The Government's Vision for Reform - a look at Kenneth Clarke's speech

The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke QC) has made a speech at the Centre for Crime and Justice Studies.  It is a far-ranging speech set against the background of financial savings which the coalition government argue are essential.  The full speech is available on the Ministry of Justice website - see Speech 30th June.  In essence, the speech sets out the key policy principles which will guide the government's justice agenda.  Here is a necessarily brief summary of the key points:

• The economic crisis - Savings have to be made without damaging public services - the need is to reconcile drastic and necessary cuts with positive policy making.
• Priorities - to punish offenders, protect the public and provide access to justice
• Courts - there is a large and historic estate of underused buildings and a lot of them are not fit for purpose in a modern legal system - a reduction in the number of courts had already been announced
• Trials - not all minor, non-contentious cases need to be heard in a traditional court setting and new methods of delivering justice will be sought including the use of technology and "alternative dispute resolution".  This will not mean "all-singing, all-dancing IT schemes".
• Legal Aid - major changes required - the UK spends more on legal aid than almost anywhere else in the world - £38 per head of population.  1% of criminal cases consumes 50% of the Crown Court legal aid budget.  Legal Aid will be subjected to a fundamental reassessment followed by consultation in the autumn.
• Family cases - the traditional adversarial process is not necessarily best for parties and can make disputes worse.  There is a review underway chaired by David Norgrove to search for alternative ways of handling disputes over children.
• Punishment and Protection - the prison population exceeds 85,000.  Sentencing has to be based not on cost but on principles of "retribution, reflection of public anger and the effective prevention of further crime".  Prison is expensive - on average £38,000 per year.  Prison is necessary for some offenders but does it always produce better results for the public?  The government intends to aim for "intelligent sentencing" to achieve better value for money and the effective protection wanted by people.  Short term sentencing - it was virtually impossible to do anything productive with such offenders.  Prisons should become not only places of punishment but also of education, hard work and change.  Further, community sentences must be rigorously enforced and seek to get offenders off drugs and alcohol and into employment.  The speech also envisaged greater use of the voluntary and private sectors in getting offenders away from the revolving door of crime and prison.
• Sentencing - a clear, coherent sentencing framework was required - the current framework being "over complicated, confusing and disingenuous".  Announced sentences often bear no resemblance to the time actually served in prison.  Clear indication is lacking as to the actual penalty imposed.  The government plans to look at the framework for adult and young offenders as well as the full range of penalties available in the criminal justice system.  One idea which will be examined is minimum/maximum sentencing.  It is also planned to look at community sentencing and the views of the judiciary and JPs will be sought as to what is effective.
• Any money?  - There will not be vast amounts of money to invest into non-custodial sentences.

Clearly, much of the detail remains to be seen and there is a recognition that there may be some opportunities to improve some matters.  Many will see this speech as a finance-driven policy which will degrade the standards of justice further - they may be proved right.  However, there are possibilities to cut out waste and to target resources better but it is highly unlikely that any money saved will be redirected into the justice system.

The previous government had become very fond of "rolling out" poorly considered initiatives and all of them involved significant costs.  Perhaps this is one Ministry of Justice process which will now come to a timely and welcome end?  Sentencing was brought within a coherent policy by the Criminal Justice Act 1991 but there has been continual tinkering with the system and it is that which has led to over-complication - e.g. Indeterminate Sentencing accounting for 1 in 15 of those in prison.  It is essential to note that alternatives to imprisonment will cost money and resources of manpower.  The ideas for involving the voluntary sector have yet to be spelt out but offenders cannot be properly managed without trained and experienced personnel.  As things stand, the Probation Service is already overloaded.  Great care will therefore be needed if serious damage to law and order is to be avoided.

Addendum 5th July:   "False economy in proposal to cut the number of courts" - The Guardian 5th July.

Video Recordings Act 1984 - validity of sentences based on the Act

Judgements have been given in the two appeals of Interfact Ltd v Liverpool City Council [2010] EWHC 1604 (Admin) and R v Budimir and Rainbird [2010] EWCA Crim 1486.  Interfact Ltd supplied videos by mail order but, under section 12 of the Video Recordings Act 1984, videos classified as R18 may only be supplied at licensed sex shops.  The Budimir and Rainbird case arose under section 10 of the same Act - supply of videos containing a video work with no classification certificate.

