Law and Lawyers

European Dimension: a trio of items

2012-02-01T18:36:00.002Z

Rights of Defendants:

The European Union has published factsheets on the Rights of Defendants in Criminal Proceedings. The Bar Council and Criminal Bar Association played a leading role in preparing the factsheet for England and Wales - (see Bar Council Press release). The UK link has further links to the separate jurisdictions in the UK.

Julian Assange:

On 1st February, the Supreme Court commenced hearing the appeal by Julian Assange relating to the request by Sweden to extradite him. The UK Supreme Court blog has a preview of the case. Law and Lawyers previously looked at the case on 2nd November 2011 - "Assange - European Arrest Warrants" The Supreme Court hearing will end on 2nd February. The point in issue is whether the Swedish prosecutor is to be regarded as a "Judicial Authority" for the purposes of the European Arrest Warrant Framework Decision (implemented in England and Wales by the Extradition Act 2003 Part 1). If the Supreme Court decides that the prosecutor is not a judicial authority, then the extradition request will fail. Proceedings may be viewed live.

For a view that Mr Assange might be in Sweden by Easter, see Head of Legal Blog.

New EU Treaty is coming: - but UK not to be a signatory:

European Union Member States - except for the UK and the Czech Republic - agreed to proceed to a Treaty on Stability, Coordination and Governance in the Economic and Monetary Union - see Europa. The aim is that Member States will sign up in March and will enter into force once it has been ratified by at least 12 euro area member states. It will be legally binding as an international agreement and will be open to the EU countries which do not sign it at the outset. Interestingly, the Europa website states that the aim is to incorporate the Treaty into EU law within five years of its entry into force. The Treaty will impose a "balanced budget rule" rule and Court of Justice of the EU will have certain jurisdiction in this area. The Prime Minister's statement to the House of Commons is here.

Stereotypes: do they affect the outcome of cases?

2012-01-31T18:32:00.003Z

Alison Saunders - CPS London

Without attempting to define the meaning of "stereotype" it is possible to describe the word as a widely held but fixed and oversimplified image or idea of a particular type of person or thing. "Stereotypes" abound. Characteristically, a stereotype is, at best, based on very broad generalisation with little factual support. Stereotypical views can be prejudicial and stand in the way of seeing each person as a unique individual and they can distort decision-making.

Alison Saunders is the Chief Crown Prosecutor for London and, on 30th January, made a speech in which she tried to start a debate about how we in society view the offence of rape and whether we bring our conscious or subconscious views and stereotypes to our consideration of it. See the speech on the prosecution of rape and serious sexual offences (CPS website). In the speech, examples of myths and stereotypes are given together with their implications and the true facts. For example: rape only occurs between strangers in a dark alley; if the victim didn't complain immediately it wasn't rape" etc.

This speech, by a highly experienced criminal lawyer, is well worth reading in full. Saunders hopes that the facts and issues raised in her talk will prompt people to start thinking about how "we together can combat and dispel the myths and stereotypes that affect public perception of rape offences."

"How do we make it easier for women to feel that
they can report an offence of rape without being disbelieved or vilified if they go through the process? How do we ensure that myths and stereotypes do not play any part in a jury's deliberations whether consciously or subconsciously?"

Changes to the law:

The substantive criminal law has changed considerably over the years. For instance, in R v R [1991] UKHL 12, the House of Lords (Lords Keith, Brandon, Griffiths, Ackner and Lowry) overturned a long-standing common law rule that a man could not be guilty of raping his wife. Lord Keith delivered a speech with which the others agreed and endorsed a dictum of Lord Lane CJ -

"The remaining and no less difficult question is whether, despite that view, this is an area where the court should step aside to leave the matter to the Parliamentary process. This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it." (Emphasis added).

The Criminal Justice and Public Order Act 1994 Part XI created the offence of rape of a male. (Here is another topic replete with myths).

A rule that a male under the age of 14 could not commit rape as a principal offender was removed by the Sexual Offences Act 1993.which abolished the presumption of law that a boy under the age of fourteen is incapable of sexual intercourse (whether natural or unnatural).

The law underwent extensive alteration in the Sexual Offences Act 2003 which was enacted following the publication of a White Paper in November 2002 - "Protecting the Public: strengthening protection against sex offenders and reforming the law on sexual offences" - (Cm 5668). The 2003 Act amended the definition of some offences including rape which is defined in section 1.

One stereotype relating to rape is that the victim would complain about it as soon as possible thereafter. It has not be uncommon for counsel to argue that delay in reporting an alleged assault casts doubt on the credibility of the complainant. This was discussed by the Court of Appeal Criminal Division in GJB v The Queen [2011] EWCA Crim 867 referring to earlier authorities R v D (JA) [2008] EWCA Crim 2557 and Miller [2010] EWCA Crim 1578. As Alison Saunders points out in her speech - "the trauma of rape can cause feelings of shame and guilt which might inhibit a victim from making a complaint. This fact was recognised by the Court of Appeal in R v D (JA) October 24 2008, where it was held that "judges are entitled to direct juries that due to shame and shock, victims of rape might not complain for some time, and that a late complaint does not necessarily mean that it is a false complaint." This remains a difficult evidential area for judges and jurors alike.

Other material:

CPS Policy on Prosecuting rape

Law on Sex Factsheet - FPA January 2011

Baroness Stern's Report published in 2010 "How complaints of rape are handled by public authorities in England and Wales." Baroness Stern was commissioned by Jacqui Smith, then Home Secretary, and Harriet Harman, then Minister for Equalities, in November 2009 to conduct an independent review into how rape complaints are handled by public authorities in England and Wales. She was asked to consider how to encourage more victims to report rape, how to improve the response of the criminal justice system and the conviction rate in line with the principles of justice long established in the UK, and how to build confidence and satisfaction in the handling of rape cases. The Government's response to the report is here.

Rapecrisis England and Wales

Criminal cases: burden and standard of proof

2012-01-30T20:54:00.004Z

In a news report published by the BBC on 21st December 2011, John Terry - footballer at Chelsea FC - is reported to have said - ""I'll fight tooth and nail to prove my innocence." Mr Terry is charged under section 31(1)(c) of the Crime and Disorder Act 1998. It will be noted that this offence is, in essence, a racially (or religiously) aggravated version of Public Order Act 1986 section 5. (Religious aggravation is not alleged against Mr Terry). The meaning of racial aggravation is set out in section 28 of the Crime and Disorder Act 1998. The case is triable summarily only (i.e. in the Magistrates' Court) and carries a maximum penalty of a fine of £2500. Mr Terry is to appear at West London Magistrates' Court on 1st February. See the CPS statement for further details. Very fairly, the statement emphasises that - "[Mr Terry] .. is summonsed with a criminal offence and has the right to a fair trial. It is extremely important that nothing should be reported which could prejudice his trial."

This post does not seek discuss the case as such. What is interesting is the comment
in the BBC's article about proving innocence. It is not for the defendant in a criminal case to prove his innocence. I fear that there is some danger that we are losing sight of this essential point. In recent times, we have heard much of "rebalancing the system in favour of victims” (White Paper "Justice for All" - 2002 Cm. 5563) and denunciation of the old adage - " it is better that ten guilty persons go free than one innocent convicted" - a comment which appears in William Blackstone's "Commentaries on the Laws of England" published in the 1760s.

What is referred to by lawyers as "the burden of proof" is a burden resting on the prosecution. The "standard" of proof is, in the now time-honoured phrase, "beyond a reasonable doubt." If a reasonable doubt exists, the defendant is entitled to the benefit of it. The standard of proof is a high standard.

In modern law, "making the jury sure" is often used. Thus, the jury or magistrates must be "sure" of the defendant's guilt.

It was in the famous case of Woolmington v Director of Public Prosecutions [1935] AC 462 (Viscount Sankey LC, Lord Hewart LCJ, Lord Atkin, Lord Tomlin and Lord Wright) - that the burden and standard of proof were set out by the House of Lords. Viscount Sankey, the Lord Chancellor, stated -

"Through-out the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."

In 1935, the defendant was referred to as "the prisoner." This term is now used only for those serving sentences of imprisonment. Interestingly, the case also states that the Attorney-General of the day gave his "fiat" (i.e. permission) for an appeal to the House of Lords. The requirement for this fiat lasted until the Administration of Justice Act 1960 and afterwards the question of whether an appeals would be allowed to the House of Lords was decided by the judiciary. This remains the situation now that the House of Lords has been replaced by the Supreme Court of the U.K.

In modern law, the burden and standard of proof remain as laid down in Woolmington's case. Viscount Sankey's speech referred to certain exceptions. One is the common law defence of insanity where the defendant bears the burden of proof. Where the defence have a burden of proof, the standard of proof is the lower standard of "on a balance of probabilities." A further exception is where a statute places a burden on the defence. This category has expanded massively by the enactment of what are often referred to as "reverse onus provisions." Since the Human Rights Act 1998, any such provision is open to challenge on the basis of its possible incompatibility with the presumption of innocence guaranteed by Article 6(2) of the European Convention on Human Rights. This is a complex topic. In "The Modern Law of Evidence" by Adrian Keane (8th ed) - (now in its 9th ed), the question of burden and standard of proof takes some 38 very detailed pages.

In Attorney-General's Reference (No. 4 of 2002) [2005] 1 AC 264, Lord Bingham said - "The underlying rationale of the presumption of innocence in both domestic law and in the Convention, is that it is repugnant to ordinary notions of fairness for a prosecutor to accuse an accused of a crime and for the accused then to be required to disprove the accusation on pain of conviction and punishment if he fails to do so."

Thus, it is not for defendants to prove their innocence: it is for prosecutors to prove their guilt. This "golden thread" remains a bedrock of our criminal procedure though it often seems necessary to dig down deeply to find it. In doing so one digs through matters such as "reverse burdens of proof"; statutory provisions affecting the "right to silence"; admissibility of "bad character"; "admissibility of hearsay"; "retrial for serious offences"; rules about "disclosure", before trial, of the prosecution and defence cases and then there is the growing impact of the "Criminal Procedure Rules." These are all areas where our law has undergone major changes in recent years and which, in one way or another, seem to blur the view of the "golden thread."

Further reading:

Criminal Law and Justice - 7th August 2010 - "Reasonable Doubt" - authors David Wolchover and Anthony Heaton-Armstrong

The serious student / legal professional should read "The presumption of innocence in Irish criminal law: Recent trends and possible explanations" by Dr Claire Hamilton and her book "The presumption of innocence in Irish law." Although written in the context of the law in the Republic of Ireland, the article and the book make extensive references to the law in England and Wales.

See also "Four threats to the presumption of innocence" by Professor Andrew Ashworth (Vinerian Professor of English Law, Oxford). Prof. Ashworth wrote about the negative effects of recent criminal justice policies on the presumption in England and Wales and identifies four sources, namely:

... confinement, by defining offences so as to reduce the effect of the presumption; erosion, by recognising more exceptions; evasion, by introducing civil law procedures in order to circumvent the rights conferred on accused persons; and side-stepping, by imposing restrictions on the liberty of unconvicted persons that fall only slightly short of depriving them of their liberty.

Any law student seeking a "First" would do well to master Prof. Ashworth's work.

The rights of defendants in criminal proceedings - European Union - the Bar Council played a significant part in producing this

Sentencing: Suspended Sentence Orders

2012-01-29T11:46:00.007Z

Crown Court - Manchester

Prisons and Young Offenders Institutions (YOI) are in the news again. On 27th January, The Guardian reported that the prison population in England and Wales was 87,668. This is said to be 3500 higher than at the same time in 2011. In a 3 week period in January 2012, the prison population had risen by 1000. This, seemingly inexorable rise, is clearly placing pressure on the Ministry of Justice budget. More money on prisons is less money for elsewhere.   Of course, as pointed out on this blog on 19th December, there seems to be a vast sum of money owed in unpaid fines and other financial orders - "Fines ... all is not fine."

A further, and very serious issue, is the number of suicides committed by young persons in custody - The Guardian 28th January 2012.   The deaths of Jake Hardy (aged 17) and Alex Kelly (aged 15) are the latest of these tragic events. Campaigners have been demanding a public inquiry into the treatment of children within the juvenile justice system since the death of 16-year-old
Joseph Scholes, a deeply disturbed youth who hanged himself at Stoke Heath YOI in Market Drayton, Shropshire, almost a decade ago. See INQUEST - Child and Youth Deaths in Prison.   INQUEST is calling for a properly-resourced public inquiry into the deaths of those children and young persons who have died in state custody since 1990.

Sentences of Imprisonment:

The sentencing regime reserves imprisonment for those offences which are so serious that no other sentence is justified - Criminal Justice Act 2003 s152 - "The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence." The test of seriousness is based on the offence alone. Other factors then come into play which may ultimately justify a non-custodial sentence.

This "so serious" test applies to all criminal offences. The application of the test is not without difficulties in relation to offences of the same nature (e.g. various types of assault). On the given facts of some cases, there is room for genuine difference of opinion as to whether the actual offence is "so serious." Sentencing Guidelines assist here by offering the sentencer lists of factors which, if present in the facts of the offence, make it more or less serious. If different types of offending are compared - as they sometimes are by thinking members of the public - it is not always easy to see why one form of offence results in immediate imprisonment (e.g. contempt of court by a juror) whereas another offence sometimes does not (e.g. a violent offender getting a suspended sentence or a community sentence). Offences striking at the administration of justice are certainly viewed as particularly serious by the judiciary but if a juror conducting internet research merits immediate custody then, the public ask, why not the offender who has inflicted serious physical or mental injury on his victim?

Suspended Sentence Orders:

The law provides a power to make a "suspended sentence order" (SSO) - Criminal Justice Act 2003 s.189 - the effect of which is to suspend a prison sentence for a period of time referred to as the "operational period" which may be from 6 months to 2 years. The SSO will impose a period of imprisonment which is suspended provided that specified requirements (e.g. unpaid work, attendance at a specified programme etc) are completed. It is possible for the imprisonment to be activated if the offender either commits a further offence during the operational period or fails to comply with the requirements.

Elements in the popular media dislike the practice of suspending imprisonment. However, provided that the requirements are properly resourced, a SSO should place considerable demands on the offender and it has the possibility of effecting a rehabilitative change in the person's behaviour. It is therefore incumbent on government to continue to ensure that adequate resources are made available for alternatives to imprisonment. Interestingly, the Ministry of Justice has announced that two "payment by results" pilot schemes will be started in Staffordshire/West Midlands and in Wales - Ministry of Justice 25th January and, for more detail, see here.

From time to time, cases appear in the media which certainly make one wonder precisely why the court has decided to suspend imprisonment. Consider, for example, the report in the Manchester Evening News 15th January where it is reported that - "Three pals walked free from court after admitting tying a man with learning difficulties to a lamppost and torturing him in a terrifying four-hour ordeal." Then there is the case of Chrapkowski and Lane, reported by the Daily Mail on 18th January where it is reported that a suspended sentence was imposed for an attack on a man which "put him in hospital for a month." Whilst there will have been good reasons why these offenders were not sentenced to immediate imprisonment, it is arguable that such sentences may not be building the faith of the general public and of victims in the criminal justice system.

On what basis might a sentence of imprisonment be suspended?

The legislation is not specific about this and it is necessary to turn to "guidelines" issued by the Sentencing Council (or its predecessor - Sentencing Guidelines Council). "New Sentences: Criminal Justice Act 2003" was issued in December 2004. Part 2 Section 2 of this document considers suspended sentences of imprisonment. This guideline insists that "a suspended sentences is a sentence of imprisonment" and, as such, is subject to the same criteria as a sentence of imprisonment which is to commence immediately. This requires a court to be satisfied that the custody threshold has been passed and that the length of the term is the shortest term commensurate with the seriousness of the offence.

In terms of the requirements which can be part of the SSO, this guideline indicates that - "Whilst the offence for which a suspended sentence is imposed is generally likely to be more serious than one for which a community sentence is imposed, the imposition of the custodial sentence is a clear punishment and deterrent." [Some will no doubt dispute that statement]. The guideline continues - "In order to ensure that the overall terms of the sentence are commensurate with the seriousness of the offence, it is likely that the requirements to be undertaken during the supervision period would be less onerous than if a community sentence had been imposed. These requirements will need to ensure that they properly address those factors that are most likely to reduce the risk of re-offending. Because of the very clear deterrent threat involved in a suspended sentence, requirements imposed as part of that sentence should generally be less onerous than those imposed as part of a community sentence. A court wishing to impose onerous or intensive requirements on an offender should reconsider its decision to suspend sentence and consider whether a community sentence might be more appropriate."

Hence, what emerges is a not particularly clear picture of the circumstances under which a sentence of imprisonment might be suspended but the emphasis appears to be that it is to be done for reasons of rehabilitation since the majority of requirements which can be part of a SSO are rehabilitative in nature. It may also be that a court might be persuaded to suspend a sentence where the imposition of immediate imprisonment might result in hardship to others such as children of a family.

Breach of a Suspended Sentence Order:

What is clear is that breach of a SSO will normally result in the offender going to prison.

The Sentencing Council's guidance (at page 26) states that - "The essence of a suspended sentence is to make it abundantly clear to an offender that failure to comply with the requirements of the order or commission of another offence will almost certainly result in a custodial sentence. Where an offender has breached any of the requirements without reasonable excuse for the first time, the responsible officer must either give a warning or initiate breach proceedings. Where there is a further breach within a twelve-month period, breach proceedings must be initiated.

Where proceedings are brought the court has several options, including extending the operational period. However, the presumption (which also applies where breach is by virtue of the commission of a further offence) is that the suspended prison sentence will be activated (either with its original custodial term or a lesser term) unless the court takes the view that this would, in all the circumstances, be unjust. In reaching that decision, the court may take into account both the extent to which the offender has complied with the requirements and the facts of the new offence."

"Where a court considers that the sentence needs to be activated, it may activate it in full or with a reduced term. Again, the extent to which the requirements have been complied with will be very relevant to this decision."

Other material:

An interesting study on this was conducted by the Centre for Crime and Justice Studies, King's College, London. See "The Community Order and the Suspended Sentence Order: the views and attitudes of sentencers"

Scotland's (and UK's) future - more consultation

2012-01-26T18:31:00.006Z

Edinburgh Castle

The Scottish Government has now issued - "A consultation on Scottish proposals for a referendum on independence." This appears to have been prompted by the earlier UK Government consultation paper - "Scotland's Constitutional Future."

In the Scottish paper, the question proposed is "Do you agree that Scotland should be an independent country?" Yes / NO. This question has been criticised as "loaded and biased" - The Telegraph 26th January. Interestingly, the Scottish paper states that the Scottish Government is "ready to work with the UK Government to agree a clarification of the Scotland Act 1998 that would remove their doubts about the competence of the Scottish Parliament and put the referendum effectively beyond legal challenge by the UK Government or any other party. Its preference is for a Section 30 order, but whichever legislative approach were taken, any change to the definition of the Scottish Parliament's competence would require the consent of the Scottish Parliament as well as the UK Parliament."

The phrase "that would remove their doubts" is suggestive
that Edinburgh still considers that it already has the legal power to hold a referendum on independence. This point is discussed in the earlier posts on this blog - here and here. There is little point in perpetuating this particular argument. Whether one adopts the London or the Edinburgh view, the matter will be put beyond doubt by the section 30 Modification Order which the Scottish Government says it prefers.

A draft Referendum Bill is set out as an appendix to the Scottish document. The Scottish Government will publish the contributions it receives (except where respondents request anonymity) and use them to inform the further development of the Bill before it is debated in the Scottish Parliament during 2013. The referendum will be held in the autumn of 2014.

Sidebar:

Robert Bruce

There seems to be something of a Scottish desire (or perhaps obsession) to hold the referendum in 2014 which would be 700 years since the defeat of King Edward II of England at Bannockburn, near Stirling. The English King - condemned by Churchill as a "perverted weakling" - assembled a large Army and led it into Scotland in June 1314. Robert Bruce (1274-1329) proved to be a shrewd military tactician. He chose to fight at a place where his flanks were protected by woods. On his front, he had round holes ("pottes") dug and covered them with branches and turfs to trap and disable charging cavalry. He also kept a force of mounted men to break up any attempt at planting archers upon his flank. His preparations served him well and his victory was utterly decisive. Edward's reign lasted until 1327 when he was murdered at Berkeley Castle. Robert Bruce died in 1329 and was interred at Dunfermline Abbey - but his heart is at Melrose Abbey.

Bannockburn ended any possibility of uniting the Crowns of England and Scotland by force of arms. A peace treaty was made in 1328 - Treaty of Northampton. The Union of the Crowns was not to come until, after the death of Elizabeth I in 1603, King James VI of Scotland also became King James I of England. Political union of the Kingdoms of Scotland and England did not come until 1707 with the Act of Union with Scotland 1706.

Tomb of Edward II - Gloucester Cathedral

Responses to the UK Government's Consultation must be submitted by 9th March and the Scottish Consultation by 11th May 2012.

Mr Cameron's Address to the Council of Europe - 25th January

2012-01-25T19:41:00.016Z

The Prime Minister, David Cameron, has addressed the Parliamentary Assembly of the Council of Europe and his address is available via the 10 Downing Street website. Mr Cameron began by saying - "I want no one here to doubt the British commitment to defending human rights." However, this did not mean "sticking with the status quo." The Europe Court of Human Rights (ECtHR) needs to be "a beacon for the cause of human rights, ruthlessly focussed on defending human freedom and dignity, respected across the continent and the world." He argued that the ability of the Court to play this role is under threat in three areas:

Too many cases - threatening the court's ability to do what is most important

Court of the fourth instance - whilst the court is properly safeguarding the right of individual petition, there is the risk that the court is becoming a court of "fourth instance" giving an extra bite of the cherry to anyone who is dissatisfied with a domestic ruling, even where that judgement is reasonable, well-founded, and in line with the Convention.

Slim margin of appreciation - the Court is, quite rightly, determined to make sure that consistent standards of rights are upheld across the 47 member states… but at times it has felt to us in national governments that the ‘margin of appreciation’ – which allows for different interpretations of the Convention – has shrunk…and that not enough account is being taken of democratic decisions by national parliaments. "I completely understand the Court’s belief that a national decision must be properly made. But in the end, I believe that where an issue like this has been subjected to proper, reasoned democratic debate…and has also met with detailed scrutiny by national courts in line with the Convention…the decision made at a national level should be treated with respect." In support of this third point, Mr Cameron referred to Prisoner Voting and also to certain Immigration decisions.

Taken together, argued Cameron, these issues threaten to shift the role of the Court away from its key objectives. The Court should be free to deal with the most serious violations of human rights; it should not be swamped with an endless backlog of cases. The Court should ensure that the right to individual petition counts; it should not act as a small claims court. And the Court should hold us all to account; it should not undermine its own reputation by going over national decisions where it does not need to.

During the UK's Chairmanship of the Council of Europe's Committee of Ministers, proposals will be brought forward to seek improvements in the efficiency of the court, to introduce new rules to enable the court to focus more efficiently and transparently on the most important cases. The UK also wishes to improve the procedures for nominating judges. The Assembly needs consistently strong shortlists from which to elect judges – and clear guidelines on national selection procedures could help with that. Mr Cameron also said that the UK hoped to get consensus on "subsidiarity" – the principle that where possible, final decisions should be made nationally. "Subsidiarity" is a fundamental principle of the Convention, declared Cameron. "For that reason, we will shortly set out our proposals for pushing responsibility to the national system." "That way we can free up the Court to concentrate on the worst, most flagrant human rights violations – and to challenge national courts when they clearly haven’t followed the Convention."

Reaction - Effort is already going into dealing with the court's backlog of cases. On the Council of Europe website is a podcast where this matter is discussed - "Courting Trouble." The podcast explains how the court is addressing this issue. On the face of it, there is little to quibble about in this aspect of Mr Cameron's address. However, when the UK's proposals are published, attention will need to be paid to any proposals seeking to alter the admissibility criteria.

It is true that the process of getting a case to Strasbourg can look like a hearing at a court of Fourth Instance. However, this ignores the role of the Strasbourg Court which is not strictly an appeal process. The ECtHR exists "to ensure the observance of the engagements undertaken by the High Contracting Parties" - Article 19 of the European Convention. The Court's role therefore, is to be the ultimate arbiter of the meaning of the Convention and to indicate, by its judgments, when a State has violated the rights of the individual. Whilst the State has the responsibility for securing human rights, the ECtHR has a supervisory role. Without such an ultimate arbiter, there would be numerous interpretations of the Convention. There are instances where a case has gone through all the domestic courts in the UK and yet Strasbourg has come out against the UK - e.g. S and Marper v UK where the ECtHR Grand Chamber unanimously found a breach of Article 8. The English judges - with the exception of Baroness Hale - had said that Article 8 was not engaged by the retention of DNA profiles and fingerprints. Such a case does, I submit, demonstrate clearly the need for the right of individual petition and, if it comes to it, a "Fourth Instance" hearing which will focus on the convention rights implications of the case.

