Monday, 30 November 2015

Syria ~ a vote in the House of Commons?

With updates ...

In the near future there may be a vote in the House of Commons on the question of whether to extend bombing to Islamic State targets in Syria.  The government has set out its case for doing this - (discussed in the previous post).  Political opposition to the extension of bombing is intense with most of the opposing views being focused on its effectiveness and the risks it entails - see, for example, some of the Other Links below and the interview of the Leader of the Opposition on the Andrew Marr programme (Sunday 29th November).  In the interview, Mr Corbyn spoke of the dangers of a bombing campaign and he questioned the government's claim that some 70,000 troops would be available to engage ISIL on the ground in Syria.  He wanted to see action to cut off supplies to ISIL of arms, oil and money. (Note: UNSCR 2249 refers to the financing of terrorism - see previous post).  The Prime Minister made it clear that any motion brought to the House would explicitly recognise that military action is not the whole answer - (PM statement 26th November).

In 2013, a vote took place on a rather different Syrian question - Chemical Weapons - see previous post.   In that post, I wrote:

Thursday, 26 November 2015

Extending British military action to Syria ~ the government's case

The government has presented its case for extending British military action to Syria in its effort, along with other nations, to deal with the threat to international security posed by Islamic State (ISIL).  Let's recall that the United Nations Security Council recently referred to this threat as a global and unprecedented threat to international peace and security.  The Security Council unanimously passed Resolution 2249 (2015) - previous post and Read the Resolution.

Foreign Affairs Committee Second Report of Session 2015-16 on the Extension of offensive British military operations to Syria published 29th October 2015.  The report contains discussion as to the legality of the proposed action (at page 11).  The evidence given to the committee by Professor Marc Weller and Mr Dominic Grieve QC MP are both referred to.  Their evidence was given in early October and early September respectively - a considerable time before the attacks in Paris (13th November).

Wednesday, 25 November 2015

A moral but not legal victory in the Supreme Court

It is a truism that law and morality do not always march hand in hand.

On 11-12 December 1948, at Batang Kali (in Selangor Province, Malaya), 23 unarmed civilians were killed by British troops.  At the time, Malaya was a British Colony.  The British government adopted the stance that the men had been killed "trying to escape" and this has been consistently maintained despite evidence emerging over the years that it was far from the truth.  The British government also refused to instigate an official inquiry into the matter.  This refusal became the subject of a judicial review that began in the Queen's Bench Division (judgment), proceeded to the Court of Appeal (Civil Division) (judgment) and then to the Supreme Court of the UK.  The judicial review is confined to the legality of the decision not to instigate an inquiry.

In the most simple terms,

European Court of Human Rights ~ Article 6 ~ Ibrahim, Mohammed, Omar, Abdurahman v United Kingdom

The European Court of Human Rights Grand Chamber is hearing the cases of Ibrahim, Mohammed, Omar, Abdurahman v United Kingdom.  The four were convicted of offences in connection with bombs (which failed to explode) on the London Underground on 21st July 2005.   In the Court of Appeal (Criminal Division) in 2008 the President of the Queen's Bench Division described the offences as "merciless and extreme" and added that the sentences  were rightly severe and extreme. Beyond doubt, they were utterly justified.

The following is taken from the court's explanation of the cases.

The applicants in the first three applications, Muktar Said Ibrahim, Ramzi Mohammed and Yassin Omar, are Somali nationals who were born in 1978, 1981, and 1981 respectively. The applicant in the fourth application, Ismail Abdurahman, is a British national who was born in Somalia in 1982.

On 7 July 2005 suicide bombers detonated their bombs on the London transport system, killing 52 people and injuring many more. Two weeks later, on 21 July 2005 four bombs were detonated on the London transport system but failed to explode. The perpetrators fled the scene but were later arrested.

Saturday, 21 November 2015

A global and unprecedented threat to international peace and security - UNSCR 2249 (2015)

Updated 26th November:

Islamic State" (IS) claimed responsibility for the attacks in Paris on Friday 13th November - Reuters 14th November.   At the time, the President of France described the attacks as "an act of war."

