Detention without charge

Within England and Wales, the detention for questioning by the Police of arrested suspects is subject to certain time limits and these are set out in the Police and Criminal Evidence Act 1984 - PACE.

The powers of "Police Constables" to arrest without an arrest warrant are in PACE s.24.  

Once arrested, the Police may detain a person for up to 24 hours in the first instance and detention must usually be at "Designated Police Stations" with duly appointed "Custody Officers" who must be at least the rank of Sergeant.  Custody Officers have very specific duties and responsibilities.  Basically, in calculating the time for detention, the "clock" begins

A Jewel Beyond Price ... the Magistracy of England and Wales

Kidderminster Magistrates Court

2011 marks the 650th Anniversary of the Justices of the Peace Act 1361.   The Office of Justice of the Peace may have originated earlier than 1361 since, as early as 1195, a proclamation was made requiring the appointment of "knights" to keep the peace.  By a statute of 1327, provision was made for the appointment of "good and lawful men" to keep the peace in each County.  These men were known as "conservators of the peace" but, from 1361, as Justices of the Peace.  Since 1361 they have had a long and interesting history having been handed all manner of tasks to perform including many tasks which proved to be unpopular such as adminstering the "poor law."  One distingished legal writer referred to them as "judicial beasts of burden."

In modern times, they perform most of their duties within the Magistrates' Courts and the modern "bench" is made up of people from all walks of life who give of their time freely and are paid relatively minimal expenses (e.g. cost of travel to and from court).  They receive training for their work but are advised in court on the relevant law and procedure by legal advisers who, nowadays, are usually barristers or solicitors.  Since the Courts Act 2003, there is a single Commission of the Peace for England and Wales and Magistrates' Courts serve "Local Justice Areas" but the number of such areas is being reduced considerably by the government's cull of court buildings - a cull which started under the previous government.

Here is "The Big Society" in positive action.  The late Senior Law Lord and former Lord Chief Justice - Lord Bingham of Cornhill - described the magistracy as a jewel beyond price and it gives

Forensic Science Service to be wound up

On 14th December 2010 Ministers informed Parliament that they had decided to close down the Forensic Science Service.  See the Government announcements.   The FSS provides a considerable range of services.

It is claimed that the service is losing £2m per month and that it has become uncompetitive having lost business to other providers.  The Police (ACPO) have said that their spend on external forensic suppliers will fall in the future and, in their statement, ACPO state that they are working in support of the Home Office on the wind down of the FSS.

The FSS is not by any means the sole supplier of forensic science services in the U.K.  However, in a letter to The Times (28th December 2010) some 33 eminent scientists are urging the government to rethink the closure of the service.  The scientists claim that the FSS has been in the forefront of important innovations such as DNA-typing which has been developed to a high degree of reliability.  The scientists see the government move as

Communications from the court room

Open justice is a fundamental principle and fair and accurate reporting of court proceedings is a part of that principle.

The Lord Chief Justice has issued "Interim Guidance" on "the use of Live Text-based forms of communication (including twitter) from court for the purposes of fair and accurate reporting."

The guidance certainly does NOT permit anyone to simply go into a court and "twitter."  The permission of the judge is required.  Any form of photography is prohibited (Criminal Justice Act 1925 s.41) and sound recording may only take place with leave of the court (Contempt of Court Act 1981 s.9).  The guidance stresses the duty of the judge to avoid any improper interference with the court's processes.

It is stated that there is to be a consultation about this matter but then the guidance appears

Greetings of the Season

The Michaelmas Law Term drew to its close on 21st December.  The next Law Term will be Hilary commencing on 11th January.  Little or nothing will now be heard from our senior courts though a Judge of the High Court is available during vacation should matters of sufficient urgency arise.

