Thursday, 24 April 2014

THE Family Court for England and Wales

As from 22nd April 2014, there is a new Family Court for England and Wales - see Crime and Courts Act 2013 section 17.  Section 17 inserts Part 4A into the Matrimonial and Family Proceedings Act 1984.

Read section 17 along with the Schedule 10 and  Schedule 11.  See also 2014/954 - Crime and Courts Act 2013 (Commencement No. 10 and Transitional Provisions) Order 2014.

As with the new County Court (previous post), the change is accompanied by extensive secondary legislation, a detailed guide to which is available on Family Law Week 'Guide to Statutory Instruments coming into force on 22nd April 2014.'

Family Law Week website considered the formation of this court - 'Largest family justice reform for a generation' comes into effect.

Along with alterations to the court structure, there are very important changes to the law resulting from the  Children and Families Act 2014

For a guide

THE County Court for England and Wales

Mayor's and City of London Court


As from 22nd April 2014, "Local" County Courts have gone and are replaced by a single County Court for England and Wales.  For the relevant legislation see:


Primary legislation:

Crime and Courts Act 2013 section 17 - inserting section A1 into the County Courts Act 1984.  Read section 17 along with the lengthy Schedule 9


Monday, 21 April 2014

Corners of the law: liability for omissions

Smile for the Camera: The Double Life of Cyril Smith is a new book looking at the alleged sexual activities of the late Cyril Smith MP.   It is written by Simon Danczuk MP and Matthew Baker and published by Biteback Publishing.  The Daily Mail also reproduced lengthy sections of the book and one headline stated - Cyril Smith victims may sue Lib Dems .. - 'Victims of Cyril Smith are threatening to sue the Liberal Democrats for covering up his decades of sickening sexual abuse ...'   In a previous post - Sir Cyril Smith ~ Corroboration of Evidence (30th November 2012) -  Law and Lawyers looked at the decision not to prosecute Smith in the 1970s.


An Anglican prayer includes the words - ' ...We have left undone those things which we ought to have done; And we have done those things which we ought not to have done ...' - but when, in law, is an individual to be held liable for not doing something?  An alternative way

Sunday, 20 April 2014

Unpleasant truths ~ 'Justice' at the crossroads

'Unpleasant truths' is the title of an article by Roger Smith (Visiting Professor London South Bank University) published in the Law Society Gazette 14th April 2014.  Smith begins by noting that - 'We are not winning the battle on legal aid.'  This is not the fault of lawyers, many of whom have fought against cuts to legal aid and other 'justice' reforms introduced by the coalition government since 2010. The country is in limbo with massive cuts being imposed over almost the entire field of public expenditure.  Nowhere near enough voters realise just how much of value is being lost.   Smith argues that the public fight must continue if only to deter worse.  Nevertheless, the legal aid scheme as it has developed since the second world war is bust.  It is not capable of delivering an acceptable breadth of service to the public.  Therefore, Smith argues, a fundamental 'reconceptualisation' is required.

Such an exercise

Friday, 11 April 2014

Means test for Crown Court legal aid

Even where a defendant is found not guilty, he or she may face ruinous costs after acquittal.

Nigel Evans MP (pictured), a former Deputy Speaker of the House of Commons, was acquitted of serious sexual offences - BBC News 10th April 2014. Mr Evans was first arrested on 4th May 2013 and he was acquitted on 10th April 2014.  It is now reported that Mr Evans will have to pay in the region of £100,000 costs - Telegraph 11th April 2014.   The Telegraph article states:

The Crown Prosecution Service’s “disproportionate” decision to use a top barrister in the case against Nigel Evans has left the MP with a huge legal bill, even though he was cleared of all charges.  Mr Evans, 56, was forced to pay more than £100,000 in legal bills to defend himself against a string of sex assault allegations and despite the not guilty verdicts will be unable to reclaim any of the money.  His solicitor, Daniel Burke, said the CPS’s decision to instruct Senior Treasury Counsel, Mark Heywood QC, was above and beyond what would happen in normal cases where the defendant was not in the public eye.  He said had Mr Evans relied on legal aid to fund his defence case, he would not have had the sort of representation to challenge the prosecution team on an equal footing.  Mr Burke suggested the decision had been based on Mr Evans’s profile rather than the requirements of the case.

Thursday, 10 April 2014

The parlous state of civil legal aid

Writing in the Law Society Gazette 7th April, Catherine Baksi considered whether the legal profession's doom-laden predictions about the impact of deep civil legal aid cuts have been realised.  The article is at Law Society Gazette 7th April - Access Denied ?

Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, legal aid was turned off for most private family cases (except those involving evidenced domestic violence, child abuse or abduction.  Key further areas removed from the scope of legal aid were welfare benefits, clinical negligence, employment, housing disputes (other than serious disrepair, homelessness or anti-social behaviour), debt, immigration and education (except special needs cases).