The United Nations Security Council has now adopted UN Security Council Resolution (UNSCR) 2249 (2015) - Read the Resolution.  The resolution calls upon (but does not mandate) those Member States with the capacity to do so to take

Friday, 20 November 2015

Criminal Courts Charge - Justice Committee Report

The House of Commons Justice Committee has expressed grave misgivings about whether the Criminal Courts Charge is compatible with the principles of justice - READ THE REPORT.  The levels of the charge are criticised as grossly disproportionate to the means of many of the offenders to which the charge is applicable as well as to the gravity of many of the offences for which it is imposed.  The charge is also thought to be creating perverse incentives affecting defendant and sentencer behaviour.

The committee would not mourn early abolition of the charge and calls for legislation to either remove it or, if the government is not so minded, to reduce the levels of the charge.  If it is not either abolished or reduced then the committee calls for legislation to permit discretion for sentencers (a) as to whether to impose the charge and (b) if it is imposed, the level of the charge.

The message is clear enough.  Abolish this unjust charge.

Previous post explaining the charge

Wednesday, 18 November 2015

"Shoot to Kill" ~ those who seek to kill can certainly expect lethal force in return

Joshua Rozenberg writing in The Guardian 18th November says that - "The law makes it clear that shooting to kill has to be justified......"  Mr Rozenberg's article comes in the wake of comments relating to "shoot to kill" made by the Leader of the Opposition (Rt. Hon. Jeremy Corbyn MP) - see BBC 17th November

As Rozenberg (rightly) states, shooting with intent to kill can certainly be an option available to the Police or Security Forces if faced with a situation in which a criminal is threatening human life.  Whether actually killing someone is lawful will depend on all the circumstances including information given to the Police Officer or soldier who actually fires the gun.

In June, The European Court of Human Rights heard the case of Da Silva. 

Tuesday, 17 November 2015


The European Union (EU) has 28 member states.  The Treaty on European Union (TEU) requires freedom of movement for workers to be secured within the Union - Art. 45.  Limitations on that freedom are permissible on grounds of public policy, public security or public health.

The Schengen Agreement is aimed at removal of border controls but, following the refugee crisis of 2015 and the attacks in Paris on 13th November 2015, this agreement is coming under severe pressure.  There are 26 countries in Schengen.  22 are EU members and four non-EU. Those four are: Iceland and Norway (since 2001), Switzerland (since 2008) and Liechtenstein (since 2011).

The UK and Republic of Ireland opted out of Schengen.

Monday, 16 November 2015

Governmental emergency powers ~ a very brief look

On Friday 13th November, three teams of terrorists laid siege to Paris, killing 129 people in a spree of shootings and explosions across six locations. The attackers were all outfitted with suicide vests and armed with Kalashnikovs.  "Islamic State" (IS) claimed responsibility for the attacks - Reuters 14th November.   The President of France described the attacks as "an act of war."  This has been followed by the French authorities hunting for suspects - NBC News 16th November - Paris attacks. - with the French Interior Minister (Bernard Cazeneuve) saying -  "The response of France will be total. Those who attack France, we will catch them and we will be unrelenting with them ... Terrorists will never destroy the Republic, because the Republic will destroy them."

An act of war - but what response?

The attacks in Paris

Saturday, 14 November 2015

Reported killing of Mohammed Emwazi (Jihadi John)

The Prime Minister (Rt. Hon. David Cameron MP) reported that a United States of America "drone" attack may well have killed the terrorist Mohammed Emwazi - the Islamic State "executioner" known as Jihadi John - Number 10 Prime Minister's Statement.  British involvement is crystal clear from the statement in which Mr Cameron said - "... We have been working, with the United States, literally around the clock to track him down ... this was a combined effort ... and the contribution of both our countries was essential."