On the third point, "slim" margin of appreciation, the UK government is clearly angered over cases like Hirst No.2 (Prisoner Voting) and Abu Qatada (deportation of terrorist suspect). In this area, there are perhaps two ideas which are tending to become merged: the margin of appreciation and subsidiarity.

The "margin of appreciation" is a doctrine of the ECtHR's own jurisprudence. It is discussed in many cases, including S and Marper v UK. There are some areas where the ECtHR has recognised that opinion is not well-settled and has therefore chosen to allow the State a "margin of appreciation" in that area. A "wide" margin is allowed where there is no consensus - or no clear consensus - within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to how best to protect it. The doctrine also recognises that the ECtHR is subsidiary and supervisory and the primary duty to protect rights lies with the member States. An interesting case is Goodwin v UK (2002) 35 EHRR 18 where the ECtHR decided that a general European cultural and medical consensus on the rights of transsexuals had developed and the previous margin of appreciation which the court had previously allowed was narrowed.

"Subsidiarity" is a term which appears to be borrowed from EU law by those who seek to argue that the ECtHR should adopt a "hands off" approach in a particular area such as prisoner voting. In other words, an argument that certain matters must be left almost entirely to States. It is interesting that it is claimed that subsidiarity is a fundamental principle of the Convention and yet the human rights textbooks do not mention it. They do, of course, refer to margin of appreciation.

It is not easy to see how the court could reconcile a hands-off approach with its purpose as expressed in Article 19 of the Convention - "to ensure the observance of the engagements undertaken by the High Contracting Parties." However that may be, the Attorney-General argued in a speech that there are some areas of "social policy" where the ECtHR should not intervene - ‘… the principle of subsidiarity requires the Court to accept that on issues of social policy such as prisoner voting, where strong, opposing reasonable views may be held and where Parliament has fully debated the issue, the judgement as to the appropriate system of disenfranchisement of prisoners is for Parliament and the Court should not interfere with that judgement unless it is manifestly without reasonable foundation…’ The ECtHR will get an opportunity to comment judicially on this idea since, given that the ECtHR has issued judgments subsequent to Hirst No.2, the UK has intervened in the Scoppola v Italy case concerning prisoner voting rights. It would be surprising if the ECtHR accepted that it cannot interfere in such matters unless the national decision is " ... manifestly without reasonable foundation…" That formula is an invention of the British government and looks like a major fetter on the ECtHR's role. Such a formula does not appear in the European Convention which, as already noted, requires the ECtHR "to ensure the observance of the engagements undertaken by the High Contracting Parties"

In the UK, there have been views that some of the judges at the ECtHR are not "up to the mark." The exact basis for such comments is unclear. However, the process is discussed on the Council of Europe's podcast - "Courting Trouble." - and the British government's proposals for altering the selection process are awaited. Under the Convention Article 21 - Judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence. The judges are elected by the Parliamentary Assembly with respect to each High Contracting Party by a majority of votes cast from a list of three candidates nominated by the High Contracting." They serve for 9 years and may not be re-elected. They retire at age 70.

Doubtless, there will be a great deal more reaction and comment about Mr Cameron's speech. I will try to add links as they become available.

Links:

Twitter 25th January - Hugh Southey QC - "It does seem as though David Cameron is looking for a system where the UK doesn't lose" (Tweet reproduced here with kind permission).

The Guardian 25th January - "David Cameron's court criticism premature, say campaigners"
The Guardian 25th January - Francesca Klug - "Human Rights: Cameron's message to Europe"

Amnesty - "UK musn't use chairmanship to chip away at protection"

Independent 26th January - "Cameron warned his reforms will lead to increase in human rights abuses" - Benjamin Ward, deputy director for Europe and Central Asia at Human Rights Watch, warned: "Criticism of the court by UK government ministers, or failure to correct misleading reporting about it in the British media, emboldens other governments, such as Russia and Turkey, that would prefer to ignore its rulings." See also Human Rights Watch - "Russia: Expert Testimimony in the situation for human rights defenders."

New Europe Online - Human Rights, democracy and rule of law or dictatorship

The Guardian 26th January 2012 - Joshua Rozenberg - "Deciding the future of human rights court ... in Brighton" - Conference at Brighton 18-20 April 2012

27th January:

The European Court of Human Rights Annual Report for 2012 was published

The Guardian published a useful "Datablog" - "European Court of Human Rights: which countries get the most judgments?"

A video about the Admissibility Conditions used by the ECtHR is available via Youtube
and also see UK Human Rights Blog - article by Ben Jones - "European Court of Human Rights: is the admissions system transparent enough?"

Mulberry Finch Blog - Henry Oliver - "Human Rights, Parliamentary Sovereignty and the Rule of Law"

1st February 2012:

See also UK Human Rights Blog - "Attorney-General "nuances" the PM's dig at European Court - the Attorney-General's views were expressed in a speech the day after Mr Cameron's address to the Parliamentary Assembly.

Sir Nicolas Bratza: the European Court of Human Rights

2012-01-24T11:45:00.003Z

Updated with links to some other blogs

To say the least, Sir Nicolas Bratza is a very eminent lawyer - see his profile on the Bar Council website. His CV is also on the European Court of Human Rights website. Sir Nicolas was in private practice at the English Bar for 29 years - from 1969 to 1998. He was appointed Queen's Counsel in 1988 and appointed Judge of the High Court in 1998. However, most of his judicial work has been as a British judge of the European Court of Human Rights and he is now the court's President.

As it happens, since 7th November 2011, the United Kingdom holds the Chairmanship of the Council of Europe's Committee of Ministers. It will hold this until 14th May 2012 when Andorra takes this rotating post. On Wednesday 25th January, David Cameron is to address the Council of Europe's Parliamentary Assembly which will be attended by representatives of all 47 Member States of the Council of Europe - quite a number of which are emerging democracies struggling to establish the rule of law. It is widely anticipated that Mr Cameron's address will include reform of the European Court of Human Rights which the U.K. is pressing for.

In advance of Cameron's address,
Sir Nicolas has chosen to defend the European Court of Human Rights - see The Independent 24th January 2012 - "Britain should be defending European justice, not attacking it." His article is essential reading. It may prove to be a pity that Sir Nicolas did not keep his powder dry until Cameron had spoken. Nevertheless, Sir Nicolas offers a staunch defence of the court, of the role played by the UK in establishing the court and the convention and also of the overwhelmingly positive influence of the court on the development of the law within the UK.

One fact is worth our concentration. In 2011, the court decided more than 52000 cases. 955 of these involved the UK - that is, 1.8% of the total. In only 8 cases - (0.015% of the total or 0.84% of the 955) - did the court find the UK to be in violation of the Convention.

The problem is that the present British government, much like the last government, concentrates its firepower on those cases which it dislikes. Cases such as Hirst No.2 (Prisoner Voting - Grand Chamber judgment still not implemented by UK); S and Marper (DNA profile retention); and Abu Qatada (deportation - fair trial could not be secured if evidence against accused obtained by torture) received enormous Ministerial comment whereas cases where the UK secures "success" receive little Ministerial attention - e.g. Abu Qatada (where the court actually accepted that, in some instances, diplomatic assurances to prevent ill-treatment would be acceptable) or Vinter and others v UK (life can mean life in some cases of sufficient seriousness) - see Law and Lawyers 17th January. Then there was the Al-Khawaja judgment where the European Court of Human Rights conceded that a conviction based solely or decisively on the statement of an absent witness would not automatically result in a breach of Article 6(1). However, quite properly, the Court said that counterbalancing factors had to be in place, including strong procedural safeguards, to compensate for the difficulties caused to the defence - see Law and Lawyers 15th December 2011.

The present British coalition government is, in my view, using the economic crisis to attack legal aid which is the bedrock of access to justice for the ordinary citizen in our country. Elimination of financial waste in many areas of government would be enough to pay for necessary legal aid many times over. The Legal Aid, Sentencing and Punishment of Offenders Bill, currently before the House of Lords, is, so far as legal aid is concerned, an abomination. Neither the Commons nor the Lords have appeared to be able to secure many concessions on this Bill and criticism of the Bill - even criticism from eminent lawyers in the House of Lords - is being stonewalled by Ministers.

None of the above is to deny that some reform is required to the European Court of Human Rights - e.g. the case backlog must be reduced - a point addressed by Sir Nicolas in his article. Neither is a case being made against any reform of legal aid. For instance, in some areas, it is not unreasonable to expect litigation funding to come from sources other than legal aid. Nevertheless, the present government's aims at reducing the influence of the European Court of Human Rights and its attacks on legal aid do not auger well for the future of legal rights within the UK. Whatever Mr Cameron chooses to say, his words must be judged against his government's deeds. We now await his address with interest.

In the interests of overall balance, here are two blog posts of interest:

Mulberry Finch - Nicolas Bratza and the Margin of Appreciation - This post is particularly critical of Bratza's statement and argues that the court should be essentially about prevention of excessive use of government power. It concludes - "We equally see that a sovereign parliament must be able to make some laws that are not defeated in a court: it has to be accepted by the pro-Human Rights contingent that this is not an ever extendable set of rights, it is a hedge against unlawful interference by the government. Only when the merits of the few small cases (prisoner rights, terrorist deportations) are properly discussed will there be an effective resolution to this disagreement. Being pro or anti isn’t good enough; it’s more complicated than that."

Head of Legal - Bratza: criticism of Strasbourg not borne out by the facts - the author, barrister Carl Gardner, states - "I support the European Court of Human Rights, and am pleased to see Sir Nicolas defend its general record robustly. Most British criticism of the human rights court is wrong-headed and ill-informed. But on some specifics, I’m afraid the facts do bear out the complaint that the court has sometimes been too interventionist."

UK Human Rights - "Is Strasbourg obsessively interventionist? A view from the court - Paul Harvey" - looks at the approach taken by the court to admissibility decisions

and "Mr Cameron goes to Strasbourg"

The Royal Prerogative: the "honours" system

2012-01-23T11:56:00.008Z

The United Kingdom is noted for having a complex honours system the workings of which are somewhat mysterious and secretive.

In December 2011, the Financial Services Authority published its lengthy (452 page) report into the Failure of the Royal Bank of Scotland.    Sir Fred Goodwin was Chief Executive of the bank from 2001 to January 2009 - see his Wikipedia entry. For several years, the bank grew massively in size due to acquisitions and enjoyed soaring profits. Not surprisingly, Goodwin was feted by many politicians during these "successful" years and he was honoured by the award of a knighthood "for services to banking" - London Gazette 12th June 2004. Now there are calls for him to be "stripped of his knighthood" - The Guardian "Sir Fred could lose knighthood says Cameron" and The Telegraph "Nick Clegg: I understand outrage over Fred Goodwin's knighthood" and BBC 20th January - "Miliband: Fred Goodwin should lose knighthood." What is the legal basis for the "honours" system? How are they awarded and how are they removed? General information about the honours system is available via the Directgov website. See also Royalty UK - Honours.

The Honours system rests on the Royal Prerogative
which may be described as comprising those special powers, rights and immunities recognised by law as attaching to the Crown. There appears to be no detailed and authoritative source identifying these powers and setting out their scope though the prerogative gives the Crown - in practice, the Executive - enormous power especially in relation to foreign affairs and defence. The Labour government looked at the prerogative in "Governance of Britain: Review of the Executive Royal Prerogative Powers." and the grant of honours is one of the Royal Prerogatives.

The legal textbooks tell us that the Queen is the "fount[ain] of honour." Thus, all honours are granted in the name of the Queen though, with some exceptions, the Monarch acts upon the advice of the Prime Minister who, in turn, usually, adopts a list presented to him - see here for an explanation of the process.

Removal of an honour is relatively rare. A Parliamentary Briefing Paper issued in January 2008 states:

"Removal of Honours - The Sovereign may, on the advice of Ministers, cancel an award if the holder is considered unworthy to retain it. The object of forfeiture is to preserve the integrity of the Honours System. No person found guilty of a serious offence should be recommended for an honour; it is generally felt that a person who has been honoured and subsequently commits a serious offence should not continue to hold a symbol of high regard. Each case is considered on its merits by the Forfeiture Committee but if it came to light that an honours recipient had received a criminal conviction and a prison sentence for a serious offence, the forfeiture of his or her award would be almost inevitable."

The members of the Forfeiture Committee are: the Cabinet Secretary, Treasury Solicitor, Permanent Secretary to the Home Office and Permanent Secretary to the Scottish Executive. The Committee’s recommendation for forfeiture is submitted through the Prime Minister to The Sovereign. If the Sovereign grants approval a notice of forfeiture is placed in the London Gazette. Examples of forfeitures are given below, but are not comprehensive:

• Roger Casement, executed for treason in 1918
• Jack Lyons, a prominent businessman who made extensive charitable donations, but was convicted of fraud in the late 1980s
• Anthony Blunt, who lost his knighthood in 1980 after he was revealed to be a member of the Philby-Burgess spying rings, although not charged or prosecuted..
• Terence Lewis forfeited his knighthood in 1993, following the findings of the Fitzgerald inquiry into corruption in Queensland, Australia, and his subsequent conviction of corruption.

Citizens of states who do not have the British monarchy as titular head of state are awarded honorary awards. It is also possible for these to be removed. Removal of a peerage requires primary legislation."

To this list could be added the famous jockey Lester Piggott whose OBE was removed in 1988 following his conviction in connection with taxation. Interestingly, Gerald Ronson was awarded CBE in 2012 despite him being previously convicted in 1990. His award was for charitable services.

Removal of Honours are considered by the Honours Forfeiture Committee. The Directgov website informs us that the committee exists to "consider cases where an individual’s actions subsequent to their being awarded an honour raise the question of whether they should be allowed to continue to be a holder of the honour."    "To ensure the honours system is not brought into disrepute the Committee normally considers cases put to it when a holder of an honour: has been found guilty by the courts of a criminal offence and sentenced to a term of imprisonment of more than three months; or has been censured/struck off etc by the relevant regulatory authority or professional body for actions or failures to act which are directly relevant to the granting of the honour."

The Committee’s recommendations are submitted to The Queen through the Prime Minister.

It is interesting to note that Fred Goodwin's conduct does not come within either the "convicted" category or the "struck off" category. Beyond those two categories, it is far from clear on what grounds an honour would be forfeit. This lack of clarity does the system little credit. Some commentators have come out in opposition to the removal of this knighthood. For example, Charles Moore Telegraph - "Let Sir Fred Goodwin keep his knighthood to remind us of our collective folly" and Ian Fraser "Stripping Fred Goodwin of his knighthood is a red herring."    Fraser finds the "current witch-hunt and cross-party campaign to have Fred stripped of his knighthood to be not just unfair, but also populist, rankly hypocritical and a deliberate smokescreen." Both articles make the obvious point that Goodwin was by no means the only executive involved in banking problems and failures at the time. (The FSA report contains a list of those who held Directorships at RBS during the relevant period).

From a legal viewpoint, I think that the forfeiture rules (so far as they are in the public domain) do not appear to cover the Goodwin case unless the committee comes to the conclusion that he comes within some vague "unworthy to retain it" criterion. If he is considered "unworthy" then others must also come within the net.

Further information - see Public Administration Committee 2nd Report 2007 which was published in connection with allegations of "sale" of peerages.

Several Commonwealth States have reviewed and reformed the Honours system - see Canada, Australia and New Zealand.

With regard to removal of certain titles after World War 1 see Titles Deprivation Act 1917 . The outcome of the Act is here. At the time, those titles would have been hereditary and the 1917 Act permitted successors to petition the Crown for the return of the title. No one has done so to date.

Postscript 31st January:

It has been announced that Sir Fred Goodwin's knighthood was removed for bringing the honours system into disrepute. BBC 31st January 2012.

Scotland's Constitutional Future: an influential Scottish voice

2012-01-21T11:25:00.007Z

Lord Wallace of Tankerness QC

I do not myself regard politics and law as, in any way, in conflict because politics in our country should be carried on under the rule of law - Lord Wallace of Tankerness QC

A few days ago, Law and Lawyers ventured the tentative view that Scotland could not lawfully hold any form of referendum relating to independence unless the UK Parliament has granted specific authority for it - "Scotland: We need to talk." The argument is not repeated here but it is interesting that Lord Pannick QC expressed a firmer view in an article in the Times on Thursday 19th January. Unfortunately, due to the "pay wall", I cannot link to the article but he wrote that a referendum was a reserved matter and therefore not within the legislative competence of the Scottish Parliament. Put simply, any form of referendum would "relate to" the reserved matter of "the Union of the Kingdoms of Scotland and England." A further article to the same effect appeared in The Scotsman 20th January - "Iain Jamieson: Alex Salmond lacks legal strength."

Section 29(3) of the Scotland Act 1998 states
that, whether a provision of an Act of the Scottish Parliament "relates to" a reserved matter, is to be determined by reference to the purpose of the provision having regard (among other things) to its effect in all the circumstances. As Iain Jamieson points out, Alex Salmond argues that he already has the power to hold an “advisory” or “consultative” referendum. However, what would be the purpose of such a referendum? Perhaps the only sensible view would be that the purpose would be to bring about greater political pressure for Scotland to be granted independence. Thus, it would "relate to" the "Union of the Kingdoms ...." However, ultimately only the Supreme Court of the UK could authoritatively rule on the exact meaning of section 29(3) in the context of any purported Scottish legislation for a referendum.

Do we really want the judiciary to determine this question? I do not venture to answer that question here since reference to the judiciary is both avoidable and should be avoided. London can empower the Scottish Parliament to enact legislation for a referendum. That is the sensible way forward since it side-steps legal argument relating to the Scottish Parliament's legislative competence. It is also the way forward proposed by the government in the recently issued consultation- "Scotland's Constitutional Future."

A very influential Scottish legal voice has now spoken. The Advocate General for Scotland - Lord Wallace of Tankerness QC gave a speech at Glasgow University on 20th January - "Scotland's Constitutional Future." Lord Wallace said: " ... an Act to bring about the end [of] the Union would "relate to" the Union and bringing an end to it would be its purpose – it would be outside competence. What then, about a referendum on the Union? It seems to me that a referendum, "advisory", "consultative" or whatever, about the Union, would relate to the Union. That seems clear both as a matter of common sense, and on a straightforward reading of the plain words of the statute."

Joint Enterprise

2012-01-19T10:19:00.005Z

On 19 October 2011, the House of Commons Justice Committee. announced an inquiry into the aspect of secondary liability in a criminal venture commonly known as joint enterprise. The inquiry was prompted by dissatisfaction with the operation of the doctrine amongst campaigning groups. Concerns were expressed both by groups representing victims and groups representing those who believe they have been convicted following a miscarriage of justice.

The Committee has now issued its report - "Joint Enterprise" - 11th report of Session 2010-12. The Preface to the report states - "Having examined the law in this area, and heard from witnesses who have recent experience of the operation of the doctrine, both as the victims of crime and as defendants’representatives, we have concluded that joint enterprise should be enshrined in statute to ensure clarity for all involved in the criminal justice system. While we recognise that there are particular problems with the operation of the joint enterprise doctrine and murder, we feel strongly that reform in this area should not have to wait for a wider review of the law on homicide."

In response to the report, the Director of Public Prosecutions issued a statement indicating that the CPS will now produce guidance on the approach it will take to cases of joint enterprise, including guidance on the proper threshold at which association potentially becomes evidence of criminality.

The Guardian 18th January carried an article - "When should one gang member take responsibility for the actions of the others?" The article states that
- "Central to the prosecution case in the Lawrence murder trial was the fact that it did not matter whether the pair had carried out the actual stabbing, but whether they were part of an attack that could clearly end in serious harm."

and, later ...

"We live in a punitive, post-riots world where there is little sympathy for anyone who hangs out in a gang. The argument is being made that the joint enterprise rule helps discourage young men from being part of knife-wielding gangs and that lives are being saved as a result. But the evidence the appeal courts will be hearing over the coming months will show that some young men who played, as the report has it, "a very minor part in a very serious offence", have a case that demands to be heard."

Law and Lawyers looked at Joint Enterprise previously: see Joint Enterprise 30th January 2010 and 30th July 2010.

It remains to be seen whether the Justice Committee's call for legislation will be heeded and, if so, what form it will take. This is, yet another, subject to which we shall doubtless return.

See blogpost - The Justice Gap - "Joint Enterprise: Confusing Juries and Courts" and "Tenuous Evidence: Unjustified Inferences"

Francis Fitzgibbon QC - "Joint Enterprise"

Panorama programme November 2009 – “Joint enterprise: who is guilty.”

Homicide: A major Court of Appeal judgment

2012-01-18T18:00:00.004Z

Lord Judge LCJ

"We have proceeded on the assumption that legislation is not enacted with the intent or purpose that the criminal justice system should operate so as to create injustice" - per Lord Judge.

The Court of Appeal Criminal Division (Lord Judge, Henriques and Gloster JJ) has handed down judgment in R v Clinton, Parker and Evans [2012] EWCA Crim 2. This is a judgment which should be required reading by all legislators as well as lawyers and students.

The three cases are unconnected factually but each raised the question of interpretation of provisions in the Coroners and Justice Act 2009 Part 2 Chapter 1 (CAJA) relating to the partial defence to murder of what is now known as "loss of control." That this change to the law is formidably difficult will be seen from the court's judgment.

In relation to Clinton, the trial judge - as permitted by CAJA s. 54(6) - had refused to allow his defence of loss of control to be put to the jury. Clinton's case also involved the redefined diminished responsibility defence - now defined in CAJA s. 52 (inserting a new section 2 into the Homicide Act 1957).. He was granted a retrial. The appeals of Parker and Evans related to loss of control and their "loss of control" defence had been allowed to go to the jury. Their appeals against conviction were dismissed.

The changes to the partial defences available on a murder charge were looked at by Law and Lawyer 8th September 2010 just prior to them coming into force on 4th October 2010. The changes to the law are (a) a redefined defence of diminished responsibility (section 52) and (b) the replacement of the old provocation defence with a new defence of "loss of control" - sections 54 and 55. In that post, it was said that - "The new law of "qualifying triggers" is complex." That statement is amply borne out by the Court of Appeal's judgment.

The opening paragraphs of the court's judgment deal with the background to the law and are worth setting out in full. [My emphasis]

"The difficulties
of giving consistent effect to section 3 of the Homicide Act 1957, which encapsulated in statutory form the common law defence of provocation, were notorious. As Professor David Ormerod observes in Smith and Hogan's, Criminal Law, 13^th Edition, "For the appellate courts to fluctuate so often and so significantly on the interpretations of a defence in cases of such seriousness led to confusion and presented a disappointing spectacle". This measured criticism is entirely justified. With effect from 4 October 2010 section 3 of the 1957 Act ceased to have effect. The ancient common law defence of provocation, reducing murder to manslaughter, was abolished and consigned to legal history books.

It was replaced by sections 54 and 55 of the Coroners and Justice Act 2009 (the 2009 Act) which created a new partial defence to murder, "loss of control". Just because loss of control was an essential ingredient of the old provocation defence, the name is evocative of it. It therefore needs to be emphasised at the outset that the new statutory defence is self-contained. Its common law heritage is irrelevant. The full ambit of the defence is encompassed within these statutory provisions. Unfortunately there are aspects of the legislation which, to put it with appropriate deference, are likely to produce surprising results.

In order to enlighten our understanding our attention was drawn to different passages in the Report of the Law Commission (Report No. 290, Partial Defence as to Murder (2004), the Law Commission Consultation Paper No. 177, A New Homicide Act for England (2005) and the Law Commission Report No. 304 (Murder, Manslaughter and Infanticide (2006). In July 2008 the Ministry of Justice issued its consultation paper in response to these recommendations, Murder, Manslaughter and Infanticide; proposals for reform of the law. Although the title of the Law Commission Report was adopted, its contents were selectively chosen. Looked at overall, the legislation does not sufficiently follow the recommendations of the Law Commission to enable us to discern any close link between the views and recommendations of the Law Commission and the legislation as enacted.

In these appeals the main focus of our attention is the controversial provision which relates to the impact on the "loss of control" defence of what is described as "sexual infidelity". We looked, de bene esse, at the debates in Parliament prior to the enactment. Even on the most generous interpretation of Pepper v Hart, the debates did not reveal anything which assisted in the process of legislative construction. So we must ascertain the meaning of these provisions from their language. As we shall explain, however, the conclusion we have reached is consistent not only with the views which would have been expressed by those who were opposed to this provision in its entirety, but also with the views expressed by ministers responsible for the legislation during its passage through Parliament."

Structure of the judgment:

The Lord Chief Justice then sets out the essentials of each case (para. 5) and the relevant legislation at para. 6 - i.e. sections 54 and 55 of the CAJA 2009.   It was noted that section 54 contains three components - all of which must be proved to establish the defence of loss of control.

The three components are: (1) the killing must have resulted from loss of self-control; (2) there must be a "qualifying trigger" and (3) a person of the defendant's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, might have reacted in the same or in a similar way to the defendant.    For the defence to be successful, all 3 components must be established. The defence has an evidential burden to adduce sufficient evidence for the judge to permit the defence to go to the jury and, if sufficient evidence is adduced, the jury has to assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not - section 54(5).