Looking around the various blogs has been very enlightening during 2010 and it is interesting to see some good Christmas posts.  Halsbury's Law Exchange came on line during 2010 and has made an excellent start.  It's post "Tears before Christmas" urges government to defend the rule of law and not to open debates about matters such as legal aid with a stacked deck.  The Marilyn Stow Blog is a particular favourite and is written by a family lawyer of great expertise and experience.  It feels very much as if we have Mr Scrooge in government saying: "Legal Aid?  Bah humbug."  The author would like to show Mr Scrooge what happens to families, especially children, when couples whose marriages have ended are forced to stay together, forced to witness fight after fight and think it is all normal; when vulnerable spouses are forced to settle for pitiful amounts because they can no longer afford – and are no longer permitted – to fight for justice."  Read the excellent post here.  The CharonQC blog - always entertaining and informative - has run an "Advent Calendar" but has somehow slipped a day!!  The blog is publishing a very good series of Podcasts about the future of legal education.  These are well worth listening to.  Law Students trying to catch up on their work during the break - ("as if") - would do well to take a look at Insite Law's FREE materials on subjects such as contract law, criminal law, evidence.  Clearly written, suitably detailed and FREE.

Winter Sunset - Thomas Watts

"Call the Law It's Christmas" by song-writer Tony Williams can be heard on Youtube.   It is an amusing if somewhat cynical

Winter Scenes 2 - a further miscellany of news

In November Law and Lawyers looked at the case of Police Sergeant Andrews - (here).  It is reported that he has been dismissed from the Police Service - The Guardian 23rd December 2010.  See Video in The Guardian dated 7th September 2010.

In 1993, before the Crown Court at Liverpool (McCullough J and a jury), Norman Edward Gilfoyle was convicted of the murder of his wife Paula.  He was sentenced to life imprisonment with a minimum term to serve in prison of 17 years.  He has now been released on licence and the licence will have conditions attached to it.  Breach of licence conditions can result in return to prison.  There have been two appeals against conviction and both were dismissed.  The first was in 1995 and the second in 2000 - see here for the 2000 judgment.  Despite these two appeals, certain questions have continued to be raised about the safety of the conviction - for example, The Independent 13th August 2010 and The Telegraph 20th February 2010.  A problematic feature of Gilfoyle's release is that he is subject to a condition against talking to the media about the case.  The Times editorial of 23rd December argues that this condition is a threat to justice itself.  "To allow such a restriction on free speech to be maintained in this case poses the risk that the practice might spread with disastrous consequences.  These conditions must be challenged and they will be."   Normally, conditions applicable to release on licence are aimed at management of any risk which the person might present in terms of commission of further offences.

The Lord Chief Justice gave evidence

Deprivation of Liberty Safeguards

The Annaraccoon blog reports that Mostyn J has ordered that Stephen Neary be returned to his home with his father.  This is an excellent outcome.  The case illustrates the potential for injustice in this area.  Please see the earlier post on Deprivation of Liberty safeguards.

No where to go .... kettling of crowds

See The Guardian 22nd December for a video taken from within a "kettle" imposed by the Metropolitan Police during the student fees protests.  Voices of protesters - which do not sound aggressive - can be heard saying that "we have nowhere to go" and "why push us" and "we are peaceful why aren't you."  It must only be a matter time before this tactic has fatal consequences caused by crush injuries or inability to breathe.  Law and Lawyers looked at "Protest" here.  The Guardian 19th December published the views of a doctor who warned of the possible consequences.

Winter Scenes 1 - a miscellany of news

21st December is the Winter Solstice complete with lunar eclipse. This last occurred in 1638 - see National Geographic.

The Parliamentary Home Affairs Committee has published its report on firearms control and is especially critical of the complexity of the law - see Home Affairs Committee.   Various other recommendations are made.  Earlier post - "Tragedy in Cumbria: will it lead to an overhaul of gun laws."

The Ministry of Justice has published a report about trials of "Virtual Courts" which took place in the period May 2009 to May 2010.  One pilot involved one Magistrates' Court in London linked with 15 Police stations.  Another pilot involved a court in Kent linked to a Police Station.  Any savings made were outweighed by the costs of the pilot particularly those associated with the technology used.  See the report. Comment from the Solicitor's Journal may be read here.  See also the Law Society - "Virtual justice cannot be justified after damning report." 

The Solicitor's Journal 20th December points out

Plea bargains or plea discussions?

