Tuesday, 9 February 2016

Prison reform

Here is the Prime Minister's speech on Prison Reform and the reaction to it of the Howard League for Penal Reform.

The Prison Reform Trust has published this interesting and useful briefing on Prison Facts: Summer 2015

The detail of how the Prime Minister's headline policy speech will translate into actual practice remains to be seen.  For now, it worth noting what the Howard League has said:  "Prison reform, however, is the tip of the iceberg. Improved education and increased autonomy for governors will not work if there are people crammed into filthy institutions with no staff to open the cell doors. We need action now to tackle sentence inflation and the profligate use of prison. Then the Prime Minister's vision can become a reality."

Previous posts - Imprisonment in England and Wales (August 2015), Deaths in Prison (March 2015), A Most serious report (February 2015)

Monday, 8 February 2016

A Constitutional Court for the UK? A recipe for complication, for cost and for unnecessary duplication (Lord Neuberger)

Lord Neuberger - President UKSC
In December 2015 the Secretary of State for Justice and Lord Chancellor - Michael Gove MP -  attended the House of Lords Constitution Committee - previous post.   His evidence was mainly concerned with the government's idea of a British Bill of Rights and repeal of the Human Rights Act 1998 and those plans have yet to see light of day.  (For a look at the current state of play on this issue see Rightsinfo - What's going on with the British Bill of Rights?)

Mr Gove indicated that one reason for the delay to publication of government plans for human rights protection is due to the Prime Minister asking whether the Bill of Rights might be used to create a constitutional court for the UK and, if so, might the Supreme Court of the UK be given that role. The rationale

Friday, 5 February 2016

Julian Assange ~ Arbitrary Detention ~ the UN Working Group decision

Julian Assange (see his Wikipedia entry) has been in the Ecuadorean Embassy in London since June 2012 - previous post 16th August 2012.  He entered the embassy following the 30th May 2012 decision of the Supreme Court.  He was granted political asylum by Ecuador.  The United Kingdom does not recognise that form of asylum - (please see Asylum - some notes).  Mr Assange was "wanted" on a European Arrest Warrant issued by Sweden and it seems that he is very concerned that, if the warrant is executed, he will be sent to Sweden and then onwards to the United States.  Assange has not received any guarantee from Sweden that he would not be sent to the USA and it is arguable that his fear of persecution is well-founded in the light of the USA's treatment of certain others including Bradley Manning who received 35 years imprisonment in connection with Wikileaks.  [Further difficult questions may arise IF Assange were to be extradited to Sweden and the USA were then to request his extradition.  These are not considered further here].

The United Nations High Commissioner for Human Rights has a Working Group on Arbitrary Detention.  The working group was established by resolution of the Commission - see this Fact Sheet.  It has five members (details here) and its mandate currently runs until September 2016.  4 of the 5 members took part in this decision.

The group has been examining Mr Assange's situation and has concluded that he has been arbitrarily detained  - Read the decision.  The Foreign and Commonwealth Office has announced that it will formally challenge the decision - Press Release 5th February.

Wednesday, 3 February 2016

The Magistrates' Courts ~ some reflections on a snowy morning

A post on the Of Interest to Lawyers blog looks at the proposals by Lord Justice Briggs for reform of the civil courts - All change please! All change. (Those proposals are currently out for consultation until the end of February 2016 - previous post).   The learned writer's post is scathing and it includes this: "Went to a Mags Court last week - sweet Jesus - now that is a system on its absolute knees - absolute chaos all round."

It is in either the Magistrates' Courts or the County Court where the public is most likely to encounter the legal system. 

Tuesday, 2 February 2016

Human Rights ~ EU renegotiation

Human Rights:

Parliament's European Union Justice Sub-Committee has heard evidence from Michael Gove (Secretary of State for Justice and Lord Chancellor) and Dominic Raab (Parliamentary Under-Secretary of State Ministry of Justice). The session may be seen via Parliament's website (2nd February 2016).

The session did not reveal much detail about the government's plans for human rights and, after this length of time, any plans ought to be quite advanced.