These components are then discussed at para. 10 (1st component); para. 11 (2nd component) and para. 30 (3rd component).

A further complication arises if both diminished responsibility and loss of control are pleaded. This arose in Clinton's case and is referred to at para. 33.

The question of "sexual infidelity" arises in connection with the "qualifying triggers."   It is section 55(6)(c) which states that in determining whether a loss of self-control had a qualifying trigger, the fact that a thing done or said constituted sexual infidelity is to be disregarded. The judgment contains a very useful, but not exhaustive, discussion of this and and the court's conclusions on it are at paras. 34 to 44. This was the court's main focus of attention.

Lord Judge next considers the responsibility of judges - paras. 45 to 49. Then, each case is considered individually: Clinton at para 50; Parker at 79 and Evans at 107.

Qualifying triggers - section 55:

"Meaning of "qualifying trigger"

(1) This section applies for the purposes of section 54.

(2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.

(3) This subsection applies if D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person.

(4) This subsection applies if D's loss of self-control was attributable to a thing or things done or said (or both) which –

(a) constituted circumstances of an extremely grave character, and

(b) caused D to have a justifiable sense of being seriously wronged.

(5) This subsection applies if D's loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).

(6) In determining whether a loss of self-control had a qualifying trigger –

(a) D's fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;

(b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;

(c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.

(7) In this section references to "D" and "V" are to be construed in accordance with section 54."

What does the judgment establish?

It appears that the following conclusions may be drawn from the judgment:

1. The law on loss of control is self-contained in sections 54 and 55 - the common law heritage is irrelevant.

2. Section 54(1) sets down the three components of the defence and all must be established for the defence to succeed.

3. Section 54(4) refers to the loss of control being attributable to a thing done or said (or both). The court considered that it was not enough that the defendant personally had a sense of being seriously wronged though that was necessary (para. 12). The questions whether the circumstances were extremely grave, and whether the defendant had a justifiable sense of being seriously wronged, indeed all the requirements of section 55(4)(a) and (b), require objective evaluation.   Later, at para. 38, the Lord Chief Justice said - "... to qualify as a trigger for the defendant's loss of control, the circumstances must be extremely grave and the defendant must be subject to a justifiable sense of having been seriously wronged. These are fact specific questions requiring careful assessment, not least to ensure that the loss of control defence does not have the effect of minimising the seriousness of the infliction of fatal injury. Objective evaluation is required and a judgment must be made about the gravity of the circumstances and the extent to which the defendant was seriously wronged, and whether he had a justifiable sense that he had been seriously wronged." (Emphasis added).

4. The law of qualifying triggers is in section 55. Section 55(6)(c) which requires that in the determination of whether a loss of self-control had a qualifying trigger, the fact that a thing done or said constituted sexual infidelity is to be disregarded. Thus, as drafted, the section appears to rule out consideration of sexual infidelity altogether when the question of qualifying trigger is under consideration.

This resulted in extensive (though not comprehensive) discussion in the judgment. The subsection is referred to as being "formidably difficult."   The court held that:

Sexual infidelity on its own cannot qualify as a trigger for the purposes of the second component of the defence. This is clearly excluded by section 55(6)(c).    However, where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of subsections 55(3) and 55(4) then the prohibition in section 55(6)(c) does not operate to exclude it.

Sexual infidelity is not defined in the legislation though there is discussion in the judgment about it.

5. Sexual infidelity may be considered in relation to diminished responsibility (section 52) and also in relation to the third component of loss of control - namely section 54(1)(c) - "a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

6. The words "considered desire for revenge" in section 54(4) arose in the case of Evans. The trial judge's direction was criticised by the appellant for not offering the jury sufficient elucidation of the significance of the word "considered." However, the Court of Appeal said that the judge had directed the jury in accordance with the statutory language and there was no need to rewrite it. "The language is clear" said the Court of Appeal. Whether this point returns in a future case remains to be seen.

Interestingly, the Court of Appeal did not refer to the Explanatory Notes to the Coroners and Justice Act - see Notes s.54 and Notes s.55.   I leave it to the reader to decide whether those notes support the court's conclusion. I do not find the notes especially clear on this point. However, it was interesting that the Court of Appeal felt "fortified" by views which had been expressed in Parliamentary debate by Anna Eagle MP (para 41), Claire Ward MP (para 42) and Lord Bach (para 43).

This is not a particularly good example of law reform though, in fairness, the new law is not without good features such as the fact that loss of control does not have to be sudden - (a problematic requirement of the old provocation defence). It may be that this reform has replaced one "disappointing spectacle" with another. Doubtless, this is a subject to which we shall return.

A trio of European Court of Human Rights decisions

2012-01-17T17:00:00.009Z

Today, 17th January, the European Court of Human Rights (ECtHR) was scheduled to deliver some 35 judgments. The reader will perhaps be particularly interested in the following three judgments which are all judgments of Section IV of the Court sitting as a Chamber. (Sections explained).

Vinter and Others v. the United Kingdom - (Judgment of 4th Section)

The applicants, Douglas Gary Vinter, Jeremy Neville Bamber and Peter Howard Moore, are currently serving mandatory sentences of life imprisonment for murder. When convicted the applicants were given whole life orders, meaning they cannot be released other than at the discretion of the Secretary of State on compassionate grounds. They argued that their whole life orders amounted to a breach by the UK of the prohibition of inhuman or degrading treatment (Art 3). They also relied on Article 5(4) (right to have lawfulness of detention decided speedily by a court), Article 6 (right to a fair hearing), and Article 7 (no punishment without law).

The E Ct HR held unanimously that Art 3 was not violated.

Vinter was convicted
of stabbing his wife in February 2008. While still on parole for a first murder offence (he killed a work colleague), he followed his wife – from whom he was estranged – to a public house, forced her into his car and drove off. When the police telephoned her, Vinter forced her to tell them that she was fine. He also later called the police to tell them that she was alive and well. However, some hours later he gave himself up and confessed that he had killed her. The post-mortem revealed that his wife had a broken nose, strangulation marks around her neck and four stab wounds.

Bamber was convicted of shooting and killing his adoptive sister and her two young children in August 1985. It was alleged that he had committed the murders for financial gain and had tried to make it look as if his adoptive sister had carried out the crime, then killed herself.

Moore was convicted of stabbing four men with a large combat knife between September and December 1995. The four victims were all homosexuals and Moore allegedly killed them for his own sexual gratification.

When convicted the applicants were given whole life orders, meaning they cannot be released other than at the discretion of the Secretary of State on compassionate grounds (for example, if they are terminally ill or seriously incapacitated). The power of the Secretary of State to release a prisoner is provided for in section 30(1) of the Crime (Sentences) Act 1997.

Under this Act it was practice for the mandatory life sentence to be passed by the trial judge, who – along with the Lord Chief Justice – then gave recommendations to the Secretary of State to decide the minimum term of imprisonment (the “tariff” part of the sentence) which the prisoner would have to serve to satisfy the requirements of retribution and deterrence and be eligible for early release on licence. In general, the Secretary of State reviewed a whole life tariff after 25 years’ imprisonment.

With the entry into force of the Criminal Justice Act 2003, all prisoners whose tariffs were set by the Secretary of State are now able to apply to the High Court for review of that tariff. Vinter’s whole life order was made by the trial judge under the current practice. His appeal against his conviction was dismissed in June 2009. The Court of Appeal found that there was no reason to depart from the normal principle under schedule 21 to the 2003 Act that, where a murder was committed by someone who was already a convicted murderer, a whole life order was appropriate for punishment and deterrence.

Bamber and Moore, convicted and sentenced prior to the entry into force of the 2003 Act, both applied to the High Court for review of their whole life tariffs. In the case of Bamber, the High Court concluded that, given the number of murders involved, the presence of premeditation, the submissions by the victims’ next-of-kin as well as reports on the behaviour and progress he had made in prison, there was no reason to depart from the view held in 1988 by the Lord Chief of Justice and the Secretary of State that he should never be released.

In the case of Moore, the High Court found that the case involved the murder of two or more people, sexual or sadistic conduct and a substantial degree of premeditation and that there were no mitigating circumstances.
The High Court therefore considered that whole life orders were justified in respect of murders.

The Court held that in each case the High Court had decided that an all-life tariff was required, relatively recently and following a fair and detailed consideration. All three applicants had committed particularly brutal and callous murders. To date, Vinter had only served three years of imprisonment, Bamber 26 years and Moore 16 years. The Court did not consider that these sentences were grossly disproportionate or amounted to inhuman or degrading treatment. There had therefore been no violation of Article 3 in the case of any of the applicants.

Harkins and Edwards v. the United Kingdom - (Judgment of 4th Section)

The applicants were Phillip Harkins (a British national) and Joshua Daniel Edwards (a United States national).
Both men were indicted in the United States, respectively in 2000 and 2006, for murder and other offences. They were both arrested in the United Kingdom, in 2003 and 2007 respectively, and the United States Government requested their extradition providing assurances that the death penalty would not be sought in their respect. Relying in particular on Article 3 (prohibition of inhuman or degrading treatment), both applicants complained that, if they were extradited to the United States, there would be a real risk of the US authorities seeking the death penalty, as well as about the possibility of them being given sentences of life imprisonment without parole. The E Ct HR ruled that there would be no breach of the Convention if these men are extradited to the USA.

Othman (abu Qatada) v United Kingdom - (Judgment of 4th Section)

The Jordanian cleric - (Omar Othman - aka. abu Qatada) - may not be deported from the UK since it would violate his right to a fair trial because any proceedings in Jordan would likely involve the use of testimony from people who had been tortured. So ruled the European Court of Human Rights. Having taken this principled stand against the use of torture, the Court accepted as valid the UK government's argument that in some cases 'diplomatic assurances' can mitigate the risk of torture. The UK wants to deport Abu Qatada to Jordan on grounds of national security.

Abu Qatada, a Jordanian national with a refugee status in the UK since 1994, was convicted in absentia in two separate Jordanian trials in 1999 and 2000 for terrorism-related offences, and sentenced to life imprisonment and 15 years’ imprisonment respectively. He petitioned the European Court of Human Rights in February 2009 after the House of Lords gave the go-ahead for his deportation to Jordan based on diplomatic assurances that he will not be subject to serious human rights violations.

The real value of these "diplomatic assurances" is very questionable and it is regrettable that the European Court has succumbed to the argument that they may sometimes be acceptable. If you think about it, a State would only ask for such an assurance from another State where that other State had a record of failing to prevent torture.

It is clear that the British government wishes to see the back of this particular individual. Hence, this ruling may not be the end of the matter - see BBC 17th January 2012.

See the UK's "Profile" on the European Court of Human Rights website. The profile is as at October 2011.

In total, by the end of 2010, the Court delivered 443 judgments concerning the United Kingdom, of which 271 found at least one violation of the European Convention on Human Rights, primarily of Article 5 (right to liberty and security), Article 6 (right to a fair trial), and Article 8 (right to respect for private and family life), and 86 found no violation. In the same period, 97 % of all applications brought against the UK were declared inadmissible or struck out.

See - Legal Week 18th January 2012 - "L'enfant terrible - headlines, controversy and outrage at the European Court of Human Rights"

Vicarious Liability for Intentional Tort

2012-01-16T19:47:00.014Z

Royal Courts of Justice, London

In what circumstances should a person (D) be liable in tort for the intentional tort (e.g. an assault) committed by another person (T)? In other words, when may D be vicariously liable in tort for the deliberate act of T? May a diocesan bishop be held vicariously liable for the torts of a priest of his diocese? The latter question arose in the JGE case.

The JGE case:

In November 2011, MacDuff J handed down his eminently clear and concise judgment on a preliminary point in the case of JGE v (1) The English Province of Our Lady of Charity (2) The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2011] EWHC 2871 (QB) 1.

For the purposes of this litigation, the Trustees stood in the place of the Bishop of Portsmouth. The issue was whether the diocesan bishop could be held vicariously liable for the torts (civil wrongs) of a Priest (Father Baldwin - now deceased) of his diocese. It is alleged that, in the early 1970s, Father Baldwin had sexually abused the claimant (JGE) who is a lady now aged 46. Thus, the case raised, not for the first time, the tricky question of vicarious liability for an intentional tort. This is one aspect of the wider subject of Vicarious Liability in Tort.

It is important to note
at the outset that MacDuff J did not rule that the Bishop is liable. The learned judge was concerned with the sole (preliminary) question of whether the relationship between the Priest and the Bishop was a relationship in which vicarious liability in tort could arise. It was decided that it could and so the preliminary point was decided in the claimant's (JGE) favour. Whether actual vicarious liability is eventually established will be for the trial judge to decide.

Vicarious Liability: is an interesting and long-standing legal concept. Where it applies, it makes a person liable in tort where that person may not be personally at fault for the actual commission of that tort. Furthermore, it is a liability derived from the tort of another. However, until relatively recent times, it was rare that the courts imposed vicarious liability where the tort was intentional - e.g. a sexual assault. (For exceptions see, for example, Lloyd v Grace, Smith and Co [1912] AC 716 - solicitor's firm held vicariously liable for actions of managing clerk and Morris v C W Martin [1966] QB 716).

The most typical, but not the only, cases of vicarious liability are where employers are held liable for acts of their employees carried out during the course of the employee's employment. Various justifications have been advanced for this and, as MacDuff J stated, "There is no precise unanimity between judges (or between academics) about the rationale; no single accepted truth." In Viasystems (Tyneside) [2005] EWCA Civ 1151, Rix LJ said -

"The concept of vicarious liability does not depend on the employer's fault but on his role. Liability is imposed by a policy of the law upon an employer, even though he is not personally at fault, on the basis, generally speaking, that those who set in motion and profit from the activities of their employees should compensate those who are injured by such activities even when performed negligently. Liability is extended to the employer on the practical assumption that, inter alia because he can spread the risk through pricing and insurance, he is better organised and able to bear that risk than the employee, even if the latter himself of course remains responsible; and at the same time the employer is encouraged to control that risk."

The modern approach: As a result of a considerable number of cases - (some are listed below) - the approach to whether a person should be held vicariously liable involves two stages though the factual circumstances will be relevant to both. It is convenient to refer to the parties as D (defendant) and T (tortfeasor).

Stage 1 - Consider the relationship between D and T - was it a relationship to which the principles of vicarious liability should apply? This requires factual analysis of the "nature and closeness of the relationship"between D and T. In the actual relationship which existed is it now just and fair for the defendant to be responsible for the acts of the tortfeasor? This requires "close scrutiny of (i) the connection and relationship between the two parties and (ii) the connection between the tortious act and the purpose of the relationship / employment / appointment." (In JGE, the MacDuff J ruled on this stage).

Stage 2 - The second involves an inquiry into the act or omission of T which is in question; whether the act was within the scope of the employment (or other relationship). (In JGE, the judge did not rule on this stage which will be left to the trial judge).

These are both fact sensitive inquiries. Whether, overall, vicarious liability should be imposed seems to depend on a "sythesis" of the two stages - see judgment of Hughes LJ in Various Claimants, the Catholic Child Welfare Society and others v The Institute of the Brothers of the Christian Schools and others [2010] EWCA Civ 1106 at para 37.

An out of control beast? The present legal position is open to the criticism that the test is vague and uncertain. In the 2010 case of MAGA v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256, Lord Neuberger MR noted (at para 81) - "... it may be necessary to have in mind the policy behind the imposition of vicarious liability. That is difficult because there is by no means universal agreement as to what that policy is. Is it that the law should impose liability on someone who can pay rather than someone who cannot? Or is it to encourage employers to be even more vigilant than they would be pursuant to a duty of care? Or is it just a weapon of distributive justice. Academic writers disagree and the House of Lords in - Lister and others v Hesley Hall Ltd [2001] UKHL 22 - did not give any definitive guidance to lower courts." Subsequent case law has not done much to either clarify or limit the scope of the test to be applied.

It certainly seems desirable that vicarious liability should exist, in some circumstances, for intentional torts. However, whilst the decided cases reveal factors to be considered (e.g. degree of control etc), the courts have struggled to define the precise test for vicarious liability and have arrived at a "close connection" test to be applied so as to reach a synthesis of the two stages described and notions of what is "just" and "fair" are involved making the law unpredictable.

This test has been subjected to some intense criticism, notably in an article by Dr Claire McIvor of Birmingham Law School who argues that the "close connection test" lacks a sound theoretical foundation and is "worryingly bereft of any effective control mechanisms." It is a vague and unpredictable test. "The courts appear to have lost sight of the fact that, as a form of no-fault liability, the doctrine of vicarious liability occupies a highly exceptional position within English tort law, and that its existence is justified by reference to specific distributive justice considerations."

It is perhaps for these reasons that the matter of how and when vicarious liability should be imposed could be headed for the Supreme Court. Whether it will get there depends on there being an appropriate case and only time and the vagaries of litigation will determine whether the JGE case becomes that case.

Some of the many decided cases:

ST v North Yorkshire County Council [1998] EWCA Civ 1208 - sexual assault at special school - overruled by the House of Lords

Various Claimants v Catholic Child Welfare Society [2010] EWCA Civ 1106

Lister and others v Hesley Hall Ltd [2001] UKHL 22 - sexual assault at school

Dubai Aluminium v Salaam and other [2002] UKHL 48

Mattis v Pollock [2003] EWCA Civ 887- Judge, Dyson LJJ and Pumfrey J - "Flamingo Nightclub" doorman case

Majrowski v Guy's and St Thomas' NHS Trust [2006] UKHL 34 - whether an employer is vicariously liable for harassment committed by an employee in the course of his employment.

Maga v Trustees of the Birmingham Archdiocese [2010] EWCA Civ 256 - sexual abuse - 1975 and 1976 - by a priest

Supreme Court of Canada decisions - "persuasive authority" in England

Bazley v Curry [1999] 2 SCR 534 - sexual abuse in residential care for emotionally troubled children - the defendant's employees were essentially substitute parents and had to carry out intimate care e.g. changing etc. - vicarious liability imposed.

Jacobi v Griffiths [1999] 2 SCR 570 - sexual abuse at Club for young people which provided recreational facilities - vicarious liability not imposed.

Doe v Bennett and others [2004] 1 SCR 436 - sexual abuse involving Roman Catholic Priest

Judicial Committee of the Privy Council - persuasive authority - I would add "highly" given the composition of the Board - Lords Bingham, Steyn, Millett, Scott and Carswell.

Bernard v Attorney-General of Jamaica [2004] UKPC 47 - vicarious liability for the unlawful shooting on 11 February 1990 of Mr Clinton Bernard by a constable of the Jamaica Constabulary Force.

Some Academic and other Analysis:

See the excellent and detailed article by Dr Claire McIvor - Birmingham Law School - "Use and abuse of the doctrine of vicarious liability"

Social Science Research Network - "A frolic in the law of tort: expanding the scope of employer's vicariously liability."

Old Square Chambers - "The evolution of vicarious liability in tort in respect of deliberate wrongdoing" - Paul Rose QC

One Crown Office Row - Vicarious Liability for Intentional Torts

See also UK Human Rights - "Bishop can be vicariously liable for Priest Sex abuse rules High Court"

Mid-January News

2012-01-14T18:25:00.011Z

Law and Lawyers blog is two years old - hence the birthday card. It has been an interesting period and 2012 promises to be a challenging year. The very first post on this blog hoped that, from time to time, the blog would throw at least a little light on the laws which govern us and the lawyers who implement those laws. That continues to be the aim of the blog.

Extradition:

Extradition is in the news again. The USA is seeking the extradition of Sheffield student Richard O'Dwyer and a judge, sitting at Westminster Magistrates' Court, has ruled that there is no bar to his extradition - see Daily Mail 14th January. The US authorities allege that Mr O'Dwyer listed on a website places from where pirated films and TV programmes could be downloaded. See the judgment of District Judge Purdy. With respect to the learned judge, it is not entirely clear whether Mr O'Dwyer's conduct would constitute an offence in England though it may do so. "Dual criminality" is a requirement for extradition.

This case - like that of Gary McKinnon - brings into focus the Extradition Act 2003. Turkey has charged Sarah, Duchess of York with offences
relating to filming of children in an orphanage and they requested assistance from the British government to gather evidence - see The Telegraph 14th January. Their request has been refused by the Home Office which is reported to have said that she could not be extradited because her conduct did not constitute an offence in the UK.

Both the USA and Turkey are "Category 2" countries for the purposes of the Extradition Act 2003.

For more on extradition, see Wikipedia Extradition Act 2003 and Law and Lawyers - "Extradition: the Scott Baker Review." On 24th November 2011 there was a Westminster Hall debate about Extradition. The arrangements with the USA have been especially contentious - see Telegraph 2nd December 2011.

The Scottish Referendum:

The Guardian - "Scottish Independence: Wales and Northern Ireland make unity plea." Mr Carwyn Jones, First Minister of Wales, argues that in the event that Scotland left the Union, a fundamental rethink would be required of the remaining relationship between England, Wales and Northern Ireland. Revised arrangements would be needed for the national parliament. The government has conceded that there will be a referendum on Scottish Independence - see the earlier post on this blog - and a consultation document was issued earlier this week - Scotland's Constitutional Future. Regrettably, a detailed assessment of all the likely constitutional, legal and economic issues appears to be lacking as the politicians in London and Edinburgh lock horns.

Alleged complicity in torture - DPP/CPS Joint Statement

Operation Hinton - In November 2008, the former Attorney General, Rt. Hon Baroness Scotland QC, referred the allegations made by Binyam Mohamed to the Metropolitan Police Service (MPS).   Binyam Mohamed alleged involvement by British officials in his ill-treatment and torture. The investigation focused on whether there was sufficient evidence to provide a realistic prospect of convicting any member of the Security Services for offences of aiding and abetting torture, aiding and abetting war crimes and misconduct in public office. The conclusion was that the evidence was insufficient. See Joint Statement by the DPP and the Metropolitan Police. (Note: Litigation brought by individuals who claimed that British agents were implicated in torture was settled in November 2010 - see "The Al Rawi case settlement - security and the justice system.").

Operation Iden - In June 2009, Baroness Scotland QC invited the MPS to investigate possible criminal wrongdoing in respect of a discrete incident involving an individual who had been detained by US authorities at Bagram Air Base in Afghanistan in January 2002 and who was interviewed by a member of the Secret Intelligence Service there.   It was concluded that the evidence was insufficient. The offences considered were aiding and abetting torture, aiding and abetting war crimes, false imprisonment, aiding and abetting assault, and misconduct in public office.

Other allegations - there have been further specific allegations of ill-treatment of other named individuals detained in similar circumstances.   The DPP and the MPS agreed to set up a joint panel to consider amongst other things: (a) whether there is any significant risk that any available evidence would not be available or would be weakened if an investigation did not take place until the end of the Detainee Inquiry and (b) whether the allegation in question is so serious that it is in the public interest to investigate it now rather than after the Detainee Inquiry.

Detainee Inquiry refers to the Inquiry under the chairmanship of Sir Peter Gibson which was announced by David Cameron in 2010 and has yet to begin its work.

Libya - n November 2011, the Metropolitan Police received a complaint from a detainee in which specific allegations of criminal wrongdoing were raised in relation to alleged rendition and alleged ill-treatment in Libya. The joint CPS/MPS panel considered this case and one other and decided that the allegations raised in these allegations are so serious that it is in the public interest for them to be investigated now rather than at the conclusion of the Detainee Inquiry. The BBC reported on these stories- "Libya rendition claims to be investigated by UK Police."   One of the complainants, although not named in the DPP/MPS joint statement, appears to be Abdelhakim Belhadj who was commander of the rebel forces in Libya. In December 2011, it was reported that Belhadj was to sue the British government - BBC 19th December.

The Craig Murray blog offers a very direct and characteristically outspoken view of all of this - Complicity in Torture

A glance at a few of the blogs:

UK Human Rights looked at whether internet access is a human right.

CharonQC looks at Theft, Drink Driving and an outbreak of festive hooliganism.

Magistrates' Blog has a post called House Full which looks at the effect of mergers of local justice areas on magistrate recruitment. The Justice of the Peace blog goes further and suggests that Justices of the Peace are being squeezed out of the courts.

Beneath the Wig has a guest post from a female barrister who is on twitter as @seeyouatthebar - which is well worth reading and considering - "Wombs and Weight - the female bar"

Leon Glenister writing on Law Think asked - "Can one ever satisfy the assisted suicide debate?"

The Defence Brief - "This is why granting legal aid saves money."

Craig Murray - "Scotland, England and Maritime Boundaries" - interesting that the boundary was redrawn in 1999

Of Interest to Lawyers - "Update on the Chief Coroner" - (a post which the Labour government legislated for and which the coalition wished to abolish before it even started but they conceded the post in the face of opposition in the Lords).

Finally for today - At a Privy Council meeting, HM The Queen presented the WELSH SEAL to the First Minister

: ADDENDUM 18th January 2012 :

Kenneth Clarke has announced that the Gibson Detainee Inquiry is now abandoned in the light of the time it will take to conclude the investigations relating to Libya (see above) - BBC 18th January. This has been welcomed by Liberty - "Torture: Whitewash won't wash."