The Leader of the Opposition (Rt. Hon. Jeremy Corbyn MP) acknowledged that Emwazi had been held to account for his "callous and brutal crimes" but added that capturing the terrorist and holding him to account in court would have been a better way of revenging his actions, which have included the beheading of British nationals in Islamic State controlled parts of Syria and Iraq - The Independent 13th November 2015

The former Attorney-General

Monday, 9 November 2015

The Belhaj and Rahmatullah cases ~ UK Supreme Court

Serious questions continue to remain unanswered regarding allegations that the UK government (or government agencies or government servants) were complicit in either the torture or ill-treatment of certain detainees during the global war on terror.  For example, see the House of Lords Committee on Human Rights 23rd report of Session 2008-9

From 9th November to 12th November, a seven judge Supreme Court (Lord Neuberger, Lady Hale, Lords Mance, Clarke, Wilson, Sumption and Hughes) is hearing appeals in two conjoined cases: Yunus Rahmatullah and Abdul-Hakim Belhaj and his wife Fatima Boudchar.  The UK government is strenuously resisting the claims.

At this stage, the argument concerns preliminary issues in the litigation about whether the appellants can be held liable as a matter of law.  If the court so holds then it will become a matter for the trial judges to determine the facts and whether there is actual liability.  The preliminary issues concern legal concepts of Act of State (both by the Crown and by Foreign States) and State Immunity. This post seeks to offer an overview of the litigation which has already produced several lengthy judgments containing in depth analysis of the legal concepts in issue.  Links to the judgments and some other materials are provided.

Arrested and refused to give names. Daily Mail complains that they got unconditional bail.

The Daily Mail (7th November) carried an article about two "rioters" who were arrested and who refused to give their names to the Police.  According to the article, they had their fingerprints, DNA and photographs taken and spent  48 hours in custody.  They finally got to the Magistrates' Court only for the Bench to let them go on unconditional bail.   Read the article.  Let us take a look at the relevant law.

A basic principle of English law is that a person is to be considered innocent until proven guilty.  This "Golden Thread" applies no matter what the charge and it is for the prosecution to prove guilt. 

The two "rioters" were charged with failing to give a name and address when required to do so - Police Reform Act 2002 section 50.  It is triable only in the Magistrates' Court and carries a maximum penalty of a fine of £1000 (Level 3).  The offence is a NON-imprisonable summary offence. This has implications regarding entitlement to bail.

Saturday, 7 November 2015

Draft Investigatory Powers Bill (2) - Some of the early reaction

The Draft Investigatory Powers Bill has attracted a considerable amount of initial reaction.  For details of the Bill and links to the various reports that have influenced the Bill's content see Draft Investigatory Powers Bill (1).

The Homes Secretary (Rt. Hon. Theresa May MP) in her statement to the House of Commons said that powers under the Telecommunications Act 1984 section 94 (Directions in the interests of national security etc) had been used to obtain bulk data.  This fact was actually revealed in the Intelligence and Security Committee Report of March 2015 - Privacy and Security: A modern and transparent legal framework.  The Committee accepted that this use of the power was acceptable BUT said that the arrangements lacked clarity and transparency and "must be reformed" - (Page 100).  The former Deputy Prime Minister (Nick Clegg MP) has indicated that only a "tiny handful" of Ministers knew of the power being used - The Guardian 5th November.

The Royal United Services Institute

Wednesday, 4 November 2015

Draft Investigatory Powers Bill (1) - The Bill and Background reports

Updated 7th November:

The Government has published a much heralded draft bill on the operation and regulation of the investigatory powers used by the police and the intelligence and security agencies.

See also the various Factsheets issued by the government.

The Bill is a large document (9 Parts and 9 Schedules) and requires some detailed consideration.  The first link provided above goes to a document that is 299 pages long.  No doubt, in the weeks to come, there will be volumes of comments.  Meanwhile, here is some of the background material.

Intelligence and Security Committee Report of Privacy and Security - March 2015:

This Report includes, for the first time in a single document,

The Crown Court ... Structured Mayhem ??? Criminal Justice Alliance report

Structured Mayhem is the description used by the Criminal Justice Alliance in a Briefing published - Structured Mayhem: Personal Experiences of the Crown Court.   The following is the Introduction to the report ....

The Crime Survey for England and Wales confirms that two thirds of people have confidence in the fairness of the criminal justice system.  Just under half have confidence in its effectiveness. The Ministry of Justice recently noted, with modest satisfaction, that these figures had very marginally increased. However, these metrics also mean that millions of people still don’t have confidence in something so central to a healthy state. 

