Monday, 6 July 2015

Some thoughts about the wearing of an ISIS flag on a London street

A man walks near Parliament wearing the flag used by "Islamic State" and carrying a young child on his shoulders. The child is carrying a small ISIS flag.  The Police, so it seems, did not think that the law had been broken - The Guardian 5th July 2015.   The Guardian (quoting a Metropolitan Police statement) commented:

"The man was spoken to by officers, with consideration given to relevant legislation, particularly the Public Order Act. The decision was taken by officers at the time that the man was acting within the law. He was not arrested.  Wearing, carrying or displaying of an emblem or flag, by itself, is not an offence unless the way in which, or the circumstance in which, the emblem is worn, carried or displayed is such as to cause reasonable suspicion that the person is a supporter or member of a proscribed organisation. While support of and membership of ISIS is unlawful it is not a criminal offence to advocate the creation of an independent state."

So, was any offence potentially committed?  Here are some observations:

Sunday, 5 July 2015

Legal advice in Police Stations ~ is it too much to ask that it be properly funded?

For those arrested and detained by the Police, access to legal advice is an important right.  English law does not go so far as to force the detainee to obtain advice but they ought not to decline it too readily.  Many solicitors are protesting at cuts to payments imposed by the government for both legal advice at Police Stations and representation in the criminal courts.  Some are declining to attend Police Stations to advise detainees.   Duty Solicitor Schemes may or may not be affected by this action. 

The Police and Criminal Evidence Act 1984 s.58(1) - (PACE) - states:

A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time.  Section 58(4) states - If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable.  Section 58 goes on to set out certain instances where the Police may delay access to legal advice but these need not concern us here.  Section 58 must be read along with PACE Code C  (2014).

Friday, 3 July 2015

Human Rights ~ Parliament

The present government has committed itself to reform of human rights law.  In particular, it seeks to repeal the Human Rights Act 1998 and introduce a British Bill of Rights.  This week, two debates in Parliament were of considerable interest.  These are well worth watching in their entirety.

30th June 2015 - Westminster Hall debate and Hansard transcript of the debate  At 3.58 pm the response by Dominic Raab MP (Parliamentary Under-Secretary of State for Justice) may be seen in which he sets out the government's concerns about the present human rights system.   Raab noted - in a problematically worded statement - "...  a Bill of Rights is perfectly possible, but it will not solve the problems or issues that have been the driving force behind the Government’s current project unless we intend to decouple ourselves from the European convention, which, mercifully, I understand not to be our policy."  He later referred to three concerns - (1) "exponential expansion of rights" that the design of the Human Rights Act has promoted, imposing "obligations on the State rather than constraining it"; (2) the effect that some of the "haphazard case law" has had on legal certainty and (3) the Human Rights Act has exposed us to "too much judicial legislation from Strasbourg" (e.g. regarding prisoners and voting). At the end of the debate, Raab refers to an article by Baroness Falkner dated 15th May in Prospect magazine - A British Bill of Rights is a good idea.

2nd July 2015 - House of Lords debate on Human Rights and Hansard transcript of the debate

and see also the House of Lords Library Note dated 26th June 2015 - Human Rights and Civil Liberties in the UK  The Lords debate is notable for the contributions by a number of eminent lawyers - Lord Wallace QC, Lord Lester QC, and former Lords of Appeal in Ordinary - Lord Carswell and Lord Brown. The Minister of State for Justice (Lord Faulks QC) clearly stated that leaving the European Convention was not part of the government's plans.  There would be full consultation on proposals and the government would be engaged with the devolved administrations and also the government of the Republic of Ireland (a party to the Good Friday Agreement).  The government's aim was to achieve a fair and just "One Nation" Bill of Rights that had public confidence.  The UK would continue to adhere to its many international obligations such as those under the Torture Convention.

Wednesday, 1 July 2015

Criminal Legal Aid

The coalition government (2010-15) reduced considerably the provision of legal aid for civil cases.  The Conservative government is pressing ahead with plans - put together by the coalition government -  to reduce fees payable to solicitors for criminal law work.  This is proving to be unacceptable to solicitors and, in protest, many firms have now decided to withdraw from providing criminal representation from 1st July.