Judicial Review: "Keep out of politics" ... but can the judges do so?

2012-01-12T18:29:00.005Z

HM The Queen at the Supreme Court

Mr. Jonathan Sumption QC was sworn in as a Supreme Court Justice on 11th January - the start of the Hilary Law Term. His appointment is notable in that he is the first judge since Lord Radcliffe to be appointed directly from the Bar to the highest court. (Lord Radcliffe - 1899 to 1977 - was appointed to the House of Lords in 1949). Lord Sumption (as he is now styled) sat for the first time on 12th January - in the shipping case of Petroleo Brasileiro S.A. (Respondent) v E.N.E. Kos 1 Limited (Appellant) - (see UK Supreme Court blog for details and see Court of Appeal judgment)

The Times (12th January) carried details of an interview given by Lord Sumption - "Keep out of politics, top judge warns his peers" - (Subscription required). The Times reports Lord Sumption as saying - "It is one thing for judges to review whether a government policy was being lawfully applied and another to review the policy itself." In November 2011, Mr Sumption (as he then was) delivered
the F A Mann Lecture - "Judicial and Political Decision-Making: The Uncertain Boundary" which may be read at "Watching the Law 15th November 2011." In that lecture, Mr Sumption made it clear that he considered that judges had sometimes overstepped the mark and entered into the policy arena which is properly for Parliament and Ministers. He concluded his Lecture by saying that "English law has not developed a coherent or principled basis for distinguishing between those questions which are properly a matter for decision by politicians answerable to Parliament and the electorate, and those which are properly for decision by the courts."

Lord Sumption

Of course, whenever Ministers establish a "policy" they have to give legal effect to it and this is done by enacting legislation. Hence, the "policy" lives and breathes only by virtue of the legislation. Clearly then, there will often be a fine line between a legal attack on the application of legislation and a legal attack on the policy.

In most law schools, students are told that "Judicial Review is concerned with legality." This is true and, particularly since the 1970s, the courts have developed a considerable array of methods by which decisions can be challenged. These have been developments of the common law. Judicial review seeks to ensure that decisions are taken "rationally in accordance with a fair procedure and within the powers conferred by Parliament" - Alconbury Developments Ltd v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23 - per Lord Hoffmann at para. 73.

Undoubtedly, the major change in this area has been the Human Rights Act 1998. The Act opened up a new and major avenue of challenge. PARLIAMENT itself commanded the judges to interpret legislation in a certain way (section 3) and empowered the higher courts to make a "declaration of incompatibility" (section 4). Section 3(1) is clear - "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights." Section 4(2) is also clear - "If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility."

Hence, by command of Parliament itself, the courts view even Acts of Parliament through the lens of the European Convention on Human Rights and, where the judges consider that the Act is incompatible, they may make a declaration to that effect. The "fine line" between policy and its application has been made much narrower by the 1998 Act. A declaration does not alter the law and it is then for Parliament to amend the law. In this way, the final say on policy still remains with Parliament and not with the judges.

See "Responding to Human Rights Judgments" - Ministry of Justice - a very thorough analysis of the government's position in relation to particular judgments. Those who are serious about getting behind the media headlines would do well to read this paper which considers the year August 2010 to August 2011.

Addendum 16th January: UK Constitutional Law blog - "Tom Adams: Lord Sumption and Judicial Responsibility."

Scotland: we need to talk ....

2012-01-10T12:47:00.016Z

Scotland's Grand Scenery

Updated x 2

Prime Minister David Cameron said on the Andrew Marr Show that the government would be setting out the legal position regarding a referendum on Scottish Independence. Cameron said that the uncertainty was damaging to the economy and added that the present situation was unfair on the Scottish people who did not know when the question would be asked, what the question would be and who would ask it. The Scottish people were owed something which was "fair, legal and decisive." Cameron also said that he believed in the United Kingdom and it would be "desperately sad" if Scotland left.

Further questions could be asked, such as what would be the actual nature of "independence." Would it be a complete and entire separation or would, for example, Scottish finances continue, in some way or other, to remain linked to the remainder of the UK? What would be Scotland's relationship (if any) to the Crown. What would be the defence situation? What would Scotland's status be with regard to the European Union given that it is the United Kingdom which currently has the membership. All these, and many other questions, are difficult political and practical questions and, in the present harsh economic times, it is tempting to wish that the questions would go away but, in reality, they will not simply disappear and must be answered.

What then of the legality?

Mr Cameron said that the government would be setting out the legal position and that is awaited with interest. Once issued, there may be disagreement about it and that might lead to judicial proceedings to obtain clarity. However, some basics can be noted.

Treaty of Union

1. The existence of GREAT BRITAIN began with a TREATY OF UNION between England/Wales and Scotland. The Treaty was signed in July 1706 and was implemented, from 1st May 1707, by the enactment of legislation in both the English and Scottish Parliaments. The Treaty of Union provided for matters such as the Crown, a single unified Parliament, freedom of trade, common currency etc.

2. The United Kingdom of Great Britain and Northern Ireland came about after the Act of Union 1800 which united Great Britain and Ireland. In December 1922, the Irish Free State came into being and the modern Republic of Ireland came about in December 1948. Therefore, it is now only Northern Ireland which remains within Great Britain.

3. After the Union, Scotland retained its own legal system as provided for in Article 19 of the Treaty of Union. This continues to the present time although, the Supreme Court of the United Kingdom has jurisdiction as a final appeal in civil cases and certain "devolution jurisdiction." (The "devolution jurisdiction" was originally given to the Judicial Committee of the Privy Council - Scotland Act 1998 - but later transferred to the Supreme Court by the Constitutional Reform Act 2005).

Scotland's Parliament

4. The Scotland Act 1998 created the present Scottish Parliament - section 1(1) - "There shall be a Scottish Parliament." The Scottish Parliament has the power to make laws for Scotland known as Acts of the Scottish Parliament - section 28.

5. The power to make laws for Scotland is limited by section 29 which states:

Legislative competence.

(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.

(2) A provision is outside that competence so far as any of the following paragraphs apply -

(a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,

(b) it relates to reserved matters,

(d) it is incompatible with any of the Convention rights or with Community law,

(e) it would remove the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland.

The Scottish Parliament is a devolved (or subordinate) legislature and not a sovereign legislature and it must operate within its legislative competence. However, that competence is wide and subject only to the restrictions within the 1998 Act.

The phrase "relates to" is explained by section 29(3) - "For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances."   (Subsection 4 need not concern us further here).

6. Reserved matters - these are a lengthy list set out in Schedule 5. For present purposes it suffices to note the principal reserved matters relating to the Constitution:

(a) the Crown, including succession to the Crown and a regency,

(b) the Union of the Kingdoms of Scotland and England,

(c) the Parliament of the United Kingdom,

(d) the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal,

(e) the continued existence of the Court of Session as a civil court of first instance and of appeal.

Note: Schedules 4 and 5 can be modified where there is agreement between the UK Parliament and the Scottish Parliament to do so - section 30.    Modification Orders require the affirmative resolution of both Parliaments. The Explanatory Notes to the Scotland Act 1998 state: "Section 30 ... permits certain alterations to be made to the legislative competence of the Scottish Parliament but only with the agreement of both Parliaments. This is the only way in which the Scotland Act envisages that subordinate legislation under that Act can modify Schedules 4 and 5. The Westminster Parliament could, of course, make such alterations unilaterally by virtue of its sovereignty - section 28(7)."

It seems to follow from this that the Scottish Parliament could not lawfully secede from the Union merely by passing an Act of the Scottish Parliament. Of course, there is no suggestion here that they would even consider doing so. Their whole intention seems to be to proceed to a lawful independence and this would have to be enacted by the Parliament of the United Kingdom.

7. However, may the Scottish Parliament lawfully enact legislation so that a referendum could be held in Scotland and could the Scottish Parliament lawfully make the outcome of such a referendum legally binding? My tentative answer would be NO because:

(a) There is no specific authority in the Scotland Act 1998 for the Scottish Parliament to enact legislation to hold a referendum on independence - the Union is a reserved matter and a referendum (even if said to be advisory or consultative) would appear to "relate to" a reserved matter.

(b) Suppose that, without the specific authority of the UK Parliament, Scotland purported to legislate and held a referendum. Such a referendum could not bind the sovereign United Kingdom Parliament though there would be considerable political pressure for the UK Parliament to then support the referendum outcome.

Thus, it makes legal sense that any referendum is either legislated for either by the UK Parliament passing an Act or a Section 30 Modification Order is enacted. The UK Parliament would then consider itself bound by the result. (Technically, according to the traditional Diceyan view, Parliament cannot bind itself or its successors but let us leave that point to one side since it can be safely assumed that if Parliament permitted a referendum it would honour the outcome).

8. Will the Scotland Bill - currently before the UK Parliament - make a difference? I see nothing in the Bill which permits the holding of a referendum. This Bill seeks to implement recommendations of the Calman Commission's final report. Interestingly, independence was not within the Commission's remit - see the report at Part1 paras. 1.3 and 1.53.

9. Thus, one is led to the conclusion that, as things appear to stand, either legislation of the UK Parliament or a Section 30 Modification Order would be required to permit a referendum on independence. The form such legislation might take is another matter. It could, for example, not only legislate for a referendum but also specify the question or questions to be asked. Alternatively, it may merely authorise the Scottish Parliament to legislate and allow that Parliament to set the question.

10. Yet another a tricky point is whether any referendum should be just for the people of Scotland. If one accepts the self-determination of people then perhaps it should. (See also Association of Humanitarian Lawyers - "Understanding self-determination: the basics").   However, Scotland is not the only party to these constitutional arrangements and there is no doubt that a breakaway of Scotland will have economic impact on the remainder of the nation. (I have not seen any assessment of the economic and other issues. Is there one?).

In an excellent article published by legalweek, Aidan O'Neill QC said: "It is not inconceivable that the result of any such UK-wide referendum would be that the electorate in England (fed on tales of their constant subsidising of Scottish spending, and wearying of the anti-English sentiment that lies beneath so much Scottish public discourse) would vote in favour of the dissolution of the Union, while a majority of the Scottish electorate would baulk at independence. In this way might the SNP's primary political aim be achieved, even against the wishes of the Scottish people. That's why we need to talk about the referendum." See Mr O'Neill's article - "We need to talk about the referendum ... Scotland's membership of the UK in focus."

11. Are there any alternatives?

Yes - (a) devolution could be brought to an end; or (b) devolution could simply remain as it is or (c) continue with devolution but with fewer restrictions on the Scottish Parliament's legislative powers. Either of (a) or (b) would, no doubt, be instantly ruled out as politically unacceptable and hardly merit further discussion. Option (c) is essentially what is sometimes being referred to as "Devolution-Max" and might be a possibility. A further alternative is that the separate nature of Scotland could be recognised by the United Kingdom becoming a FEDERATION. I am of the view that this is not only possible but would offer a pragmatic way forward. There are a number of notable federations - especially the USA; Mexico and Switzerland (the Confederation of Switzerland). Within the British Commonwealth there are Canada (since 1867) and Australia (since 1901). Belgium is instructive since, over the period 1970-93, it moved to federal system. May I venture to suggest that a Federation with Scotland is not only a natural development from devolution but is also sensible.

Food for thought and, as Aidan O'Neill said, "we need to talk ..."

: Addendum 1 :

The government's consultation paper was issued today - see "Scotland's Constitutional Future" - and responses are invited up to 9th March 2012. The possibility of a federal arrangement does not appear to have occurred to the writers of the paper.

The post above was referenced by Scots Law Review 12th January

Alex Salmond puts 'finishing touches' to independence referendum plans - The Guardian 12th January.

400th Anniversary of the Union of the Crowns - 2003 and "From the Union of the Crowns to the Union of the Parliaments"

Systems of Government - slideshare - explanation of the various terms used - Unitary, Federation, Confederation

Aidan O' Neill QC -Eutopia blog - 14th November 2011 - "A Quarrel in a Faraway Country?: Scotland, Independence and the EU"

Wednesday 11th January - The Guardian - SNP plans Scottish Independence Referendum for autumn 2014

: Addendum 2 :

The government's consultation paper "Scotland's Constitutional Future" proceeds on the basis that any referendum would be one for the Scottish people alone. The paper expresses the view that the Scottish Parliament does not have the legal power to stage a referendum. Legal power must be granted to put the matter beyond any doubt and to avoid conflict in the courts where the judges would effectively end up deciding the future of the UK.

It is proposed that the Scottish Parliament franchise would be used in any referendum.

The government's preferred option is to make a Modification Order under section 30 of the Scotland Act 1998 to enable the Scottish Parliament to lawfully stage a referendum. "An Order can be delivered relatively
quickly; within a few weeks if early agreement is reached on the terms of the Order."

An interesting and rather mischievous question arises. Suppose that Scotland votes for independence before the next British General election - currently scheduled for May 2015. Would Scottish voters then be able to vote in the General Election only to leave the Union shortly afterwards? It would seem that they would.

Further articles:

Devolution Matters - 11th January - "Scottish Independence referendum: the UK government's demarche"

UK Supreme Court Blog - 11th January - Aidan O'Neill QC - "Now we're talking - About the Scottish Referendum"

The UK Constitutional law Group blog has some interesting posts:

Nick Barber - Scottish Independence and the role of the UK

Christopher Mc Crudden - Scottish Independence referendum: The Northern Ireland and International Human Rights dimensions

Cormac Mac Amhlaigh - ... yes, but is it legal. The Scots Independence Referendum and the Scotland Act 1998

Adam Tomkins - The Scottish Parliament and the Independence Referendum

Do we need the Obscene Publications Acts?

2012-01-09T19:58:00.007Z

R v Penguin Books 1961

Updated

‘The Obscene Publications Act equally protects the less innocent from further corruption, the addict from feeding or increasing his corruption’ - per Lord Wilberforce in DPP v Whyte [1972] AC 849

The Obscene Publications Act 1959 s.1 commences by defining the test of obscenity:

For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

"Article” means any description of article containing or embodying matter to be read or looked at or both, any sound record, and any film or other record of a picture or pictures.

The 1959 Act s.2 (as amended by the Obscene Publications Act 1964) states:

"Subject as hereinafter provided, any person who, whether for gain or not, publishes an obscene article or who has an obscene article for publication for gain (whether gain to himself or gain to another) shall be liable .."

Section 3 of the Act provides a quite frequently used power of search and seizure and seized items may be forfeited. Section 4 is a defence of "public good" which might apply where the publication is in certain interests set out in the section (e.g. science, literature etc).

The offence is an "either-way" offence - triable either in the Magistrates' Court or the Crown Court.

At the heart of this legislation are the words "tend to deprave or corrupt." This begs the question - "Who would be depraved or corrupted?" The legislation refers to those persons who are "likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it."

The inclusion of the formula "deprave or corrupt" harks back to the earlier law laid down by the Court of Queen's Bench in R v Hicklin [1868] 3 QB 360 where Cockburn CJ said that the Obscene Publications Act 1857 (now repealed) allowed banning of a publication if it had a "tendency ... to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."

In the Lady Chatterley case, Byrne J articulated the meaning of the words "corrupt" and "deprave" - "To deprave means to make morally bad, to pervert, to debase or to corrupt morally. To corrupt means to render morally unsound or rotten, to destroy the moral purity or chastity, to pervert or ruin good quality" - Penguin Books [1961] Crim LR 176.    This statement does little to assist since it opens up further questions such as - "What is morally bad or morally unsound" etc. Ultimately, it is a question of fact for the jury or the magistrates. However that may be, Byrne J's dictum was approved by the Court of Appeal in Calder and Boyars Ltd [1969] 1 QB 151.

In DPP v Whyte [1972] AC 849, the House of Lords said that deprave and corrupt refer primarily to the effect on the minds, including the emotions, of persons who read or see the article. This case also held that the Act was not merely concerned with corruption of the innocent but it also extended to protect those who were less innocent from further corruption.

The most recent prosecution brought under the 1959 Act is R v Peacock; a case described by one article in The Guardian as a victory for sexual freedom . Mr Peacock was charged with six counts of publication of obscene material. The material - recorded on DVDs - depicted acts which are not necessarily unlawful in themselves though it is fair to say that the material would not be acceptable to many and perhaps a lot of people would be disgusted by it were they to come across it. Mr Peacock was acquitted on all counts.

On the facts of the case, the prosecution was in line with the Crown Prosecution Service's Charging Practice relating to the factors which would be likely to lead to prosecution - see CPS Obscene Publications.

It may be that the jury's decision has demonstrated the unsuitability of this old legislation with its outdated and difficult phraseology. Nevertheless, is the jury's decision to be taken as a rejection of State regulation of obscene material? Almost certainly, not. It is much more likely that the jury merely considered that, on the facts as they saw them, the material would not tend to deprave and corrupt those persons who were likely, in all the circumstances, to see it.

Questions remain. To what extent is it justifiable for the State to intervene in these matters? Many argue nowadays for minimal intervention.   However, it is a valid view that intervention is necessary though there will be disagreement as to where lines should be drawn.

Some will think that if the 1959 Act is not capable of catching the kind of material in question in R v Peacock then the Act is hardly "fit for purpose" and ought to be replaced with an Act which would catch it. As recently as 2008, Parliament enacted legislation aimed at certain forms of extreme pornography - see the Criminal Justice and Immigration Act 2008 section 63 which creates the offence of possession of an extreme pornographic image as defined by the Act. It is to be hoped that Parliament will find time to review the law and consider the whole question of obscenity and indecency in relation to publications, images and the like and the ever-evolving forms taken by modern media.

There are a number of interesting articles on the Peacock case. Obscenity Lawyer looks at the Obscenity Trial of the Decade. Andrew Sharpe's TiMeriTy blog asks whether R v Peacock will be the last Obscene Publications Act prosecution.   Peter Ould argues that the State may take the opinion that an individual is perfectly entitled to undertake a particular activity but that it will do nothing that allows that particular activity to be promoted.    There is also a useful article at Freedom in a Puritan Age - The law and Obscenity. See also Criminal Law and Justice Weekly - Alec Samuels - Obscenity and Pornography

Addendum 10th January:

Law Think blog - "Obscenity: an offence to individual autonomy" - by Leon Glenister who argues that the law in the 1959 Act has an unsatisfactory philosophical basis. Also, if there is no good evidence to show that people are “depraved” or “corrupted” from pornography then surely the test is deemed invalid? A law from a bygone era.

Legal Week 12th January 2012

Heresy Corner - "Defending Obscenity" - argues that - "For all its many faults, the Obscene Publications Act sought to strike a balance between private and public rights. It recognised that citizens might lawfully get up to things that the majority of their fellows might consider depraved and corrupted while asserting that the majority also had the right to have their sensibilities protected."

Hate Crime

2012-01-07T20:07:00.000Z

A look at racial murder, hate crime and the criminal offences available.

Institute of Race Relations - data on "racial" murder:

Stephen Lawrence was murdered on 22nd April 1993. Since then, according to the Institute of Race Relations (IRR), there have been 96 murders involving a known or suspected racial element- See Institute of Race Relations. The victims were overwhelmingly young men under the age of 30 and four deaths were of white British citizens with the others from "Black Minority Ethnic" (BME) communities or migrant workers.

Importantly, the IRR notes that the identification of racially motivated murders and attacks must depend on an objective evaluation of the whole context in which the murder or attack takes place and not just on the skin colour or ethnicity of the alleged perpetrator(s) or victim. In particular, the IRR would regard a murder or attack as racially motivated if the evidence indicates that someone of a different ethnicity, in the same place and similar circumstances, would not have been attacked in the same way. Subject to the above, a formal legal finding or allegation of racial motivation would be taken as prima facie (but not definitive) evidence that a murder or attack was racially motivated.

Understandably, the Stephen Lawrence murder trial has attracted immense publicity and the figure of 96 murders since 1993 is very worrying. Few of the other murders have attracted anything like the same degree of publicity and attention.

Before considering "hate crime" further, it is
worth noting some historical aspects and how some extreme manifestations of hatred are now viewed by the law.

Legal History:

Legal history shows the extent to which the law has sometimes been used to actually enforce intolerance. In this context I just briefly note two areas: Religious intolerance and Homosexuality.

A memorial, near Balliol College - Oxford, commemorates the Oxford Martyrs who, in October 1555, were burned at the stake for their religious beliefs. The following February, Thomas Cranmer (Archbishop of Canterbury) shared the same fate. In the reign of Elizabeth I (1558-1603) draconian laws were enacted against Roman Catholicism and it was not until the Roman Catholic Relief Act 1829 that many of the legal restrictions were removed. A reading of "English Martyrs and Confessors" is instructive for the sheer numbers of people put to death, often in hideous ways, for their religion.

For many centuries, homosexual acts were punished by the law. The Wolfenden Departmental Committee reported in September 1957 and concluded that criminal law could not credibly intervene in the private sexual affairs of consenting adults in the privacy of their homes. In short, it was "not the law's business." Those parliamentarians who pressed for reform of the law relied heavily upon Wolfenden's report. It was not until the Sexual Offences Act 1967 that consensual homosexual acts in private were decriminalised provided that the parties had attained the age of 21. The law was subsequently amended by the Sexual Offences (Amendment) Act 2000.

Extreme forms of hatred:

Both international and domestic law seeks to criminalise certain conduct which is, essentially, motivated by extreme hatred. The International Criminal Court Act 2001 brings within English law various offences including genocide, crimes against humanity and war crimes - see section 51 and Schedule 8.

Hate crime:

The Boxing Day murder of Anuj Bidve (in Salford, Greater Manchester) has been declared by the Police to be a "hate crime" (Guardian 29th December 2011) and a defendant has been sent for trial in the Crown Court at Manchester. The term "hate crime" does not have a statutory definition though the Association of Chief Police Officers (ACPO) and the Crown Prosecution Service (CPS) have a nationally agreed definition of Hate Crime - see CPS Fact sheet. Hate crimes are taken to mean any crime where the perpetrator's hostility or prejudice against an identifiable group of people is a factor in determining who is victimised. This is a broad and inclusive definition. A victim does not have to be a member of the group. In fact, anyone could be a victim of a hate crime. The CPS and ACPO have agreed to monitor five strands of hate crime: race; religion or belief; sexual orientation; transgender identity and disability. Greater Manchester Police state that hate crime is "any criminal offence driven by hostility or prejudice based on someone’s: disability, gender identity, race, religion or belief, sexual orientation."

The term "Hate Incident" is often used. Of course, an "incident" may or may not amount to a criminal offence. Thus, the Metropolitan Police Community Safety Unit refers to "Hate Incidents" which are described as "'Any incident that is perceived by the victim, or any other person to be racist, homophobic, transphobic or due to a person's religion, belief, gender identity or disability'. The reference to what is " perceived"by the victim etc. on the Metropolitan Police website appears to reflect the definition of "Racial Incident" put forward by the Macpherson Report into the Stephen Lawrence murder: "A racist incident is any incident which is perceived to be racist by the victim or any other person" - Macpherson report at Chapter 47 para. 12.

Specific offences in English Law:

The following is a necessarily brief look at some offences enacted in recent years. The following merit specific mention:

Public Order Act 1986, Part III
Football Offences Act 1991 (as amended)
Crime and Disorder Act 1998
Criminal Justice Act 2003
Racial and Religious Hatred Act 2006
Criminal Justice and Immigration Act 2008

Public Order Act 1986 - Part III contains several offences relating to Racial Hatred. The term "Racial hatred" is defined in section 17 as "hatred against a group of persons ..... defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins." Sections 18 to 22 are concerned with "Acts likely to stir up racial hatred" and Section 23 is concerned with possession of racially inflammatory material. Proceedings under Part III require the consent of the Attorney-General.

Football Offences Act 1991 - Section 3 creates the offence of indecent or racialist chanting at designated football matches - see 1991 Act s.3 and the Football (Offences and Disorder) Act 1999 s.9.

Crime and Disorder Act 1998 - This Act creates refers to "racially or religiously aggravated offences" and the meaning of racial or religious aggravation is set out in section 28. The Act then goes on to define offences of racially or religiously aggravated assaults (section 29); criminal damage (s.30); public order offences (s.31) and harassment (s.32). To secure a conviction for one of these offences the basic offence must be proved and then the element of racial or religious aggravation. These "aggravated offences" plainly exist to give particular condemnation to the specified criminal conduct when it is accompanied by racial or religious aggravation. The aggravating feature will result in some increase in sentence over and above that for the basic offence. This approach has been borne out by the Court of Appeal.

Criminal Justice Act 2003 -In relation to the sentencing of offenders, the Act contains a number of important provisions - see section 145 (Increase in sentence for racial or religious aggravation); section 146 (Increase in sentence for aggravation relating to disability or sexual orientation). Further, Schedule 21 deals with minimum terms when sentencing for murder and the offender can expect a higher minimum where the murder was racially or religiously aggravated or aggravated by sexual orientation.

Racial and Religious Hatred Act 2006 -This Act added new Part 3A to the Public Order Act 1986 - (see Schedule 1 to the 2006 Act) - concerned with religious hatred. The consent of the Attorney-General is required for a prosecution. The enactment of this Act was controversial. and was only enacted at the Labour government's third attempt to bring in these offences. The Law Society Gazette "Silencing Hatred" describes the background to the Act.