The Crown Prosecution Servicerecently published its own survey, finding that half of all victims and more than a third of witnesses feel unsupported while giving evidence. This should be a grave cause for wider concern too.

Tuesday, 3 November 2015

Reforming the criminal law - Law Commission report on Offences against the Person

The Law Commission has recommended modernisation of the law on violence - Law Commission Offences against the person: Modernising the law on violence

New rules are needed to tackle violent offences and make better use of court time, according to the Law Commission.

In a scoping report issued today the Law Commission is recommending reforms that would:
  • replace the outdated Offences Against the Person Act 1861 with modern, clear and logical legislation
  • create a new offence of “aggravated assault”, to bridge the gap between common assault and the much more serious actual bodily harm (ABH), and
  • extend the offence of threats to kill to include threats to cause serious injury and threats to rape.
As well as significantly cutting court costs

Monday, 2 November 2015

Voting - Individual Registration - Secondary legislation

The right to vote in elections is a foundation stone of democracy.  The right to vote depends on the registration system and this is undergoing a major change and, over the next few years, a number of crucial elections are scheduled - see Electoral Commission.

The Electoral Registration and Administration Act 2013 (ERA) introduces individual registration for voting in elections.  This has been (rightly) described by the government as the biggest change to voter registration in a generation - Government News 3rd July 2014.

In July 2015,

Sunday, 1 November 2015

1st November ~ Round up - Legal aid - Judicial review - Investigatory Powers

November is here.  The change from summer to autumn has taken place without very heavy rain or strong wind and so the autumn colours have been magnificent.  Not so splendid is the existing state of our justice system and there are serious concerns about government plans for legislation to address Investigatory Powers and Extremism.

As the Marilyn Stowe blog states, cuts to legal aid are leaving people stressed and powerless.  It is claimed that the cuts in the family law area are jeopardising the rule of law and are hurting the most vulnerable people disproportionately.

Saturday, 31 October 2015

Catching up ..... !

Supreme Court UK LIbrary
A little bit of catching up ........

a) From 27th to 29th October, the Supreme Court heard the joint enterprise case of R v Jogee.  The proceedings may be viewed via the Supreme Court website.  Previous post.   The joint enterprise doctrine* (an aspect of accessorial criminal liability) is particularly problematic and it was claimed in court that the law took a wrong turning with the decision in Chan Wing-Siu v The Queen [1984] UKPC 27.  The present state of the law was described by Felicity Gerry QC (counsel for Jogee) as "a dog's breakfast."  Miss Gerry invited the court to re-express the law in terms of requiring knowledge of the essential elements of the offence committed by the principal (or the type of offence) together with acts that demonstrate an intent to assist or encourage that offence (or type of offence). 

b) On 4th November, the Supreme Court will hand down judgment in the £85 parking overstay charge case of Parking Eye Ltd v BeavisPrevious post.

c) Former Attorney-General Dominic Grieve QC has said that the Prime Minister should not have changed the Ministerial Code - The Guardian 28th OctoberPrevious post.

d) The prime minister’s policy of ordering

Wednesday, 28 October 2015

English Votes for English Laws (EVEL) - more constitutional tinkering

Tucked away at the bottom right corner of page 49 of the Conservative election manifesto was a pledge to introduce "English votes for English laws" (EVEL).   On 22nd October, the Standing Orders of the House of Commons were amended to give effect to this.  The amendment to standing orders was approved by 312 to 270.

The very convoluted amendments may be read via Parliament's website.  In basic terms, the Speaker will certify whether a Bill (or a clause or a schedule) relates to either (a) England only or (b) to England and Wales.   If the Speaker certifies that it does, then a new stage in the legislative process will apply.  After Report Stage and before third reading, the Bill will have to be approved by a Grand Committee made up of MPs representing (as the case may be) either (a) English constituencies or (b) English and Welsh constituencies.  Thus, the Grand Committee will have a veto over the Bill.  The new process is helpfully shown in this diagram - (click on it for enlargement):

As the articles listed below show, this change is highly controversial in some quarters.

The role of the Speaker