Mr Gove said

Monday, 1 February 2016

UK Supreme Court ~ more Iraq / Afghanistan litigation

Updated 3rd February:

Over the four days 1st to 4th February, a bench of nine Justices of the Supreme Court heard two cases arising out of British military involvement in Iraq and Afghanistan.  The cases are:

Abd Ali Hameed Al-Waheed v Ministry of Defence (UKSC 2014/0219)


Serdar Mohammed, Yunus Rahmatullah and others v Ministry of Defence (UKSC 2015/0218)

(The recorded proceedings may be viewed via those links).

The conflicts in Iraq and Afghanistan have proved to be productive of a considerable volume of litigation and this has given rise to considerable political concern within government and elsewhere - please see previous posts of 26th January 2016 and 6th January 2016.

Thursday, 28 January 2016

A Scottish tragedy ~ Private prosecutions

Glasgow, 22nd December 2014.  A bin lorry driven by Mr Henry Clarke (aged 58) went out of control and killed six people.  A Fatal Accidents Inquiry was held under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976.  (Scotland does not have Coroners).  The Inquiry took place in the Glasgow and Strathkelvin Sheriff Court before Sheriff John Beckett QC and a report was issued in December 2015.  Two of the determinations were:-

"The cause of the accident resulting in the deaths ..... was the loss of control of Glasgow City Council bin lorry ..... by its driver, Henry Campbell Clarke, while he was driving northwards on Queen Street, as a result of which the lorry mounted the pavement on the west side of Queen Street and collided with a number of pedestrians.

Mr Clarke lost control of the lorry when he suffered an episode of neurocardiogenic syncope whereby he temporarily lost consciousness so that he was unable to control the movement and direction of the lorry." 

Tuesday, 26 January 2016

Child abuse ~ Children's Commissioner ~ Standards of Proof in sharp contrast

The Guardian 25th January reported the views of Anne Longfield (The Children's Commissioner for England and Wales) as expressed in a brief interview on BBC Radio TODAY programme - Call to review the Burden of Proof in child sex abuse cases.

Given the content of the interview, the Guardian headline should refer to Standard of Proof and not Burden.  In a criminal trial. the prosecution bears the burden of proof.  The standard of proof in a criminal case is "beyond a reasonable doubt" or, as it is often put in more modern terms, so that the jury is "sure" of guilt.  Nothing the Commissioner said in the interview suggests altering the burden of proof but she commented that the reasonable doubt standard (criminal cases) "sharply contrasted to the" balance of probability standard applicable to civil cases.  The Commissioner called for consideration of the level of evidence needed to get a case to court.  This may - it was not clear - have been a reference to the test required by the Crown Prosecution Service (CPS) Full Code Test which is that that there must be "sufficient evidence to provide a realistic prospect of conviction."  (See footnote)

Sunday, 24 January 2016

Crackdown on "spurious" claims against the government!

The Prime Minister is seeking a crackdown on what he describes as "spurious" military legal claims - BBC News 22nd January 2016.  Reportedly, the National Security Council has been tasked with drawing up plans to achieve this.  Ideas being mentioned include restricting "no win: no fee" (conditional fee agreements); restrictions on legal aid and even "suspending" human rights law in relation to British Forces operations abroad.  Despite all of this, the Iraq Historical Allegations Team (IHAT) process is to continue and has under investigation some 280 claims against UK veterans.  It may be that keeping the IHAT process running prevents involvement by the International Criminal Court (ICC).  Also, investigations against military personnel involved in the "troubles" of Northern Ireland are continuing - for example Telegraph 10th November 2015.

On 6th January, following an article by Colonel Richard Kemp in the Daily Mail, I posted in some detail about Prosecuting War Heroes

Friday, 22 January 2016

Force by householders against intruders

R v Saw [2009] EWCA Crim 1  was concerned with sentencing for burglary of homes.  The Lord Chief Justice (then Lord Judge) said - " ..... burglary of a home is a serious criminal offence,  The principle which must be grasped is that when we speak of dwelling house burglary, we are considering not only an offence against property, which it is, but also, and often more alarmingly and distressingly, an offence against the person".    

