Friday, 21 September 2018

Court of Session - to ask CJEU if Article 50 notification may be unilaterally withdrawn

Scotland's Court of Session (Inner House) has ruled that it can make a reference to the Court of Justice of the European Union on the question of whether notification under Article 50 of the Treaty on European Union (TEU) may be unilaterally withdrawn by the State which gave the notice.  Government arguments to the contrary were dismissed.

Any Wightman MSP v Secretary of State for Exiting the EU [2018] CSIH 62

The petitioners,

Salzburg - 19 and 20 September 2018

Dinner at Felsenreitschule
With just under 190 days to go until Brexit Day - 11 pm on 29 March 2019 - the Prime Minister attended an Informal meeting of Heads of State or Government in Salzburg, Austria.  The meeting, held mainly on 20 September, discussed Internal Security, Migration and, in EU27 format, Brexit.

Leaders concentrated their discussions on three aspects of Brexit: the need to avoid a hard border on the island of Ireland, the future relationship and the organisation of the final phase of Brexit talks.

The outcome of the meeting can only be described as embarrassing for the Prime Minister personally.  The heart was ripped out of the Chequers Proposal.  Much more crucially, the likelihood of a "No Deal" Brexit increased with immensely serious consequences for the UK both economically and politically.

The end of conference statement by the European Council President (Mr Donald Tusk) may be read HERE.   Mr Tusk stated:

Monday, 17 September 2018

Friday, 14 September 2018

Big Brother Watch v United Kingdom

On 13 September 2018, the European Court of Human Rights handed down judgment in Big Brother Watch and Others v. the United Kingdom.* 

The court deal with complaints by journalists and rights organisations about three different surveillance regimes: (1) the bulk interception of communications; (2) intelligence sharing with foreign governments; and (3) the obtaining of communications data from communications service providers.

Thursday, 13 September 2018

Ireland v UK ~ 1978 judgment will not be revised

The years 1968 to 1998 were a terrible time in Northern Ireland.  They were the years of "The Troubles" when over 3,600 people were killed and thousands more injured.   Over the course of three decades, violence on the streets of Northern Ireland was commonplace and spilled over into Great Britain, the Republic of Ireland and as far afield as Gibraltar.  Several attempts to find a political solution failed until the Good Friday Agreement of 1998.  The Northern Ireland Act 1998 implemented that agreement and devolved government was restored.  Regrettably, in early 2017, devolved government broke down and the British government is seeking to restore it - UK Government Statement 6 September 2018.

A number of issues

Tuesday, 11 September 2018

Speech by the Lord Chief Justice in Brisbane, Australia

The Lord Chief Justice, Lord Burnett, has addressed the "Commonwealth Judges and Magistrates Association" annual conference in Brisbane, Australia.  The speech was entitled "Becoming stronger together."

Lord Burnett was principally concerned with judicial independence and his speech draws strongly on a speech in 2016 by Lord Hodge - Upholding the rule of law: how we preserve judicial independence in the United Kingdom (pdf).

Lord Burnett touches upon

Friday, 7 September 2018

Yellowhammer

Leaving the EU on 29 March 2019 without a Withdrawal Agreement in place cannot be ruled out even though negotiations are on-going - read the Secretary of State's Statement of 4 September.   Also see the Secretary of State's speech (23 August) regarding No Deal Planning.

A considerable amount of material is in the public domain to show what the impact of that scenario is likely to be:

Wednesday, 5 September 2018

Speeding

The famous former footballer Mr David Beckham has entered a not guilty plea to a charge of speeding on the A40 - ITV News - Sky News - BBC News - Manchester Evening News.  It is reported that he was driving at 59 mph in a 40 limit and that Mr Beckham is not denying the speed.  How then can he plead not guilty?

The answer lies in the Road Traffic Offenders Act 1988 section 1 which requires a Notice of Intended Prosecution (NIP) to be "served" within 14 days of the offence.*  The wording of section 1(1) makes it clear that there cannot be a conviction unless the requirement of service is complied with.

Tuesday, 4 September 2018

Human rights ~ the convention is 65 years old

3 September was the 65th anniversary of the coming into force, in 1953, of the Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the European Convention on Human Rights. 

    Ahead of the anniversary, Council of Europe Secretary General Thorbjørn Jagland said:

    Monday, 3 September 2018

    Justice Committee - Transforming Rehabilitation

    In 2014 and 2015 the Government introduced major structural reforms to the probation system, which included changes to who delivered probation services and what was delivered as part of probation. These reforms were known as Transforming Rehabilitation (TR). The TR reforms sought to:

    Public inquiries: are they of value?


    Public inquiries play a prominent part in public life in the United Kingdom. When major accidents or disasters occur, or when something goes seriously wrong within government or a public body, calls are often made for “a public inquiry” to be held. Inquiries into matters of public concern can be used to establish facts, to learn lessons so that mistakes are not repeated, to restore public confidence and to determine accountability.  Nevertheless, they can be lengthy; spend much time on matters of a procedural nature; very expensive; and, when they eventually report, their recommendations are not always implemented by Ministers.  Concerns continue about the amount of control which Ministers are empowered to use in relation to inquires which they create.

    The value of inquiries:

    At least, that is the theory but the value of inquiries has been questioned.  They can be lengthy and expensive - the Saville Inquiry into the events of "Bloody Sunday" (January 1972) was established in 1998, heard evidence until November 2004 and published a report on 15 June 2010.  The costs were around £200m. 

