Friday, 22 August 2014

Serious concerns about British citizens fighting abroad

There is growing and serious concern about British nationals going abroad to take part in armed combat in countries such as Syria, Iraq etc.  There are political calls for the government to increase the use of powers that it has in this area to either withdraw passports or deprive an individual of British nationality (e.g. where the individual has dual nationality).  The law is complex.  The following links will be of interest:

British Nationality Act 1981 section 40 - Deprivation of Citizenship

Immigration Act 2014 section 66 - amending section 40 of the British Nationality Act 1981 - this came into force on 28th July 2014.

Parliament - House of Commons Library Standard Note - Immigration Bill: Deprivation of citizenship

Withdrawal of passports - Government statement of 25th April 2013

Previous post 5th February 2014 - Fighting abroad ~ is it against the law?

In  the event that

Thursday, 21 August 2014

Judicial Appointments ~ How it was: how it is

Professor Gary Slapper is a leading academic lawyer and well-known legal author. Recently, he posted the tweet shown below.  That's how it was.  These days, lawyers apply for posts in the judiciary in response to advertisements from the Judicial Appointments Commission.  Of course, this has got rid of the old "tap on the shoulder" system.  That's how it is.

The change came about as a result of the Constitutional Reform Act 2005 Part 4

Terrorism Law ~ Police warn that viewing terrorist material may be an offence ...

Over recent weeks horrific events have taken place in the Middle East.  These events have included the murder (by decapitation) of journalist James Wright Foley who was captured in 2012.  In many quarters, the word "execution" has been used.  I prefer the word "murder" because that is precisely what it is. It is believed that the alleged killer is British - see The Guardian 21st August 2014.   If that proves to be correct then he could be charged with murder and tried in an English court - Offences against the Person Act 1861 s.9

A further sickening development was that the murder was filmed and the film posted on to the internet. Of course, it is beyond belief that any right-thinking decent person would wish to view such material.  Nevertheless, the Metropolitian Police saw fit to issue the following warning:

'We would like to remind the public that viewing, downloading or disseminating extremist material within the UK may constitute an offence under terrorism legislation.'

This prompted the leading writer on legal matters - David Allen Green - to question whether merely viewing this material could actually be an offence under terrorism law. 

Monday, 18 August 2014

"Real prospect of a custodial sentence" ~ Controversy over remands

Battle has been joined between the Magistrates Association and the Howard League ... allow me to explain.

The Bail Act 1976 determines whether or not a defendant will be granted bail (with or without conditions).  Refusal of bail has to be justified on the basis of one of the grounds set out in the Act.  Unfortunately, this Act has been so extensively amended over the years that it is exceptionally difficult to read.  Perhaps one day, Parliament will see its way to enacting a complete update!

One of the recent amendments relates to the so-called "real prospect" test - that is, whether there is a "real prospect" of the individual receiving a custodial sentence should he be convicted.  I will illustrate this by considering a defendant (James) who is charged with assault occasioning actual bodily harm (section 47 of the Offences against the Person Act 1861).  The alleged offence was not in domestic setting.

Saturday, 16 August 2014

Search Warrants

It is very long established law that Police Officers require lawful authority to enter the property of the individual - Semayne's Case (1604) 5 Co Rep 91; Entick v Carrington [1765] EWHC KB J98. Entry is often made lawful because the Police act under a warrant issued by a Magistrate - whether District Judge (Magistrates' Courts) or a Justice of the Peace - or, in some circumstances, by a circuit judge.   A key statute dealing with search warrants is the Police and Criminal Evidence Act 1984 Part II - sections 8-16.  

The High Court has been assiduous in ensuring that, if the validity of a search warrant is challenged, all statutory formalities have been complied with.  Formalities may relate to the actual issuing of the warrant or to its subsequent execution.  This is well illustrated by the case of Redknapp v City of London Police and City of London Magistrates Court [2008] EWHC 1177 (Admin) where a warrant, issued by a JP, was held to be unlawful for non-compliance with the Police and Criminal Evidence Act 1984 s8(3).  It is also clear from this judgment [para 13] that adequate notes should be kept by the court as to the material put forward  by the Police in support of their application for a warrant.  The warrant issued to search Mr Redknapp's home was executed and the press were present.  Although the High Court did not find that the press had been "tipped off" such an inference does not seem unreasonable.   The Redknapp case is discussed at some length by Neil Parpworth in Criminal Law and Justice Weekly - 13th December 2008.