Kenneth Clarke's plans to reduce prison numbers

Wednesday, 9 April 2014

Criminal Bar Association votes NO

Update 10th April:  Message from the Chairman of the Criminal Bar Association

As reported in my earlier post (A pivotal decision for the criminal bar), members of the Criminal Bar Association were balloted on the following motion:



“Do you wish to continue no returns and days of action until all the cuts and reduction in contracts are abandoned”

Yes


No



The result was that 1878 votes were received.  629 voted YES and 1249 voted NO.  I understand that the 1878 voting figure is under 50% of those who were eligible to vote.

More details of the result are at Criminal Bar Association - Results of the ballot

I suspect that there will be relief in the Ministry of Justice and despair from other legal professionals who are fighting against the government's regressive plans for justice.  I feel sure that the majority of the legal profession - irrespective of the part to which they belong - will feel that justice is under attack from the government which has enacted cuts to civil legal aid (see Access Denied - Catherine Baksi, Law Society Gazette 7th April), is imposing cuts to criminal legal aid and has acted to impose restrictions on access to judicial review.  The key question now

Friday, 4 April 2014

Joint Enterprise (1) ~ Setting the scene

Individuals can participate in crime in various ways and the criminal law recognises this by enabling the conviction of not only principal offenders - (that is, those who actually commit the prohibited act with any necessary mental element or mens rea) - but also those who, in various ways, lend their support.  One of the most controversial aspects of participation in crime is what has come to be referred to as Joint Enterprise.  I plan to look at this topic in rather more detail in the coming days.

By way of setting the scene, The Guardian 1st April, draws attention to statistics obtained by the Bureau of Investigative Journalism.  The statistics may be seen at Joint Enterprise in numbers. The Bureau found:

  • Between 2005 and 2013, 1,853 people were prosecuted by the CPS for homicides that involved four or more defendants. This is the closest approximation that can be made to the use of joint enterprise. Most academics agree these prosecutions almost certainly relied on the joint enterprise doctrine.
  • In the same eight years 4,590 people were prosecuted for homicides involving two or more defendants – a definition the CPS suggests is a clear indication of the use of joint enterprise.
The Bureau describes

Tuesday, 1 April 2014

National Audit Office and Royal Mail

My local red post box was placed in the wall (where, thankfully, it still remains) at some point in the 63 year long reign of Queen Victoria (20 June 1837 to 22nd January 1901).  One can only wonder at the variety of mail that has passed through that box.  Many a business letter, job application, love letters, mail to those serving at the front in two world wars. The Royal Mail is (or was) a national institution.  The old box could tell a fine story but is the recent sale of the Royal Mail - a national institution with a long and interesting history - a fine story or another fine mess? 

Was this a good deal for the taxpayer.  The government says Yes.  Well it would say that wouldn't it !  In a  carefully worded but critical report, the National Audit Office certainly has doubts,  The matter remains to be considered by the Public Accounts Committee.  For an overall picture of the taxpayers true position, the arrangements with regard to pensions should also be considered - see Notes below.

The National Audit Office (NAO) exists by virtue of the National Audit Act 1983.   The NAO is headed by the Comptroller and Auditor General (CAG) and the NAO website describes the current leadership team.   The history of the NAO is, in itself, an interesting read.  

Under

Monday, 31 March 2014

Legal Aid Agency - Business Plan 2014 to 2015

 
The Legal Aid Agency has published its business plan for 2014-15 - (pdf - 45 pages).  This document seems to me to be more about achieving major financial savings than actually achieving justice.  Of course, the Agency is only obeying orders and certainly appears to be doing so with a considerable amount of enthusiasm!  Here is a flavour:




"The ongoing Legal Aid Transformation (LAT) programme continues to play a major part in the MoJ reform agenda.  LAT will deliver a reformed legal aid system which costs the taxpayer less and commands the confidence of the public. Working with MoJ policy colleagues we have already begun to deliver reforms to criminal and civil legal aid services which are expected to deliver around an additional £215m of savings by 2018/19.  We have implemented the first two tranches of these reforms including changes to civil and family legal aid fees, introducing a Crown Court eligibility threshold to remove legal aid for the wealthiest defendants, and restricting legal aid for prison law."


A pivotal decision for the Criminal Bar

Last week, Barristers called off further planned protest action over legal aid having entered into a deal with the Ministry of Justice  to suspend some of the cuts until after the 2015 general election - The Guardian 27th March.   The agreement between the Ministry of Justice, Bar Council and Criminal Bar Association is available via the Ministry website.   This is proving to be controversial.  In a statement of 28th March about the agreement, Nigel Lithman QC stated that there would be a ballot:



“Do you wish to continue no returns and days of action until all the cuts and reduction in contracts are abandoned”

Yes


No



The case for a NO vote is now set out by Mr Lithman on the Criminal Bar Association website - (Rocks and Hard Places).  Crimeline has published a case by Mr Ian West of Fountain Chambers, Middlesborough for a YES vote - CBA Vote Yes.  See also Charon QC - Guest Post 4th April - A call to arms - why we must hold the line.