Criminal Justice and Immigration Act 2008 -Section 74 and Schedule 16 amend the Public Order Act 1986 Part 3A to cover hatred on the grounds of sexual orientation.

The Equality Act 2010 - this important and complex Act creates a duty on listed public bodies when carrying out their functions and on other persons when carrying out public functions to have due regard when carrying out their functions to: the need to eliminate conduct which the Act prohibits; the need to advance equality of opportunity between persons who share a relevant protected characteristic and those who do not; and the need to foster good relations between people who share a relevant protected characteristic and people who do not. The practical effect is that listed public bodies will have to consider how their policies, programmes and service delivery will affect people with the protected characteristics. See the Equality Act 2010.

In their publication "Hate Crime Laws: A Practical Guide 2009", the Organisation for Security and Co-operation in Europe stated:

"Hate crimes are violent manifestations of intolerance and have a deep impact on not only the immediate victim but the group with which that victim identifies him or herself. They affect community cohesion and social stability. A vigorous response is important both for individual and communal security. Hate crimes are distinguished from other types of crime by the motive of the perpetrator. Motive is usually irrelevant in proving the essential elements of a crime and it is rarely investigated in sufficient detail to bring out the real reason for the crime. If the criminal justice system does not use the concept of “hate crime”, the motive is not recognised as an essential element of the offence and the existence of hate crimes will therefore remain invisible."

It is doubtful that the law itself will eradicate hatred and intolerance but the law must play its part and this post has sought to indicate how the law seeks to do this. The words of His Holiness The Dali Lama seem appropriate - "If you can, help others; if you cannot do that, at least do not harm them."

Other links:

Civitas Fact sheet on Hate Crime

Justice and Security Green paper - Human Rights Conference - Law of Contract online

2012-01-05T16:42:00.001Z

Justice and Security Green Paper:

The government's Green Paper "Justice and Security" has been open for consultation since October 2011. The consultation closes on 6th January 2012. The proposals relate to civil proceedings and inquests and the following posts examined the proposals in greater detail:

Justice and Security Green Paper - Part 1 - The government's case for closed material procedure (CMP)
Justice and Security Green Paper - Part 2 - The proposals
Justice and Security Green Paper - Part 3 - Oversight of Security Services

The UK Human Rights Blog has a post entitled "Extension of secret hearings would be 'fundamentally unfair', say Special Advocates." 57 barristers (including 19 Queen's Counsel) have raised objection to the government's proposals for closed material procedure and greater use of special advocates.

Human Rights:

The conference held at Wilton Park in November 2011 has issued a report which may be downloaded here. The conference was referred to in "Access to Justice - Human Rights - chuck 'em all in the melting pot." The Conference occurred in the early days of the United Kingdom's Chairmanship of the Council of Europe.

Law of Contract:

This highly important legal topic is brilliantly covered in CharonQC's "Law of Contract online book and recorded lectures." A definite must for students and perhaps many a practitioner !! Also, CharonQC has added excellent material on Sale of Goods.

The Stephen Lawrence murder: convictions; double jeopardy and sentencing

2012-01-03T19:19:00.016Z

ADDENDUM - 5th January - The Attorney-General is considering whether to refer the Dobson and Norris sentences to the Court of Appeal - The Guardian 5th January. See Criminal Justice Act 1988 s.36. A reference may be made if the sentence is considered by the Attorney to be "unduly lenient" and therefore the Court of Appeal will only intervene if the sentence was significantly less than that which should have been imposed. The Court of Appeal must give leave for the reference to be made. It is instructive to see the minimum terms set by the Lord Chief Justice for young offenders in some of the older cases.

On 1st February, it was announced that the Attorney-General would not be referring these sentences to the Court of Appeal - see The Guardian 1st February

UPDATED 4th January - Post-sentence

It was on 22nd April 1993 that Stephen Lawrence was attacked and killed. The BBC has produced an excellent "time line" of this tragic case. Today, at a trial held at The Old Bailey (Treacy J and a jury), two men - Gary Dobson and David Norris) - were convicted of the murder of Stephen - Telegraph 3rd January.

From the outset, Gary Dobson and David Norris were implicated in the murder along with certain other suspects. However, a prosecution against two (Neil Acourt and Luke Knight) was discontinued in July 1993. In 1994, a private prosecution was mounted against Gary Dobson, Luke Knight and Neil Acourt but formal acquittals were entered in 1996 when Curtis J ruled certain identification evidence to be inadmissible.

The Macpherson Report:

In July 1997 an inquiry under the Chairmanship of Sir William Macpherson was announced and reported in February 1999. The report extends to 47 Chapters and Appendices and was condemnatory of policing.

Double jeopardy:

Historically, the common law
set its face against the idea that a person could be tried more than once for an offence - the so-called "double jeopardy" rule. In April 2005 the law was amended by Part 10 of the Criminal Justice Act 2003 and the change enabled Dobson to be tried again.

Explanatory Notes to Part 10 indicate that the Court of Appeal (Criminal Division) may order a retrial in respect of certain very serious offences where new and compelling evidence has come to light. "Examples of new evidence might include DNA or fingerprint tests, or new witnesses to the offence coming forward." The legislation contains various safeguards aimed at prevention of harassment of acquitted persons in cases where there is not a genuine question of new and compelling evidence. The personal consent of the Director of Public Prosecutions (DPP) is required both to the taking of significant steps in the re-opening of investigations – except in urgent cases – and to the making of an application to the Court of Appeal.

The change to the double jeopardy rule was considered by the Law Commission - No. 267 (2001) Cm 5048 - which recommended that the rule against double jeopardy should be "subject to an exception in certain cases where new evidence is discovered after an acquittal" but only in certain serious cases (including murder) and the Commission also recommended that the exception have retrospective effect so that it applied equally to acquittals which have already taken place before the exception came into force. The scheme finally enacted in the CJA 2003 is not exactly as recommended by the Law Commission but section 75(6) clearly states - "This Part applies whether the acquittal was before or after the passing of this Act."

In May 2011, the Court of Appeal considered the case and ordered a retrial. The court's judgment (Lord Judge CJ, Rafferty and Holroyde JJ) was withheld until the trial concluded and was then published on 3rd January 2012.

Sentencing:

The sentence for murder is basically life imprisonment: Murder (Abolition of the Death Penalty) Act 1965. However, for those under the age of 18 at the time of the murder, the sentence is detention during Her Majesty's pleasure. The trial judge sets a minimum term which must be served before the offender may be considered by the Parole Board for release.

The Criminal Justice Act 2003 Schedule 21 is the modern basis for determining the minimum period of imprisonment. This Schedule came into force on 18th December 2003. The enactment of the Schedule presented a particular problem relating to sentencing after 18th December 2003 for murders committed before that date. It is necessary to avoid a breach of the European Convention on Human Rights Articles 5 and 7.1 by setting a greater minimum period than would have applied had the sentencing been before 18th December 2003. This matter was considered by the Court of Appeal in R v Sullivan [2004] EWCA Crim 1762. There is also a helpful summary of the judgment. The summary - at para.5 - states:

" ... even for an offence committed before the commencement date, the judge must first assess what the appropriate period would be for a minimum term according to the general provisions in Schedule 21. Secondly, to avoid any breach of Articles 5 and 7.1 , the judge will then, if required, reduce the term to satisfy the requirements of paragraph 10 of Schedule 22.

Schedule 21 specifies a starting point of 12 years where the offender was under 18 at the time of the offence. This is adjusted according to any aggravating features or mitigating features.

Dobson and Norris were both sentenced to detention during Her Majesty's Pleasure. Dobson's minimum term was set at 15 years and 2 months. Norris's minimum term was set at 14 years 3 months. The sentencing remarks of Treacy J are here (or via Bailii). It was clear that both were members of a gang where there was group acceptance of the use of knives to threaten or harm black people.

This has been a long and hard road to some form of justice for the Lawrence family. It is perhaps a pity that television of the sentencing hearing was not available. The criminal justice system is slowly moving in that direction - see Ministry of Justice September 2011

------

For the difficulties of sentencing older cases see UK Human Rights Blog

Looking back - the Inquest verdict in February 1997 - video / report by Joshua Rozenberg. NB: At the time of the inquest the law on double jeopardy had not been reformed.

A look back at 2011

2012-01-01T14:18:00.004Z

A Very Happy 2012 to all readers.

The last 12 months brought numerous legal events and, doubtless, 2012 will do the same. During 2011, it was sometimes difficult to choose which events to focus on but some of the stories were compelling.

January 2011 - "Policing" figured highly, particularly with the use of undercover Police Officers such as PC Mark Kennedy - see Climate Change Protesters sentenced ... use of undercover Police Officer revealed (where it was noted that a second trial, due to commence in early January, had been suddenly "dropped" ... Climate Change No. 3 ... where we looked at just some of the serious questions raised by the use of undercover officers ... Climate Change No. 4 ... where the Policing Minister (Nick Herbert MP) announced that the role of ACPO was to change. These matters raised serious questions about policing in a modern democracy and also about the the criminal justice system. We do not (yet) have really satisfactory answers.

February 2011 - The government's much vaunted
"Protection of Freedoms Bill" was finally published and it was a very lengthy document which I opted to look at over 8 further posts. It was turgid reading since the Bill largely amends other legislation using the cut-and-paste method beloved of legislators. Some important changes will be made (e.g. retention of DNA profiles). Several areas will become governed by "soft law" in the form of Codes of Practice which can be "taken into account" in legal proceedings - e.g. powers of entry; surveillance camera systems etc. However, taken overall, it is a Bill which will actually achieve little to enhance freedom.

February also saw the quite astonishing statement in Parliament by Theresa May that the government was "disappointed and appalled" by a decision of the UK Supreme Court relating to sex offender notification requirements and the absence in the law of a right for the requirement to be reviewed. Such statements can undermine respect for the legal process and demonstrate a worrying trend toward an autocratic executive.

March - The Commission to examine a British Bill of Rights was announced. This may yet have far-reaching consequences.

April - The UK government was given 6 months to implement a change to the law relating to prisoners and the vote. It is obvious that the British government has no wish whatsoever to implement the European Court of Human Rights decision in Hirst No.2. The 6 months passed and an outcome to all this is still awaited. There was more about climate change and protest (Ratcliffe-on-Soar) and about arrests in London just before the Royal Wedding.

May - The Ian Tomlinson inquest returned a verdict of unlawful killing. A Police Officer stands charged the manslaughter of Mr Tomlinson and and trial is scheduled to held in the summer of 2012. The British people voted NO to the proposed Alternative Vote. The government brought forward proposals for reform of the House of Lords - (here and here) - a matter which has now dragged on for over 100 years and which, despite the immense importance of the subject, appeared to score a "Yawn Factor" of 10 on a score of 1 to 10.

June - the series on "Explaining our Law" eventually ran to 8 posts:

No.1 - Legal Personnel
No.2 - Courts of Law and Tribunals
No.3 - The Judges
No.4 - Juries
No.5 - Magistrates

No.6 – Sources of Law
No.7 - Youth Justice (Part 1)
No.8 - Youth Justice (Part 2)

At the very end of June came the Hookway case which raised the question of the length of time for which persons may be held without charge. The Police and Criminal Evidence Act 1984 had been interpreted and applied by the Police in a manner which was out of kilter with the actual wording of the legislation. Eventually, an appeal to the Supreme Court was pre-empted by a very brief enactment intended to put beyond doubt the Police interpretation of the law. It is unusual for the government to secure legislation in this way before the process of appeals through the courts is exhausted and it might have been preferable for Mc Combe J's judgment to have been examined by the Supreme Court.

July - The News of the World scandal hit the headlines. What might be seen as "close links" between British politicians and senior figures connected with News International were revealed. Eventually, the Leveson Inquiry was set up and spent much of the autumn taking evidence from "star-studded" witnesses each of whom seemed to have his or her own grievance to air against the media. The Inquiry is set to rumble on for some time - (it will be broken down into four modules) - and I see reason to fear the outcome in terms of media freedom. Whilst there is no doubt that elements in the media have acted unlawfully, disgracefully and irresponsibly it must be remembered that the media is one of the few successful methods by which official iniquity is revealed. Would the scandal of MP's and their expenses have been revealed as clearly with a gagged media? Also, the phone-hacking scandal itself was revealed by the media.

August - The news was dominated by the serious and extensive disorder on the streets of many cities and towns. My posts on this included: The Riot (Damages) Act 1886; Defence of Property (what the citizen may lawfully do when the Police are not there); Bail and sentencing; Blanket refusal to bail (cases of individual offenders should be considered on their individual merits); More on sentencing and whether Voices of Calm would prevail.

September - The story of Stockport nurse Rebecca Leighton brought the story of CHARGE on Reasonable Suspicion. The charges against her were subsequently dropped but she was subsequently dismissed from her employment. There was also an interim report from the Commission for a British Bill of Rights which put forward points for Ministers to raise with the Council of Europe. The possibility of the Police using the Official Secrets Acts against the media was raised - "Blunderbusses and Armalites" and "Using PACE 1984 to obtain disclosure of journalist sources."

October - The month of Political Party Conferences. Theresa May told us how a cat decided the outcome of an immigration case - in fact, the cat had only a "bit" part. The Court of Appeal (Criminal Division) spoke about sentencing for disorder-related offences and it was hardly surprising to learn that most of the offenders received short shrift. After all, the Court of Appeal does not overturn sentences unless they are "manifestly excessive." The government's Legal Aid, Sentencing and Punishment of Offenders Bill was nearing the end of its time in the House of Commons - see "Rights without access to justice are not rights at all."

November - Mr Julian Assange continued to fight the European Arrest Warrant issued by Sweden and retired Lord Justice of Appeal Scott-Baker informed us that the UK's extradition arrangements with the USA were generally acceptable! Many disagree! Next came the Supreme Court's decision in "Jones v Kernott - Cohabitation: what about the house? A cautionary tale" and Jones v Kernott Part 2. This case is of major importance to those unmarried cohabitees who obtain a home together but later split up.

The government's Justice and Security Green Paper was issued and seeks to make major and far-reaching changes to the procedure in those civil cases and Coroner's inquests if it is claimed that national security is involved. I spent much midnight oil on this and I hope - (perhaps beyond hope) - that it was worth it - Post 1, Post 2 and Post 3.

December - A return to the August disorder with "Reading the Riots: Stop and Search powers" which, not for the first time, were said to create distrust between the Police and those frequently targeted. Other December stories included the Supreme Court's interesting decision in R v Armel Gnango; the issuing of a writ of habeas corpus to secure the release of a man held in Afghanistan (here and here). The writ may be made to look exceptionally anachronistic if the Americans decide that they are not going to release this man. Finally, a look at the Norgrove Family Justice Review (here and here).

Those were, at least for me, the major stories of 2011. It was both enjoyable and instructive to produce the blog and the various posts which, I hope, do something to explain our complicated legal arrangements and law. It was also interesting to take occasional dips into matters such as legal history (on which much more could be written); ecclesiastical law; the law and the Royal Family; our very peculiar land law and, occasionally, some obscure areas of law such as the defence of insanity in criminal law etc.

2012 promises to be yet another blockbuster of a legal year and I feel sure that there will be many more stories worthy of attention. To all readers: thank you for following the blog and thanks for your comments. To the many other bloggers - thanks for your support and kind comments and please keep up the good work. Here's to a Happy and, above all, Peaceful 2012.

The Family Justice Review (2) - Main recommendations

2011-12-30T17:02:00.005Z

In November 2011 the Family Justice Review, led by David Norgrove, issued its final report - "Family Justice Review: Final Report." It is a lengthy and detailed report and builds upon an Interim Report issued earlier this year. The Review was conducted against the background of certain "guiding principles" set out by the commissioning Ministers - please see Part 1 of this post.

: The Recommendations :

The recommendations are set out at pages 26 to 36 of the report. For the reasoning underlying particular recommendations it is necessary to look at the subsequent Chapters. What follows is a reasonably detailed look at the main recommendations.

The child’s voice: pages 45-49 - the report seeks to ensure that children’s interests are truly central to the operation of the family justice system. Thus, children should be given age appropriate information to explain what is happening when they are involved in public and private law cases and they should be supported so that they are able to make their views known. The Family Justice Service (recommended by the Review) would take the lead in this area.

The UK Government should
closely monitor the effect of the Rights of Children and Young Persons Measure (Wales) 2011. This is an important point - see Law and Lawyers "Rights of Children" - but it seems a pity that the Review did not recommend similar legislation for England.

Family Justice Service: pages 49 - 63 - the review wished to see the creation of a Family Justice Service which would be sponsored by the Ministry of Justice and have strong ties to the Department for Education and Welsh Government. This service would have responsibility for the budgets for court social work services in England, mediation, out of court resolution services and, potentially over time, experts and solicitors for children.

A recommendation which will be welcomed is that charges to local authorities for public law applications and to local authorities and Cafcass for police checks in public and private law cases should be removed. Such charges were imposed by the Labour Government and were thought to have deterred some Local Authorities from instituting proceedings.

A duty should be placed on the Family Justice Service to safeguard and promote the welfare of children in performing its functions. An annual report should set out how this duty has been met.

An integrated IT system should be developed for use in the Family Justice Service and wider family justice agencies. This will need investment. In the meanwhile government should conduct an urgent review of how better use could be made of existing systems. (It is probably unlikely that government will wish to put yet more money into costly IT provision. Time will tell).

The Family Justice Service should develop and monitor national quality standards for system wide processes, based on local knowledge and the experiences of service users. The Family Justice Service should coordinate a system wide approach to research and evaluation, supported by a dedicated research budget (amalgamated from the different bodies that currently commission research). The Family Justice Service should review and consider how research should be transmitted around the family justice system.

The recommendation for a Family Justice Service has been attacked by the President of the Family Division - Lord Justice Wall who said that the service is "neither practical nor necessary. " Wall LJ sees it as "a new independent bureaucracy” which “would not be cost-effective nor would it benefit family justice (or the administration of justice in general) in the long-term.” He would prefer that the Norgrove reforms be implemented by the family business authority (FBA) within the existing courts and tribunal service. See Solicitor's Journal 30th November 2011.

This broadside from such a senior member of the judiciary may have holed the family justice service proposal along the waterline. Add to that the present government's aim to reduce the number of "public bodies", and one must wonder whether this proposal will sink below the waves.

Judicial leadership and culture: pages 63 - 70 - The review directed some recommendations at the judiciary and pointed out that robust judicial leadership was necessary to bring about what the review referred to as a "culture change."

An important issue in family cases is "judicial continuity." Cases do not benefit from frequent changes of judge or magistrates. The review recommends that the judiciary should aim to ensure judicial continuity in all family cases. There was also a call for specialisation in family matters not just for professional judges but also magistrates. Hitherto, magistrates collectively appear to have resisted specialisation even though it is permitted by statutory rules relating to authorisation of magistrates for family work.

The courts: pages 72 - 79 - the review made some recommendations aimed at trying to ensure that the courts are as efficient and user friendly as possible. Presently, family justice is delivered across the three levels of court: High Court, County Courts and Family Proceedings Courts. Depending on factors such as complexity. cases are allocated to the appropriate level and there are procedures for transfer of cases between the levels.

Unsurprisingly, the review recommended a single family court with a single point for case commencement ("point of entry"). This would replace the current three tiers of court. All levels of family judiciary (including magistrates) should sit in the family court and work should be allocated according to case complexity. However, the report adds that the Family Division of the High Court should remain, with exclusive jurisdiction over cases involving the inherent jurisdiction (of the High Court) and international work that has been prescribed by the President of the Family Division as being reserved to it. All other matters should be heard in the single family court, with High Court judges sitting in that court to hear the most complex cases and issues.

Interestingly, in 2005, the Labour Government conducted a consultation into whether there should be a Single CIVIL court - see here. This concluded that "reform to create single Civil and Family Courts with unified jurisdictions would be feasible and beneficial" but noted that it would require primary legislation. Had this proceeded, the reform would have been very far-reaching. However, a report by retired Lord Justice of Appeal Sir Henry Brooke effectively ruled out a single civil court - see Judiciary / Reports and the masterful Brooke Report (January 2008). Of course, the Norgrove Review proposal is nowhere near as far-reaching as that and, in general, the single family court proposal appears to have been welcomed.

The idea of replacing the present family court system with some form of Tribunal was rejected at an early stage by Norgrove - see Interim Report at paras. 4.140-143 and 5.32

Workforce: pages 79 - 89 - the next recommendations concern "workforce" and aim to ensure that the people who work in the family justice system have the skills and knowledge they need. Key to these recommendations would be the proposed Family Justice Service. Other recommendations concern the Judicial College and training of judges, magistrates and others. The recommendations in this part of the report seem to be uncontroversial.

: Recommendations relating to Public Law cases :

The role of the court: pages 94 - 101 - At present, the family courts have an important role in scrutiny of "care plans" which are prepared in public law proceedings. The requirement for such judicial scrutiny was developed by case law and does not directly appear in the legislation (e.g. Children Act 1989). Mr Justice Wall (and others) were instrumental in bringing this about - see, for example, Re J (Minors) (Care: Care Plan) [1994] 1 FLR 253 at 261 where Wall J stated - "Local authorities should thus be left in no doubt at all that the care plan will in each case be subject to rigorous scrutiny." Once a care order is made, the court's role ends - it is "functus officio" - and matters are left to the local authority which could alter the care plan and, in practice, local authorities are required to keep care plans under review. The decision of the House of Lords in Re S and Re W [2002] UKHL 10 is instructive as to the role of the court. Lord Nicholls said - "I must finally make an observation of a general character. In this speech I have sought to explain my reasons for rejecting the Court of Appeal's initiative over starred milestones. I cannot stress too strongly that the rejection of this innovation on legal grounds must not obscure the pressing need for the Government to attend to the serious practical and legal problems identified by the Court of Appeal or mentioned by me. One of the questions needing urgent consideration is whether some degree of court supervision of local authorities' discharge of their parental responsibilities would bring about an overall improvement in the quality of child care provided by local authorities."

Controversially, the review seeks to "refocus the court on the core issues of the care plan." The courts must continue to play a central role in public law in England and Wales. However, they "should refocus on the core issues of whether the child is to live with parents, other family or friends, or be removed to the care of the local authority." "When determining whether a care order is in a child’s best interests the court will not normally need to scrutinise the full detail of a local authority care plan for a child. Instead the court should consider only the core or essential components of a child’s plan. We propose that these are: planned return of the child to their family; a plan to place (or explore placing) a child with family or friends; alternative care arrangements; and contact with birth family to the extent of deciding whether that should be regular, limited or none."

This proposal seems unfortunate. Many "cash-strapped" local authorities operate with minimal staff and resources and, almost daily, we see reports of services having to be cut. Care proceedings are a major and crucial stage in the lives of too many children today. The requirement for judicial scrutiny of the care plan should not be limited in the way suggested given that it offers an objective / unbiased view as to the local authority's plans for the child should the court grant a care order. On this, see Law Society Gazette 10th November 2011.

Contact with siblings - the review recommended further consultation on whether section 34 of the Children Act 1989 should be amended to promote reasonable contact with siblings, and to allow siblings to apply for contact orders without leave of the court.

The relationship between courts and local authorities: pages 101 - 103 - The Review calls for dialogue both nationally and locally between the judiciary and local authorities. The Family Justice Service should facilitate this. Designated Family Judges and the Director of Children’s Services / Director of Social Services should meet regularly to discuss issues.

Local authorities and the judiciary need to debate the variability of local authority practice in relation to threshold decisions and when they trigger care applications. This again requires discussion at national and local level. Government should support these discussions through a continuing programme of analysis and research. The decision as to when to initiate court proceedings can be very difficult and, if left too late, could have very serious consequences - e.g. case of Baby P.

Case management: pages 103 - 112 - The review noted that different courts take different approaches to case management in public law and calls for robust case management. These need corralling, researching and promulgating by the judiciary to share best practice and ensure consistency.

Government should legislate to provide a power to set a time limit on care proceedings. The limit should be specified in secondary legislation to provide flexibility. There should be transitional provisions. The time limit for the completion of care and supervision proceedings should be set at six months. Judges must set firm timetables for cases. Timetabling and case management decisions must be child focused and made with explicit reference to the child’s needs and timescales. There is a strong case for this responsibility to be recognised explicitly in primary legislation.

To achieve the time limit would be the responsibility of the trial judge. Extensions to the six month time limit will be allowed only by exception. A trial judge proposing to extend a case beyond six months would need to seek the agreement of the Designated Family Judge / Family Presiding Judge as appropriate.

The Public Law Outline provides a solid basis for child focused case management. Inconsistency in its implementation across courts is not acceptable and we encourage the senior judiciary to insist that all courts follow it. The Public Law Outline will need to be remodelled to accommodate the implementation of time limits in cases. The judiciary should consult widely with all stakeholders to inform this remodelling. New approaches should be tested as part of this process.