The Berkshire home of Sir Cliff Richard

Friday, 15 August 2014

The scandal of "endless" Police bail

Following the arrest of an individual, the Police are empowered to release the individual on bail.  Such bail may have onerous conditions.  The normal life of the individual may be seriously affected by such conditions. If the individual is on such bail for an extended period then it may be tantamount to some form of "extrajudicial" penalty.  The power of the Police to impose bail conditions stems from section 27 of the Criminal Justice and Public Order Act 1994.  Conditions imposed by an officer may be varied by the magistrates court on application by the suspect (section 47(1E) PACE).

The Crown Prosecution Service (CPS) has announced that in relation to an allegation of unauthorised computer access, an individual has been cautioned for an offence contrary to Section 1 of the Computer Misuse Act 1989.  This follows the arrest, some two years ago, of Times journalist Mr Patrick Foster as part of Operation Tuleta.   The Guardian 15th August has covered this story.  The lawyer and journalist David Allen Green has also extensively covered this case (and others) whilst writing for The New Statesman - e.g. 29th August 2012 Nightjack: arrest made and 12th April 2012 The Times and Nightjack: an anatomy of a failure.

Although there

Wednesday, 13 August 2014

Lord Neuberger ~ Recent Speeches

Supreme Court of Victoria
Our own Supreme Court is now in vacation until the next legal year commences in October.   Lord Neuberger, the court's President, is busy in Australia and New Zealand delivering speeches.

In a speech at the Supreme Court of Victoria in Melbourne Lord Neuberger looks at the development of human rights law within the UK and its present day application.  He referred to some of the important issues such as the extent to which the Human Rights Act 1998 permits the courts to modify the literal meaning of a statute, when the courts will issue a declaration of incompatibility, the possibility (yet to be decided) that the convention might be applied "horizontally" so that obligations to respect the rights of others might apply to private entities.   He also considered the roles of the common law and human rights jurisprudence with the common law returning more to the centre stage having been somewhat in the wings since 2000.  

Here are links to five speeches (reproduced from the UK Supreme Court website).

The last executions - 13th August 1964.

50 years ago today the last executions took place in England.  Gwynne Evans (then aged 24) and Peter Allen (21) suffered the ultimate punishment then available to the law - see Manchester Evening News 12th August.  Evans and Allen were convicted in June 1964 at Manchester Assizes before Ashworth J and a jury - Wikipedia describes the case.  Their appeal before the Court of Criminal Appeal was dismissed in July 1964.

Last year saw the 60th anniversary of the execution of Derek William Bentley - (here is my post of 26th January 2013).  The Homicide Act 1957 introduced the partial defence of diminished responsibility which, if successfully pleaded, reduces the conviction to one of manslaughter and this reduced the number of murder convictions  The use of the death penalty was further limited by the 1957 Act introducing what proved to be a most  unsatisfactory distinction between capital murder and non-capital murder.  One of the capital categories was a murder 'done in the course of or furtherance of theft' (Homicide Act 1957 s5) and this applied to Evans and Allen.  It was not until the Murder (Abolition of the Death Penalty) Act 1965 that capital punishment for murder was abolished.   (See the 1965 Act as originally enacted and note section 4 requiring affirmative resolutions in Parliament in order to keep the Act in force after 31st July 1970.  The required resolutions were passed in  December 1969).

Even after 1965,

Wednesday, 6 August 2014

Parole Board and victims

On 5th August, it was reported that Geraldine and Peter McGinty - parents of a murder victim - were upset to hear a judge at the Parole Board say that victim statements make no difference to the Board's decisions - BBC News 5th August.

In February this year, the Parole Board issued "Practice Guidance on Duties towards victims", paragraph 25.1.2 of which notes:

'The Parole Board ultimately makes decisions based on the offender’s current risk. In most cases, the
victim is unlikely to have information on this. However, the Victim Personal Statement (VPS) can contribute to a better, more informed hearing, as it may enable more open and robust questioning of the offender about the offence, addressing their offending behaviour, remorse and victim empathy, which are some of the many factors which will help the Parole Board to assess risk.' 

It is well established law that reasons

Thursday, 31 July 2014

Litvinenko - a public inquiry to be held under the Inquries Act 2005

On 22nd July, the Home Secretary decided that there should be an inquiry under the Inquiries Act 2005 into the death, in 2006, of Alexander Litvinenko - (BBC News 22nd July).  As a result, the inquest first established in 2006 has been suspended under the power in the Coroners and Justice Act 2009 Schedule 1 para 3.    The Home Secretary had resisted holding an Inquiry but Mr Litvinenko's widow brought a successful judicial review of the Home Secretary's decision - (read the judgment). 

Mr Justice Owen was sitting in the capacity as HM Assistant Coroner for Inner London North and was conducting the inquest.  He has now become the Inquiry Chairman.  Interestingly, Owen J retired from the High Court on 19th July.