See the Law Society Statement on Criminal Legal Aid Cuts

The Criminal Bar Association is balloting its membership.  The question being asked by the CBA is:
Solicitors face an 8.75% cut to litigators’ fees. In support of solicitors, do you wish to go back to ‘no returns’ and also refuse all new work with a representation order dated from 1st July 2015 until such time as solicitors decide not to take further action in respect of that cut?

See also the message at Criminal Bar Association - Monday message - 29th June

In A View from the North, one barrister explains why he will be supporting action to oppose the cuts.  He points out that the 8.75% cut is not only in respect of litigator fees but applies to other fees such as those for police station visits.  It is also am additional cut on top of the cut already suffered and is in advance of a further cut due in January 2016.  These cuts are being introduced before the consolidation has taken place that the Government recognises has to take place to avoid total market failure.

Cuts to Legal aid exacerbate two-nation justice - The Guardian 1st July

The Independent 1st July2015 - Legal aid boycott: Court chaos expected as lawyers refuse to take up new cases - Ian Dunt 1st July - How lawyers are bringing the system to its knees 

John Briant 2nd July - Legal Aid cuts will hurt vulnerable people: not fat-cat lawyers

As things look at the moment,

Monday, 29 June 2015

Lord Greville Janner will now be prosecuted

The Director of Public Prosecutions (DPP) has reversed her earlier decision not to prosecute Lord Greville Janner on 22 counts of sexual offences allegedly committed against children - see the announcement by the Crown Prosecution Service (CPS).  My blogpost on the earlier decision may be read here

The various counts are set out in the announcement and are all under the Sexual Offences Act 1956.  The law as it stood at the time of the alleged offences is used.

The reversal of the decision follows a "Victims Right to Review" process instigated by six of the complainants and conducted by David Perry QC.

The CPS statement notes that:

Sunday, 28 June 2015

It's been quite a week .... a Sunday roundup

It's been quite a week.  

Reaction to Gove:

The Secretary of State for Justice and Lord Chancellor (Rt Hon Michael Gove MP) spoke to the Legatum Institute and, in carefully chosen words and flowing phrases, stuck the boot into the manifold inefficiencies (summed up here by The Brighton Brief) in the day-to-day operation of our system of justice brought about largely due to his own department's policies over the last five or so years.  Of course, Gove gave no indication that any of those policies would be changed and so the Two Nation justice system of which Gove spoke seems set to continue.

Numerous comments and articles have appeared about Gove's speech.  My own look at Gove's speech is here and here are some of the others:

The Independent 27th June 2015 - Sarah Forshaw QC - These false economies are costing us all dear

Law Society Gazette 23rd June - Can wealthy lawyers really plug the justice gap?

Wednesday, 24 June 2015

Lord Chief Justice speech on Judicial Leadership ~ Modernising the court system

The Lord Chief Justice, Lord Thomas of Cwmgiedd, gave a speech on 22nd June at University College London - Judicial Leadership  Lord Thomas looks at the role of the judiciary in leading and shaping reform to (or overhaul of) the justice system.  An interview with Lord Thomas is available at BBC Law in Action.  The interviewer is Joshua Rozenberg.

A great deal of work is going on behind the scenes to try to improve the justice system.  For example, there is a considerable reform programme underway within Her Majesty's Courts and Tribunal Service (HMCTS) aimed at developing future ways of delivering justice.  Much more about this work ought to be revealed to the media and general public and perhaps, following the speech on 23rd June by the Secretary of State for Justice / Lord Chancellor, that will happen.

It will be essential that any reforms

Tuesday, 23 June 2015

Speech by the Secretary of State for Justice ~ brief comment

Michael Gove - appointed after the general election as Secretary of State for Justice and Lord Chancellor - has delivered his first major policy speech - What does a one nation justice policy look like.  It is a speech with many fine-sounding, flowing phrases and he promises to defend the rule of law but there is no commitment whatsoever to reverse any of the policies (e.g. legal aid cuts) imposed by his two predecessors.  Instead, his department is pressing ahead with policies such as further cuts to solicitor remuneration in criminal work.