It is possible that the nasty face of American-style plea bargaining is about to be revealed in the case of Bradley Manning who has now been held in solitary confinement for some 7 months in an American military prison.  Manning is the person accused by the U.S. in connection with the supply to Wikileaks of American classified information.  It is reported in the media that the U.S. Attorney-General Eric Holder is considering what type of plea bargain might be offered to Manning in exchange for information incriminating Julian Assange in the dissemination of the information supplied to Wikileaks - See The Independent 18th December 2010.    (Such an approach appears to assume that there is some link between Manning and Assange whereas all they may have in common may be the Wikileaks computer system).  Manning is reportedly in a bad state of health having been held in solitary and not permitted exercise.  Needless to say, given his present situation, he is likely to find some form of plea bargain highly attractive since he would receive a very significantly lower sentence.  This looks like a nasty strategy designed to "break" Manning in order to "get" Assange.

It is instructive to look at

A Chief Coroner? Yes, no, maybe .... !!

Taken overall, the reforms relating to Coroners and Inquests in the Coroners and Justice Act 2009 were well-received.  A key element of the reforms was that there should be a Chief Coroner for England and Wales.  Judge Peter Thornton QC was appointed to the post.  Then along came the plans for a "Bonfire of the Quangos" and the Ministry of Justice decided to abolish the post before it even got going.  The Ministry's move was extremely unpopular and unwelcome in some quarters - see, for example, INQUEST.  Now, the House of Lords has voted to keep the post.  This was by a vote of 277 to 165.  Reform in this area is vital and a Chief Coroner would provide the essential leadership needed to ensure that the reforms are introduced properly.  The Chief Coroner would also provide a degree of independence from the executive for the Coronial service as a whole.

The Bill commenced its Parliamentary progress in the House of Lords and must therefore yet go before the House of Commons.  It is to be hoped that they accept this Lords amendment.

Earlier posts:       Bonfire of the Quangos
The Quango cull - Sir Philip Green's "efficiency" report

Court of Appeal (Criminal Division) Report 2009-10

Essential reading for the criminal lawyer or student of criminal law has to be the Court of Appeal (Criminal Division) Annual Report 2009-10 published today 16th December - see Judiciary website and a pdf version here.   This is no dry as dust statistical summary of the court's work.

The report commences with the Lord Chief Justice bewailing the "impenetrable legislation" with which he and his fellow judges have to contend.  In saying this, one feels sure that he speaks for numerous practising lawyers.  Parliament really does need to take note since such legislation is resulting in considerable costs arising from appeals.  The Lord Chief Justice also anticipates that the court will have to rule on the interpetation of the amended law relating to the partial defence of "loss of control" in murder cases.  This new partial defence replaced that of provocation - see Law and Lawyers 2nd October 2010. 

Chapter 3 deals with the court's principal decided cases for the year and,

The Localism Bill - 1

After some delay, the Localism Bill has finally appeared in Parliament - see here and see Communities and Local Government.  The Bill extends to some 207 clauses and 24 Schedules and seeks to make major changes to the relationship between local government and central government.  An excellent overview of the bill may be read at Rural Services Network.  The Estates Gazette takes a look - short video - at the Bill from the viewpoint of property development.

The Government's "Essential Guide" to the Bill - which it is claimed works towards achieving the Big Society - may be read here.

(Picture: Leeds Town Hall - built 1853-8)

The Cabinet Manual - new draft

The Cabinet Office has published a draft Cabinet Manual which sets out the main laws, rules and conventions affecting the conduct and operation of Government.

• Read the draft Cabinet Manual

The Manual gives an overview of the UK system of Government, including how the Executive – the Government and the Civil Service – relates to Her Majesty the Queen, devolved administrations and international institutions such as the European Union (EU).

It reflects the importance of Parliament and Cabinet government, and the democratic nature of the UK’s constitutional arrangements.

The manual is primarily intended to provide a guide for members of Cabinet, other Ministers, and Civil Servants in the carrying out of government business, but will also serve to bring greater transparency about the mechanisms of Government, informing the public whom the government serves.