Tuesday, 29 July 2014

Roundup of News and Comment ....

Updated 30th July ...

Over recent days a considerable number of legal "stories" have appeared.  Here are a few - Enjoy ....!

1.  Efficiency review

The Judiciary has announced details of a Review of Efficiency in Criminal Proceedings which is to be led by Sir Brian Leveson (President of the Queen's Bench Division of the High Court).

2.  Criminal Practice Directions will be revised from October 2014

3.  The Guardian newspaper (and its associated website) cover many aspects of law.

a)  Judges have been warned that the government is trying to obtain impunity over torture. 

Thursday, 24 July 2014

Moohan and another v Lord Advocate - Supreme Court of the UK - Serving Prisoners and the Independence Referendum

18th September 2014 is the date set for the referendum on Scottish Independence.  The referendum is being held by virtue of the Scottish Independence Referendum Act 2013 and those entitled to vote are detailed in the Scottish Independence Referendum (Franchise) Act 2013 - section 2 of which states:

A person is entitled to vote in an independence referendum if, on the date on which the poll at the referendum is held, the person is -

(a) aged 16 or over,

(b) registered in either -

Sharon Shoesmith - Reported compensation

"Accountability" is not synonymous with "Heads must roll" - per Maurice Kay LJ in R (Shoesmith) v Ofsted and others [2011] RECA Civ 642 at para 66.

In December 2008, Sharon Shoesmith was dismissed as Director of Children's Services for Haringey Council.  This followed the tragic death of "Baby P" on 3rd August 2007 for which his mother (Tracey Connelly) and two males (Steven Barker and Jason Owen) were found criminally liable under the Domestic Violence, Crime and Victims Act 2004 section 5.  (Note: section 5 has been subsequently amended with effect from 2nd July 2012 but the original enactment applied at the time). 

Shoesmith claimed compensation for unfair dismissal and was eventually successful in the Court of Appeal.  The judgment is here and see Law and Lawyers 30th May 2011 for discussion. 

An article published by The Telegraph on 23rd July 2014 indicates

Monday, 21 July 2014

A written constitution for the United Kingdom? Have your say ...

Writing in the Law Society Gazette 21st July 2014, Joshua Rozenberg takes a look at a report by the Political and Constitutional Reform Committee of the House of Commons.

This is a lengthy report of 423 pages - A New Magna Carta?  Second Report of Session 2014-15 (3rd July 2014).

Much of the report is informed by the work of Robert Blackburn - Professor of Constitutional Law, King's College London.  As Joshua Rozenberg's article states -  'Blackburn [offers] us three illustrative blueprints. The first, which he describes as a constitutional code, would be no more than a handbook, with no statutory authority. The second, consolidating legislation, would bring together existing statutes and codify constitutional conventions. Only the third would be a true constitutional document, governing the way the country is run.'

Major consultation by Parliament on "A New Magna Carta" - 10th July 2014.   See also Competition to write a preamble for modern written constitution

Earlier posts on Written Constitution - 3rd February 2010 and 19th April 2010

Sunday, 20 July 2014

Some recent decisions in the Family Court

Since the creation (on 22nd April - see post of 24th April) of the new Family Court for England and Wales, cases are being reported by Bailii under the headings of-
The following three reported decisions illustrate all too well the complex and difficult decisions required in this area of legal practice.   The decisions do not raise any new points of law but they are of interest because they illustrate well the anxious consideration given to the detail of the case by the judges involved.

Wednesday, 16 July 2014

The proposed Privacy and Civil Liberties Board - more on DRIP - the Reviewer's review

NOTE 17th July:  DRIP received Royal Assent today and is now the Date Retention and Investigatory Powers Act 2014.   For a blogpost which is scathing about how this was rammed through Parliament see Paul Bernal - DRIP: Parliament in disrepute.   The Act is (mostly) in force from today - (Note: section 1(6) - concerned with disclosure of data - requires a commencement order).  It is also worth noting that section 1(3) gives the Secretary of State power to issue regulations making further provision about retention of relevant data.  As things stand at the moment, sections 1 to 7 will repeal on 31st December 2016 (the "sunset" provision).  The government claims that the Act is compatible with Convention rights.  Time will tell ! 

Read the Data retention and Investigatory Powers Act 2014

1) The PCLB - An element of the package announced by the government along with the Data Retention and Investigatory Powers Bill (DRIP) was that there is to be a Privacy and Civil Liberties Board (PCLB) along the US model.  In a tweet today, Mr David Anderson QC (Independent Reviewer of Terrorism Legislation) drew attention to the proposed remit of the PCLB and suggested that 'the devil may be in the detail.'  At first sight, the remit appears to be a rather narrow one - essentially focussing on powers relating to terrorism policy and a specific list of Acts. 