The real legal interest was the argument that sentences imposed under the Video Recordings Act 1984 should be quashed as invalid because the government had failed to comply with the European Union's "Technical Standards Directive" [Directive 83/189/EEC].  The court comprised Lord Judge LCJ, David Clarke and Lloyd-Jones JJ.  At one time it would not have been possible to advance such an argument in the English courts given the doctrine of the supremacy of parliament.

In the event, the court upheld the convictions but an appeal to the Supreme Court of the U.K. is a distinct possibility.

Two future appeals of considerable public interest

It is reported in the media that Angela Gordon, the mother of Khyra Ishaq (aged 7 at the time of her death), will appeal to the Court of Appeal (Criminal Division) against her sentence.  Gordon was pleaded guilty to manslaughter on grounds of diminished responsibility and was sentenced to 15 years but ordered to serve 7 with the remainder on licence.  Law and Lawyers mentioned Khyra's tragic case here.

It also appears that Ali Dizaei is to appeal against both his conviction and sentence.  Dizaei held the rank of Commander in the Metropolitan Police and he was sentenced to 4 years imprisonment for offences of misconduct in public office and perverting the course of justice - see Daily Mail 9th February 2010.  It is reported that he will argue that his trial was unfair and that his sentence too harsh.  See The Guardian 8th February 2010.

Addendum 3rd March 2011:  The appeals in the Khyra Ishaq case were dismissed - see BBC 3rd March 2011.

Addendum 13th February 2012:  Dizaei's appeal was heard in May 2011 and a retrial was ordered on the basis of new evidence.  In February 2012, Dizaei was convicted at the retrial.

Indeterminate sentences for Public Protection

Law and Lawyers has no hesitation in drawing to the readers attention an excellent post on the Brian Barder Blog which sets out the iniquities of the system of imprisonment known as Indeterminate Sentence for Public Protection (or IPP).

This form of "indeterminate sentence" was introduced by the Criminal Justice Act 2003 s.225 (Imprisonment for Public Protection - for adults) and s.226 (detention for Public Protection - for those under age 18).  The law has since been modified by the Criminal Justice and Immigration Act 2008 s.47.  The law is of labyrinthine complexity - see Wikicrimeline - and numerous (and expensive) appellate decisions have resulted and continue to do so.

The essential point is that the prisoner is not automatically released even when a public protection tariff period has been served.  It then becomes a matter for the Parole Board which must be satisfied that, if released, the prisoner would not pose an unacceptable risk to the public.  Due to underfunding of relevant rehabilitative courses, this can be impossible to assess and so the prisoner remains incarerated until his next review which might be months away.  This has, in turn, obviously swollen considerably the numbers in prison since people are being held long after they have actually served their tariff.  1 in 15 prisoners is now an an IPP prisoner with the consequential enormous costs.

The government is undertaking a review of sentencing.  Reform in this area is essential - see Prison Reform Trust March 2010

Addendum 30th June:  The Independent reported "Paedophile dubbed "every parent's nightmare" jailed indefinitely.

The axe to be taken to some 157 courts

The Ministry of Justice, recognising the present financial climate, is keen to axe to some 157 Court locations.  The majority are Magistrates' Courts but over 50 are County Courts.  On 23rd June a series of consultation papers were published - see MoJ Consultations.  It appears that these are in addition to closures announced earlier this year by the previous government - see here.  The full list of proposed closures can be read here.  This will result in the administration of justice becoming far less local and convenient and it is highly doubtful that the remaining Magistrates' Courts will be able to absorb either the staff or the magistrates.  With fewer, and no doubt busier, Magistrates' Courts it is likely that the government will need to ensure that "out of court disposals" are utilised to the maximum possible extent.

HMCS currently operates 330 Magistrates' Courts, 219 County Courts as well as 91 Crown Court Centres.

See The Guardian 23rd June - "Magistrates' Courts to close in cost-cutting drive" and there is further explanation on the MoJ website.

The Ministry is also starting a review of Legal Aid - see announcement.

Addendum 24th June:  The response of the Chairman of the Magistrates' Association can be read here.  Mr Thornhill JP points out that fewer courts will result in more delay and will be a disincentive for witnesses to attend.  Of course, delay can cause added distress to victims.

Whilst accepting that we live in financially difficult times (to put it mildly), the savings involved in these closures are, on the government's own figures, £15.3m per year in running costs and a one-off maintenance bill of £21.5 m.  The Prisons budget is in the region of £2.2 bn per year, a figure which makes the savings due to court closures seem small.  We can expect that the Prisons budget will have to be culled and that will, in turn, result in far fewer offenders being sent to prison.

Getting cases to the Crown Court for trial and the Venables case

There are a number of ways by which a case gets into the Crown Court for trial.  Where the offence is  "either-way" (i.e. triable by either Magistrates or Crown Court) there will be "committal proceedings" if either the Magistrates' Court has rejected jurisdiction or the defendant has elected for trial in the Crown Court.  Where the offence is triable only in the Crown Court (e.g. Murder, Manslaughter etc) the case will be "sent" under the procedure in the Crime and Disorder Act 1998 s.51.  (Prior to the 1998 Act, even indictable only cases were subject to committal proceedings).

Another, rarely used, method is known as the Voluntary Bill of Indictment.  Such a Bill has been used in the case of "Venables" who will stand trial in the Crown Court on charges relating to child pornography - see The Guardian 21st June.  The charges are under the Protection of Children Act 1978 s.1 and, when tried in the Crown Court, the maximum sentence is 10 years imprisonment.  In 1993, Venables, along with Thompson, was convicted of the murder of James Bulger.  Following his conviction, Venables was provided with a new identity and this may not be revealed.

Grand Juries existed in England until the Administration of Justice (Miscellaneous Provisions) Act 1933.  [Some of the history of grand juries may be read at R v Clarke, McDaid [2008] UKHL 8].  Historically, Grand Juries came into being after the Assize of Clarendon 1166 provided for "Justices" to travel from town to town and to call upon freemen to report accusations of crime.  This was one way in which Henry II wrested control from local barons to the Royal Judges.  Over time, "Grand Juries" came to consider charges and to decide whether they should be tried.  However, their use became superseded by committal proceedings before magistrates.  The 1933 Act abolished Grand Juries which had, in practice, become something of an excuse for a "social junket" and were considered to be no longer serving a useful purpose.  The Act permits a Voluntary Bill of Indictment to be issued with the consent of a Judge of the High Court.  The use of this procedure is governed by strict rules and there is no hearing in the Magistrates' Court if this procedure is used.  The usual occasions when this procedure is invoked are set out at CPS Legal Guidance.

Addendum 24th July:  Venables received a 2 year sentence of imprisonment - see The Guardian 23rd July and also discussion of the legal issues raised by the case.

Shaken Baby Syndrome

The Court of Appeal (Criminal Division) has given judgment in three appeals involving the death of a baby - see Henderson, Butler, Oyediran v R [2010] EWCA Crim 1269. These are very difficult and emotional cases in which a jury often has to weigh conflicting expert medical evidence.  Whilst the jury remains the fact-finding body, the jurors will receive direction from the judge.  According to the court, there are two necessary elements in the jury direction: [1] not to overlook a realistic possibility of there being an unknown cause and [2] how to handle conflicting medical evidence.  See paragraphs 217 and 218 of the judgment.

A Changing Legal World

In December 2004, Sir David Clementi completed his review of the provision of legal services.  The eventual outcome was the  Legal Services Act 2007 some of which has already been implemented with more to come later in 2010 and in 2011.  The aim of the Act is to liberalise and regulate the market for legal services and to encourage competition between law providers.

 Three fundamental reforms are built into the Act:

1. Legal Disciplinary Practices - see Law Society and Law Gazette (Bar sanctions LDPs)
2. The creation of a Legal Services Board (to oversee regulation of all branches of the legal profession) and an Office for Legal Complaints (operating an Ombudsman Scheme).
3. Alternative Business Structures (ABS) and their licensing. ABS will enable different professionals to join together in the provision of services.  External ownership of legal businesses (e.g. by flotation on the stock exchange etc) will be possible.  See also Legal Week 23rd February 2010 - "LSB greenlights ABS for 2011 launch"

On top of all these changes, the Solicitors Regulation Authority (SRA) is looking at changing the method of regulation to one which focusses on "outcomes" as opposed to mere compliance with rules - see SRA.

The changes are far-reaching and complex and the above is, of necessity, a mere outline.   Criticisms exist - e.g. is there really a need for so many regulatory bodies?  Potentially, there are considerable benefits for both lawyers and the public.  External investment in law businesses will become possible and enable expansion to be funded.  The public should benefit as a result of competition for services.  At least, that is the theory.  The views of readers on this would be most welcome.

Police Sergeant Smellie: the IPCC reports

The Independent Police Complaints Commission (IPCC) report into complaints against Police Sergeant Smellie at the G20 protests has been published - see here.   Earlier this year, Sergeant Smellie was acquitted by a District Judge (Magistrates' Courts) - see Easter Miscellany.  The lady who was struck by Smellie did not give evidence at his trial.  Has justice been achieved here?  According to law it has.  Further report on BBC.

Judges and Inquiries

From time-to-time the use of Judges to chair inquiries has been criticised but their use has continued.  Writing in The Times (17th June - "The high price to be paid if judges examine our historical events") Lord Pannick QC points out that Ministers choose judges because they are skilled in making findings on complex factual issues.  Also, their impartiality makes it more likely that their conclusions will command widespread support.  However, Pannick argues that there may be a high price to pay if ministers ask judges to investigate "controversial historical events" - the obvious example being Bloody Sunday.  The involvement of the judiciary in such cases risks damaging judicial impartiality and undermining confidence in the judiciary by all sections of the community.  He further argues that politically sensitive disputes are not readily amenable to resolution by a judicial process.  Pannick concludes that "Government should be very slow to ask a judge to conduct such an inquiry in the future".

The views of Lord Pannick always merit respect.  However, is he right?  I am not so sure, if only because the use of judges is probably unavoidable.  Since the outcome of an inquiry can have serious legal consequences for individuals it is only natural that they seek to be legally represented and representation is often by Queens Counsel.  The Saville Inquiry itself may yet tilt the balance in favour of prosecutions.  It is difficult to see how a non-judge chairman could handle an inquiry if such an array of lawyers were to be involved.  A further point is that, at several stages in the Saville Inquiry, there were legal submissions (e.g. relating to anonymity for soldiers giving evidence (Saville was overruled on judicial review); standard of proof to be applied etc.).  Those require the attention of a judge.


A number of other Inquiries are on-going in Northern Ireland: Robert Hamill Inquiry; Billy Wright Inquiry.  Both are chaired by retired judges but have "lay" members and both have been proceeding since 2004.  A planned inquiry into the death of Belfast based human rights lawyer Mr Patrick Finucane did not proceed because the family objected to it being held under the Inquiries Act 2005, a view very much supported by Amnesty.  [Their trenchant criticism of the 2005 Act is important reading for any serious student of the law].

Another on-going inquiry is The Baha Mousa Inquiry which is currently sitting in London under the chairmanship of a retired Lord Justice of Appeal - Sir William Gage.  This concerns Baha Mousa who died in Basra whilst under the control of British Armed Forces.  In Al-Skeini [2007] UKHL 26 it was held that the Human Rights Act 1998 applied to such detainees.  One of the beneficial aspects of the Human Rights Act 1998 has been to dispel a considerable amount of the secrecy which used to surround all activities of the military. Without the Act it seems likely that the death of Mousa would have been swept under the carpet.

Prior to the general election there was much talk of sweeping away the HRA 1998 but, now they are faced with the realities of government, there appears to be less talk along those lines.  The Act should be defended and any changes only made with the greatest of care.  The Act is the major legal achievement of the Labour years and has acted as very civilising influence on English law.

Link to General Information about Public Inquiries.

Note: Regret that a link to Lord Pannick's article in The Times cannot be provided as The Times is now behind a "pay-wall".

Vetting and Barring Scheme to be "remodelled"

The government has stopped the requirement for registration with the Vetting and Barring Scheme.  They plan to review and remodel the scheme which they see as bureaucratic and disproportionate.  It is argued that the scheme has advesely affected the numbers of people coming forward to those voluntary organisations working with children or providing activities for them.  See Home Office for full details.  It is important to note that most of the child protection arrangements remain in place and are not affected by this decision - see the earlier Home Office link.

The Saville (Bloody Sunday) Report is issued

The Bloody Sunday Inquiry has issued its report and has found the 14 people who died that day to be innocent victims.   David Cameron's speech in Parliament may be viewed via BBC.  Mr Cameron stated Saville's principal findings and offered a clear apology to the families for what had happened.

Here are links:


Full Report - 10 volumes

The three Tribunal members opted to allow the report to speak for itself.

Addendum 16th June: - The Principal Conclusions document has 9 Chapters.  Chapters 6 to 9 offer a detailed account of  much of the history of Northern Ireland from the Government of Ireland Act 1920 to the weeks just prior to 30th January 1972.  The Chapters are replete with hyperlinks to more detailed references and these Chapters merit a full reading in order to obtain a fuller understanding of the situation which came about in Northern Ireland. 

Chapters 1 and 2 essentially set out the background to the Inquiry.  The events of the day and responsibility for the deaths are addressed in Chapters 3-5.   The findings speak for themselves.  What the future holds now remains to be seen.  There are some voices calling for prosecutions of some of the soldiers.  There are other voices fearing that the concentration by the report on the one event will lead to a kind of "hierarchy of victims" most of which will not have had their deaths investigated as thoroughly - (but see Historical Enquiries Team).  It is to be hoped that this report will go some way to assisting the process of reconciliation which is so necessary if Northern Ireland is to prosper in the future.

Addendum 16th June: - The UK Human Rights Blog has taken an interesting look at "Bloody Sunday, Human Rights and the duty to investigate deaths".   Of course, Article 2 of the European Convention on Human Rights existed at the time of Bloody Sunday but what is now different is the clear obligation on States, which is implicit in Article 2, to carry out a thorough investigation.  This is sometimes referred to as the "procedural aspect" of Article 2.  The duty to investigate was set out by the European Court of Human Rights in McCann v U.K. (1996) 21 EHRR 97 and was clearly incorporated in English law by the House of Lords in R (Amin) Home Secretary [2003] UKHL 51.

Coroners have to investigate "how, when and where the deceased came by his death".  The House of Lords has ruled that the word "how" includes "by what means" AND "in what circumstances" - R (Middleton) v West Somerset Coroner [2004] UKHL 10.
  
These developments provide a good example of how, over recent years, Human Rights law has improved the situation within the U.K.

Bloody Sunday Inquiry - Standard of Proof

Central to the Bloody Sunday Inquiry is the question whether the shooting of civilians by soldiers was justified.

In 2004, the Inquiry was asked to make a ruling as to the standard of proof which would be applied.  The ruling may be read here.

An inquiry is a fact-finding exercise and does not determine criminal or civil liability.  In making its findings, the Saville Inquiry was not persuaded to apply the criminal standard of proof (or any enhanced civil standard of proof - see note below).  It was decided, very much in line with the approach taken by other inquiries such as Shipman, that reasoned conclusions on the evidence would be stated together with the degree of confidence or certainty with which a conclusion had been reached.

Note: In recent years there has been controversy over the standard of proof applicable to civil cases.  This was not put to rest until 2008 with the cases of Re Doherty [2008] UKHL33 and Re B (Children) [2008] UKHL 35.  There is the one civil standard (balance of probabilities) which is to be applied with some flexibility according to the seriousness of the allegations.  The ruling of the Saville Inquiry (above) avoided this debate.

Short term prison sentences in the news again !

It is reported that the Secretary of State for Justice is now coming out against the use of short term prison sentences - see Daily Mail 14th June 2010.  He argues that such sentences are ineffective in reforming offenders.  In many cases he is right BUT that does not mean that alternative "community sentences" are always effective either though they may be somewhat cheaper.  Most people with knowledge of the Magistrates' Courts will know that there are repeat offenders whose "antecedents" show numerous different types of sentence having been tried but the offending continues.  There is also the question of what courts should do with those who breach either suspended sentences of imprisonment (which often have requirements such as "unpaid work" attached) or community sentences.  A further point is that, if jail is not to be used, there would have to be an expansion of resources relating to community sentences - e.g. it is necessary to have trained people to run or supervise most forms of community sentence and those resources are already thin on the ground.  This is a big question and simple abolition of short prison sentences is too simplistic an answer.

Picture: Lord Phillips, then Lord Chief Justice, attended an unpaid work session - see here.

MPs expenses case: judicial ruling favours trial before impartial jury

Law and Lawyers covered the MP's expenses case here.  The trial judge, Saunders J, has ruled that no bar to a trial before judge and jury can be based on parliamentary privilege.  Saunders J is reported as having said that there was no logical, practical or moral justification for them using parliamentary privilege to prevent a trial and he added that there was no legal basis either.  "Unless this decision is reversed on appeal, it clears the way for what most people accused of criminal behaviour would wish for: a fair trial before an impartial jury."  This is actually an interesting legal issue.  Parliamentary Privilege belongs to parliament and not to individual members.  Privilege exists essentially to ensure that members have freedom in debate to speak their minds.  Even if the defence had not raised this point, the trial judge would have had to consider it so as to be sure that the matter was not covered by privilege.  The fact that the point has been argued is by no means an indicator of guilt.  See BBC 11th June 2010.

Addendum: 25th June - The Law Society Gazette (24th June) published an article by Joshua Rozenberg which is definitely worth reading on this topic.

Bloody Sunday - report imminent

The Guardian 10th June states that it has "learned" that killings on so-called Bloody Sunday (30th January 1972) in Northern Ireland are to be ruled unlawful.  Whether this proves to be the case remains to be seen.  The Saville Inquiry has run on for 12 years and has cost some £200m.  The report is to be released to the public on Tuesday 15th June at 3.30 pm.  It is likely to be a very lengthy report and the estimable Joshua Rozenberg has already labelled the Inquiry as a "failure of the judicial process" - see here.

As we await the report, it is worth recalling that many hundreds of people died in Northern Ireland as a result of violence originating from all sides of the sectarian divide and a list of single incidents in which 5 or more people were killed is available here.

Background to the Inquiry:  There is no doubt that the original inquiry held by Lord Widgery CJ was not sufficiently thorough and satisfied nobody who was truly interested in an objective finding of the true facts. The 1972 Widgery Report has not stood the test of time.  Prime Minister Blair was persuaded to set up a further inquiry which he announced on 30th January 1998.  (This was at a time when the first Blair government was embarking on new peace initiatives in Northern Ireland - see Good Friday agreement of 10th April 1998).  Announcing the Saville Inquiry, Blair stated that it was "expedient" that a Tribunal be established for inquiring into a matter of urgent public importance".  The Tribunal was set up to run under the Tribunals of Inquiry (Evidence) Act 1921 and the tribunal comprised Lord Saville of Newdigate (Chairman), The Hon. Mr. William L. Hoyt (a Canadian Judge) and The Hon. Mr John L. Toohey (an Australian Judge who replaced the New Zealand Judge Sir Edward Somers in 2000).  It cannot have been in the mind of Blair that the inquiry would take as long as 12 years and run up such enormous costs.

Addendum - 14th June 2010:   The Daily Mail 12th June 2010 - article which looks at the Saville Inquiry from the viewpoint of a journalist who attended it in the year 2002-3.  The author argues that much of the testimony was conflicting and that it is very difficult for people to remember exactly what they observed if asked to testify many years later.  He also makes the point that, whatever the outcome of the inquiry, few are going to be satisfied.  A further valid observation is that Bloody Sunday was one of many horrific events spawned by the sectarian violence connected with Northern Ireland.  The author sees Saville as "one-directional justice" in that the inquiry was mandated to investigate just the one event.

The Daily Telegraph also carried considerable coverage about Bloody Sunday - see "The Bloody Sunday Inquiry: Was it Worth it?" The article is by the eminent historian Lord Paul Bew.  His article concludes by asking how would it now serve the public interest to prosecute former soldiers so long after the event - not least when many paramilitary killers were given early release as part of the Good Friday agreement?

Government has announced a review of child protection arrangements

The government has requested Professor Eileen Munro to undertake a review of child protection and social work arrangements - see Department of Education.   Her review will set out the obstacles preventing children's social workers from making the best judgments and interventions, including considering how effectively professionals in various agencies work together. The review will also consider if we should emulate best practices in child protection systems in other countries.  See also Family Law.  The Secretary of State has requested an interim report by January 2011 and a final report by April 2011.

As mentioned in the post immediately below, "serious case review" reports will be published.  It appears that some reports will be published retrospectively including Baby P and Khyra Ishaq.

It has also been announced that the government plans to scrap the Contact Point database "as soon as possible".  The Liberal Democrats published some information on this - see Freedom Bill.

A day with many legal news items .... here are a few

Judicial review not to be allowed to stand in the way of deportations:  Fellow blogger CharonQC has wondered whether the present government plans to abolish all law!  He writes about the planned deportation of a number of people to Iraq.  It seems that the government has "respectfully" informed the High Court that a mere judicial review will not be allowed to stand in the way of the deportations.  It is stated that this has been done on some 16 previous occasions.  This certainly has a disturbing look to it since the legality of a deportation is often tested by way of judicial review.  The story seems to be well covered by The Guardian 9th June.

Interestingly, although it is a somewhat separate issue, the refusal of courts to deport terrorist suspects to countries where they may face torture and/or execution has been defended by Lord Phillips (President of the Supreme Court) - see The Times 9th June.

Prisoners voting:  The U.K. has maintained a blanket ban on all serving prisoners voting despite a European Court of Human Rights ruling that the blanket ban is unlawful under the European Convention on Human Rights. Law and Lawyers took a look at this prior to the general election - see here.  The British government has now been told by the Council of Europe's Committee of Ministers that compliance with the European Court's ruling is expected in time for the elections to devolved assemblies in May 2011.  See Telegraph 9th June - Tom Whitehead (Home Affairs Editor).

Children and the law:  The former President of the Family Division (Sir Mark Potter) has commented about the crisis in child care law generally - see The Guardian.  Sir Mark is noted for his careful "nuanced" choice of words and his remarks ought to make us worried.  Quite simply, he is right.  Law and Lawyers touched on child care law in connection with the Edlington case , the Khyra Ishaq case and with the aftermath of the Baby P case and then again on 24th April (a lurking sense of unease - relating to criticism of social services).  There is a vast amount of excellent work done with children and with problem families but social service departments tend to be understaffed and seriously overworked.

A development which is to be welcomed is that "serious case review" reports will be published - see The Independent 9th June.   It appears that some reports will be published retrospectively including Baby P and Khyra Ishaq.

Libel trials:  One of the few remaining civil cases where a jury can be summoned is to hear a libel action.  Lord Neuberger, the Master of the Rolls, is to preside over an appeal against a decision by Tugendhat J to refuse a jury in a libel action which, at the time of the hearing before Tugendhat J, had already cost some £3m. The judge was moved to remark that "costs are now acknowledged to be a chilling effect on freedom of expression" but he nevertheless refused a jury since it would add to the costs further.  [Personally, I have often wondered just how much a jury in a civil case does cost?  Jurors are hardly paid a fortune for their time and trouble though the argument must be that having to explain matters to a jury lengthens the case and therefore adds to the lawyers costs].  This story is well covered in The Lawyer magazine 8th June.  Law and lawyers looked here at the almost astronomical costs which accrue in some forms of litigation.  Note: 12th June - the Court of Appeal has ruled No Jury.  Reasons remain to be published.  Additional Note: 24th June - the claimant decided not to proceed with his libel action - see Solicitors Journal.

Legal challenge to the Child Protection database:   The Telegraph carries the story that the Royal College of Nursing is to mount a legal challenge in connection with the child protection database.  The politicians have said that they plan to review the "vetting and barring" schemes administered by the Independent Safeguarding Authority.

The Armed Forces to continue to exist ....!

It is an interesting quirk of English law that it is necessary for Parliament to renew the existence of the Armed Forces of the Crown.  This is usually done annually.  The government is now taking the appropriate steps to renew them until 8th November 2011 - see Draft Renewal Order.  This requirement stems from the Bill of Rights 1689 which states that - "raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law".

From October 2009, the Armed Forces Act 2006 provides a uniform code of law for the Armed Forces and has replaced earlier "Service Discipline Acts" - viz. Army Act 1955, Air Force Act 1955 and the Naval Discipline Act 1957.  The process used to change from the old discipline acts to the 2006 Act regime was exceptionally convoluted - (see the Explanatory note to the renewal order).

Addendum:  Simon Jenkins writes in The Guardian 9th June that the armed forces should be wrapped up saving the country £45bn per year.  I would certainly not go as far as Mr Jenkins since there has to be the capability to defend essential British interests including those abroad.  Also, Mr Jenkins does not consider the amount of employment which the defence industry, rightly or wrongly depending on your viewpoint,  generates.  I think that I will leave it there since (a) this is a law blog and (b) I wondered here and here whether British foreign policy would be all that different under the new government.

Tragedy in Cumbria: will it lead to an overhaul of gun laws?

Wednesday 2nd June was a day of major tragedy in West Cumbria.  Derrick Bird, a cab driver who lived in the village of Rowrah, went out on a journey of around 44 miles during which he killed 12 people and severely wounded others.   His reasons for this are, as yet, not understood.  The Police Investigation will doubtless try to piece together the full details of Bird's journey up to the time when he killed himself in a wood near the village of Boot.  This will be a difficult and painstaking task.  They will also try to establish any reasons as to why Bird embarked on such a course.  One victim was Bird's brother.  Another was a local solicitor who appears to have done legal work for Bird.  Yet another was a fellow taxi-driver.  Other victims were members of the public and unknown to Bird.

Both the Prime Minister and the Home Secretary stated that there would not be a "knee-jerk" rush to legislate further.  This approach is sensible but it is to be questioned whether either further legislation or tighter enforcement (or both) can be avoided.  It is true that there are strong controls over guns but The Guardian has already highlighted a number of weaknesses in the system - see "The loopholes in Britain's gun laws" (Alan Travis, Home Affairs Editor 3rd June 2010).  Problems include: treating shotguns with a "lighter" touch than other weapons; renewal processes; acceptable reasons for requiring a gun etc.  The legislation on firearms has been extensively amended over the years and is exceptionally complex.  [See the 2002 Police Guidance].  The situation with regard to devolution of aspects of firearms law to Scotland should also be examined.  Would it not be preferable to maintain a United Kingdom approach to firearms regulation (including air guns)?   [Note: The Calman Commission on Scottish Devolution recommended devolution of control over air guns to Scotland but recognised the strong arguments for maintaining control at a UK level over firearms - see para. 5.156 of the Calman report].

The Police response:   Cumbria Police clearly faced major difficulties in dealing with this situation and there is a level of criticism.  They are not a massive force since they police a large - (mainly rural/coastal) - area which has little very serious crime.  They were faced with an unfolding; highly serious and, mercifully, very rare situation.  There will undoubtedly be lessons to learn.  The Daily Mail carried an interesting article on the Police response.

Timeline of witness testimony:  The Guardian 9th June (Helen Pidd) published a "timeline" of the Cumbrian shootings.

Memorial services were held on 9th June 2010 and the House of Commons observed a minutes silence.  The Guardian reports that the Cumbrian Police response is to be "peer reviewed" by firearms experts.  Prime Minister David Cameron told the House of Commons that there would be no rush to legislate but the law would be examined - Guardian 9th June.  This is surely the sensible way forward.  For a further article see Guardian 10th June.