It is possible to comment on this draft document - see Cabinet Office _ Cabinet Manual Published.  

It is somewhat worrying that constitutional changes might be occurring in this way and it might be preferable for such matters to emerge from a cross-party body charged with reviewing consitutional arrangements?    Of course, the absence of a formal written consitution makes it possible to alter things in subtle ways and perhaps "guidance" documents stating how matters "ought" to work is one way of achieving such changes.  The Guardian - "We the people deserve something better than a high-class villain's charter" - is very critical of this development seeing it as an attempt to write a blueprint for a dictatorship.  The document is 150 pages long and covers a considerable range of issues.  Further comment must therefore be reserved for later.

• Cabinet Manual - Draft
• Unspoken Constitution - Democratic Audit

Closures of Magistrates and County Courts

As widely anticipated, the Ministry of Justice has announced that 93 Magistrates' Courts and 54 County Courts will close.  See Ministry of Justice "Court Reform: Delivering Better Justice."

It is claimed by government that savings of £41.5 m will be made alongside perhaps some £38.5 m arising from sale of assets.  £22m is to be spent on improvements to the remaining court estate but that includes 3 major projects at Camberwell Green, Newcastle-under-Lyme and Prestatyn. 

The Ministry of Justice claims that - "Reform of the courts and court estate, allied with the reforms of sentencing and rehabilitation, and changes to the system of legal aid that the Government has announced will make a more intelligent, more proportionate and much more cost-effective justice system"


Much in that statement is highly debatable and will keep the commentators going for some time to come.


The Ministry' statement also refers to Police Officers being allowed to give their evidence via video links so that they do not have to physically attend court.  There is also mention of "Neighbourhood Justice Panels" which the government now appears to be keen to introduce.  There is little information at the moment about such panels though a few clues exist in the Ministry's recently published Green Paper - see here.  It appears that such panels will be made up of community volunteers and criminal justice system practitioners hearing more minor cases.  Was that not the role of the Magistrates' Courts?

Peaceful Protest

Recent days have seen demonstrations against the coalition government policy of increasing tuition fees for students going to University from 1st September 2012 onwards.  Whilst the vast majority of demonstrators appear to have conducted themselves properly there were a significant number of nasty events including one in which a car carrying Prince Charles was attacked.  Police tactics have also been controversial including "kettling" of crowds and releasing those "kettled" slowly so that photographs could be taken.  The legislation dealing with student fees is the Higher Education Act 2004 and Regulations made thereunder.  MPs have been voting on the Draft Higher Education (Higher Amount)(England) Regulations 2010.  The sponsor of the draft regulations is the Department for Business, Innovation and Skills and see their webpage dealing with Student Finance. 

The Police tactic of "kettling" was challenged in the House of Lords in 2009 - see Austin v Metropolitan Police Commissioner [2009] UKHL 5.  Their Lordships held that "kettling" did not breach the Article 5 rights of those who were so contained.  Interestingly, it is now reported that a fresh legal challenge to kettling is to be mounted - The Guardian 14th December.  It has also been reported that the use of water cannon has been under consideration - at least in the event of further protests - Telegraph .

Underlying all of this is the basic question - Do we actually have the legal right to protest?  The answer is far from a simple - YES.

Protest has a lengthy history and it is arguable that it has forced legislators to eventually bring about some beneficial changes. So far as English common law was concerned, a person was permitted to do that which was not prohibited by law.  Thus, in common law, the right to peacefully protest is a sort of negative right - we may do it because it is not prohibited.  However, protest is restricted by numerous legal considerations.  There is even old legal authority that certain kinds of assemblies or riots might come within the treasonable head of "levying war" under our immensely unsatisfactory law of treason: Dammaree's Case (1710) 15 ST 522 as well as older authorities.  The reign of Charles I saw use of an armed force aimed at the destruction of all brothels and in Henry VIII's time there was an insurrection for the purposes of fixing a wage rate.  In 1839, a "Special Commission" comprising Chief Justice Tindal, Baron Parke and Williams J was set up to try alleged offences committed during disturbances at Monmouth.  Subsequent centuries saw the activities of Chartists ; Suffragettes/Suffragists ; the Aldermaston Marches ;  Miner's Strike of 1984-5 ; riots against the "Poll Tax" ; Iraq war protest and G20 protests in 2009.  
 