Gove said that he wishes to address the "dangerous inequality" of the two-tier civil justice system but he certainly does not wish to lose the lucrative international legal services market offered in the UK - worth £20 billion per year to the economy.  He sees investment in more information technology (IT) as key to improving matters for the more usual litigator and he wishes to see more streamlined legal procedures including online dispute resolution.  Gove also referred to having fewer formal hearings in some cases, use of online solutions to disputes, telephone and video hearings and simpler processes for probate and divorce.  Successful law firms are to be asked to do more to assist people to obtain access to justice.  "When it comes to investing in access to justice then it is clear to me that it is fairer to ask our most successful legal professionals to contribute a little more ..." 

In the criminal justice system, he says that the reports by Sir Bill Jeffrey’s report on criminal advocacy and Sir Brian Leveson on Efficiency in Criminal Proceedings will be implemented.  Gove is right to complain here of matters such as late arrival of detainees (who are delivered to court by security firms), broken video links, late service of paper bundles, too many hearings in some cases and uncertain arrangements for attendance of witnesses.  All of these things are well known to court users but efficiency has improved only marginally in recent years.

It is clear that Gove has to work against a huge financial constraint imposed by the Treasury and there are bound to be further reductions in the court estate and, no doubt, staff reductions.

Sunday, 21 June 2015

Summer Solstice ~ a few items

* No jury required today *
Remember the trial, in South Africa, of Oscar Pistorius?   Writing in Counsel Magazine, Ian Glen QC, offers an interesting and robust view of how the trial might have proceeded here in the Crown Court - A Rainbow's Light on our jury system

On the subject of juries in criminal cases, Joshua Rozenberg has expressed the view that defendants might be permitted to waive their right to jury trial - The Guardian 18th June.  This, it is argued, would save the State money and, for that, a sentencing discount might be permissible.  Rozenberg has picked up on the report by Sir Brian Leveson - Review of Efficiency in Criminal Proceedings.  I suspect that this suggestion, if adopted by Parliament, would eventually spell the end of jury trial - a centuries old right in serious cases.  Having said this, there is merit in extending the jurisdiction of the Magistrates' Courts to enable them to handle cases sufficiently serious to merit up to 12 months imprisonment though this issue inevitably gets tangled up with the question of whether there would be greater use of imprisonment - see Transform Justice 9th November 2014. 

The new government is pushing ahead with certain reforms to criminal legal aid.  These are set out in a written statement to the House of Commons by justice minister Shailesh Vara MP.   There is widespread anger in the legal profession about these proposals though what action lawyers may or may not take remains to be seen* - see Message from the Chairman of the Criminal Bar Association.  See also The Guardian 10th June
The Director of the Legal Aid Agency has seen his remuneration "package" reach around £225,000 pa - Salary of Director.   The 2014-15 report by the Director of Legal Aid Casework
is of considerable interest.

* Addendum 25th June:

Joint Statement by Liverpool Solicitors and Barristers - Over 100 barristers and solicitors met this morning to discuss the future of our profession. Every Chambers in the city, and the vast majority of solicitors were represented. The room was unanimous that the introduction of 8.75% cuts to Solicitor’s fees is untenable ......

Wednesday, 17 June 2015

Family Court ~ Ethan Williams case ~ judgments published

The Judiciary has published a number of judgments in connection with the Ethan Williams case - they may be read on the public Judiciary website and should be read by those interested in the facts of this matter.

Ethan's mother, Rebecca Minnock, went into hiding with her son Ethan, after the Family Court in Bristol ordered that Ethan should live with his father, Roger Williams.  The judgments, unlike most of the media coverage, give a balanced and nuanced view of this very difficult case, and show the family court’s skill in managing the unfortunate situation.