    Saturday, 1 September 2018

    HMP Birmingham - Urgent Notification Letter.

    This earlier post 3 August noted a number of serious concerns regarding prisons in England and Wales.  A high prison population managed by fewer prison officers; considerable use of short term imprisonment (6 months or less); and problems with privatised Community Rehabilitation Companies (CRC).   The pressing need for reform was set out on 6 March by the Secretary of State for Justice -speech on 6 March 2018.  

    Concerns in some prisons run at an even deeper level as evidenced by an Urgent Notification Letter regarding HMP Birmingham sent on 16 August by HM Chief Inspector of Prisons (Mr Peter Clarke) to the Secretary of State.

    Jogee - 30 months after the Supreme Court judgment

    For over 30 years the criminal law equated 'foresight' on the part of a co-accused with 'intent to assist' the principal offender.  In R v Jogee [2016] UKSC 8, the Supreme Court court unanimously held that the correct approach was to treat that foresight as ‘evidence of intent’ together with the rest of the evidence - Previous post 18 February 2016 and Barrister Magazine 20 April 2016.

    Almost 500 people are thought to have been convicted of murder between 2005 and 2013 as secondary parties in joint-enterprise cases, many in gang-related attacks.

    Monday, 27 August 2018

    A No Deal Brexit ~ Government Preparations for no deal ~ The WTO

    What will happen after 29 March 2019 if there is no Withdrawal Agreement between the UK and the EU?  In this "no deal" or "cliff edge" scenario, the UK would step entirely away from the EU ("third country status") and there would not be an implementation / transition period to protect British business / commerce from the inevitable ravages of such a status.  How should businesses and individuals prepare for this situation?

    On 23 August, the UK government published Preparations for a No Deal Brexit.  The speech of the Secretary of State for Exiting the EU is HERE.   Just how confident one should be that a deal will be achieved is highly debatable even though the Minister referred to a No Deal Brexit as an "unlikely event" and said that he was confident that a "good deal is within our sights."

    Sunday, 26 August 2018

    Inside the Court of Appeal (Criminal Division)

    On 21 August, the Judiciary published the Court of Appeal (Criminal Division) Annual Report 2016-17.  In the Preface to the report, the Lord Chief Justice notes that the Court of Appeal (Criminal Division) is "there to ensure that so far as humanly possible convictions which are unsafe are set aside, and sentences which are either manifestly excessive or unduly lenient are corrected.  Convictions which are safe and sentences which are appropriate must be upheld. That simple summary of the objective of the Court reveals its importance, and the high level of responsibility which all who work in the Court, whether in the office or in the Court itself, must carry."


    "Inside the Court of Appeal" was a documentary

    Thursday, 16 August 2018

    Judicial diversity

    Former Magistrates' Court - Kendal
    The Judiciary has published Judicial Diversity Statistics 2018 setting out the position as at 1 April 2018.

    The data for Magistrates is particularly striking.


    Tuesday, 14 August 2018

    The tragic death of Jack Adcock

    Jack Adcock
    Jack Adcock was born on 15 July 2004.  He died at Leicester Royal Infirmary on 18 February 2011.  The clinical cause of his death was sepsis - a condition explained by the NHS and also see Sepsis Trust.  According to the Trust five people die every hour due to sepsis - "Sepsis can initially look like flu, gastroenteritis or a chest infection. There is no one sign, and symptoms present differently between adults and children."

    The BBC Panorama coverage of this case is an excellent, detailed and very moving programme. 

    Monday, 13 August 2018

    Controversy over the burqa


    Conservative MP and former Foreign Secretary - the Rt. Hon. Boris Johnson MP - caused considerable furore over a piece he wrote for The Telegraph on 5 August - Denmark has got it wrong. Yes, the burka is oppressive and ridiculous - but that's still no reason to ban it.   Mr Johnson expressed surprise that Denmark had joined several other European countries - e.g. France, Belgium - "in imposing a ban on the niqab and the burka – those items of Muslim head-gear that obscure the female face."  He continued to say that he agreed with those who think that the burka is oppressive - "I would go further and say that it is absolutely ridiculous that people should choose to go around looking like letter boxes; ...."

    Thursday, 9 August 2018

    Independence of the Parole Board

    Mr Justice Mostyn
    In 2009, Mr Wakenshaw received an indeterminate sentence of imprisonment for public protection and has now served the minimum term stipulated within his sentence.   His continued detention is periodically reviewed by the Parole Board to determine his suitability for release.

    In judicial review proceedings, Mr Wakenshaw claimed that the Parole Board lacked the requisite independence under the common law and article 5(4) of the European Convention on Human Rights.  He did not wish to prevent his current review going ahead but, more fundamentally, he claimed a declaration that the Parole Board was not an objectively fair adjudicative body.

    Wednesday, 8 August 2018

    Pressing issues - (3) - Legal aid


    The post World War 2 welfare state comprised the NHS; universal housing; state security (benefits); and universal education.  According to the late Sir Henry Brooke (HERE), Legal Aid was not a pillar of the welfare state even though law underpins crucial matters such as the NHS structure, rights to medical treatment, housing, welfare, education and the general rights of those charged with criminal offences.  Under the Legal Aid and Advice Act 1949 legal aid was to be available in all courts and tribunals where lawyers normally appeared for private clients.  Eligibility should be extended to those of “small or moderate means”, and above a free limit there should be a sliding scale of contributions.

    The Legal Aid, Sentencing and Punishment of Offenders Act 2012 - (LASPO) - brought about major reform of legal aid.