It is hardly surprising that, in some instances, householders have used force to deal with intrusion into their homes but this may result in prosecution of the householder.   In such prosecutions the householder is likely to invoke - (a) self defence at common law; or (b) Criminal Law Act 1967 section 3(1) - "Use of force in prevention of crime or making arrest."  The Criminal Law Act 1967 states that - "A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."

Thursday, 21 January 2016

Litvinenko Inquiry report

The Inquiry into the death of Litvinenko has now reported - Litvinenko Inquiry.

The report , by Sir Robert Owen (retired High Court Judge and the Inquiry Chairman), is detailed and extends to 329 pages.  Alexander Valterovich Litvinenko died on 23rd November 2006 in London.  He had been poisoned by Polonium 210.  Sir Robert concluded that the death was neither accidental nor suicide but that Mr Litvinenko had been poisoned by a Mr Andrey Lugovoy who was probably acting under the direction of the Russian State Security (the FSB).  Sir Robert went on to add that the FSB operation was probably approved by a Mr Nikolai Patrushev (Director of the FSB 1999-2008) and President Putin. Whether any diplomatic (or other) repercussions arise from these findings remains to be seen.

Earlier posts explain how this became an Inquiry as opposed to a Coroner's Inquest - July 2013 - February 2014 - July 2014

The Guardian - Alexander Litvinenko

Statement by Home Secretary Theresa May to the House of Commons

Tuesday, 19 January 2016

David Miranda case at the Court of Appeal

It is now 6 years since the first post on this blog and I hope to continue observing some of the things happening within and to our law.  It has certainly been an interesting 6 years and I am sure that much of interest lies ahead.

The David Miranda case reached the Court of Appeal (Civil Division) and judgment was handed down today - R (Miranda) v Secretary of State for the Home Department [2016] EWCA Civ 6.  This case arose from the detention of Mr Miranda by officers of the Metropolitan Police at Heathrow Airport on 18 August 2013, purportedly under paragraph 2(1) of Schedule 7 to the Terrorism Act 2000. He was questioned and items in his possession, notably encrypted storage devices, were taken from him.  See The Guardian article 19th January by Owen Bowcott.

Friday, 15 January 2016

Lord Janner ~ Criminal proceedings are at an end

Update - see 19th January addendum below

At a hearing before Mr Justice Openshaw, it has been accepted by the Crown Prosecution Service that criminal proceedings against the late Lord Janner are at an end - Statement from the Crown Prosecution Service (CPS) 15th January 2016.  This is entirely in line with the long-standing and basic rule of criminal law that proceedings end with the death of the accused individual.  In fairness to the CPS, the court would have required formal evidence of the death though it is unclear why this could not have been presented earlier.  The CPS statement also states:

"In April 2015, the Director of Public Prosecutions commissioned an independent inquiry into the handling of past allegations of sexual abuse by Greville Janner. Now that criminal proceedings have concluded, we will publish the findings of Sir Richard Henriques’ inquiry at the earliest opportunity."  When this inquiry was announced it was said by the CPS that it was to be held in order to maintain public confidence in the administration of justice and to seek to learn appropriate lessons.

In a previous post about Janner of 21st December 2015, it was commented:

Thursday, 14 January 2016

Modernising the Rules on Unfitness to Plead

The Law Commission wishes to see new rules relating to Unfitness to Plead - a matter that became very topical when Lord Janner was prosecuted in 2015 for alleged sexual offences - (previous post).  Janner died in late 2015.

Law Commission -  Modernising the Rules on Unfitness to Plead

The Commission states that:

"A new test is needed to establish who is unfit to plead. The existing rules for deciding whether a defendant is unfit to participate in a criminal trial – and what the courts should do if they are not – are out of date, misunderstood and inconsistently applied.