Modern English law of protest is now governed mainly by either the common law (breach of the peace) and by the Public Order Act 1986 (as amended) but, of course, criminal offences may arise in connection with a demonstration - e.g. criminal damage (e.g. to Conservative Party HQ and the Statue of Churchill) and various offences against the person (e.g. common assault, assault occasioning actual bodily harm); obstruction of the Police etc.  The 1986 Act was passed to modernise the law following the Miner's Strike of 1984-5 which saw massive confrontations between Miners and the Police.  The 1986 Act contains sections requiring the Police to be give notice of marches; they may impose conditions and, to prevent serious disorder, there can be an application to the local council for a banning order which can be made but only with the consent of the Secretary of State.

Modern rights are not governed solely by common law or British statute law.  The European Convention on Human Rights has to be considered.  Tactics such as "kettling" raise concerns under Article 5 (Liberty and Security) but, on this, see the Austin case - link above.  Freedom of expression (Article 10) and Freedom of assembly and association (Article 11) are also engaged.  None of those rights are "absolute" since the Convention Articles contain permitted exceptions.  An excellent text on the European Convention is "Human Rights Law - Directions" by Howard Davis (Reader in Law, Bournemouth University).

Thus, it may be concluded that we are generally free to do that which is not prohibited by law but the law imposes considerable restrictions.  The European Convention on Human Rights takes us beyond the traditional English law position by giving us specific rights to liberty, freedom of expression and freedom of assembly and association but those rights are not absolute.  However, States do not have unfettered discretion as to how the rights can be restricted.  For example, under Article 5, the right to liberty may only be restricted for one of the reasons set out in Article 5(1)(a) to (f) and the restriction must be prescribed by law.

Addendum:  Law and Lawyers is delighted that Legal Week has highlighted this post.  Please see their excellent website - here.

Julian Assange and Bail

As of this morning, Mr Julian Assange remains detained in prison - The Guardian 15th December.  He was granted conditional bail on Tuesday 14th December but there is to be an appeal against that decision to the High Court. 

The Magistrates' Court imposed a considerable number of conditions on Assange's bail:

• Security of £200,000 - i.e. money which must be actually deposited with the court before bail commences
•  Two sureties of £20,000 each - a surety is an undertaking by a person to ensure that the person granted bail attends at court and, if he does not, then the whole or part of the money can be forfeited
•  Surrender of passport
•  Not to apply for international travel documents
•  Residence at a stated address
•  Curfew (electronically monitored) from 10pm to 2pm and 10am to 2pm.
•  Daily reporting to the Police.

The District Judge allowed the media to use electronic devices in the court room - The Guardian 15th December. 
The Assange case has brought to public attention the European Arrest Warrant (EAW) system brought into our law during the Home Secretaryship of David Blunkett (June 2001 - December 2004).  Law and Lawyers looked at it here.  It is based on the European Council Framework Decision of 13th June 2002 "European Arrest Warrant and the surrender procedures between Member States" and came into force on 1st January 2004.  The Framework Decision was given legal effect in England and Wales via the Extradition Act 2003.

Addendum - 16th December 2010:  The High Court (Ouseley J) granted Julian assange conditional bail - The Independent 16th December.  Ouseley J is reported as having pointed out how, shortly after Assange arrived in the UK from Sweden, he had been aware that the allegations against him in Sweden were still live but he had made arrangements for his solicitors to be his point of contact with the Metropolitan Police so that, in the event of a search warrant being issued, the police would not have to search for him.  The judge said: "That is not the conduct of a person who is seeking to evade justice."  

Addendum - 17th December 2010:  The Guardian reports that the U.S. is trying to prepare a case against Mr. Assange.

Magistrates' Courts

Magistrates' Courts deal with the bulk of criminal cases brought to court in England and Wales.  The judiciary in a magistrates' court comprises the Justices of the Peace (JPs or, as they are often referred to these days, "lay magistrates") and District Judges (Magistrates' Courts).

