Friday, 19 September 2014

Scotland voted NO

The Scottish Independence referendum was held on 18th September.  The turnout was 84,5% and NO votes totalled 2,001,926 and YES votes totalled 1,617,989.  For more on the results see BBC News Scotland 19th September.    Independence was therefore rejected but, as mentioned in my earlier post, the status quo cannot remain though the historic Union will remain in place and major problems relating to membership of the European Union (EU)  and currency have been avoided. 

The Scottish people have been promised greater devolution of power and this must be delivered but the precise details of those powers remain to be thrashed out and time relatively short given the General Election in May 2015.  However, it appears that

Wednesday, 17 September 2014

Scotland ~ the eve of the referendum

18th September 2014 - Referendum Day in Scotland on the question of independence from the remainder of what is now the United Kingdom of Great Britain and Northern Ireland.  "The Union" of the separate Crowns of Scotland and England came on 24th March 1603 when King James VI of Scotland also became James I of England.  However, political union of the two Kingdoms did not arrive until 1st May 1707 with the enactment, by what were then separate Parliaments, of the Union with Scotland Act 1706 and the Union with England Act 1707.   The Acts gave legislative force to the Treaty of Union agreed in July 1706.

'That the Two Kingdoms of Scotland and England shall upon the first day of May next ensuing the date hereof and forever after be United into One Kingdom by the Name of Great Britain  ...........'

Monday, 8 September 2014

Ashya King (2)

Mr Justice Baker has handed down judgment in the wardship case of Ashya King - (see earlier post)

Judiciary website - Judgments and Orders

Baker J said that Portsmouth Council had acted "entirely correctly" and the parents had reached a treatment plan for Ashya which was "coherent and reasonable"  Ashya had been admitted to hospital for proton treatment and appropriate funding arrangements were in place.  Ashya was therefore no longer to be a ward of court.  The learned judge chose not to make any comment about the appropriateness of the European Arrest Warrant though he commented that it was not in Ashya's best interests for him to have been separated from his parents in such circumstances.

Friday, 5 September 2014

EU ~ Lisbon Treaty ~ the bloc opt-out and selective opt-back-in

"Whether EU measures covered by the so-called '2014 block opt-out decision' continue to apply to the United Kingdom and become subject to the jurisdiction of the Court of Justice from 1 December 2014 is a profoundly significant issue. Some—including the European Arrest Warrant—raise questions affecting public safety and security, as well as the protection of individual rights" - (First Joint Report from the European Scrutiny, Home Affairs and Justice Committee - 19th March 2014).

The UK government had the right under the Lisbon Treaty to opt-out of some 135 EU measures relating to justice and home affairs - (post of 19th October 2012).  They also had the right to select which ones to opt back into and it seems that the government has chosen to opt back into around 35 of those measures including the European Arrest Warrant which came to the forefront of the news this week in the Ashya King case. 

Tuesday, 2 September 2014

Ashya King

Update 5th September -  Judiciary - Court Order of 2nd September

Ashya King is a 5 year old boy who suffers from a brain tumour.  He was undergoing treatment at Southampton General Hospital.  According to an article in the Southern Daily Echo 29th August, Ashya was a "long term patient who was permitted to leave the ward under the supervision of his parents as part of his ongoing rehabilitation.  When the length of time he had been absent became a cause of concern to hospital staff ... they contacted police after a search of the site and attempts to contact the family were unsuccessful."  It appears that the parents were hoping to obtain a treatment (proton beam therapy) for Ashya's condition that is available in some European countries but not in the UK. 

The Police eventually obtained a European Arrest Warrant (EAW) (to which Part 3 of the Extradition Act 2003 applies) having discovered that Aysha had been taken, via France, to Spain.   Issues relating to "neglect" were reported to be a basis for the EAW but precise details of any alleged offence were not stated publicly.  Portsmouth Council also took out wardship proceedings in the High Court - see the Order of 29th August. In accordance with the EAW, the parents were arrested in Spain and held in custody.

Monday, 1 September 2014

Child abuse independent inquiry panel

Child abuse inquiry

On 7th July, the Home Secretary made a statement in Parliament on child abuse investigations.  

'I can now tell the House that the government will establish an independent inquiry panel of experts in the law and child protection to consider whether public bodies – and other non-state institutions – have taken seriously their duty of care to protect children from sexual abuse. The inquiry panel will be chaired by an appropriately senior and experienced figure. It will begin its work as soon as possible after the appointment of the chairman and other members of the panel.'

It was later announced

Rotherham ~ Sexual Exploitation of Children ~ the reports

Updated 3rd September

The last week of August saw an explosion of media comment regarding sexual exploitation* of children in the South Yorkshire town of Rotherham in the years 1997-2013 - see ITV Report finds shocking scale of abuse

The Jay Report:

The comment followed a report by Professor Alexis Jay OBE which was commissioned in September 2013 by the Chief Executive of Rotherham Metropolitan District Council - Independent Inquiry into Child Sexual Exploitation in Rotherham (1997-2013).

The Police and Crime Commissioner:

Much of the media comment demanded the resignation of the Police and Crime Commissioner (Mr Shaun Wright) - for example, The Guardian 29th August.  A number of national politicians also joined in these calls - (e.g. The Independent 28th August).  In 2005 Mr Wright (then an elected councillor) became Rotherham Metropolitan District Council's Cabinet Member for Children and Young People's Services.  The Jay Report notes that,

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