The case is in the Family Court before His Honour Judge Wildblood QC who is sitting as a judge of the High Court.  An excellent discussion of the case may be read at Cambridge Family Law Practice

Deprivation of Liberty ~ Coroner's Inquests and other matters

Deprivation of Liberty Safeguards continue to raise problems.  The law is to be found in the Mental Capacity Act 2005 Schedule A1 (Hospital and Care Home Residents: Deprivation of Liberty).  Age UK publish a useful factsheet

Increased number of applications:

In Bournemouth Borough Council v PS and DS [2015] EWCOP 39, Mostyn J called for the Supreme Court to review its decision in Cheshire West which was concerned with when an individual is deprived of liberty - P v Cheshire West and Chester Council [2014] UKSC 19 and press summary.  Having noted the considerable increase in the number of DOL applications since Cheshire West, the learned judge commented -

Tuesday, 16 June 2015

The Elephant Test ~ Deprivation of Liberty

In what has become known as the "Cheshire West" case, the Supreme Court of the UK set out the test to be applied in deciding whether the care and/or treatment of those lacking capacity to consent amounted to deprivation of liberty - P v Cheshire West and Chester Council [2014] UKSC 19 and press summary.   The Supreme Court's judgment has provoked considerable discussion - for example, Royal College of Psychiatrists and Justice Gap - A gilded Cage is still a Cage.   The key feature of deprivation of liberty is, according to the Supreme Court, whether the person is under continuous supervision and control and is not free to leave.  The court added that the person's compliance or lack of objection, the relative normality of the placement and the purpose behind it are all irrelevant to this objective question.

One major consequence of the Cheshire West decision was

Sunday, 14 June 2015

Compensation for Miscarriage of Justice

In some (currently very limited circumstances), the State is obliged to pay compensation for miscarriage of justice.  In enacting the Anti-social Behaviour, Crime and Policing Act 2014, the government managed to persuade Parliament to limit the law so that compensation is only payable if a NEW fact (or some NEWLY discovered fact) demonstrates, beyond a reasonable doubt, that the individual did not commit the offence.  In essence, semantics apart, this requires proof of innocence with a heavy burden - (effectively, the criminal standard reversed) - placed on the individual claiming compensation.  

It might well be thought that the refusal of compensation

Friday, 12 June 2015

Strasbourg ~ a note on two more important UK cases to be heard in the Grand Chamber

Here is a note about two further cases from the United Kingdom which are now before the European Court of Human Rights Grand Chamber.

Hutchinson v. the United Kingdom (no. 57592/08) - Whole Life Term for Murder - Article 3 of the Convention

Decision of the European Court of Human Rights Fourth Section - 5th February 2015

The applicant, Arthur Hutchinson, is a British national who was born in 1941 and is detained in Her Majesty’s Prison Durham (the United Kingdom). In September 1984 Mr Hutchinson was convicted of aggravated burglary, rape and three counts of murder, the trial judge sentencing him to a term of life imprisonment with a recommended minimum tariff of 18 years. In December 1994 the Secretary of State informed Mr Hutchinson

Thursday, 11 June 2015

Investigative Powers ~ an important report


The Independent Reviewer of Terrorism Legislation fulfills a vital role in the scrutiny of powers given to the executive and law enforcement agencies.

In 2014, the Data Retention and Investigatory Powers Act (DRIP) was hurriedly enacted in just four days.  This added to the complex web of statutory provisions enabling some 600 public bodies to obtain information.

The Independent Reviewer (David Anderson QC) has issued a report containing  124 recommendations to seek to improve the law relating to Investigative Powers - A Question of Trust.  Primarily, Anderson calls for a comprehensive and comprehensible new law to be drafted from scratch.  A key recommendation is for greater judicial involvement in the issuing of interception warrants.  Last year, the Home Secretary issued over 2000 such warrants.  Whether Ministers will be willing to relinquish such a power remains to be seen.

Some comment

The Naked Rambler

Stephen Gough - also known as "The Naked Rambler" - has appeared (in the nude) via Video Link before the Court of Appeal (Criminal Division) - BBC News .