Earlier post .... Putting off the evil day or a viable pathway for the criminal justice system?

Hillsborough Inquests underway

Goldring LJ
The April 1989 Hillsborough Disaster Inquests began today (31st March).  The initial inquests were never seen as satisfactory by the families of the deceased and fresh inquests were ordered by the High Court in December 2012. The new inquests are being conducted by Lord Justice Goldring (who has been appointed Assistant Coroner for South Yorkshire East and West Yorkshire West). He is to sit with a jury of eleven.  See the Hillsborough Inquests website.

The Inquests are subject to a number of warnings regarding the possibility of contempt of court - see Directions.  Millions of words have been published on this tragedy including the report of the Hillsborough Independent Panel (September 2012 - pdf 389 pages) and, of course, the much earlier reports of Lord Justice Taylor (later Lord Chief Justice).  However, the fact remains that the jury must reach its conclusions on the basis of the evidence presented at the inquest and only that.   (The word verdict is no longer used in relation to inquests).

In July 2013, considerable changes took place to the law relating to Coroners and inquests - (see Judiciary website) - as, after a considerable delay, much of the Coroners and Justice Act 2009 was finally brought into force.  A summary of the law may now be found in  Chief Coroners Guide to the Coroners and Justice Act 2009 - (pdf - 51 pages).   

Saturday, 29 March 2014

Changes to the Courts in April 2014 and a glance at the Children and Family Act 2014

In April 2014, under the Crime and Courts Act 2013, important changes occur to the courts of England and Wales.   There will be a single County Court for England and Wales and also a new Family Court.

A good summary of the changes to the County Court is available at Keith Etherington.  Law and Lawyers took a look at the Crime and Courts Bill  as it stood back in May 2012.

In January 2014, writing in the New Law Journal, solicitor Geraldine Morris took a look at some of the changes - New Law Journal 22nd January 2014.   Here is an excellent article neatly summarising the imminent and important changes.

The Children and Families Act 2014 received Royal Assent on 13th March.  Here is another blockbuster extending to 10 Parts and 7 Schedules.   As with almost any new Act, it will be essential to keep a keen eye on Commencement Orders and the first such Order has been made.

Putting off the evil day or a viable pathway for the criminal justice system?

Update - Monday 31st March - Solicitors and Probation Staff are to commence action against Ministry of Justice plans for cuts to criminal legal aid and plans to "outsource" probation services - BBC News 31st March.  Also, further links of interest have been added to the post below.



You that put far away the evil day, and cause the seat of violence to come near ... (Amos 6:3)

But a few weeks ago lawyers protested publicly about the government's criminal legal aid plans - Justice denied: a day of protest.  Further protests looked likely.  Barristers also took action by refusing returned briefs and it is clear that this was leading to problems in the courts - for example, Custody Time Limits.

In what appears to be a sudden move, barristers have called off planned action over legal aid having entered into a deal with the Ministry of Justice to suspend some of the cuts until after the 2015 general election - The Guardian 27th March.   It seems that there will be a review that will take into account three forthcoming reports by Sir Bill Jeffrey on advocacy, Sir Brian Leveson on streamlining court practices and a retired judge, Geoffrey Rivlin QC.

The agreement between the Ministry of Justice, Bar Council and Criminal Bar Association is available via the Ministry website

A statement by Nigel Lithman QC (Chairman of the Criminal Bar Association) begins by saying:

Thursday, 20 March 2014

Custody Time Limits

 Custody Time Limits (CTL) are an important feature of criminal procedure.  They arise under the Prosecution of Offences Act 1985 section 22 and Regulations have been made under powers granted by that Act - Prosecution of Offences (Custody Time Limits) Regulations 1987 (as amended)

The essential aim of the time limits is the obvious one of preventing those defendants, who have not been granted bail,  being held in custody for excessive periods of time prior to trial.  Difficulties can arise prior to trial and it is possible for the prosecution to apply to the court for an extension of the time limits.  Such applications are scrutinised rigorously by the judges.  In all instances, the prosecution must have acted with 'all due diligence and expedition' - see section 22(3).

Normally, the Bar has a practice as to how so-called "returned briefs" are handled.  Where a barrister returns a brief because he is unable to attend court at a particular date, another barrister will accept the brief.  However, due to the criminal legal aid dispute between the Bar and the Secretary of State for Justice, barristers are not accepting returned briefs.

