Monday, 5 October 2015

It's in the bag ....!

Five pence per plastic carrier bag!   I am all for protecting the environment as far as we can and so I assume that the carrier bag idea is a sensible innovation.  The legislative detail is utterly astounding.

It starts with a Directive from the EU Parliament and Council - European Parliament and Council Directive 94/62/EC- and continues into national legislation to implement that Directive.

For more on this please see  Law Now - It's in the bag ....! and also  The Packaging (Essential Requirements) Regulations 2015 and the Single Use (Carrier Bags) Charges (England) Order 2015

Utterly amazing! 

Saturday, 3 October 2015

A problem with a cheap will ... beware !

A short post today to highlight a recent case concerning wills - Solicitor's Journal - Where there's a will 29th September

In 2007 Ebenezer Aregbesola used Barclays' £90 will-writing service to create a will dealing with his various assets including homes overseas and in London. His will instructed half of the London home to be given to his daughter, Tinuola Aregbesola, on his death.

The property was owned jointly by Mr Aregbesola and his wife – who was not Tinuola's mother. Because of the joint ownership, on Mr Aregbesola's death in early 2014, the property went wholly to his wife – contrary to the will.

Sunday, 27 September 2015

Scotland ~ First Minister defends Human Rights

In a speech to the Pearce Institute in Glasgow, Nicola Sturgeon (First Minister of Scotland and Leader of the Scottish National Party) spoke of the British government's plans to "scrap the Human Rights Act."  She said:

"When Lord Bingham spoke at Liberty’s 75th anniversary in 2009, he posed these questions: “Which of these rights would we wish to discard? Are any of them trivial, superfluous, unnecessary?”

Those questions have never been answered – certainly not by the UK Government. And of course, that’s because these rights matter to all of us. They should be founding principles of any civilised society.

Saturday, 26 September 2015

Scotland ~ A note on the Human Rights Act and the Sewel Convention

The Independent 23rd September  quoted Nicola Sturgeon (First Minister of Scotland and Leader of the Scottish National Party) as saying that:

“Responsibility for the Human Rights Act rests solely with the Westminster parliament, but European Convention rights are embedded into the devolution settlement and human rights itself is a devolved issue ...... That means that any attempt to repeal or amend the Human Rights Act is likely to require the legislative consent of the Scottish Parliament ..... It is inconceivable – given the breadth of the support which the Human Rights Act commands across the Scottish Parliament – that such consent would be granted. The Scottish Government will certainly advocate that it is not granted ..... The Scottish Government will also oppose any weakening of human rights protections – not just in Scotland, but across the whole of the UK. Human rights, after all, are not English, Scottish, Welsh or Northern Irish rights. They are universal rights."  (Here is the First Minister's full speech).

Whether consent would be required for repeal of the Human Rights Act (HRA) depends both on law and on an important aspect of the devolution settlement known as the Sewel Convention.

The Law:

Wednesday, 23 September 2015

Lord Sumption creates a stir

Updated 25th September

Justice of the Supreme Court, Lord Sumption, was interviewed by the Evening Standard (ES) - "Rush for Gender Equality with top judges could have appalling consequences for justice."  This post touches upon two aspects of the interview: (a) Gender within the judiciary and (b) Human Rights.  The interview (and I assume here that the ES report of it is accurate) created quite a stir and the Supreme Court issued a statement informing us that - "Some of Lord Sumption's comments appear to have been misunderstood" and referring us to a speech he gave in November 2012  in which his position is set out in detail.  The speech should certainly be read in full.   


The Evening Standard reported:

Thursday, 17 September 2015

Concern over Royal Marine Sergeant convicted of murder

The case of former Royal Marine Sergeant Alexander Blackman has again come into the news.  He was sentenced by the Court Martial to life imprisonment for the murder of an already wounded Taliban fighter.  His case was debated in Parliament (Westminster Hall) on Wednesday 16th September.  Material has come to light which was not presented to the Court Martial and may at least have the effect of reducing the offence to one of manslaughter due to diminished responsibility.    The Court Martial imposed a minimum term before eligibility for parole of 10 years but this was reduced to 8 years by the Court Martial Appeal Court.  Given the new material, the Daily Mail is campaigning to have the case considered by the Criminal Cases Review Commission.  The Commission has the power to refer the case to the Court Martial Appeal Court.

Tuesday, 15 September 2015

Death by Drone ~ Concerns and questions.

The British government decided that Reyaad Khan (a British citizen linked to ISIS) presented such a threat to the safety of British citizens within the UK that it was necessary to kill him by means of a drone strike.  At the time, Khan was in Syria. The government claims that this was lawful - see Prime Minister's statement to the House of Commons.  In a previous post, I reached the tentative conclusion that the killing may be lawful BUT everything would depend on ALL the detailed facts.  National security prevents us knowing those facts.

The use of drones to carry out targeted killings has attracted a considerable degree of analysis and critical comment particularly in relation to operations conducted by the United States of America.  Despite numerous concerns and questions, it has not been declared unlawful in all circumstances.  The following is a necessarily brief look at some of the reports presented to the United Nations.   