The appeal was against his conviction (in October 2014) for Breach of an Anti-Social Behaviour Order (ASBO).  Mr Gough had requested to appear naked during the trial (held in Winchester) but the judge refused and the case was heard in his absence.   He was convicted of breaching the ASBO and a sentence of 30 months imprisonment was imposed.   Breach of an ASBO was an offence, punishable by up to 5 years imprisonment, under section 1 of the Crime and Disorder Act 1998.  The Court of Appeal dismissed Mr Gough's appeal.

There is a tendency

Wednesday, 10 June 2015

Car Parking ~ £85 overstay charge upheld

Parking Eye Ltd v Barry Beavis [2015] EWCA Civ 402 is an interesting case heard by the Court of Appeal (Civil Division) in April 2015.   In the County Court (before His Honour Judge Moloney QC), Mr Beavis had lost his claim to recover a charge of £85 for overstaying in a car park at Riverside Retail Park in Chelmsford.  Mr Beavis took the case to the Court of Appeal where the County Court decision was upheld.

There is a long standing rule of law that the courts will not enforce unconscionable charges but when will that rule be applied?  That is the principal interest in this case.  The Court of Appeal considered that whether a charge is justifiable is not simply a matter of

Monday, 8 June 2015

Jean Charles de Menezes case to be heard at Strasbourg

Addendum 1:  Webcast of the E Ct HR hearing

Addendum 2: Links added to various materials 

On Wednesday (10th June), the European Court of European Rights (E Ct HR) Grand Chamber will hear the case of Armani Da Silva v. the United Kingdom (no. 5878/08) which arises from the shooting in 2005 of Jean Charles de Menezes at Stockwell Station, London - The Guardian 3rd June 2015.

The following is as published by the E Ct HR:-

The E Ct HR press release:

The applicant, Patricia Armani Da Silva, is a Brazilian national who was born in 1974 and lives in Thornton Heath, London. The case concerns her complaint about the police’s fatal shooting of her cousin, Jean Charles de Menezes, aged 27, who was mistakenly identified as a terrorist suspect and shot dead on 22 July 2005 by two special firearms officers (SFOs) at Stockwell London Underground Station. The shooting

Saturday, 6 June 2015

Withdrawal from the European Convention of Human Rights ~ a thorny and difficult question

Since the General Election, Human Rights (and their protection in the United Kingdom) have received enormous coverage from legal commentators including several posts on this blog -

Why we need human rights (1) - 17 year olds and the law
Why we need human rights (2) - Right to Life
Why we need human rights (3) - Mental health
Why we need human rights (4) - Gender, Civil Partnerships and Same sex marriage
Why we need human rights (5) - Cases since 1975

and, in another post, a debate in the House of Lords on 1st June was considered.  Speaking in the House of Commons, the Prime Minister refused to rule out withdrawing the United Kingdom from the European Convention on Human Rights - The Guardian 3rd June - (the debate is here).  "Withdrawal" was not a Conservative Party manifesto commitment and it was not mentioned in the Queen's Speech though the possibility was referred to by the Conservative Party in the autumn of 2014.


It is necessary to remember

Tuesday, 2 June 2015

In Parliament ~ Bills ~ Human Rights (Japanese Knotweed)

"The Conservative Party has included in its manifestos since 2002 its desire to create a British Bill of Rights and to abolish the Human Rights Act. It has had a lot of time: it has set up committees and had the benefit of lawyers on the Conservative side advising it. Why is it that it cannot put together a coherent Bill?" - Baroness Kennedy of the Shaws QC

Bills before Parliament:

Parliament's website now has details of Bills currently under consideration  - Parliament Bills.   17 Bills are listed and 7 are government bills.  The latter have the greater chance of eventually becoming law.  The government bills are:

Charities (Protection and Social Investment) Bill [HL] 
Childcare Bill [HL] 
Cities and Local Government Devolution Bill [HL]
European Union Referendum Bill 
High Speed Rail (London - West Midlands) Bill 
Psychoactive Substances Bill [HL] 
Scotland Bill 

The House of Lords debate on the Queen's Speech