Mid-week News Roundup

Human Rights ~ Remember the Commission on a British Bill of Rights? - Law and Lawyers 18th December 2012.   A Library Note has been issued by the House of Lords in advance of a debate on 20th June about “the report of the Commission on a British Bill of Rights”. The Note contains a brief summary of the development of human rights law in the United Kingdom and previous proposals for a British Bill of Rights, before précising a selection of the findings of the report of the Commission on a Bill of Rights. The Note concludes with an overview of some of the responses to the report.

In the European Court of Human Rights, an application may be rejected if it is 'manifestly ill-founded.'  Ever wondered just what this phrase means?  Is it possible for a decision that a claim is 'manifestly unfounded' to be made by a majority?  The answer to that is YES.  Strasbourg Observers consider this in an interesting and useful post.  They note - ' ... unlike in judgments – no information is given on the division in the Chamber that delivered these decisions. The decision merely states “manifestly ill-founded, by a majority”, without indicating how many Judges

R v Benjamin Curtis ~ Sentencing ~ Manslaughter (by shaking) of baby

Benjamin Curtis has been sentenced to serve 2 years imprisonment for the manslaughter of Ocean Elliott.  The brief sentencing remarks of Nicol J are available via the Judiciary website - (HERE).  The judge described Curtis as having learning disability and as having a limited ability to understand verbal information.

Curtis pleaded guilty to manslaughter at a late stage in the proceedings but he was allowed a full one-third discount on the basis that expert evidence was required to establish a causal link between Curtis shaking baby Ocean and her subsequent death.   The shaking occurred when Ocean was 14 weeks old but she lived - albeit with serious disability - until approximately age 2 years 9 months.

In 2006, Curtis had received a caution for

R v Stuart Hall ~ Sentencing

Sentencing offenders is a difficult legal art and not a science.  From time to time there are particular cases where one is saddened to see a particular defendant in the dock but the law must be upheld.

One such case is, to my mind, that of the veteran broadcaster and presenter Stuart Hall who has been sentenced to a total of 15 months imprisonment for 14 counts of indecent assault committed in the period 1967 to 1985/6 on victims in age range 9 to 17.  Some of the offences involved breaches of trust.  The sentencing remarks of the Recorder of Preston ( His Honour Judge Anthony Russell QC) are available via the Judiciary website - (HERE). 

In his remarks, the judge noted that the offences varied in seriousness.  There were

Legal Aid: that was the week that was.

Save Justice -  The government is changing legal aid!  It will affect you!   This explains why.

The campaign against the government's proposals for Reforming legal aid continues so please consider signing the e-petition on Legal Aid.  This seeks to persuade the House of Commons that a debate is necessary about proposals which will put numerous firms of high street solicitors out of business, effectively remove your right to choose your solicitor, hand public money to a chosen few private suppliers of legal aid work, and devastate the independent criminal bar.  Even if you get legal aid and are acquitted, you may still have to pay a considerable contribution to your own defence.  This could lead to many DIY defendants: people who feel forced to defend themselves rather than expose their savings and home to a legal aid contribution.  Surely, the Secretary of State should not be simply allowed to sign this into law.  Parliament must do its job and hold him to account.

The consequences for those charged

Murder: Crown Court at Preston ~ R v Cregan, Livesey, Gorman, Wilkinson, Ward and Ali

At the Crown Court (Preston) after a 77 day trial before Holroyde J and a jury, a sentence of imprisonment for life with a whole life term has been imposed on Dale Cregan.  He is guilty of four murders (including two Police Officers in September 2012), three attempted murders and causing an explosion.  Other defendants were also sentenced.  The judge's sentencing remarks are here.   Holroyde J stated that the defendants had shown 'no hint of remorse or compassion'.

Wilkinson was sentenced to life imprisonment for murder with a minimum term of 35 years.  Livesey and Gorman - life imprisonment for murder - minimum term 33 years.  Ward - life imprisonment for murder - minimum 33 years.  Ali - assisting an offender 7 years.

BBC News England 13th June 2013

Manchester Evening News - Full coverage: Cregan Trial

Legal news in brief

Supreme Court UK

* Two cases concerned with prisoners and voting have been heard in the Supreme Court of the UK - R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent) and McGeoch (AP) (Appellant) v The Lord President of the Council and another (Respondents) (Scotland).  See Prisoner Voting: Murderers challenge ban - BBC 10th June 2013.

* Three Supreme Court judgments were handed down on Tuesday 11th June: In the matter of B (A Child) - (Youtube); Petrodel Resources Ltd v Prest - (Youtube); Ust-Kamenogorsk - (Youtube).   For a view of the Petrodel case see the article by Chris Bryden (barrister at 4KBW) - Solicitors Journal - Prest: transfer of assets to corporate stuctures will be harder to challenge. 

*  The 8 year prison sentence imposed on Sarah Louise Catt has been reduced to three and a half years - The Guardian 12th June 2013.   Catt was sentenced for procuring a miscarriage - Offences against the Person Act 1861 s.58.  Law and Lawyers considered the case at the time and formed the view that the sentence was too high.

*  Michael Brewer's appeal against his 6 year sentence for 5 counts of indecent assault on Frances Andrade has been dismissed - Manchester Evening News 12th June.  This appeal

Yuppy, beady-eyed crowds; Fat Cats and Moggies! Wednesday thoughts.

Updates 16th June *** Mail on Sunday corrects daily's legal aid sums *** So that league table of supposed greed is selective bunk.

*** Please sign the e-petition on Legal Aid

The government's purge of legal aid crosses the border into authoritarianism and tyranny - Conservative Student 20th May

Lord McNally's balloons - Guy Gozem QC

Natural justice faces a savage loss of innocence - Nick Cohen - 15th June 2013


Like many nations, the UK has been hit by the general economic crisis.  It is generally accepted that there is a need to save considerable sums of money and it is for government to identify ways in which the money might be saved.  Most areas of government are having to take cuts and the decisions needed are not easy.  We all wish to have good health care, fine schools and many other things including access to justice with legal aid for those who cannot afford it.

Having said this, we have a government maintaining a militaristic foreign policy which does not seem to baulk at replacing the ageing Trident programme - £100bn a considerable underestimate?    Neither does it seem to worry about the huge 'ring-fenced' overseas aid budget even though government borrowing remains high.  In addition, huge sums of money have been doled out to various private sector service providers - see Ministry of Justice contracts for 2012 .

It is in this financial context

Act NOW to try to stop 'Justice' being only for the rich and powerful

*** Please sign the e-petition on Legal Aid - the aim is to try to persuade Parliament to debate the Ministry of Justice plans to slash legal aid.  Why should any Minister be allowed to seriously alter the rights of the British citizen just by stroke of his pen?

It beggars belief that any elected British government could put forward proposals so damaging to justice for the citizen as those in the Ministry of Justice consultation.

The Guardian - Sunday 9th June 2013 - Editorial:

"Last week, the government last week closed its hurried consultation on cuts to the £2bn legal aid budget. Few proposals have met with a more unified opposition among lawyers than the suggestion that £220m can be saved by introducing a system of price competitive tendering (PCT). This would see defendants deprived of the right to choose a defence lawyer and the number of criminal legal aid firms cut from 1,400 to 400.

VAT ~ an interesting case in the First Tier Tribunal (Tax Chamber)

'Value Added Tax' is disliked by most end-of-the-line consumers but it is a major 'earner' for governments.  In the UK, it was introduced in 1973 following entry to the European Economic Communities (EEC).  From 4th January 2011, the coalition government increased the rate to 20%.   Some things (such as 'food') are 'zero-rated' so there is VAT in theory but not in practice and it is, technically speaking, open to government to impose a rate.  More details of VAT are at HM Revenue and Customs (HMRC).

From a business viewpoint, where the 'registration threshold' is exceeded, a supplier of goods or services has to register for VAT and, in other cases, a business may apply for voluntary registration.   Registered businesses account to HMRC for the difference between output and input VAT.  Consider a business (B).  Output VAT is that which B collects from sales of its business output.  Input VAT is that which B has to pay on its purchases (i.e. input to the business) - see HMRC - How VAT is charged and accounted for.  The difference between output and input has to be accounted for.  Clearly, if output exceeds input then B has to pay the balance to HMRC.  Conversely, a claim may be made to HMRC.

These arrangements often result in businesses

Legal News - Legal aid - Hillsborough - Human Rights - Road safety - Kenya: a colonial legacy

Legal Aid - The Ministry of Justice received in the region of 13000 responses to their Transforming Legal Aid consultation.  Many of the responses are from bodies and practitioners with immense experience in the legal world.  Links to a sample of such responses are on the earlier blogpost.  On 4th May, a protest at the Ministry of Justice was addressed by several speakers including excellent speeches from Dinah Rose QC (a declaration of a lack of interest), Michael Fordham QC (the avocado of justice) and Geoffrey Robertson QC (there is a hidden agenda) - have a look at Head of Legal blog.    See also Garden Court Chambers blog - Speech of Stephen Knafler QC.  At this stage, it is possible for the Ministry to rethink their proposals given the overwhelming evidence that immense damage will be caused to justice should they bulldoze ahead and simply go for implementation.  The Ministry should rethink and engage with the legal profession and others to see where savings can be made without destroying the very fabric of justice for the citizen.