It appears that Legislation to put the Independent Privacy and Civil Liberties Board into place will be brought forward in this session of Parliament.  The PCLB is to replace the Independent Reviewer legislation.

101 Uses for an Independent Reviewer

2) The Data Retention and Investigatory Powers Bill -

Law Officers of the Crown

Prime Minister David Cameron has reorganised his government.  "Reshuffle" is the more usual word but this is hardly a "reshuffle" - more like a cull.  New faces, including a considerable number of women, have been appointed to Ministerial Office.  Shakespeare's play Henry VI Part II contained the line - 'The first thing we do, let's kill all the lawyers.'  Well, they may not have been killed but the reorganisation will have certainly made them less influential within government.

Both of the Law Officers of the Crown have been replaced - (for their roles, see Attorney General's Office website).   Attorney-General Dominic Grieve has been replaced by Jeremy Wright.  Solicitor General Oliver Heald is replaced by Robert Buckland.  Interestingly, Mr Buckland is (or has been) Chair of the Conservative Human Rights Commission.

There can be little doubt that Mr Grieve was highly regarded as a lawyer and as a fearless Attorney-General.  A very good analysis of Mr Grieve's performance as Attorney-General is at Head of Legal Blog - Dominic Grieve as Attorney-General: 2010-14.   Grieve was called to the Bar in 1980

Monday, 14 July 2014

DRIP ~ a torrent of mass surveillance seems more likely!

Update 15th July - DRIP has also produced a torrent of comment !  In an addendum, I have added some further links.

Last week, the Home Secretary announced that, with all party agreement, the Data Retention and Investigatory Powers Bill - (DRIP for short) - would be introduced into Parliament.  Much of that is covered in the previous post of 10th July. Since then, criticism has mounted in relation to the late introduction of the Bill prior to the summer recess.  Further criticism is that the Bill is far from being just a limited Bill to close what may have been a legal gap left by the decision of the Court of Justice of the EU to invalidate the Data Retention Directive 2006/24/EC.   The UK's 2009 Regulations, implementing the directive into domestic law, could well have been at risk via judicial review even though the Home Secretary asserted in the House of Commons that the government believed they remained valid.  Critics point to the Bill being a considerable extension of State power.  Here are links to the draft Bill, to the provisional regulations to be made under the Bill and to the explanatory notes.

The draft Data Retention and Investigatory Powers Bill  - Draft Regulations -Explanatory Notes - 15 pages 

A very good analysis of the Bill has been made available at Cyberlegal blog - Dissecting DRIP: the emergency Data Retention and Investigatory Powers Bill..

Even the most cursory

Thursday, 10 July 2014

Data Retention ~ Background / Materials

8 x Updates - latest TODAY:

The detection, prevention and investigation of serious crime and national security are matters of enormous concern to government.  Legislation requiring retention by service providers of matters such as telephone communications information (but not content of calls) has been considered necessary.  Such data retention clearly impinges on the privacy of individuals.  Following the 2004 Madrid Bombings, the European Union introduced new rules relating to data retention.  The rules were in the Data Retention Directive 2006/24/EC.

In April 2014, the Court of Justice of the EU (CJEU) ruled that the directive was unlawful because it was held that there was a disproportionate interference with the right to respect for private life and with the right to the protection of personal data, enshrined in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union respectively.  The Court's judgment is here

Any new EU Directive would have to comply with ten requirements - see the Open Rights Group Briefing to MPs on Data Retention Legislation.

The 2006 Directive was implemented

Wednesday, 9 July 2014

Joint Enterprise (3) - Update

The problematic aspect of criminal law referred to as "Joint Enterprise" has been in the news recently as a result of a televised drama by Jimmy McGovern - COMMON.  The programme may be viewed over the next few days on BBC iPlayer - 'When 17-year-old Johnjo gives his cousin and his friends a lift, he finds himself implicated in a stabbing.'

On Youtube, Professor Graham Virgo (Cambridge University) offers an explanation of Joint Enterprise law - (28 minutes).

Some background to Joint Enterprise may be read at The Guardian 1st April 2014  and at BBC 7th July 2014

A post on The Justice Gap blog - Journalism can be the driving force in injustice is also of interest. See also Justice Gap - John Robbins - Joint Enterprise: confusing juries and courts.

Earlier posts relating to Joint Enterprise include 4th April 2014 - Joint Enterprise (1) - Setting the scene and 25th April 2014 - Joint Enterprise (2) - Involvement in Crime

There can be no proper objection