The requirement to renew interim care orders after eight weeks and then every four weeks should be amended. Judges should be allowed discretion to grant interim orders for the time they see fit subject to a maximum of six months and not beyond the time limit for the case. The court’s power to renew should be tied to their power to extend proceedings beyond the time limit.

The requirement that local authority adoption panels should consider the suitability for adoption of a child whose case is before the court should be removed.

The requirement to shoe-horn cases into a 6 month period is, however laudable, perhaps unlikely to be achieved in more complex cases or it may be achieved but only by limiting the search for suitable persons - often family members - who might be able to care for the child. Considerable delay can be introduced to cases by trying to identify possible carers and then the process of considering their suitability. A further issue might be that, even if the court proceedings conclude in 6 months or less, in some instances the child may then spend considerably longer than that awaiting placement for adoption. There is a shortage of adopters (e.g. Action for Children). Also, the older the child the harder it can be to find a placement. Placing two or more siblings together can prove to be exceptionally difficult.

Local authority practice: pages 112 - 117 - some recommendations aim to improve the quality of local authority social services and their engagement in proceedings.

Expert witnesses: pages 117 - 126 - Family cases can become unduly extended if reports are requested from expert witnesses. For example, it is far from unusual for requests to be made for reports from psychiatrists, other medical professionals, independent social workers etc. The review calls for primary legislation to reinforce the point that in commissioning an expert’s report regard must be had to the impact of delay on the welfare of the child. It should also assert that expert testimony should be commissioned only where necessary to resolve the case. The Family Procedure Rules would need to be amended to reflect the primary legislation.

Whilst the review sees this as necessary, it is already good practice at the moment. Judges already scrutinise carefully requests for additional expert reports. The review continues to say that the court should seek material from an expert witness only when that information is not available, and cannot properly be made available, from parties already involved. Independent social workers should be employed only exceptionally.

Judges should direct the process of agreeing and instructing expert witnesses as a fundamental part of their responsibility for case management. Judges should set out in the order giving permission for the commissioning of the expert witness the questions on which the expert witness should focus.

There are some other recommendations relating to experts which are not covered here.

Representation of children: pages 126 - 129 - recommendations follow to promote the effective operation of the tandem model of children’s representation. "Tandem" refers to the fact that the child in care proceedings is represented by a Guardian and a Solicitor. Controversially, the review recommends limiting the Guardian's role in scrutiny of the care plan so that it is line with the reduced court's role.

Alternatives to conventional court proceedings: pages 129 - 132 - a number of recommendations seek to encourage the development of approaches and programmes that better support families while avoiding or reducing the need for distressing and costly court cases. In what may be music to the ears of certain Ministers, the review stated that "a pilot on the use of formal mediation approaches in public law proceedings should be established."

: Recommendations relating to Private Law cases :

Making parental responsibility work: pages 134 - 150 - A key principle of private family law is that both parents have a responsibility to ensure their child has the emotional, financial and practical support to thrive. These duties attach to those who have "parental responsibility." Recommendations are made which are intended to enable parents to reach agreements following separation, while ensuring that the child’s welfare remains paramount.

Many people, mostly fathers who have struggled to gain contact with their children, have viewed the family justice system as biased against them and have pressed for a legal presumption that there should be either substantial sharing of time with the child or equal time. The review came out against this stating - "No legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents." This matter is discussed in an item in The Guardian 4th November 2011 - Phillipa Newis - "Austerity's dark cloud overshadows David Norgrove's Family Justice Review." Essentially, the view was taken that a presumption could well create more conflict between the separated parents and also detract from the key focus on the welfare of the child.

The report recommends retaining the requirement for grandparents to apply for leave of the court before making an application for contact.

Parents should be encouraged to develop a Parenting Agreement to set out arrangements for the care of their children post separation. Government and the judiciary should consider how a signed Parenting Agreement could have evidential weight in any subsequent parental dispute.

Government should develop a child arrangements order, which would set out arrangements for the upbringing of a child when court determination of disputes related to the care of children is required. These orders would replace residence and contact orders. However, Prohibited steps orders and specific issue orders should be retained for discrete issues where a child arrangements order is not appropriate.

The new child arrangements order should be available to fathers without parental responsibility, as well as those who already hold parental responsibility, and to wider family members with the permission of the court.

Where a father would require parental responsibility to fulfil the requirement of care as set out in the order, the court would also make a parental responsibility order. Where the order requires wider family members to be able to exercise parental responsibility, the court would make an order that that person should have parental responsibility for the duration of the order.

The facility to remove the child from the jurisdiction of England and Wales for up to 28 days without the agreement of all others with parental responsibility or a court order should remain.

The provision restricting those with parental responsibility from changing the child’s surname without the agreement of all others with parental responsibility or a court order should remain.

A coherent process for dispute resolution: pages 150 - 172 - Of course, as an ideal, adults would resolve their disputes out of court and the review makes recommendations to encourage this. These include:

an online information hub and helpline;
rebranding "Alternative Dispute Resolution" as ‘Dispute Resolution Services"
where intervention is necessary, expecting separating parents to attend a session with a mediator who would assess the most appropriate intervention including mediation and collaborative law, or whether the risks of domestic violence, imbalance between the parties or child protection issues require immediate referral to the family court; and provide information on local Dispute Resolution Services and how they could support parties to resolve disputes.

Those parents who were still unable to agree should next attend a Separated Parents Information Programme and thereafter if necessary mediation or other dispute resolution service.

Attendance at a Mediation Information and Assessment Meeting and Separated Parent Information Programme should be required of anyone wishing to make a court application. This cannot be required, but should be expected, of respondents.

Judges should retain the power to order parties to attend a mediation information session and Separated Parents Information Programmes, and may make cost orders where it is felt that one party has behaved unreasonably.

Where agreement could not be reached, having been given a certificate by the mediator, one or both of the parties would be able to apply to court.

Hence, the review has come down heavily in favour of requiring attendance at mediation before private law court proceedings may commence. The certificate of the mediator would be required. If the case does get to court, the review goes on to recommend that the case be allocated to either a simple track or complex track depending on the nature of the case. The judge would allocate the case at a First Hearing Dispute Resolution Appointment.

Children and young people should be given the opportunity to have their voices heard in cases that are about them, where they wish it. The government and the judiciary should actively consider how children and vulnerable witnesses may be protected when giving evidence in family proceedings.

Where an order is breached within the first year, the case should go straight back to court to the same judge to resolve the matter swiftly. The current enforcement powers should be available. The case should be heard within a fixed number of days, with the dispute resolved at a single hearing. If an order is breached after 12 months, the parties should be expected to return to Dispute Resolution Services before returning to court to seek enforcement.

There should be no link of any kind between contact and maintenance.

Divorce and financial arrangements: pages 172 - 178 - The final set of recommendations relate to divorce and financial arrangements and are intended to enable divorcing couples to dissolve their marriage efficiently and, wherever possible, to reach an agreement on financial arrangements without using the court. These are not discussed further here but reference to "Family Law Arbitration: a new dawn for ADR" (Marilyn Stowe blog) is recommended.

"Dispute resolution services" (to use Norgrove's preferred language) has limitations though it is obviously attractive to government which is seeking to limit legal aid expenditure. As the Marilyn Stowe blog says:

"The Government’s enthusiasm for mediation should, ... , be taken with a pinch of salt. The removal of legal aid for most people in private family disputes means the Government are bound to push the benefits of alternative processes. In doing so they have ignored all the pitfalls that professionals in the field know of, and that have tempered their own enthusiasm for ADR. And all the enthusiasm in the world can’t make an inherently defective scheme work in great numbers."

Summary:

The government's detailed response to Norgrove is awaited though, given the government's already stated position, it may be confidently said that they will embrace his ideas for "Dispute Resolution Services." It is also debatable whether the government will really wish to ensure provision of the mediation services which will be needed if the report's recommendations are to be successfully implemented.

They government is perhaps less likely to embrace the suggested Family Justice Service and, in this, they would appear to have a strong ally in Lord Justice Wall. However, the proposed service is quite central to the practical effectiveness of many of the recommendations.

Particularly problematic proposals appear to be the proposal to limit the court's (and guardian's) role in the scrutiny of care plans. A full reading of this detailed report is essential.

Other links:

The Lawyer - Lawyers welcome Norgrove Report into family justice
Law Society Gazette - Guarded welcome for family justice review
Centre for Social Justice - Norgrove fails children by not giving fathers access rights

Rights of Children

2011-12-29T11:21:00.002Z

Farndon-Holt Bridge

An old stone bridge crosses the River Dee and links the English village of Farndon with the Welsh village of Holt. For many years, the historic and sinuous boundary between England and Wales was of little practical interest to most lawyers who practised the Law of England and Wales. (The Bar had, and still has, the Wales and Chester Circuit). Since the enactment of the Government of Wales Acts 1998 and 2006 things have changed. There is an elected National Assembly for Wales (Cynulliad Cenedlaethol Cymru) based in Cardiff and it is empowered to legislate within certain devolved areas - see Cabinet Office. As a result, there are now some marked differences between the law in England and that in Wales.

In 1989, the United Kingdom signed the United Nations Covenant on the Rights of the Child. This came into force on 2nd September 1990 and binds the United Kingdom in international law. The Convention has not been incorporated by statute into English law. However, it could be referred to
in court as an aid to interpretation of legislation on the basis that, unless clear words are used, it is presumed that Parliament does not intend to legislate contrary to its international law obligations. The Welsh Assembly has taken matters further with the enactment of the Rights of Children and Young Persons (Wales) Measure 2011.

The purpose of this Measure is to impose a duty upon the Welsh Ministers and the First Minister to have due regard to the rights and obligations in the United Nations Convention on the Rights of the Child (UNCRC) and its Optional Protocols, when making decisions of a strategic nature about how to exercise functions which are exercisable by them. Some of the duties imposed by the Measure will commence in May 2012 with others to follow in 2014.

Hence, we have reached the situation where (arguably) the rights of children will be better safeguarded in Wales than in England. Better in Holt than across the bridge in Farndon? Given that the UN Convention binds the entire UK, is it not odd that such a situation is being allowed to come about?

In the 2002 to 2003 Parliamentary Session, the Joint Human Rights Committee considered the UN Convention (report) and said:

"We do not accept that the goal of incorporation of the Convention into UK law is unrealisable. We believe the Government should be careful not to dismiss all the provisions of the Convention on the Rights of the Child as purely “aspirational” and, despite the ways we have listed above in which the CRC is currently able to exert influence, we firmly believe that children will be better protected by incorporation of at least some of the rights, principles and provisions of the Convention into UK law."

Since then, there have been repeated calls for incorporation of the Convention - see, for example, The Guardian 19th November 2010 - "Why it's time to incorporate the UN Convention on the Rights of the Child into UK law." In 2011, the Scottish Human Rights Commission rejected calls for a UK Bill of Rights and stated:

"SHRC’s recommendation is that all of the UK’s international human rights obligations are incorporated into domestic law, including the UN Convention on the Rights of the Child, the UN Convention on the Rights of Persons with Disabilities and the International Covenant on Economic, Social and Cultural Rights, which is overdue."

For more information about the UN Convention see UNICEF

The Measure is explained at Children in Wales (Plant yng Nghymru) and also see Welsh Assembly.

In 2010, the Welsh Assembly enacted the Children and Families (Wales) Measure 2010 which seeks to eradicate child poverty etc.

The Family Justice Review (1) - Overview and Terms of Reference

2011-12-28T17:51:00.009Z

In November 2011 the Family Justice Review, led by David Norgrove, issued its final report - "Family Justice Review: Final Report." The report extends to 228 pages. This was the second major report of the year relating to family law and justice; the other report being that by Professor Eileen Munro - see Law and Lawyers 10th May 2011 Munro Review on Child Protection.

The Family Justice Review was commissioned by the Secretaries of State for Justice and Education and also by the Welsh government Minister for Health and Social Services. The Terms of Reference of the Review are set out at Annex A to the report and are considered in this post (below). Interestingly, the Terms of reference refer to certain "guiding principles." These are now considered with my comments in brackets ( ).

The "Guiding Principles" as decreed by Ministers:

The interests of the child should be paramount in any decision affecting them. (This reflects existing law - Children Act 1989 s.1. and it is generally accepted that the interests of the child should remain central to decisions. The present law gives little weight to others involved - e.g. grandparents etc. For an interesting viewpoint, see
the the Marilyn Stowe blog - "The real reason why the Family Justice Review has failed" )

Delays in determining court applications to be kept to a minimum. (Again, existing law has the general principle that delay is likely to prejudice the welfare of the child. This does not necessarily mean that cases have to be rushed through. Some delay in court proceedings is inevitable but all the available time should be used productively with a view to achieving a specific purpose).

The court's role should be focused on protecting the vulnerable from abuse, victimisation and exploitation and should avoid intervening in family life except where there is clear benefit to children or vulnerable adults in doing so. (The second limb of this sentence appears to emphasise the Right to Respect for Private and Family Life in the European Convention on Human Rights Article 8. The first limb of the sentence appears to be aimed at limiting the scope of formal adjudication in the family courts).

Individuals should have the right information and support to enable them to take responsibility for the consequences of their relationship breakdown. (Few would disagree. However, will it be made available in the present financial climate?).

The positive involvement of both parents following separation should be promoted. (As a general statement this seems acceptable enough)

Mediation and similar support should be used as far as possible to support individuals themselves to reach agreement about arrangements, rather than having an arrangement imposed by the courts. (For some, mediation or similar may assist them to reach agreement but this is often where the differences are relatively small. Court imposed arrangements can be met with hostility by the adults in question but such arrangements often prove to be necessary due to the intransigence of those adults).

The processes for resolving family disputes and agreeing future arrangements should be easy to understand, simple and efficient and transparent both to those involved and wider society. (Family law is complex - extensive statute law and case law. The "processes" for resolving disputes operate within this legal framework. Nevertheless, where simplicity can be achieved then it should be).

Conflict between individuals should be minimised as far as possible. (Few would disagree but the hostility can be at an advanced stage by the time the law becomes involved. Nevertheless, there is much to be said for building upon areas - if any - of agreement).

The review should assess how the current system operates against these principles and make recommendations for reform in two core areas: the promotion of informed settlement and agreement; and management of the family justice system. (Thus, the scope of the review was limited to two important areas which can be referred to simply as "settlement" and "management." This reflects the government view that formal adjudication in the courts should be a last, rather than first, resort).

The Terms then moved on to ask the review to look at certain issues.

The extent to which the adversarial nature of the court system is able to promote solutions and good quality family relationships in private law family cases and what alternative arrangements would be more effective in fostering lasting and positive solutions. (The adversarial system is that developed by the common law - party versus party with the court as an objective participant. The term is often used in opposition to inquisitorial process. Family disputes are rarely handled entirely satisfactorily by either of those methods and, it may be, that they cannot be handled entirely satisfactorily by any method. Again, the government's emphasis was on use of alternative methods for resolving problems thereby keeping cases out of court if at all possible. However, even in the court setting, it is often possible to narrow down the issues so that the court has to formally adjudicate as little as possible.)

Examination of the options for introducing more inquisitorial elements into the family justice system for both public and private law cases. (This may be problematic. An inquisitorial approach is not necessarily preferable to the adversarial approach. If the process were to be more inquisitorial, a great deal of work would need to go into selection and training of judges / magistrates. Inquisitorial must not become dictatorial).

Whether there are areas of family work which could be dealt with more simply and effectively via an administrative, rather than court based process, and the exploration of what that administrative process might look like. (It is necessary to identify any such areas. It would be worth bearing in mind the "administrative processes" which applied in the Child Support Agency. These were not entirely successful and changes were necessary and are on-going. See Child Maintenance and Enforcement Commission which replaced the CSA).

How to increase the use of mediation when couples separate as a preferred alternative to court processes.

(This idea underlies much of the government's thinking. They see it as cheaper but it may not necessarily prove to be so).

How to promote further contact rights for non resident parents and grandparents. (In general, the child should know his or her wider family. For a reason why grandparents require leave to become a party to a family case - see the judgment of Hedley J in Re P and L (Minors) at para. 9. The need is to ensure that involvement of others in a child's life must always be a positive factor. However, it is a fact that grandparents are often playing a greater role in the lives of children than may have been the case historically.)

Examination of the roles fulfilled by all of the different agencies and professionals in the family justice system, including consideration of the extent to which governance arrangements, relationships and accountabilities are clear and promote effective collaboration and operational efficiency. This will include looking at the roles carried out by Cafcass in England and by Cafcass Cymru. (A big topic).

The Terms indicated that a panel would be required comprising independent representatives and senior representatives from Ministry of Justice, Department for Education and the Welsh Assembly Government. (The membership of the Review - 10 persons in all - may be seen at para. 1.2 of the Report with their biographies at Annex B).

In examining these matters the Terms of Reference required the panel to obtain and consider the views of key stakeholders, including children and families, the judiciary, family lawyers, Cafcass practitioners and social workers. The Review was also expected to engage in wide consultation, to draw on relevant family justice research studies and literature, consider available qualitative and quantitative data and take into account international comparisons.

The Terms also stated that the weview should take account of value for money issues and resource considerations in making any recommendations. Recommendations should be costed and have regard to affordability. (The thinking here links to the government proposals for legal aid reduction set out in their Legal Aid, Sentencing and Punishment of Offenders Bill - LASPO - Law and Lawyers 25th November).

: Recommendations :

The final report contains an Executive Summary (page 5 to 25) and a list of recommendations (page 26 to 36).

: Comment etc :

The Review Panel seems to have been constrained in two important aspects. One, by the membership which included representatives of the commissioning government departments. It might have benefited from having more members with detailed knowledge of the day-to-day problems in present-day family law legal practice and procedure. The other constraint was the terms of reference which seem to have precluded a thorough review of the complex law underlying decisions involving children and placed the emphasis on "informed settlement and agreement; and management of the family justice system." Thus, the question of whether the substantive law itself continues to be "fit for purpose" has not had a central place in this review.

Part 2 of this post will look more closely at some of the report's recommendations.

The Lawyer - Lawyers welcome Norgrove report into family justice
Family Law - Family Justice Review published
Marilyn Stowe blog - "The real reason why the Family Justice Review has failed" -

Family Law: contact orders - a case raising novel issues

2011-12-27T20:43:00.009Z

The 500th Post on this Blog

When the significant adults in a child's life are in conflict, the child can suffer emotional harm. Disputes arise about matters such as where a child shall live ("residence") or whether the child should have contact with the other adult and, if so, what form that contact should take. Where agreement is not possible between the disputing adults, the courts may be called upon to make orders under Part II of the Children Act 1989- e.g. residence order, contact order etc. When such orders are made, it is far from unusual for one or even all of the parties to dislike the terms of the order but the fact remains that the order is a default position defined by the court which was made necessary by the intransigence of the adults.

In making the order, the court will have applied the fundamental rules set out in section 1 of the Children Act - namely that the child's welfare is the court's paramount consideration ("Welfare Principle") and that no order should be made unless the court considers that doing so would be better for the child than making no order at all ("No order principle").

The recent case of Re P and L (Minors) [2011] EWHC 3431 (Fam) was a dispute about
contact with children but involved considerable factual complexity for which it is necessary to read Hedley J's first judgment delivered in July 2011 - ML and AR v RW and SW [2011] EWHC 2455 (Fam).

Essentially, the case concerned two children - (referred to anonymously as P and L) - conceived using IVF. The significant adults were two couples: one a female same sex couple and the other a male same sex couple. According to Hedley J, the case raised "comparatively novel issues ... which ought to be capable of being debated generally" - (2nd judgment at para 9)

Hedley J pointed out that the case provided a vivid illustration of just how wrong these arrangements can go." There is a need for "precise agreement as to the roles that each is to play before any attempt is made to achieve a pregnancy ..." - (see 1st judgment at para 9). Hedley J added - "It is all too easy in these cases for biological fathers to see themselves in the same position as in separated parent cases in heterosexual arrangements, whereas this arrangement is, and was always intended to be, quite different."

A full reading of the judgments is essential and instructive ... The judgments were handed down in open court but are subject to anonymity. Hedley J emphasised that nothing may be said and reported which might tend to identify the children or any member of the family.

In his judgment, Hedley J propounded a concept of secondary parenting to describe the significant role played by the males who had entered into an artificial insemination arrangement with the female couple. The judge said that he had tried hard to see whether there were any other concepts than that of mother, father and primary carer, all conventional concepts in conventional family cases.

"The best that I have achieved, and I confess to having found it helpful in thinking about this case, is to contemplate the concept of principal and secondary parenting. The reason why this case is not equivalent to a separated parent is that there was a clear agreement that the respondents would do the principal parenting and that they would provide the two-parent care to these children."

Rejecting the argument that the future relationship between the children and the men should relate to the children's identity only, Hedley J proceeded, in relation to the younger child, to make an order for regular staying contact. In relation to the older child (P) indirect contact only was ordered. He will retain judicial control of the case.

Judicial Continuity:

Hedley J was the 13th Judge that the case had come before. The case appears to have been managed with a view to finding a conciliatory resolution. In his first judgment, Hedley J therefore touches on the question of judicial continuity in difficult family cases and on the problem of identifying those "conflicted" cases which will require a judicial decision - see paragraphs 5 to 7. The Family Justice Review Final Report reported in November 2011 and stated:

"Nearly everyone has told us at every stage how important it is to have the same judge throughout a case. The aim should be judicial continuity in all family cases. We recognise that to achieve continuity will need changes to the work patterns of some judges. A willingness to adapt work patterns to be able to offer continuity should be a condition for the ability to take family work. If some courts can achieve continuity it should be possible in all.

There are practical barriers to immediate implementation in the High Court, but the President of the Family Division should consider what steps should be taken to allow judicial continuity to be achieved in the High Court. In Family Proceedings Courts judicial continuity should if possible be provided by all members of the bench and a legal adviser. If this is not possible, the same bench chair, a bench member and a legal adviser should provide continuity."

Twelve Days of Christmas - my selection

2011-12-25T13:32:00.003Z

Here are some offerings for the Twelve Days of Christmas (or, for the mathematically inclined - this):

1. Christmas Day - "For Unto Us is Born a Child" - Huddersfield Choral with the Liverpool Philharmonic Orchestra conducted by Malcolm Sargent. This fine performance was back in 1946. Then there was His Majesty's speech on 25th December 1939 - "I said to the man who stood at the gate of the year ..."

2. Boxing Day - "The Wexford Carol" - there are many versions of this lovely old carol - I like this and this.

3. 27th December - A Denning judgment - dedicated to all those modern judges who seem to lack the time to keep their judgments short and
readable - Lloyd's Bank v Bundy - "Broadchalke is one of the most pleasing villages in England. Old Herbert Bundy was a farmer there. His home was at Yew Tree Farm. It went back for 300 years. His family had been there for generations. It was his only asset. But he did a very foolish thing."

and

Blackburn v Attorney-General - "In this case Mr. Blackburn - as he has done before - has shown eternal vigilance in support of the law. This time he is concerned about the application of Her Majesty's Government to join the Common Market and to sign the Treaty of Rome. It does appear that if this country should go into the Common Market and sign the Treaty of Rome, it means that we will have taken a step which is irreversible. The sovereignty of these islands will thenceforward be limited. It will not be ours alone but will be shared with others." The admirably short concurring judgments of Salmon LJ and Stamp LJ are interesting. To what extent would those judgments be a correct reflection of the present day relationship between the courts and the executive?

4.   28th December - Mike Oldfield's jolly version of "In Dulci Jubilo" with some awesome electric guitar playing

5.   29th December - A poem (Christmas Bells) by Henry Wordsworth Longfellow - "Then pealed the bells more loud and deep: "God is not dead, nor doth He sleep; The Wrong shall fail, The Right prevail, With peace on earth, good-will to men."

6.   30th December - "Striking Back" - the future of the Bar - article in The Solicitor's Journal - "So we rely on argument, persuasion, rigorous analysis and genuine concern that something so precious as a decent justice system is about to be dismantled, lost and gone forever."

7.   31st December - Great / moving speeches - Martin Luther King 28th August 1963 and Robert Kennedy's "We have to make an effort to understand .." on 5th April 1968 and there is Roosevelt's - "We have nothing to fear .." speech.

8.   New Year's Day - 1st January 2012 - Gertrude McClain's poem - "New beginnings" - "The years will never take away - Our chance to start anew - It's only the beginning now - So dreams can still come true." Shakin Stevens "Merry Christmas Everyone."

9.   2nd January - British Legal Education needs updating - article in The Solicitors Journal - "When the chairman of the Legal Services Board declares that the “dialogue and interplay” between legal education and practice is not happening, we should take note."

10. 3rd January - The Ultimate Price of Poverty - Barrister Magazine - "There are no millionaires on death row" - if you believe in "justice" then there is much left to do

11. 4th January - What should we do with all the young lawyers? - Leolin Price CBE QC - The Barrister Magazine

12. 5th January - A poem for Twelfth Night - How the Puritans Stole Christmas and watch Sinead Cusack (as Olivia) and Felicity Kendall (as Viola/Cesare) in Shakespeare's Twelfth Night - their acting is compelling

As I said - Just a Selection. What would yours be? Enjoy the season and count your blessings.