JPs will usually sit in benches of three and will be advised on law and procedure by a legal adviser.  District Judges are legally qualified and may sit alone.  In 2011, the Justices of the Peace celebrate their 650th Anniversary - see Justices of the Peace Act 1361. 

The predecessor to the District Judge was the Stipendiary Magistrate.  Appointments as "Stipes" tended to be few in number and they sat mainly at the larger city magistrates' courts.  District judges have come into greater prominence since the Courts Act 2003 reformed the Magistrates' Court system.  Some are seeing the District Judges as an eventual replacement for JPs.

Interestingly, the two types of judiciary in the magistrates' courts never (or rarely) appear to sit together to decide cases.  Whilst each form of magistrates' court has its merits, it makes one wonder whether a "lay" bench could have been as outspoken as the District Judge in this case of a Police Superintendent caught speeding - Daily Mail 10th December.  The Superintendent was told by the officer who stopped her that she would not be prosecuted.  The CPS decided otherwise.  The Judge was very critical of the action of the Police Force in the case.  He is reported as saying - "

‘In the year I have been in Nottingham I have been extremely alarmed by the amount of cases where officers took it upon themselves to issue cautions or deal with cases in the way this officer did.’

Deprivation of Liberty: the worrying case of Stephen Neary

Stephen Neary is aged 20.  He is autistic.  He lived with his father (Michael) until his father had a serious bout of influenza and was temporarily unable to care for him.  Michael arranged for Stephen to be cared for at a local authority run respite centre for just 3 days.  Stephen had been there before.  The respite centre decided to transfer Stephen to a "Positive Behaviour Unit" alleging that he had committed assaults whilst at the respite centre.  The Unit decided to deprive Stephen of his liberty so that he could be "assessed."  He has been held for almost a year and it is argued that he is not suitable to return home.  It now appears that the local authority has applied to the Court of Protection for "Welfare Deputyship."

There is a complex legal history to detention of persons who lack capacity.  At this stage, Law and Lawyers wishes to draw attention to the case which appears to be extremely unsatisfactory.  The present law on the matter is almost unbelievably convoluted.

More about Stephen's case may be read at the Anna Raccoon blog and Law and Lawyers (L & L) urges all readers to consider what is written there.  There is also a petition.  See "The Orwellian Present - Never mind the Future."   L and L is grateful to the excellent CharonQC blog for highlighting this problematic case.

A "Deprivation of Liberty" decision can be challenged in the  Court of Protection.  Please see the legal material below for more information on this process.  Under Court of Protection Rules (issued in 2007) hearings are normally in private (Rule 90) but can be public in some circumstances (Rules 92 and 93).  Persons wishing to issue such a challenge should first seek expert legal advice.  Funding may be available for legal help and legal representation could be applied for in some deprivation of liberty cases.  It is not expected that this area will be unduly altered by the Ministry of Justice's recent legal aid proposals - see paras. 4.92 to 4.94 here.

Some Legal Materials:

Mental Capacity Act 2005        Care Quality Commission - Mental Capacity Act and Deprivation of Liberty

Mental Health Act 2007 - which amended the 2005 Act in the light of the European Court of Human Rights judgment in HL v UK 2004.

Department of Health 2010 - Deprivation of Liberty Safeguards

Court of Protection Rules 2007

Court of Protection - HMCS website - link to Practice Direction on Deprivation of Liberty Applications under the Mental Capacity Act 2005 s21A.

Mental Health Law Online

Legal Services Commission - Legal Help and Legal Representation - Guidance

The Court of Protection:

Further information about the court is on the Public Guardian website.   The Court issued a report covering the first 2 years of its existence - here.   There has been trenchant criticism of the court and its processes - see, for example, Family Law article by barrister Moira Sofaer.

Information about autism:

National Autistic Society
                                                                                       
Autism Independent UK

Addendum 12th December:  Law and Lawyers is grateful for the comment about this post on the Jack of Kent Blog.    Please see - "Bad Law, or there can be two sides to a story" -  Jack of Kent Blog - 11th December.  In all legal matters there are always two sides (maybe more) to any situation and the law and lawyers have to adopt as objective a stance as possible.  This why the post above merely sought to draw attention to the case which certainly appears to be extremely unsatisfactory. 

