent, unnatural, or of unknown cause. Therefore, when a person dies whilst deprived of their liberty under the MCA on or after 3rd April, the death should still be referred in the normal way to the coroner where there are any concerns about the cause of death including where there is a concern that a failure of care may have contributed to the death.
Three recent speeches are of considerable interest.
Lord Neuberger gives welcome address to Australian Bar Association Biennial Conference, London
Access to Justice - 3 July 2017. This speech is notable for Lord Neuberger's comments about the state of legal aid and access to justice.
Lord Chief Justice - Lord Thomas - Speech to HM Judges 5th July. Here, Lord Thomas looks at the post-Brexit future.
Lady Hale at the Canadian Institute for Advanced Legal Studies' Cambridge Lectures 2017 The United Kingdom Constitution on the move 7 July 2017