The MoJ is also beginning a full scale review of the legal services framework - Solicitors Journal 5th June. 

Hillsborough - In December 2012

Some responses to MoJ consultation on Transforming legal aid

Protest at Liverpool 4th June

*** Please sign the e-petition on Legal Aid

Now at 72 links:

Legal aid is the beating heart of the rule of law - Michael Fordham QC

No lawyer should have a financial interest to betray his client - Geoffrey Robertson QC

The proposals fail the basic test of good administration - Dinah Rose QC

The government's consultation on Transforming legal aid ends today.  At court locations throughout England and Wales there were brief  'silent protests' just before 10 am.

Over the next few days I will add to this post links to some responses to the consultation where the writers have chosen to publish them - for example, on their blogs or via legal practice websites etc.  Inevitably, these will just be a sample of a very large number.  They appear in no particular order other than the order in which I came across them.

The Ministry of Justice has indicated that it will consider the responses and comment in the autumn.

There are signs that the general public is becoming aware of the devastating impact of these proposals on their rights - e.g. to choose their own solicitor if charged with a criminal offence.

Here are the links ...................

Legal Aid ~ consultation closes 4th June

Under government proposals, criminal legal aid will be severely curtailed - Money, money, money ... just where is Justice heading?. and 'The real 'scumbag criminal' is still free ~ A matter at democracy's heart'.   The government's consultation ends on 4th June - see the consultation  here.

Recently, Gabriela Knaul (United Nations Special Rapporteur on the Independence of Judges and Lawyers) has urged world governments to develop and sustain effective legal aid systems as an essential component of a fair and efficient justice system founded on the rule of law - see Office of the High Commissioner for Human Rights

" Legal aid, a right in itself" - UN Special Rapporteur

GENEVA (30 May 2013) – “Legal aid is both a right in itself and an essential precondition for the exercise and enjoyment of a number of human rights, including the rights to a fair trial and to an effective remedy,” said Ms. Knaul, presenting her latest report to the UN Human Rights Council. “It represents an important safeguard that contributes to ensuring the fairness and public trust in the administration of justice.”

60 years ago today

2nd June is the 60th Anniversary of the Coronation of HM Queen Elizabeth II.  The BBC has had the original footage digitally remastered - see here and the The Coronation of Queen Elizabeth II  may be viewed on BBC Parliament from 1010 BST on Sunday 2 June.

The Queen's accession to the throne actually took place upon the death of her father King George VI on 6th February 1952 - 60 years a Queen: the Diamond Jubilee.  In the years of post war austerity, the Coronation was a splendid occasion and seemed, at the time, to lift the spirits of the country.  It was televised but few homes, at least where I lived, had a receiver.  In those - now seemingly far away days - the Queen made her Coronation Oath :

Archbishop. Will you solemnly promise and swear to govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, Canada, Australia, New Zealand, the Union of South Africa, Pakistan, and Ceylon, and of your Possessions and the other Territories to any of them belonging or pertaining, according to their respective laws and customs?

Whole life term imposed for murderer of April Jones

Crown Court - Mold

Mark Bridger (47), is to serve a 'whole life term' for the murder of April Jones - The Guardian 30th May 2013.  April disappeared in October 2012 and her body has not been found - BBC 31st May.   It was revealed during the trial that fragments of bone consistent with a juvenile human skull were found among ashes in a woodburner, along with April's blood near to a number of knives, including one which was badly burned.

The sentencing remarks of  Griffith Williams J are available via the Judiciary website.  The judge described Bridger as a 'pathological and glib liar' - a 'paedophile who harboured sexual and morbid fantasies about young girls'.  Bridger's laptop stored images of 'foul pornography of the gross sexual abuse of young children.'

Factors for determining the minimum term are

Police Arrest and Police Bail - should there be a time limit?

Updated

Neil Wallis, writing in The Guardian 28th May, points out that it is not unusual for individuals to be on police bail for months before they are either charged or the investigation is discontinued.  Wallis says that some 3000 families are currently affected by this.   Such bail may well be on restrictive conditions  In fact, this situation has existed for some time and this post looks at police powers of arrest and the power of the police to issue bail.  The Law Society is calling for a 28 day limit on police bail after which the police would have to justify further restrictions to a court - Law Society 29th May

Powers of arrest:

The previous post considered arrest by citizens.  It is unsurprising that Police powers are much wider in scope.

Police powers

Citizen's Arrest - a limited power

On Tuesday 28th May, The Independent reported that 'the creator of a far right extremist group' had 'promised to ‘arrest’ Islamist cleric Anjem Choudary by 6pm tomorrow if the Met police do not.'

Who is Anjem Choudary and just what is a 'citizen's arrest?'

Soldier Lee Rigby was brutally killed in Woolwich on 22nd May.   Certain individuals are under arrest and consequently the case should not be discussed further.  Anjem Choudary, described as a 'Radical Islamist preacher' appeared on BBC Television and said he was shocked by the murder but did not condemn it.  Choudary maintained a line that the killing was linked to British and U.S. foreign policy.  Feelings were running high in the aftermath of the killing and the BBC came in for some vociferous criticism for allowing Choudary to state his views on TV - see, for example,The Guardian.   Some politicians demanded that the Police act against Choudary perhaps for 'stirring up' hatred on religious grounds - The Sun 26th May.

In English law, arrest is

Privatisation of the courts?

One of the key prerogatives of the Crown is the right to dispense justice.  We have the Royal Courts of Justice in the Strand.  Our judges and magistrates sit under the Royal Arms signifying that they dispense justice according to law on behalf of the Crown.  In Magna Carta it was asserted that - 'We will sell to no man, we will not deny or defer to any man either Justice or Right.'  Little else of that great feudal charter remains but those famous words - a part of the birthright of the British citizen - have resonated down the centuries and, I hope, still remain a fundamental element in the compact between the people and those who govern.  Increasingly, in these modern times with huge economic challenges, it seems that the desire for commercialism is pushing aside such old constitutional principles. 

The previous post 'Money, money, money ...' referred to a report in

Money, money, money ... just where is justice heading?

Chris Grayling MP - Sec. of State for Justice

The famous group ABBA sang "Money money money" and money seems to be all that HM Government is concerned with rather than trying to make sensible attempts to bear down on costs without destroying services in the process .   People might well be forgiven for thinking that the Ministry of Justice 'Knows the price of everything and the value of nothing.'

Since 1st April, civil legal aid has been slashed under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.  Many areas of great importance were removed altogether from the scope of legal aid.  The full impact of these cuts on access to justice for individuals and families remains to be evaluated.

Legal aid in criminal cases - already curtailed to a considerable extent in recent years - is now under attack and

The aftermath of the Iraq War - the continuing story

On 23rd November 2011 this blog looked at The unfolding aftermath of the Iraq War and considered the decision of the Court of Appeal (Civil Division) in R (Ali Zaki Mousa) v Secretary of State for Defence [2011] EWCA Civ 1334 where the court (Maurice Kay, Sullivan and Pitchford LJJ) held that an investigatory process into allegations of ill-treatment committed by British armed forces personnel did not meet the requirements of Article 3 of the European Convention on Human Rights as interpreted and applied by the European Court of Human Rights.  The investigatory process had been set up by the Secretary of State for Defence and involved an Iraq Historic Allegations Team (IHAT) reporting to the Iraq Historic Allegations Panel (IHAP).

The Administrative Court has now handed down judgment in R (Ali Zaka Mousa) v Secretary of State for Defence [2013] EWHC 1412 (Admin) - Sir John Thomas President of the Queen's Bench Division and Silber J.  It is a

Tweeters beware ~ a defamatory tweet ~ Lord McAlpine v Sally Bercow

Former Conservative Party Chairman Lord McAlpine of West Green brought a libel action against Mrs Sally Bercow - wife of the Speaker of the House of Commons.

On 2nd November 2012, BBC Newsnight carried a story relating to child abuse at Bryn Estyn care home in the 1970s and 80s.  A person perpetrating that abuse was described as a 'leading Conservative from the time.'    Sally Bercow tweeted - "Why is Lord McAlpine trending? *Innocent face*" 

As a preliminary issue, Tugendhat J had to rule whether this 'tweet' was capable of bearing a defamatory meaning.  His ruling is is at Lord McAlpine of West Green v Sally Bercow [2013] EWHC 1342 (QB).   It was necessary to assess the 'tweet' as it might have been understood at the time it was written as opposed to how it might look with the benefit of hindsight.

Tugendhat J said -