Habeas Corpus No. 2

2011-12-23T14:19:00.001Z

A writ of habeas corpus was issued by the Court of Appeal in the case of Yunus Rahmatullah - Law and Lawyers 14th December 2011. It now appears that the British Government has asked the United States to return him to British custody but the government has been granted further time (18th January) to obtain his production - see Telegraph 21st December 2011. It is not yet clear whether the US will comply with this request though Memoranda of Understanding (MoU) existed between the UK and US governments relating to Transfer of Prisoners of War, Civilian Internees and Civilian Detainees. Details of the MOU are in the Court of Appeal judgment.

English Courts are careful when issuing writs and orders since they have to be enforceable. Consequently, it is essential that those to whom the writ or order is directed are basically able to comply with it. The primary purpose of the habeas corpus writ is the physical production of the person concerned ('the applicant') before the court - (see Court of Appeal judgment at para 26).

The effectiveness of the
writ depends, in this case, on the effectiveness of the MoU. This is the heart of the case and it may prove to be the weak link if the Americans refuse to comply with the request. If Washington refuses to hand over Rahmatullah it would strike at the trust which is necessary between allies during times of conflict. For years neither the British nor the Americans would admit that Rahmatullah, and a second Pakistani national Amanatullah Ali, had even been captured. Both men have been held incommunicado for the past seven years and have been refused access to a lawyer.

It also appears that the Foreign Office has been granted leave to appeal the Court of Appeal's judgment to the Supreme Court on a "point of law." The decision of the High Court (Laws LJ and Silber J) was overturned by the Court of Appeal.

Winter Solstice News and Views

2011-12-22T19:09:00.005Z

Stonehenge

Updated

The winter solstice has now passed and the days will lengthen. Over the last few weeks there has been a considerable amount of legal news and the Michaelmas Term has been fascinating. The following is a selection.

The Court of Appeal: Criminal Division Annual Report: has been released - see here (pdf 40 pages). This is a highly interesting and useful document which includes Chapter 3 (Cases of note), Chapter 4 (Other types of appeal and Chapter 5 (Role of the Criminal Cases Review Commission).

Lord Chief Justice's Press Conference: was held on 6th December. A transcript of the conference is available. Questions covered a considerable range. His Lordship refused to comment about the legal aid bill since it was in the political arena and therefore "wiser to say nothing." In response to a question relating to the effectiveness of the law of contempt of court, Lord Judge responded by saying it came down to what sort of jury system we want. It has to be one in which the case is decided only on the basis of evidence presented in court and not material discovered by jurors undertaking their own internet research. Questioning
then moved on to look at Parliamentary Privilege. Lord Judge defended the need for this and stated that he had raised some concerns with the Speaker of the House of Commons and with the Lord Speaker in the Lords. A number of questions touched upon aspects of the law of murder including "loss of control", joint enterprise and the automatic life sentence. Lord Judge said - "I would have thought myself that a careful consideration of reform of the law of murder might reduce the call for the automatic sentence to be removed."

An interesting question was put about sentencing for disorder. "Given that we may be moving into another recession and a period of austerity, do you think there is an argument for the Sentencing Council to set out more clearly, so that it is understood more broadly by the public, the range of sentences that people risk if they take part in activities in the context of disturbances or riots? The Lord Chief Justice replied that the short answer is, NO. "I do not think it is necessary. If people have not understood the decisions reached by the court, we cannot really explain them. As with most other things to do with sentencing, there is a wide
discrepancy of views." This part of the press conference is perhaps surprising. Is it not precisely where there are wide ranging views that guidance is required?

Questions then moved on to look at disclosure, judicial review, a more diverse judiciary and tweeting from court. On disclosure; Lord Judge indicated that he did not think that the Criminal Procedure and Investigations Act 1996 was working, "partly because too much is expected of it, and partly because, as I say, the process of investigation has become so much larger."

Turning to judicial review, sympathy was expressed with the recently stated views of Jonathan Sumption QC. Lord Judge said - " .... Judges have to be careful to remember that we are enforcing the law. As to that, we have no choice. We enforce the law as we find it to be. I think we have to be careful to remember that we cannot administer the responsibilities which others have. So local authorities have responsibilities, and so on and so forth. I think there is occasionally a danger of an overlap between us deciding what the law is and saying what it is, and then making a judgment accordingly. Occasionally -- and I suppose it is inevitable -- there is an overlap where what we are doing, or the orders that we make, actually impact on the administration for which others are responsible. So when I say I am sympathetic with Mr Sumption's view, it is a genuine sense of sympathy. We have to be careful to make sure that we stay within our proper function."

All in all, an interesting session and I recommend a full reading of the transcript.

Her Majesty's Inspectorate of Constabulary and the August disorder: a report has been issued by HMIC - The Rules of Engagement. This is potentially far-reaching since it examines methods which might be used in the future to deal with similar outbreaks of disorder. The Parliamentary Home Affairs Committee concluded that the Police failed to appreciate the magnitude of the riot task. See their report on the Parliament website.

** The Guardian 21st December - "Plastic bullets should never be an option - history has shown this"

Independent Reviewer of Terrorism Legislation: David Anderson QC is the independent reviewer of terrorism legislation and has issued a very detailed report on the operation, from December 2010 to September 2011, of the Terrorist Asset-Freezing etc. Act 2010. The Act gave effect, in domestic law, to certain international legal obligations of the UK - viz: UN Security Council Resolution 1373 (2001) and resolution 1452 (2002). The Act also provides for enforcement of Regulation (EC) 2580/2001 on specific measures directed at certain persons and entities with a view to combating terrorism (“the EC Regulation”).

An further look at this report may be found on the UK Human Rights blog - "Terrorist asset-freezing: an intrusion too far - Dr Cian Murphy."

Around the blogs etc: The excellent Justice Gap blog has a look at the Cardiff 3 case - referred to as "a matryoshka doll" of a case.

"What Price Justice? Convicting three men of murder in 1990… about £10m. Bringing the officers who caused three innocent men to be convicted of that murder to trial in 2011… about £30m. Causing their trial to collapse? Priceless."

Jack of Kent blog notes that "sitting there, as you scrape the bottom of any barrel, are the lawyers."  He then considers why this - Why are lawyers hated?

Writing in The New Statesman, David Allen Green, says that 2011 was a year of unintended consequences - see article. "There is something rotten about a political system where the true nature of power relations -- the very stuff of politics -- is routinely exposed by external events. No political system is perfect; but it is not wrong to expect a political system to be able to work in some fashion. Power will always tend to corrupt, and those with power will always tend to abuse it. One good test of a mature political system is to recognise and check these tendencies. But few, if any, would say that the British political system is now working at all well."

Family Law has a good review of 2011. This is a field of practice which is legally and practically difficult but which touches on aspects of life which are inevitably close to the hearts of those concerned: family, children and home. There have been many developments during the year - please see the review.

The barrister always has a range of interesting articles. One of their latest asks whether Historic Abuse trials are reliable.   A number of recent cases in the Court of Appeal Criminal Division have considered old cases: see R v Joynson (convictions for indecent assault quashed) and also R v Hereworth (upholding convictions).

Clerkingwell has some highly pertinent observations from a Barrister's Clerk - see "What they don't teach you ate Bar school."    Qualifying as a barrister an impressive achievement but "it arguably leaves them ill-prepared for many of the fundamental challenges ahead such as the practical, real world application of legal expertise, developing relationships and building a successful, progressive and sustainable practice."

The National Archives contain over 11 million items and include some strange things: a mummified rat skeleton, a red pyjama suit which was evidence in a 1932 case and a death mask of the 24th Master of the Rolls who also happened to have been Dean of York - see Ministry of Justice for further.

Finally, having visited Wigan on a number of occasions, I was amused by this tweet by lawyer Professor Gary Slapper:

JUDGE: Isn't ur client aware of the maxim ex turpi causa non oritur actio? COUNSEL: Yes m'lud, the people of Wigan now speak of little else

but can anyone give an illustration of the maxim being applied?

Lockerbie: 23 years ago today

2011-12-21T11:23:00.004Z

Addendum: The following links may be of interest: Lockerbiecase and Daily Mail 22nd December.

-----

21st December 1988 was the day when Pan Am Flight 103 - a Boeing 747 en route from London Heathrow to New York - was destroyed by explosive devices which detonated as the aircraft, flying at 31,000ft (FL310) approached the small Scottish town of Lockerbie. A great deal of information about this event may be read at Pan Am Flight 103 (Wikipedia). In all 270 people were killed: 243 passengers, 16 aircrew and 11 persons on the ground in Lockerbie.

The Air Accident Investigation Branch (AAIB) conducted a through investigation into the causes of the accident and published their report in 1990.

Subsequently, a trial was held at Camp Zeist, Holland. Scots criminal law applied. Two men were accused: Abdelbaset Al Mohmed Al Megrahi and Al Amin Khalifa Fhimah. The trial was conducted by three Scottish judges (Lords Sutherland, Coulsfield and Maclean) and was heard without a jury. (Scots Law usually requires a jury of 15 in "solemn procedure"). The legal authority for this trial was a Statutory Instrument - The High Court of Justiciary (Procedure in the Netherlands)(United Nations) Order 1998. This order, "nodded through" at Heathrow Airport by Her Majesty, simply dispensed with jury trial - see Article 5(3) of the Order. Her Majesty was on her way to Brunei and a Privy Council meeting was held at Heathrow Airport on 16th September 1998.

The opinion of the three judges concluded
that Al Megrahi was guilty of murder. Al Fhimah was acquitted. In June 2011, the possibility emerged that Al Fhimah might be retried - see The Lockerbie Case.

Al Megrahi's case was examined by the Scottish Criminal Cases Review Commission which prepared a report of 800 pages plus 13 volumes of Appendices. On 28th June 2007, the Commission referred the case to the High Court of Justiciary. However, in 2009, the Scottish Justice Secretary (Kenny MacAskill) decided to exercise his statutory power to give Al Megrahi compassionate release. Also in 2009, Al Megrahi abandoned his appeal - see BBC 18th August 2009. He was then returned to Libya. It was said at the time that Al Megrahi had prostate cancer and had just 3 months to live. He is still alive though, in August 2011, was reportedly close to death - The Guardian 30th August. A controversial question is whether Al Megrahi's release was in some way conditional on him dropping his appeal. The Scottish government has consistently denied that there was any link.

Mr Jim Swire is a man whose daughter Flora was killed at Lockerbie. In his view it is questionable whether real justice has been done - see BBC interview 21st October 2011. Mr Swire maintains his own blog - Lockerbietruth. A further blog is that of Scots lawyer Professor Robert Black QC - Lockerbiecase.

Given the existence of a new government in Libya, what the future holds in relation to the case is unclear.

Pan Am Flight 103 bombing trial - Wikpedia - gives information re the trial, the first appeal and the abandonment of the second appeal.

"Lockerbie bomber Abdelbasset al-Megrahi says west exaggerated role" - The Guardian 3rd October 2011.

Stories of the Day as thoughts turn to Christmas 2011

2011-12-20T19:17:00.007Z

James Tissot - The Journey of the Magi

The Supreme Court: Two new justices have been named. They are the Scottish Judge Lord Reed and Lord Justice Carnwath. Their appointments are consequent upon the death in June 2011 of Lord Rodger of Earlsferry (who also came from Scotland) and the pending retirement of Lord Brown of Eaton-under-Heywood.

2012 will see also see the retirement of Lord Phillips of Worth Matravers who is currently President of the court. Lord Phillips announced that he would retire, slightly early, at the end of September 2012.

Dr. David Kelly: In June 2011 the Attorney-General - Dominic Grieve QC - rejected calls for an inquest to be held into the death, in 2003, of scientist Dr David Kelly. A judicial review of this decision has also come out against the holding of an inquest - see BBC. The Hutton Inquiry was established to look into the circumstances surrounding the death of Dr David Kelly and Lord Hutton decided
that he had committed suicide. This has always been controversial. An inquest was opened but, once the Hutton Inquiry was concluded, the Coroner decided not to resume the inquest.

Kenneth Clarke and his Legal Aid etc. Bill: Kenneth Clarke has published a defence of his policy of reducing legal aid - see The Guardian 20th December 2011. Clarke argues that those who oppose his legal aid reform "have fallen prey to a kind of well-intentioned legal paternalism." If true, that would make almost the entire legal profession and many many others "paternalistic." Even Lord Tebbitt has entered the fray and is seeking an amendment in relation to legal aid for children's medical cases. He could hardly be described as paternalistic!   Given the fact that many (perhaps most) in the population would already not qualify for free civil legal aid, the major concern has always been that access to justice for the most vulnerable in society is being taken away. Law and Lawyers looked at principal objections to the Bill recently. The House of Lords has commenced the Committee Stage on this Bill. For a view about the impact of the Bill see Legal Action Group, and Amnesty. The Sound Off for Justice campaign continues to seek amendments to the Bill.

The taxman cometh: ... or perhaps in some cases, he does not ! The House of Commons Public Accounts Committee is incandescent about the so-called "sweetheart deals" being reached between Her Majesty's Revenue and Customs (HMRC) and various businesses - see the Telegraph 20th December.

The Public Accounts Committee report and the remarks by the committee's chair Margaret Hodge MP are available via the Parliament website.   A sum of £25 billion is said to be outstanding in unresolved tax bills and it would appear that HMRC officials have been rather cagey with the committee. The Guardian 20th December also takes a look at "HMRC and the Tax avoidance industry." Interestingly, the Guardian is critical of the committee which it sees as being cosy with the tax avoiders and several politicians (past and present) are named as having links to large accounting firms. (Not that it is suggested that they are tax avoiders: Perish the thought).

Banking: The government has announced that some reform of banking law will take place. The Independent Commission on Banking (Vickers Commission) made recommendations (see report) and the Chancellor of the Exchequer has now made a statement in Parliament about implementation.    A White Paper will be issued in the Spring of 2012 with a view to legislation before the end of the present Parliament (2015) with implementation "as soon as practically possible" thereafter. Neither the legislation nor implementation are going to be simple matters and there are significant inherent risks. Furthermore, much may yet depend on economic developments, especially over the next 12 months. For some analysis of this see Outlaw.com 19th December - "Government will legislate for retail and investment bank ring fencing by 2015, Osborne says."

Parliamentary Privilege: A draft Parliamentary Privilege Bill is being presented to Parliament - see the statement by the Leader of the House of Commons. Parliamentary Privilege exists to protect freedom of speech in debate etc. An attempt to use it to prevent criminal prosecutions relating to MP's expenses was famously rejected by the Supreme Court and a selected few former MPs subsequently had a look at the inside of one of Her Majesty's prisons.

What the blogs are saying: UK Human Rights has some case reports. Their "write ups" on decided cases are always interesting and well written and their latest offerings include two posts relating to conditions for serving prisoners in the UK and the case of Rahmatullah where the Court of Appeal issued a writ of habeas corpus. (The latter case is also referred to on Law and Lawyers).

A new blog has appeared and is welcome - it is Barristers' Hub. The blog is produced by 1 Gray's Inn Square. It looks promising and well worth following.

The Marilyn Stowe blog considers the unmarried couple and what might happen to the house in the event of death. This excellent blog is beautifully presented and carries items on some serious topics. The items are well-informed by the considerable legal experience and expertise of the author. "A new report points to confusion about what happens to the estate of a person who dies intestate, married or unmarried. I know about the injustices that can occur all too well. A few years ago I acted for a very pleasant man in his divorce. He bought a property with his new partner. This is her story." ... see the blog for the rest ...

The website of Garden Court North Chambers (based in Manchester) is a further excellent example of legal practitioners making law more readily available to the general public. They periodically publish excellent legal bulletins which are well worth reading. Today, they bring us the case of Hanif and Khan v UK in which the European Court of Human Rights has held that there was not a fair trial due to the presence of a Police Officer as a member of the jury. The trial was held in 2007.

Inforrm's blog covers media law and looks at the case of The Law Society v Kordowski in which the High Court issued an injunction closing down the "Solicitors from Hell" website.

The Supreme Court blog keeps tabs on the happenings at that illustrious establishment and looks at the permission to appeal granted to Julian Assange who is fighting extradition to Sweden. The key point of law is whether a Swedish Prosecutor can properly be regarded as a Judicial Authority for the purposes of the European Arrest Warrant system. See also Law and Lawyers 2nd November 2011.

The inimitable CharonQC has a series "Chrimbo with Charon" and looks at "You really do need a turkey", "The Frenchie flag: a study in white" (can't think what he is getting at); "The Square fried egg" and, assuming you are not satisfied with an egg, you can eat a Christmas card.

The Legal Bizzle has a series of quite brilliant Santa Claus letters including No. 5 "The writ before Christmas."

The Michaelmas legal term ends on 23rd December. Hilary starts on 11th January. I confess to being somewhat fond of these old, if antiquated, ideas! The world of blogging will hopefully continue depending on the "state" (alcoholic or otherwise) of the various bloggers.

A bit of the Christmas Story:

The Journey of the Magi - (listen to JS Bach Christmas Oratorio)

The picture of the painting at the top of this post is "The Journey of the Magi" by James Tissot (1894). A further painting of the same name was by the artist Sassetta (c.1400-50) shown here. A poem of this name was by T S Eliot who is recorded reading it here and there are many musical compositions with this title.

St Matthew's gospel states - ".. there came wise men from the east" ... to visit the new-born Jesus at Bethlehem but his gospel neither says that there were three of them nor that they were Kings. Probably, the number three is generally mentioned because the gospel refers to "gold, and frankincense, and myrrh." "And being warned of God in a dream that they should not return to Herod, they departed into their own country another way."

We three Kings of Orient Are - sung by Ella Fitzgerald back in 1967.

The link between Herod and The Massacre of the Innocents is a matter which, as far as I know, has never been factually proved though we have St Matthew's Gospel's version (Matthew 2: 16-18). However, this story is the basis of the very haunting Coventry Carol sung here by the choir of Westminster Cathedral.

Christmas is, of course, a time for family and children. It is also a time when, for many, there is unhappiness as painful memories return of lost love-ones. As you enjoy the festivities, please spare a thought for those who are less fortunate and do something to make their days a little happier.

I will leave the last thought to the Military Wives Choir singing "Wherever you are" which, in my view at least, deserves to be this year's Christmas No.1.

Fines ... all is not fine !!

2011-12-19T09:58:00.003Z

The following appeared this morning on the estimable Crimeline. I have added a little emphasis ! This is an outrageous public scandal:

"Fines collection

Amyas Morse, Comptroller and Auditor General, reported to Parliament that HM Courts Service, the body responsible for the collection of fines, confiscation orders and penalties imposed by the judiciary and police, has been unable to provide him with proper accounting records supporting those fines, confiscation orders and penalties.

This meant that he could not give an audit opinion on whether transactions and balances were complete, proper to this account and appropriately raised.

The report highlights how limitations in Libra, the case management IT system in use across magistrates’ courts, and similar systems have contributed towards HM Courts Service’s inability to provide information at an individual transactions level to support the accounts.

Total outstanding debt in respect of fines, confiscation orders and penalties at the end of March 2011 according to the HM Courts Service is £1.9 billion, increased from £1.5 billion in the previous year, while only £457 million is recognised in the account as receivable. The difference of £1.4 billion represents management’s estimate of debt that is at risk.

The Courts Service
and the Ministry of Justice have made some recent improvements to the collection of fines, confiscation orders and penalties. These include new performance measures to monitor collection rates, timeliness and levels of arrears for fines; developments in enforcement and collection procedures; and additional work with other government bodies to maximise recoveries.

The Ministry also plans to carry out further investigations into the accounting functionality of Libra. However, both the Ministry and Courts Service have informed the NAO that they may not be able to address the accounting records issue fully until Libra and other relevant systems are significantly enhanced or replaced."

It almost goes without saying that, if the £1.4 bn debt were recovered fully, there would be no financial need whatsoever to make cuts to legal aid and, in so doing, destroy access to justice for many people. Also, the Ministry and Court Service response is hardly encouraging. Essentially, they are saying that they will spend even more public money to upgrade their abysmal information technology thus throwing more good money after bad.

As the year draws to a close - farewell to "local justice"

2011-12-18T12:28:00.004Z

Goole Magistrates' Court

During 2011, many Magistrates' Courts have closed under the government's hatchet-job on local justice. These closures build on earlier cuts - all imposed under the mantras of "efficiency" and "economy." The closures are all over the country and have the effect that the magistrates' court system will be concentrated on fewer but, usually, larger courts. One result will be that those involved in cases may well be subjected to lengthy journeys, often with poor and reducing public transport, and the undoubted stress felt by witnesses will be increased.

A further effect, which is regrettable in my view, is that fewer people will be needed in the future to fill the important - but, sadly, minimally appreciated - office of Justice of the Peace. This will only serve to make the law even more remote from ordinary people. Furthermore,
the ancient idea of "trial by peers" (equals) even at a summary justice level suffers a further blow. Trial, that is to say, by local people who live and work in their area and know its problems well. These factors operate, often intangibly, to make justice fairer for the individual. As these "efficiencies" bite, those who remain sitting as "justices" may have to sit longer or at more inconvenient hours and evening or weekend courts have been suggested in some quarters. Justice is not administered well by tired people. I will forecast that even more District Judges (Magistrates' Courts) will be appointed. It will be argued that they are needed to keep on top of the throughput of cases - as appears to have happened already at Northampton - (the linked article speaks for itself).

Of course, I do not seek to argue that there was no scope for savings. There were some courts with relatively few cases. There were others located in old buildings which would have been seriously costly to modernise. Nevertheless, as ever, we seem to see rather too extensive use of the chain saw. Courts which either have or will now fade into honourable history are:

North-East: Guisborough, Houghton-le-Spring, Tyndale, Blaydon, Bishop Auckland, Alnwick, Gosforth, Goole, Keighley

Salford joins with nearby Manchester

North-West: Rawtenstall, Penrith, Whitehaven, Northwich, Southport, Rochdale, Salford, Knowsley

Midlands: West Bromwich, Ludlow, Tamworth, Retford, Daventry, Halesowen, Market Drayton, Oswestry, Rutland, Towcester, Ilkeston, Sutton Coldfield, Rugby, Melton Mowbray, Coalville, Market Harborough, Newark

South-East: Sudbury, Ely, Wisbech, Thetford, Cromer, Swaffham, Grays, Amersham, Witney, Lewes, Didcot, Epsom, Ashford, Woking, Sittingbourne, Hemel Hempstead.

London Region: Acton, Sutton, Kingston upon Thames, Harrow, Woolwich, Barking, Brentford, Balham Youth Court

South West: Frome, Totnes, Coleford, Cirencester, Liskeard, Honiton, Lyndhurst, Wimborne, Penzance, Blandford Forum

Wales: Llandovery, Llangefni, Flint, Chepstow, Abertillery, Llwynypia, Cardigan, Pwllheli, Aberdare, Barry, Ammanford .... see BBC Wales re closures

Former Whitby Magistrates - closed 2010

You have served the public well and the legal system may well be the poorer for your passing. Regrettably, even more face the axe in 2012 to 2014. A considerable number of County Court sites have also closed during 2011. My apologies if I missed anyone out. If so, please let me know.

Law Society Gazette - "Justice Secretary announces court closures"

An Employment Tribunal Award - huge compensation award

2011-12-16T17:38:00.002Z

It is at Employment Tribunals where questions of unfair dismissal and unlawful discrimination at the workplace are heard. The case of Dr. Eva Michalak v Mid Yorkshire NHS Trust and 14 other respondents - (135 page judgment) - was decided at a tribunal in which sat in Leeds. The case is a sorry tale and the final outcome is a large award of compensation. The judgment on compensation is set out in a 44 page document - Dr E Michalak v Mid Yorkshire Hospitals NHS Trust and others. Dr Michalak was awarded £7180 for unfair dismissal and £4,452,206.60p for unlawful discrimination on grounds of sex and race. See The Telegraph 16th December - "Woman doctor wins £4.5m for being fired after having a baby."

In relation to the sum of almost £4.5m, the NHS Trust and 3 respondents (Dr David Dawson, Dr Colin White and Mrs Diane Nicholls - Human Resources Director at the Trust) are jointly and severally liable. Clearly, the trust will have the largest pot of money and this is money the NHS can ill afford at any time never mind in this abysmal economic climate. The fact that
other employees such as the Resources Director can also be liable is salutary.

The £4,161,564.60 is actually the sum required to provide the claimant with £2,103,262.31. The tribunal allows for the taxman's slice !

Employers have argued that high levels of compensation in discrimination cases can lead to weak, speculative or even vexatious cases. Whether this is true is a moot point. Naturally, higher levels of compensation will be awarded where the discrimination is extreme or where the claimant had a particularly high income from the employment. In May, the government announced that compensation payments for discrimination would be added to their Employment Law Review.. However, EU Council Directive 2000/78/EC entitled “Establishing a General Framework for Equal Treatment in Employment and Occupation” Article 17 states:

“Member states shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive.” (Emphasis added).