Friday, 11 September 2015

Reyaad Khan: The U.K. government's letter to the United Nations

Article 51 of the United Nations (UN) Charter requires that self-defensive actions are reported immediately to the UN.  Thanks to Carl Gardner and the Head of Legal Blog for highlighting the UK's letter to the President of the Security Council - see Head of Legal 10th September 2015.

In his statement to Parliament, the Prime Minister said that the government acted in defence of the United Kingdom when the drone strike was ordered against Reyaad Khan in Syria - please also see post of 9th September.  The U.N. Charter Article 51 requires that such self-defensive actions be reported immediately to the United Nations and here is a link to the UK's letter:

Letter dated 7 September 2015 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council

Thursday, 10 September 2015

Intelligence Services Act section 7

It has been suggested in some comments on social media and elsewhere that authorisations under the Intelligence Services Act 1994 section 7 were issued in connection with the air strike against the individuals killed in Iraq - Previous Post 9th September 2015.

For reasons of national security minimal information about this engagement has been released by the government and we will not be informed whether section 7 came into play or not.  The Prime Minister's statement to Parliament informs us that the strike was conducted by the Royal Air Force.  The Attorney-General advised the government; the threat was identified by the Intelligence Service; the National Security Council met and the Defence Secretary authorised the action.  In this context, the Prime Minister's use of the word "authorised" seems to simply mean that the Defence Secretary gave the go ahead to it as a military operation.

Wednesday, 9 September 2015

Our longest reigning Monarch

Today - 9th September - is the day Her Majesty The Queen becomes the longest reigning Monarch - The Telegraph 9th September.

The Queen inherited on 6th February 1952 upon the death of her father King George VI.   Please see the post I wrote for the Diamond Jubilee in 2012.   The longest reigns in British history 

The Prime Minister's Tribute

Tuesday, 8 September 2015

View from the North ~ a killing in Syria

A View from the North
Updated 14th September ...

It is common knowledge that the United Kingdom government (and its allies such as the USA) have extensive intelligence and surveillance capabilities including the ability to monitor the activities of individuals.

On 21st August, Reyaad Khan (a British national from Cardiff) was driving (along with two others) near Raqqah (Syria) when he was killed by an air strike from a Reaper drone operated by the Royal Air Force.  There is no doubt that this killing was deliberate and carefully planned.  Mr Cameron made a statement about it to the House of Commons - Syria: Refugees and Counter-Terrorism - 7th September 2015.

Mr Cameron told Parliament that Khan was - " actively recruiting ISIL sympathisers and seeking to orchestrate specific and barbaric attacks against the West, including directing a number of planned terrorist attacks right here in Britain, such as plots to attack high profile public commemorations, including those taking place this summer."  Cameron added that Khan was intent on the murder of British citizens.

Few other factual details were given to Parliament and any conclusions we draw must be necessarily tentative.  Cameron claimed that international law justified the killing.

Wednesday, 2 September 2015

Queen's Evidence: R v ZTR - Court of Appeal

Should there be a reduction in sentencing where an individual provides the Police with information which either leads or may lead to the conviction of others?  If so, in what circumstances?

The common law recognised the problem and, more recently, Parliament has enacted the Serious Organised Crime and Police Act 2005 Chapter 2 (Offenders assisting investigations and prosecutions).  The Court of Appeal (Criminal Division) has held that the Act did not abrogate the common law power - R v P and Derek Blackburn [2007] EWCA Crim 2290.  The Act came into force on 1st April 2006.

Prior to the coming into force of SOCPA, where a person convicted of a crime had offered assistance to the law enforcement authorities, the courts had taken that assistance into account when sentencing.  The key principles are set out by Lord Bingham CJ in R v A and B [1999] EWCA Crim 3529.  (Link unavailable).

Since the enactment of SOCPA,

Tuesday, 1 September 2015

Iraq Inquiry ~ a little more

I wrote recently about the Iraq Inquiry, the Maxwellisation process that is currently in train and the need for the inquiry to not only be independent and thorough but to be seen to be so - Post of 14th August.

The Inquiry Chairman - Sir John Chilcot - has issued a statement (26th August) indicating that the last responses to the Maxwellisation process are to be received "shortly".  This statement was brought about by a number of high profile individuals criticising the delay.  Critics have included Baroness Butler-Sloss, Lord Lester of Herne Hill QC, Lord Morris of Aberavon QC.  Carl Gardner on his Head of Legal Blog looks at some of these criticisms - Sir John! Sir John! Are we there yet?

Monday, 31 August 2015

A new facet of child protection: London Borough of Tower Hamlets v B

London Borough of Tower Hamlets v B [2015] EWHC 2491 (Fam)- Heydon J.