Wednesday, 13 January 2016

Lord Chief Justice ~ Report to Parliament

Lord Chief Justice has submitted his report to Parliament - 2015 Report (pdf 32 pages)

The report contains a number of observations which give rise to concern for the state of justice.  For example, the Lord Chief Justice states that:

"Our system of justice has become unaffordable to most.  In consequence there has been a considerable increase in litigants in person for whom our current court system is not really designed."

This observation will come as no surprise to those who have followed events since the the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) removed much civil legal aid.  The legal aid provisions in LASPO came into force almost three years ago in April 2013. Reforms to the civil court system are now being considered - see Civil Courts Structure Review

Tuesday, 12 January 2016

Civil Courts Structure Review (CCSR)

The interim report by Lord Justice Briggs on the civil courts has been published today - Civil Courts Structure Review: Interim Report.   The report seems likely to have very far-reaching implications.  Comments are invited in writing by the end of February 2016; ahead of further consultation on, and consideration of, issues ahead of preparing the final Review report by the end of July 2016.

Perhaps the most far-reaching recommendation in the Interim report is that relating to the creation of an ONLINE COURT.   The report comments that: 

Saturday, 9 January 2016

Precedent ~ UKSC v JCPC ~ Willers v Gubay

The law of precedent is a notable feature of common law judicial decisions.  Decisions on the law handed down by the House of Lords / Supreme Court of the U.K. are binding upon all courts below (i.e. Court of Appeal, High Court etc).  It is the decision on the law that is binding - the ratio decidendi (or, simply, ratio).  Decisions of the Judicial Committee of the Privy Council are not technically binding on the courts of England and Wales but they are said to be "persuasive".


In the recent case of Willers v Gubay [2015] EWHC 1315, Miss Amanda Tipples QC (sitting as a High Court Judge in the Chancery Division) amplified the position regarding precedent at para 15:

Wednesday, 6 January 2016

Prosecuting "War Heroes" ~ Hard hitting Daily Mail article

Daily Mail 5th January 2016 published an article by Colonel Richard Kemp.- What other country would pay lawyers to persecute its own war heroes?  Colonel Kemp is a retired Army Officer who had a distinguished military career including tours of duty commanding troops in operational theatres such as Afghanistan - Wikipedia Colonel Richard Kemp CBE.

Whilst there are points in the Kemp article with which issue could be taken, matters of considerable concern are raised and they ought not to be lightly dismissed as some sort of Daily Mail anti-human rights diatribe.  (Regrettably, the newspaper does have a tendency to use certain decisions of the courts - especially the European Court of Human Rights - to try to ridicule the whole of human rights law.  There has been little to no attempt by this newspaper to offer readers a more balanced view and there is little doubt that, in practice in many areas of law, human rights law has been beneficial to citizens.)

Background to the article:

Saturday, 2 January 2016

Happy New Year 2016

*** A Happy New Year to all readers *** - Looking forward: Looking back

2016 promises to be an interesting year during which the government should be publishing its long-awaited plans for human rights in the United Kingdom.  A New Year should be a time for hope but I am not a believer in either fairy tales or benevolent government (even one in a modern democracy)!  I do not expect this government's plans to fill me with enthusiasm though I may be pleasantly surprised.  Release of the plans has been delayed because, as Mr Gove informed the House of Lords Constitution Committee, the government is considering what role (if any) the Supreme Court might play.   A previous post noted:

Wednesday, 30 December 2015

Flooding ~ funding for defences ~ legal responsibility

Widespread flooding has left thousands of people devastated, their homes wrecked and struggling local businesses ruined with the north of England most affected - see Winter 2015 Floods: government response.  Severe flooding has occurred over several recent years - previous post - In the Firing Line - the Environment Agency (10th February 2014)

On 2nd December 2014, the coalition government announced a 6 year flood defence programme which will cost £2.3 bn.  Whilst this figure remains in place (see Autumn Statement) it is also reported that the Department for the Environment, Food and Rural Affairs (DEFRA) is to take a 15% cut in its budget over the next years - The Express 14th December.

The government has