Convicting "solely or decisively" on the basis of hearsay evidence - Strasbourg has ruled

2011-12-15T09:57:00.013Z

UPDATED

Background:

Horns have been locked between the U.K. and the European Court of Human Rights over the question of whether a defendant has received a fair trial if the evidence against him is solely or decisively hearsay.   Please see the earlier posts which contain links to the various judgments:

"Convicting solely or mainly on hearsay evidence: Strasbourg and London lock horns" - 20th April 2010
"A further bout with Strasbourg coming up?" - 22nd February 2011.

Treatment of hearsay in English law:

In the Criminal Justice Act 2003 Part 11 Chapter 2 Parliament enacted what is regarded as a complete code relating to when hearsay may be admitted in evidence at a criminal trial in England and Wales. The Act is based on the recommendations of the Law Commission in Law Com No. 245 (1997) - "Evidence in criminal proceedings: hearsay and related topics."   (Annex A to the Law Commission's report contained a draft Criminal Evidence Bill though the CJA 2003 differs from this).

The common law hearsay rule sought to provide a safeguard against untested hearsay evidence being given a "probative force which it does not deserve" - R v Blastland [1986] AC 41 at 53 (per Lord Bridge of Harwich).   The common law rule could operate so as to exclude evidence of unquestionable reliability but, for many years, this was accepted on the basis that the accused should have the opportunity to test the evidence at trial. Some would have replaced the common law rule with an approach which would always have permitted hearsay evidence if the original source or 'best evidence' was not available - (see Review of the Criminal Courts of England and Wales - 2001 - Chapter 11). The Law Commission's report and the CJA 2003 rejected this approach and adopted a midway position.

The cases:

In Al-Khawaja and Tahery v UK (January 2009) a Chamber of the European Court held that convictions based "solely or decisively" on hearsay evidence breached the right to a fair trial (Article 6 of the Convention). In R v Horncastle, Marquis, Graham and Carter [2009] EWCA Crim 964 the English Court of Appeal upheld some convictions even though they were based mainly on hearsay and rejected the decision in Al-Khawaja. The Supreme Court of the U.K. subsequently agreed with the Court of Appeal - see judgment. The English judiciary considers that the 2003 Act scheme contains adequate safeguards for the accused so that a "sole or decisive" rule is not needed.

Meanwhile, in April 2009, the British government had requested the European Court to refer the case of Al-Khawaja and Tahery to the Grand Chamber Chamber.

The Strasbourg Grand Chamber decision in Al-Khawaja and Tahery: The Grand Chamber (of 17 judges) has issued judgment and held (15 to 2) that there was no violation of Article 6(1) in respect of Mr Al-Khawaja and has held unanimously that there was a violation in respect of Mr Tahery (who was awarded 6000 Euros by way of just satisfaction and 12000 euros for costs and expenses).

The court agreed with the domestic courts and found that a conviction based solely or decisively on the statement of an absent witness would not automatically result in a breach of Article 6(1). Counterbalancing factors had to be in place, including strong procedural safeguards, to compensate for the difficulties caused to the defence.

Article 6 requires an assessment of the overall fairness of criminal proceedings. The right to examine a witness - Art 6(3)(d) - is based on the principle that, before an accused can be convicted, all the evidence must normally be produced in his/her presence at a public hearing so that it can be challenged. Two requirements flow from this. (1) there must be a good reason for non-attendance of the witness. (2) a conviction based solely or decisively on the statements of an absent witness is generally considered to be incompatible with fairness under Article 6 ( the sole or decisive rule).

The sole or decisive rule was not to be applied inflexibly and Strasbourg would not ignore the specifics of the particular legal system concerned. The court looks at the overall fairness of the proceedings and weighs in the balance the competing interests of the defence, the victim, and witnesses and the public interest in the effective administration of justice. Where a conviction is based solely or decisively on the statement of an absent witness, counterbalancing factors must be in place, including strong procedural safeguards.

The full judgment of the Grand Chamber is Al-Khawaja and Tahery v United Kingdom - Application Nos. 26766/05 and 22228/06 - 15th December 2011. The judgment is also interesting in that the court looked at how hearsay is dealt with in other jurisdictions: Scotland, Ireland, Australia, Canada, Hong Kong, New Zealand, South Africa and the USA.

Reactions to the judgment:

An interesting reaction to the Strasbourg decision is that of barrister Eric Metcalfe (Monckton Chambers) writing in The Guardian 15th December. He claims that it is Strasbourg, rather than the English courts, which have upheld the ancient principle of common law that the accused should be able to face his accusers. See "Time for the UK Supreme Court to think again on hearsay."

Further reaction is at Solicitor's Journal "Strasbourg Court extends olive branch to UK over hearsay" and on the Head of Legal blog (Barrister Carl Gardner) - "Al-Khawaja and Tahery v UK: Lord Irvine vindicated."

Joshua Rozenberg - The Guardian 15th December - "Strasbourg heeds UK judges." (Article with public comments).

Habeas Corpus

2011-12-14T19:57:00.004Z

The Court of Appeal - Lord Neuberger MR, Maurice Kay and Sullivan LJJ - 14th December 2011

The writ of habeas corpus (see BBC) has, for centuries, been available as a remedy against unlawful detention. The case of Yunus Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Defence [2011] EWCA Civ 1540 illustrates the use of the writ to seek the return to the United Kingdom of a prisoner held, unlawfully, at Bagram, Afghanistan. See also Reprieve. and also the comments by solicitors Leigh Day & Co. who indicate that -

"The application was strongly resisted by the UK government, which argued that Mr Rahmatullah was no longer in its control and that it was improper of the Court to interfere with its relationship with the US authorities."

"This judgment affirms that our client remains
the responsibility of the UK under international law. The Government must now accept its responsibilities and seek the return of Mr Rahmatullah from US detention, under the terms of its agreements with the United States, and present him to the UK Court and secure his release from detention."

Yet again, concern at the possible American reaction appears to permeate government decision-making. Such concern informs aspects of the government's recent green paper on Justice and Security.

In modern times, the use of the writ is relatively rare. The jurist Albert Venn Dicey considered that habeas corpus was "for practical purposes worth a hundred constitutional articles guaranteeing individual liberty"

Throughout the history of habeas corpus, there have been occasions when governments have suspended its use: arguably at times when it was most needed. This has occurred in England (e.g. 1745) and also in the USA where both Presidents Lincoln and Bush obtained the suspension of the remedy. In the USA, as recently as 2008, there was the case of Boumediene v Bush. Furthermore, issues continue in the USA to this day.

A very useful analysis of Habeas Corpus is that of Gordon Nardell QC (39 Essex Street)- "Habeas Corpus: A human rights lawyer's perspective."

Addendum 16th December: Clive Stafford-Smith writing in The Guardian - " Yunus Rahmatullah: left in a Bragram black hole by US internecine politics" - 15th December.

Text-based communication from court

2011-12-14T17:37:00.000Z

The Lord Chief Justice's Practice Guidance on the use of live text-based forms of communication (including twitter) from court has been issued and replaces the interim guidance issued in December 2010 (Law and Lawyers 28th December 2010). The document is short and speaks for itself though it is not particularly clear about who will be regarded as a "legal commentator" (see para 10). For some of the factors to be considered by judges, the Guidance refers to the Consolidated Criminal Practice Direction I 2.2 which is here.

Supreme Court - R v Armel Gnango - murder

2011-12-14T17:12:00.001Z

In 2008, Armel Gnango was convicted at the Old Bailey of the murder of Magda Priewska. There was a "shoot out" between Gnango and another man ("Bandana Man"). Magda came innocently upon this event and was killed by a shot to her head. It was established that Bandana Man fired the fatal shot. He was not arrested. At the trial, the judge (Cooke J) directed the jury on the basis of joint enterprise and Gnango was convicted of murder. The murder conviction was quashed by the Court of Appeal - judgment July 2010. The prosecution appealed to the Supreme Court which has, by a 6 to 1 majority, restored the conviction for murder but has done so on a different legal basis - see R v Armel Gnango [2011] UKSC 59.

Bandana Man would have been guilty of Magda's murder on the basis of transferred malice. The Supreme Court held that Gnango had aided and abetted Bandana Man's attempt to kill him and, although the bullet meant for him killed Magda, he shared the transferred malice liability of Bandana Man.

The various judgments are very much based on policy considerations. As Lord Brown put it (at paras. 68 and 69): - " ... to my mind the all important
consideration here is that both A and B were intentionally engaged in a potentially lethal unlawful gunfight (a “shoot-out” as it has also been described) in the course of which an innocent passerby was killed. The general public would in my opinion be astonished and appalled if in those circumstances the law attached liability for the death only to the gunman who actually fired the fatal shot (which, indeed, it would not always be possible to determine). Is he alone to be regarded as guilty of the victim’s murder? Is the other gunman really to be regarded as blameless and exonerated from all criminal liability for that killing? Does the decision of the Court of Appeal here, allowing A’s appeal against his conviction for murder, really represent the law of the land? To my mind the answer to these questions is a plain “no”

The case is also interesting for the point that the jury had been directed on a legal basis (joint enterprise). The applicability of this was rejected both in the Court of Appeal and the Supreme Court. ( "Common purpose" could hardly exist between two individuals who actually had very different purposes!) It seems that whatever view the jury may have taken of the facts, the Supreme Court considered that the outcome would have been the same had the jury been directed about the law as laid down in the Supreme Court.

A couple of interesting cases: (1) Armed Forces - disobedience; (2) Child Abduction

2011-12-13T18:25:00.006Z

Royal Courts of Justice, London

Case 1: Court Martial Appeal

The Court of Appeal (Criminal Division) sometimes has the further function of becoming the Court Martial Appeals Court. In this capacity, the court (Toulson LJ, Openshaw and Hickinbottom JJ) has dismissed an appeal by Leading Medical Assistant Lyons who, on 5 July 2011 at a Court Martial at Portsmouth, was found guilty of intentionally disobeying a lawful command contrary to section 12(1)(a) of the Armed Forces Act 2006. He was sentenced to seven months' military detention, reduction from the rank of Leading Medical Assistant to Able Seaman and dismissal from the service. See Leading Medical Assistant Lyons v R [2011] EWCA Crim 2808.

The offence under section 12 requires proof
of mens rea to the extent that it must be shown that the defendant either intentionally disobeyed a lawful command or was reckless as to whether he disobeyed it. The appeal court rejected an attempt to import into section 12 a further requirement that the defendant believed the command to be unlawful - see para. 36 of the judgment. However, the court noted - "We are not here concerned with the hypothetical case of a serviceman ordered to do something which he reasonable believed would be a war crime. That would give rise to different moral and legal questions from any which arise in the present case. All that the appellant was being required to do was to undertake weapons training for the protection of himself and those under his care if his claim for conscientious objection was rejected and he was deployed to Afghanistan"

The judgment also shows the appeal court showing considerable deference to the court martial itself in relation to the effect on morale and operational effectiveness of disobedience to lawful orders. At para 39 the remarks of the Judge Advocate are quoted and at para 40 the court stated - "In particular, the Board was in a far better position than this court to assess what it described as the corrosive effect on morale and the potential to affect operational effectiveness of the appellant's conduct."

For more on this case see the post by Rosalind English on UK Human Rights Blog - "A human right to object to war." Also - The Guardian - "The limits of conscientious objection"

Case 2: Child Abduction Act 1984 sentencing

The Court of Appeal (Criminal Division) - Lord Judge LCJ, McFarlane LJ and Royce J - has considered sentencing for offences under the Child Abduction Act 1984 - see R v Kayani and R v Solliman [2011] EWCA Crim 2871. The Lord Chief Justice pointed out that the common law offence of kidnapping is available and carries a maximum sentence of life imprisonment. However, this offence is subject to difficulties in proving the ingredients of the offence and it is under consideration by the Law Commission - (see para 14 of the judgment). The maximum sentence under the Child Abduction Act 1984 is 7 years imprisonment. The wide discrepancy between the maximum for kidnapping and under the Act was described as "illogical" and the court recommended that the maximum under the Act be increased.

Lord Judge noted - "Child abduction, like every other offence, can take many forms. It may include the abduction of a child for a few days, or even a week or two, followed by the child's return, effectively undamaged, and, more important, although the parent from whom the separation was effected has suffered distress and anxiety in the meantime, with the loving relationship between parent and child quite unharmed. At the other extreme there are offences of forced marriage which ultimately culminate in what in reality is rape, or cases like the present, where the child is deliberately taken abroad and separated from one of its parents for many years, and the ordinary loving relationship which each should enjoy with the other is irremediably severed."

and, later, at paras. 54

"The abduction of children from a loving parent is an offence of unspeakable cruelty to the loving parent and to the child or children, whatever they may later think of the parent from whom they have been estranged as a result of the abduction. It is a cruel offence even if the criminal responsible for it is the other parent. Any reference in mitigation to the right to family life, whether at common law, or in accordance with Article 8 of the Convention, is misconceived. (Emphasis added]. In effect the submission involves praying in aid and seeking to rely on the very principle which the defendant has deliberately violated, depriving the other parent of the joy of his or her children and depriving the children from contact with a loving parent with whom they no longer wish to communicate. There is a distinct consideration to which full weight must be given. It has long been recognised that the plight of children, particularly very young children, and the impact on them if the person best able to care for them (and in particular if that person is the only person able to do so) is a major feature for consideration in any sentencing decision.

The court upheld sentences on Kayani of 5 years (2 counts - sentences concurrent) and 3 years on Solliman (3 counts - sentences concurrent).

The government has opportunity to increase the maximum sentence under the 1984 Act given that the Legal Aid, Sentencing and Punishment of Offenders Bill is currently before Parliament.

Stop delaying justice !

2011-12-12T19:44:00.001Z

Salford Magistrates Court - closes end of 2011

"Stop Delaying Justice" is a new initiative in the Magistrates' Courts and will take effect from 1st January 2012. The excellent materials available from Crimeline explain this more and comment that - "It is clear that this approach is not actually new, as it is founded on almost a decade of case law and statutory rules. What this package does is bring those strands together to present a coherent analysis of the way in which criminal litigation must now be conducted."

The Magistrates' Blog (Bystander) comments:

"A lot depends on good teamwork between the Legal Adviser and the parties, but if it works (as it needs to) it will go a significant way towards helping courts to do more cases with fewer resources."

The Justice of the Peace blog tells us (rightly) that
this is the latest in a series of initiatives all supposedly aimed at speeding up the summary justice process - remember CJSSS? However, the writer is very critical of this latest development.

Crimeline is of course correct to say that the new initiative is based on case law and statutory rules - in particular, the Criminal Procedure Rules. In recent years, considerable case law has developed which has impinged on both sides to a criminal trial but it is probably fair to say that many of the decisions have tended to redress the balance in the favour of the prosecution.

The Criminal Procedure Rules - Rule 1 - begins:

(1) The overriding objective of this new code is that criminal cases be dealt with justly.

(2) Dealing with a criminal case justly includes―

(a) acquitting the innocent and convicting the guilty; .... etc.

A recent example is the case of Payne v South Lakeland Magistrates Court [2011] EWHC 1802 where, at a trial on a speeding charge, the prosecutor failed to adduce evidence of the speed of the vehicle. This was a "windfall" for the defendant but it had nothing to do with the merits. The High Court ruled that the Magistrates were right to allow the prosecution to re-open its case in order to allow the evidence to be produced. From a reading of the judgment in this case, it will be seen that the case law is replete with statements such as:

"Criminal proceedings are not a game: their object is to achieve a fair determination of the innocence or guilt of the defendant." - Hughes v DPP [2003] EWHC Admin 2470 at para. 16

"the overall interests of justice include giving effect to the requirement that a prosecution should not fail through inefficiency, carelessness or oversight."

"Magistrates should pay great attention to the need for expedition in the prosecution of criminal proceedings; delays are scandalous; they bring the law into disrepute; summary justice should be speedy justice; an application for an adjournment should be rigorously scrutinised."

Interestingly, the South Lakeland case involved a defendant represented by a very experienced criminal solicitor. One is left to wonder how, given the legal situation in Magistrates' Courts, the many unrepresented defendants will cope. They will not be attending courses on "Stop delaying justice" and it will be incumbent on Judges, Magistrates and Legal Advisers to ensure that their rights - including procedural rights - are honoured. In other words to ensure that each and every defendant receives a "fair trial " (Article 6) and not just those able to afford costly legal representation.

Europe: an interesting question.

2011-12-12T10:00:00.005Z

The European Council meeting held in Brussels on 8th/9th December resulted in a decision to establish, by March 2012, a new fiscal "compact" - see the European Council announcement. It seems likely that all current EU member States except the UK will sign up to this compact. The word "treaty" has been studiously avoided but the compact will be legally binding in international law on the signatories and is therefore legally speaking a treaty between those states. According to the European Council's announcement - "Member states undergoing an excessive deficit procedure will have to submit to the Commission and the Council for endorsement the structural reforms they plan to take in order to meet the requirement to correct excessive deficits." Hence, it appears that the compact seeks to grant the Commission new powers or duties.

The various Institutions
of the European Union owe their existence to the existing European Treaties - principally the Treaty on European Union (TEU) - see the Consolidated versions of the Treaties. The powers and the duties of each Institution are also to be found in these Treaties.

Thus, the basic role of the Commission is to promote the general interest of the Union and take appropriate initiatives to that end" and to "ensure the application of the Treaties" - TEU Art 17. The general role of the Court is set out in TEU Article 19(3) - "The Court of Justice of the European Union shall, in accordance with the Treaties: (a) rule on actions brought by a Member State, an institution or a natural or legal person; (b) give preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions; (c) rule in other cases provided for in the Treaties."

Hence, the role of the Institutions is not only defined by the European Treaties but is limited by those Treaties and it would be unlawful for an Institution to operate beyond the powers granted to it by the Treaties.

The interesting question:

The interesting question arises - may a new compact between EU member States other than the UK confer additional powers on the EU Institutions without amendment of the European Treaties?

Amendment of the European Treaties:

The procedure for amending the existing European Treaties is to be found in TEU Art 48. There is an ordinary revision procedure and a simplified revision procedure. The latter applies to Part 3 of the Treaty on the Functioning of the EU (TFEU). (Part 3 TFEU deals with the internal policies and actions of the EU).

Amendments to the Treaty on European Union (TEU) would require use of the "ordinary revision procedure" which requires that amendments enter into force after being ratified by ALL member states in accordance with their respective constitutional arrangements - Art 48(4). (My emphasis]. Hence, amendment of the TEU appears to be impossible without the agreement of the UK and the TEU is, of course, the source of the powers of the EU Institutions.

However, Article 48 provides that if, two years after the signature of a treaty amending the Treaties, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.

An attempt to answer the interesting question:

Hence, may the new compact (once concluded) confer additional powers on the EU Institutions without amendment of the European Treaties? Given that the powers of the Institutions exist only because of the EU Treaties, my very tentative answer would be "NO". Amendment would have to be ratified by all member states including the UK and without this, the purported amendments would not be in compliance with TEU Art 48.

Of course, I am not suggesting that the UK will necessarily refuse to go along with any amendments put forward in the compact. Perhaps the UK government will opt to consider each and every proposed amendment to the existing treaties on its merits. A further issue is that amendments to existing treaties might trigger the referendum requirement in the European Communities Act 2011.

There are already some situations - e.g. Schengen Accords - where not all EU member States are fully aligned. However, all the EU states have been prepared to go along with these arrangements. They seem to differ markedly from the position reached at Brussels on Friday 9th December where one member state (UK) is completely at odds with the others.

This "interesting question" may prove to be difficult and the above is a very tentative view. How things will develop will be a major issue in the next few weeks and months. Comments as ever are welcome.

Addendum 13th December: According to an item in The Guardian, the UK will not seek to prevent other EU member States using the EU's institutions in relation to the compact - "EU summit veto recriminations mount within coalition" - The Guardian 12th December. The Telegraph took a look at the financial situation following the UK's opt out - "City not shielded by Cameron's veto, EU insists"

Europe ... Murder ... Hatred ... Gangs ... Committals ... Magistrates ... Sentencing

2011-12-08T20:41:00.009Z

Surface Chart 1200 UTC 8 Dec

UPDATED

Europe - Today - 8th December - was notable for the country being dominated by a deep low pressure area and a cold front sweeping from west to east. The wind has been strong and the rainfall considerable. Combined with the sky hardly getting light, the result has been a miserable day.   This is also the day when European Heads of State and Government meet at the European Council. According to the Council's announcement, they will "discuss economy, energy and enlargement. In the margins of the European Council, the accession treaty with Croatia will be signed.

The leaders will discuss the overall economic situation, with a focus on structural reforms and fiscal consolidation as the basis for a return to sustainable growth, including exploring the possibility of limited Treaty changes, and proposals for possible steps aimed at deepening economic integration in the EU.

Talks will amongst others be based on the interim report "Towards a stronger economic Union", elaborated by the President of the European Council in close collaboration with the President of the Commission and the President of the Eurogroup. The report addresses economic coordination and convergence in the euro area; budgetary discipline, including possible treaty changes; economic union; and strengthening the existing crisis mechanisms."

Addendum - Friday 9th December - 23 of the 27 EU member States agreed to proceed with a new treaty - see European Council "Agreement on immediate action and on new fiscal rule for the eurozone."   The new inter-governmental treaty is to be signed by March 2012. The UK opted out - The Independent 9th December.   The political and legal ramifications of this will be profound and cannot be entirely predicted at the moment. The UK's "opt out" was joined by Sweden, the Czech Republic and Hungary. However, it seems that Sweden and the Czech Republic are to consult their Parliaments on what to do next. Hence, they might yet join the other 23. Would referring the matter back to Parliament have been the better course for the UK government given that sovereignty supposedly lies with Parliament and not with the executive? This is perhaps an example where the UK's unwritten constitutional arrangements permit the executive too much power. Only time will tell. See also remarks of Herman van Rompuy (President of the European Council) - 9th December and also Actuarial Post "Reaction to the Eurozone summit."

Murder: Meanwhile,
back at home, there are new calls from the "Homicide Review Advisory Group" for the mandatory life imprisonment sentence for murder to be abolished so that judges can take full account of all the circumstances and sentence accordingly. It is true that the mandatory sentence fails to recognise the wide variation of situations which can amount to murder. However, politicians are invariably mindful of public opinion and would perhaps fear a situation arising in which very few life sentences are actually imposed even for the more serious murders. All in all, it is a moot point whether such a reform should proceed on its own. Perhaps it should be part of a complete overhaul of the law of murder which, as recently as 2006, the Law Commission recommended - (Law Com 304 - Murder, Manslaughter and Infanticide).   The Lord Chief Justice has said - "It seems to me perhaps the real problem is with the law of murder itself."

Hateful murder: The Legal Aid, Sentencing and Punishment of Offenders Bill has passed through the Commons and is in its committee stage in the Lords. Nevertheless, the Ministry of Justice is going to bring forward an amendment so that murderers of disabled and transgender people in hate crime attacks will face life sentences with a starting point of 30 years. This will require amendment of Schedule 21 to the Criminal Justice Act 2003. This appears to bring such murders in line with the 30 year minimum set out for murders which are racially or religiously aggravated or aggravated by sexual orientation - Sched. 21 para 5(2)(g). See the Ministry of Justice's announcement.

Gang Violence: The Law Society Gazette 8th December has a very useful article on what have been sometimes (inaccurately) referred to as "Gangbos." The Policing and Crime Act 2009 Part 4 enables the police, or local authority, following consultation with other agencies, to apply with or without notice to a county court or the High Court for an injunction to prevent gang related violence.

Committals: The Ministry of Justice has announced that"committal hearings" in Magistrates' Courts will be finally abolished. The process will commence in April 2012 and will be achieved by phased implementation of Schedule 3 to the Criminal Justice Act 2003. See Law Society Gazette 8th December. Historically, committal proceedings have played an important part in the criminal justice process. However, in recent times they have been gradually removed. For example, the Crime and Disorder Act 1998 s.51 removed them for offences triable only on indictment (i.e. only in the Crown Court). They currently remain for offences triable either-way.

Magistrates: Less magistrates feel that they will be losing further work, there seems to be a move to give them power to pass swifter sentences in uncontested cases - see The Guardian 8th December - which states - "Magistrates could be given the power to hand down sentences as soon as someone is charged in simple non-contested cases, under justice ministry proposals. Nick Herbert said giving magistrates the power to hand out summary justice outside of courts, and to pass sentences immediately in some cases, could be 'simple, swift and need not involve expensive lawyers.' Concerns have been raised over the rise of out-of-court disposals such as cautions and fines. In July the most senior judge in England and Wales warned that police officers should not be acting as prosecutor, jury and judge. Lord Judge, the lord chief justice, said persistent and violent offenders should not be allowed to escape justice through police use of out-of-court disposals." Fuller details of this proposal are awaited but one wonders whether a harder look at the extensive use of cautioning is also required.

Sentencing of historic cases: In R v H and others [2011] EWCA Crim 2753 the Court of Appeal has considered how a judge should approach sentencing in cases where a sexual offence was committed a long time ago but where the conviction for it is recent.   A very useful article on this case is at UK Human Rights.

All in all, despite the weather, an interesting day !