B is an "intelligent, educated and ambitious" 16 year old who has been subjected to serious emotional harm, and, at the very least, continues to be at risk of such in her parent's care.  She was prevented by the Police from departing to Syria where she would have involved herself with Islamic State.  The emotional harm arose from material (found at her home) of a disturbing nature including video of beheadings and "smiling corpses."  B's parents had, at first, seemed to be a protective force but the reality proved to be something altogether different.  Heydon J noted at paragraphs 4 and 5:

Imprisonment in England and Wales

The Howard League has published interesting data about the Prison Population in England and Wales at week ending 28th August 2015- Howard League Prison Watch

There are disturbing aspects to the figures.  For example, the fact that 4,614 people are held on the now abolished indeterminate IPP sentences, of whom 3,532 (77 per cent) have passed their tariff expiry date.  Also, the number of deaths in custody continues to be high.

See earlier posts on IPP sentences - 27th October 2011- 20th September 2012 - 11th October 2012 and 11th December 2014 -

 Ministry of Justice statistics show that on 30 June 2015 there were:

  • 11,785 men, women and children are held on remand in prison
  • 6,279 people are serving short sentences (less than 12 months)
  • 4,614 people are held on the now abolished indeterminate IPP sentences, of whom 3,532 (77 per cent) have passed their tariff expiry date

Saturday, 22 August 2015

Magistrates under attack !

"The Secret Barrister" makes out a case for the abolition of "lay magistrates" - Why this 70p Mars Bar shows we should abolish magistrates  In this post I offer brief comment only.

The author points to the case of Louisa Sewell:

Thursday August 6th 2015, Louisa Sewell appeared at Halesowen magistrates’ court and immediately pleaded guilty to stealing a pack of Mars bars valued at 75p. In mitigation, it was submitted on her behalf that, due to her state benefits having been sanctioned, the Defendant had been left penniless and, having not eaten for four days, stole “the cheapest item in the shop” to eat. Due to the date of the commission of this offence, the Criminal Court Charge applied, meaning the magistrates were obliged to charge £150, on top of the discretionary punishment of a £73 fine, £85 prosecution costs, £20 victim surcharge and, with no hint of irony, 75p compensation for the shop. So, the headline ran, a £328.75 bill for a Mars bar.

The author rightly condemns

Friday, 21 August 2015

Action by lawyers over criminal legal aid and two-tier contracts

Mark Fenhalls QC (Chairman-elect of the Criminal Bar Association has announced that "no returns" is suspended with immediate effect and there is no reason why barristers should not accept any fresh instructions.  This announcement follows on from solicitor's organisations suspending their action pending further discussions with the Secretary of State and his officials.

Read the complete announcement

Thursday, 20 August 2015

Chief Constables and Police Discipline

The Police and Crime Commissioner for Avon and Somerset (Sue Mountstevens) has commenced the process under the Police Reform and Social Responsibility Act 2011 section 38(3) to require the Chief Constable of the Force - Mr Nick Gargan QPM - to "retire or resign" - see Avon and Somerset PCC 19th August 2015.  This follows an independent misconduct panel which found against Mr Gargan on 8 counts of breaching of standards of professional behaviour contrary to Schedule 2 of the Police (Conduct) Regulations 2012 .

The Commissioner's website provides links to a number of documents including the misconduct panel report (the panel hearing was in private) and the Independent Police Complaints Commission (IPCC) report.   The IPCC acted on a referral from the Commissioner.

Tuesday, 18 August 2015

Stop and Search ~ concerns being addressed

Updated 19th August

Stop and Search powers:

Parliament has - rightly - given the Police "stop and search" powers.  As with any police power they must be exercised responsibly and lawfully.   Lawful exercise includes avoidance of unlawful discrimination - see Equality Act 2010 s.149.

The Police and Criminal Evidence Act 1984 Part 1 (Stop and Search) is an important general stop and search power.  Code of Practice A is applicable.  There are further powers granted to the Police by other legislation - see the details set out in Code A.

The use of Stop and Search powers has often been controversial.   One article (The Independent 6th August 2015 - Stop and Search: Can transparency end this abuse of Police powers?) states that: "The excessive and discriminatory use of stop-and-search powers is among the sorriest episodes in the history of the police over the past 30 years."

Friday, 14 August 2015

Chilcot and the difficult question of fairness ~ Maxwellisation is not there 'to make a lawyer's holiday'

The Iraq Inquiry was set up in 2009 under the Chairmanship of Sir John Chilcot.  It is a committee of Privy Counsellors tasked with considering the period from the summer of 2001 to the end of July 2009, embracing the run-up to the conflict in Iraq, the military action and its aftermath.

February 2015:

Sir John gave evidence to the House of Commons Foreign Affairs Committee in February 2015 - view the session.  He explained that rigour was necessary in establishing the facts and producing the report.  The inquiry was of unprecedented scope (covering an 8 year period) and a reliable account was required.  Over 150 witnesses had given evidence and over 150,000 government documents had to be examined.  There had been difficulties with the release of some material, notably communications between Prime Minister Tony Blair and President G W Bush, but those matters had been dealt with by September 2014.  After that, the process known as "Maxwellisation" could begin and Sir John clearly saw this as an essential step in ensuring the rigour of the final report.  In his evidence to the committee, Sir John would not say how many individuals were involved in "Maxwellisation."  It was necessary to allow a "reasonable time" - but not indefinite time - to deal with this and the time scale might depend on the precise nature of criticisms addressed to individuals.