In an on-going Crown Court case in Manchester, the prosecution applied for an extension of custody time limits in relation to two defendants charged with arson with intent to endanger life.  A barrister representing one of the defendants was unable to attend court on the day of trial and no other barrister had been found to take the brief. 

Mr Justice Turner

Tuesday, 18 March 2014

A bit of catching up ....!

Lady Justice Hallett
On the Runs - The Administrative Scheme:

Following consultation with the Lord Chief Justice (Lord Thomas), Theresa Villiers (Secretary of State for Northern Ireland) has appointed Lady Justice Hallett to conduct a review of the so-called "On the Run" Scheme.  See the government's announcement of the appointment.   

On Tuesday 25 February and on Friday 28 February, the Secretary of State laid before the House statements relating to the decision of Mr Justice Sweeney, sitting in the Crown Court, in the case of John Downey.  In light of the error identified in that case, the Prime Minister announced on Thursday 27 February that he would appoint a judge to provide an independent review of the administrative scheme.

See my previous post on this topic.  

Monday, 17 March 2014

Are the Judges too powerful? or Are they overstepping the line? Two more Judicial Speeches


Are the judges too powerful? - A Speech in which Lord Dyson (Master of the Rolls) considered two  distinct questions. The first is whether, on the purely domestic front, our courts are trespassing into areas which should not be their preserve. The second is whether the European Court of Human Rights is overstepping the mark in imposing political and social values on the UK for which it has no democratic mandate. Both questions raise big issues on which many have expressed views in recent years.

The speech ranged over the traditional approach of the judiciary to keeping the common law in line with contemporary society; to judicial review; to the European Court of Human Rights and, finally, to the Human Rights Act 1998.  His conclusion is that the judges are not too powerful and that their task is exercised with restraint and respect for Parliament.  This is a very readable speech and can be seen as a measured and moderate response to certain other recent speeches by senior judicial figures - notably that of Lord Sumption in his Azlan Shah lecture in Kuala Lumpur (November 2013).  

Thursday, 13 March 2014

Reshaping Justice ~ (Justice in an Age of Austerity)

Lord Thomas CJ
The organisation Justice has commenced a project entitled "Justice in an Age of Austerity".  They have created a working party which will report in March 2015.  Its terms of reference are:
  • To examine key features of the resolution of disputes in the courts and tribunals
  • To assess the adequacy of existing provision in an age of austerity; and
  • To make recommendations for improvement

In a speech on 3rd March to the Justice, the Lord Chief Justice (Lord Thomas) spoke about RESHAPING JUSTICE in the face of government policy to spend less.  The text of the speech is available via the Judiciary website.  Lord Thomas declared that his speech had two purposes:

" ... The first is to make clear that our system of justice does need reshaping to deal with the fundamental change that is occurring in the role of the State. It is retrenching. The budget for justice is being reduced substantially. We must ensure that our system remains able to maintain the rule of law by administering justice effectively, speedily and impartially in this new age. The second is warmly to welcome the re-shaping of Justice and to say how very encouraged I am that Justice in its re-shaped form can and must play a vital role in reshaping our system of justice."

For Lord Thomas,

Friday, 7 March 2014

JUSTICE DENIED - a Day of Protest



Some other views:

Barrister blogger - Grayling's plans for the legal profession are profoundly wrong.  Why I support the strike
Owen Bowcott - The Guardian 7th March 2014 - Legal Aid cuts: lawyers v the Crown
London Evening Standard - 7th March - Rosamund Urwin: Lawyers caught in the Tory cost-cut trap 
Legal Voice - 7th March - 'Grayling Day' Protest: A day of shame for the Lord Chancellor
Steve Cornforth blog - 7th March - Striking at the heart of injustice
Garden Court Chambers - 7th March - The disturbing conflict of interest at the heart of British justice - 'The current practice of reserving the post of Lord Chancellor for an MP who is Secretary of State for Justice is constitutionally unsound.' 

My view:

For many, Magna Carta - signed by a reluctant King John on the fields of Runnymede - is one of the founding principles of our law - "We will sell to no man, we will not deny or defer to any man either Justice or Right."  I believe that the present government is denying justice to many.

Thursday, 27 February 2014

Manslaughter sentencing ~ R v Lewis Gill

Update:  Letter in The Guardian 3rd March from the Attorney-General - Dominic Grieve QC

On 26th February, former Lord Justice of Appeal Sir Henry Brooke tweeted:

There can be no doubt about that given the vast spectrum of factual situations and degrees of culpability involved in manslaughter cases.

Serious public concern has been expressed at the 4 year sentence imposed on Lewis Gill (aged 20) for the manslaughter of Andrew Young (40) who suffered from Asperger's Syndrome.  Some of the media coverage of the offence is at The Independent 27th February  (with a video of the event).  Unfortunately, sentencing remarks do not seem to have been officially released.   However, The Independent report states: