The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere
"In the UK, the legal sector contributes over £20 billion to our GDP,
employing over 300,000 people. And UK law firms play an important role
in the success of international businesses worldwide. In London, we have a centre of legal excellence that is rival to any
other great city in the world. I would like it to stay that way.
Here is an interesting case from Scotland. The legal principles involved will be much the same for England and Wales.
The facts of the case arose 11 years ago - in 2004. A collision took place on an "A" road near the junction of that road with a private road leading to a farm where the "pursuer" (claimant) - then aged 13 - lived with her family. The "A" road had a 60 mph limit and was unlit. It was about 40 minutes after sunset.
The claimant had just got off the school bus which had parked on the opposite side of the "A" road to the private road to the farm. The "respondent" (defendant) was driving home in the opposite direction and travelling at around 50 mph. His car lights were on. The pursuer walked behind the bus, got into the path of the respondent's car and she suffered serious injuries. The judge (the Lord Ordinary) held that the pursuer was mainly to blame though the driver was also negligent. The Lord Ordinary decided that the pursuer was 90% responsible though, on an appeal, this was reduced to 70%.
The Road Traffic Act 1988 s.4 deals with Drugs and Driving. However, from 2nd March 2015, there will be a change to the law due to a new section 5A inserted into the Act by the Crime and Courts Act 2013 section 56. The new section is headed - "Driving or being in charge of a motor vehicle with concentration of specified controlled drug above specified limit." Section 4 is the offence of being "unfit" to drive (i.e. the person's ability to drive is for the time being impaired). Section 5A introduces into the law a specific limit offence for "specified controlled drugs." (Controlled drug has the meaning given to it by the Misuse of Drugs Act 1971 s.2).
The difficulties involved in proving impairment due to drugs means that section 4 of the 1988 Act is not often used in drug driving cases. While section 5 of the 1988 Act makes it a separate offence to drive or be in charge of a motor vehicle with an alcohol concentration above the prescribed limit, no similar offence existed prior to the new legislation for drugs.
In this link, Dan Bunting contrasts the age of consent with the age of criminal responsibility - Age of Consent v Age of Responsibility The article states - "Obviously, if a 13 year old has sexual relations with a 41 year old man,
it’s clear that the man is to blame, and is fully to blame. The case
does raise the question of whether we have a consistent attitude to
children in the criminal justice system – if we say that a 15 year old
lacks the capacity to consent in law to sexual activity, then should we
be prosecuting 10 year olds for that? Or for any offences?"
An article published by The Guardian 10th February reports that in at least three Police Force Areas some newsagents have been contacted regarding sales of the Charlie Hebdo magazine published in the immediate aftermath of the murders in Paris - see earlier post Charlie Hebdo - Freedom of Expression. Officers in Wiltshire, Wales and Cheshire have approached retailers of
the magazine, it has emerged, as concerns grew about why police were
attempting to trace UK-based readers of the French satirical magazine.
Tribunal has handed down judgment in relation to the legality of the regime governing
the soliciting, receiving, storing and transmitting by UK authorities of
private communications in a case brought against the intelligence
agencies in respect of alleged interception activity involving UK and US
access to communications. The Complainants are Liberty, Privacy
International, Amnesty International and seven overseas human rights
Part 2 Regulation of surveillance - addressed the regulation of CCTV and other surveillance camera technology where such technology was used by a "relevant authority" (e.g. a local authority). The Act required the appointment of a Surveillance Camera Commissioner.
See the Home Secretary's Statement to the House of Commons 4th February 2015. The statement makes it clear that the original inquiry is terminated and the panel dissolved. Now there is to be a new statutory inquiry with a new panel. Please note, in particular, the following extract from Mrs May's statement - (my emphasis and some links added):
"I will now turn to the form of the inquiry. As I
told the Home Affairs Committee on 15 December, I am clear that the
inquiry should have the power to compel witnesses to give evidence. I
also said there were three ways to do that: first, by establishing a
royal commission; secondly, by converting the current inquiry into a
statutory inquiry under the Inquiries Act 2005, subject to consultation
with the chairman once appointed; or, thirdly, by setting up a new
statutory inquiry under the 2005 Act.
The Fourth Section of the European Court of Human Rights has found by a majority of 6 to 1 that there was no violation of Article 3 - (Prohibition on torture and inhuman or degrading treatment or punishment) - of the European Convention on Human Rights in the case of Hutchinson v United Kingdom - Court's judgment.
In October 1983, the applicant broke into a family home, stabbed to death a man, his wife and their adult son and repeatedly raped their 18 year‑old daughter, having first dragged her past her father’s body. He was arrested several weeks later and charged with the offences. At trial he pleaded not guilty, denying the killings and claiming that the sex had been consensual. On 14 September 1984, at Sheffield Crown Court, he was convicted of aggravated burglary, rape and three counts of murder.
When any Bill is introduced into Parliament, it is not unusual for politicians to introduce amendments. After all, that is a part of their role and it is generally done with a view to either correcting errors or seeking to make improvements to the drafting. From time-to-time, additions (still referred to as "amendments") are tabled. However, it must be somewhat rare for politicians to seek to make additions to a government Bill when those amendments are aimed at bringing into law something that was rejected by the government quite recently. It is even more unusual for major additions to be tabled in the House of Lords after the Bill has passed the House of Commons and is nearing the end of its progress through Parliament.
In 2013, following objections by the Liberal Democrat part of the coalition, the Data Communications Bill was withdrawn. In November 2014, the Counter-Terrorism and Security Bill was introduced by the government and it is being "fast-tracked" through Parliament. Recently, four Peers
In the 13th edition of Salmond on Torts (1961) - (at page 428) - it was said:
" When ... a court holds that the defendant was under a duty of care, the court is stating as a conclusion of law what is really a conclusion of policy as to responsibility for conduct involving unreasonable risk ..."
" ... there is always a large element of judicial policy and social expediency involved in the determination of the duty problem ..."
On Wednesday 28th January, the Supreme Court handed down judgment in Michael and others v Chief Constable of South Wales Police and another  UKSC 2 (Judgments). The facts of the matter arose over 5 years ago in the early hours of 5th August 2009. The Court of Appeal decided the case in 2012 - (Judgments).
This post looks at the basic facts, notes the Supreme Court's judgment and looks at the very critical IPCC report published in 2010. Some Additional Materials are at the end of the post.
At 0229 hrs, Joanna Michael used her mobile phone to call 999. The signal was received by Gwent Police. Miss
Michael informed the Police call-handler that her former partner, Cyron Williams, had
come to the house, had found her with someone else, had bit her ear
really hard and taken the other person away in his car, saying he would
return to hit her. Later on in the phone call, which lasted just over
three minutes, she is recorded as saying that Williams said he was going
to return to kill her.
Lord Neuberger emphasised the importance in the common law system of the trial judge and said that, when it comes to case and trial management, as much as possible should be left to the trial judge, whose authority and confidence should be reinforced, no undermined or second guessed, by appellate courts [para 5].
" ... the Court of Appeal should be very reluctant in principle to interfere with a trial judge’s procedural ruling, and should only vary or reverse it, when the decision is plainly outside the wide range of reasonable choices which is normally open to a judge in such circumstances. And the
The Ministry of Justice and its Secretary of State are at the top of a pyramid which includes the National Offender Management Service (NOMS) and, within NOMS, is a somewhat little known entity: Just Solutions International. JSi maintains a separate website - HERE.
"The Secretary of State visited Riyadh in September 2014 to sign a Memorandum of Understanding on Judicial Cooperation, to build upon the existing bilateral justice relationship, promote UK legal services in Saudi Arabia and raise awareness of the upcoming Global Law Summit. He also met UK lawyers with offices in Riyadh. Discussions were also held on judicial cooperation, King Abdullah’s reform programme, and human rights issues." The report offered no further detail.
"Definitive Maps" are kept by local authorities in England and Wales (Wildlife and Countryside Act 1981 section 53) and the map is conclusive evidence as to certain matters (section 56). If there is dispute as to whether a route over the ground is a public right of way then the first port of call should be this map. The Act contains a process for modifying the maps and an application has to be accompanied by a map drawn to a scale of not less than 1:25,000 (the "map requirement").
Interestingly, at para 13 of the report, Sir Brian notes that - "Between 1989 and 2009, Parliament approved over 100 Criminal Justice Bills and more than 4000 criminal offences were added to the statute book.
English land law has always been a very convoluted subject. Although it has undergone reforms, it retains considerable complexity. It is often dreaded by students and can present tricky problems for practitioners. One problem that can appear from time-to-time relates to so-called "manorial rights." This is the subject of an interesting report from the House of Commons Justice Committee - and see also The Guardian 22nd January 2015.
"Lordships of Manors", "Manorial Land" and "Manorial Rights" are akin to ghosts from a bygone era of English legal history. However, they can be very troublesome spirits as pointed out by Judith Bray (Senior Law Lecturer University of Buckingham) who wrote: