Monday, 8 November 2010

Legal News Roundup - Monday 8th November

Ministry of Justice Business Plan - is now available here.   There is a short public consultation period.  See also UK Human Rights Blog.  The Business Plan includes establishing a commission to investigate the creation of a U.K. Bill of Rights working with the Cabinet Office to agree its scope and timetable.  Such an idea was looked at by a parliamentary Joint Committee on Human Rights - "A Bill of Rights for the U.K." - 29th report of session 2007-8.

Election Petition - the Representation of the People Act 1983 (the 1983 Act) gives to the High Court the task of deciding election petitions.  In Watkins v Woolas 2010 the High Court heard a petition brought by Mr Robert Watkins who lost the 2010 general election in the Oldham East and Saddleworth Constituency,.  The winner at the time was Mr Philip Woolas who was a Minister of State in the Labour government.  The High Court held that Mr Woolas was guilty of illegal election practice (contrary to s.106 of the 1983 Act).  Consequently, the election result in that seat is void (s.159 of the 1983 Act).  Mr Woolas is seeking to have the decision overturned and a by-election is now "on hold" - see The Guardian 8th November.

Legal Aid - Epilepsy Drug case - It seems that, having already spent £3m, the Legal Services Commission has now pulled the plug on legal aid for claimants in a case concerning an anti-epilepsy drug Epilim.  The families of children born with physical and mental disabilities allege that the drug, taken during pregnancy, was the cause of those conditions.  It may be that the case is now abandoned.  If so, that is £3m of public money wasted.  See The Guardian 8th November.  The Solicitor's Journal looks at this matter - here

Mental Illness / Drug addiction - The Minister for Justice is hoping to "divert" offenders with mental illness or drug addiction into "voluntary" treatment as a means of keeping them out of prison.  The Guardian 7th November. On 6th November it was reported that Mr Clarke wished to close 6 prisons - see The Independent.  How the criminal justice system deals with offenders with mental illness / drug addiction is becoming a major issue and, under the present government, there is clearly going to be greater emphasis on "diversion" from the court process altogether or on rehabilitative sentences.  See the earlier posts on "Mental Health Courts" and "Fitness to Plead."

Too many potential lawyers?  The CharonQC blog - (the author of which has considerable expertise in legal education) - has raised the topic of the the "over production" of potential lawyers only a few of which are likely to secure places in the profession.  This is now a serious concern which will, somehow, have to be addressed.  Read about it here.

Scoring of criminal advocates -  The Times (8th November) informs us that a scheme (likened to Strictly Come Dancing) is being devised for the scoring of advocates.  Judges will assess advocates (both barrister and solicitor-advocates) on a points system and the results will decide the types of case they are allowed to do.  This scheme has the support of Lord Neuberger (the Master of the Rolls) who backed it publicly at a Bar Conference over the last weekend.  (Note: As things stand, solicitors may join various accreditation schemes - see Law Society.)

The Magistrates' Association -  is to hold its Annual General Meeting in London on 29th November.  There are some interesting motions for debate including one calling on the government to increase magistrates' maximum sentencing powers to 12 months custody.  Another argues that a defendant should be able to elect to have a trial heard by a bench of three magistrates (which could include a District Judge (Magistrates' Courts) rather than by a District Judge (Magistrates' Courts) sitting alone.

This blog has argued before that Magistrates' powers must not be increased unless the issue of legal aid in the magistrates' courts is revisited.  As things stand, there are far too many unrepresented defendants and to allow that to continue in relation to even more serious cases would be a travesty of justice.  It is surprising that so few people appear to make any link at all between increasing magistrates' powers and the severe restrictions applicable to legal representation orders in those courts.

The other motion is an interesting and, at first blush, attractive idea.  More thought needed on that one however !!  Interestingly, in relation to Family Proceedings, the Magistrates' Courts Act 1980 s.66 states:

(1) A magistrates’ court when hearing family proceedings shall be composed of—
(a) two or three lay justices; or
(b) a District Judge (Magistrates’ Courts) as chairman and one or two lay justices;

or, if it is not practicable for such a court to be so composed, a District Judge (Magistrates’ Courts) sitting alone.

It is a rather odd thing but (b) never seems to be "practicable." 

The 7/7 Inquest -  is getting into a rather complex legal affair.  For some analysis of this, see UK Human Rights Blog "No secret hearings at 7/7 inquests."  To say the least, the legal knots being tied are quite remarkable.

Addendum 9th November:  The Home Office has decided to apply for judicial review of the Acting Coroner (Lady Justice Hallett) who is conducting the 7/7 inquest.   They are not happy with her decision that she could not hear certain evidence in a closed hearing.  See Home Office

A High Court Judge (Silber J) has ruled that the Election Petition decision in the case of Watkins v Woolas is not amenable to judicial review - see here for the court's reasons in rejecting this application.  The court states that the High Court is not subject to judicial review.  That has long been the understanding.  Judicial review stemmed from right of the High Court to "review" the decisions of inferior courts and tribunals and, historically, the High Court inherited that right from its predecessor the Court of Queen's (King's) Bench.  However, the judge also set out some reasons why judicial review (even if it were available) ought not to be conducted in the case itself and that includes the fact that there are certain rights of appeal under the Representation of the People Act 1983 s.157.  The UK Human Rights blog has an interesting analysis of this case - see here.  It is interesting that Silber J did not rule out a "renewed application" but referred to any such hearing being "expedited."

Addendum 12th November:  It appears that Mr Woolas has won a further bite at the cherry in relation to the election petition case brought against him - see Daily Mail 12th November.  The renewed application is to be heard next week.

1 comment:

  1. I never am quite up-to-date enough to comment on the system that is legal aid. However, as an experienced lay bench chairman, I see very few unrepresented defendants, save for the low end of motoring matters. Those whom I do see have often dismissed their advocates. Today we had what turned out to be an unpleasant harassment case, with a domestic violence overtone. The defendant had applied for and been granted legal aid before today, had instructed a solicitor, fired him and instructed another. She then fired him too and believed she could do a better job. needless to say she (in my opinion) couldn't and walked out of the trial after ten minutes. I warnedher of the inadvisability, as did the clerk, but there was no solicitor. It will not surprise you to learn that we convicted (evidence from two credible witnesses, a council official and a police officer). She faces a custodial penalty and 12 months would suit us better than six in this case (previous convictions, nature of harassment etc etc).

    Please don't assume all, or even many, defnedants are unrepresented.