European Arrest Warrant against Julian Assange

Mr Assange (founder of Wikileaks) has been arrested under a European Arrest Warrant (EAW) issued by Sweden - see BBC 8th December 2010.  The EAW refers to sexual offences alleged to have been committed in Sweden. 

Earlier this year, Law and Lawyers looked at the European Arrest Warrant and at the expanding influence of the EU in relation to criminal matters - see Ever Expanding Influence No. 1 ............ No. 2 and .............  No. 3

The Head of Legal Blog carries an item on the Assange case.  See also the UK Human Rights Blog. 

Green Paper on Sentencing, Rehabilitation

The Ministry of Justice has issued a Green paper entitled "Breaking the cycle: effective punishment, rehabilitation and sentencing of offenders."  The paper is open for public consultation which ends on 4th March 2011.  See:
 
Ministry of Justice News Release 7th December 2010

Links to the green paper and associated documents and The Green Paper

Whilst some aspects of the green paper have already been heralded, it is necessary to view the proposals as a whole package and to see them in the context of other changes including reform to legal aid, reduction in the numbers of Magistrates' courts etc.  The paper considers punishment and "payback", payment by results, sentencing reform to make it more understandable and to support rehabilitation and reparation, youth justice (where re-offending rates are high) and working with "communities" to reduce crime including the idea of "piloting" neighbourhood justice panels to deal with low-level offending.  Annex A to the paper shows an implementation plan.

Alternatives to imprisonment can be effective but they will not be unless they are adequately funded, manned by qualified and experienced personnel and backed by appropriately rigorous action in the event of breach.  The paper looks at introducing different "providers" into this area and they will be paid according to results achieved in the reduction of re-offending.

Politically speaking, the paper marks a departure from the "prison works" philosophy since imprisonment will come to be used as frequently especially for less serious offences.  Many penal reformers claim that short term prison sentences are generally ineffective in terms of rehabilitation though they may give a victim some temporary respite from the offender.  This is likely to prove to be one of the more controversial aspects of the proposals.

Is the Upper Tribunal amenable to judicial review in the High Court?

The Supreme Court has granted leave for an appeal in the case of R (on the application of Cart) (Appellant) v The Upper Tribunal (Respondent).  

A revised tribunal structure

 Under the Tribunals, Courts and Enforcement Act 2007 the Tribunal structure has been radically reformed so that many of the pre-existing tribunals have been brought into either the First-Tier Tribunal or the Upper Tribunal.  Each of those tribunals divides into Chambers.  A summary of the new tribunal structure, which was recommended by the Leggatt Report may be seen here.  [Please also see Law and Lawyers 18^th January 2010].  

Is the Upper Tribunal amenable to judicial review?

The Upper Tribunal is designated as a “Superior Court of Record” and the question arose as to whether, given that designation, judicial review proceedings could be taken against a decision of the Upper Tribunal.   
In 2009, the High Court Queen’s Bench Division gave judgment on the matter – here – and concluded that the Upper Tribunal was open to judicial review but only on the very limited grounds of either acting in outright excess of jurisdiction or denial of a right to a fair hearing.   The judgment was delivered by Laws LJ and is a tour de force on the subject.  The Court of Appeal (Civil Division) – Sedley, Richards LJJ and Sir Scott Baker – upheld that conclusion of law though the reasons differed in part.    (The Court of Appeal’s judgment has an Appendix setting out the new tribunal structure).  This matter is now to be heard by the Supreme Court.

Interestingly, the almost identical question arose in Scotland which has its own distinct legal system and was the subject of a Court of Session (Inner House) judgment in Blajosse Eba v Advocate-General for Scotland [2010] CSIH 78.  It was held that decisions of the Upper Tribunal could be reviewed and that express legislation would be required to restrict that supervisory jurisdiction.  The term “Superior Court of Record” had no legal significance in Scots Law. 

This is an important and complex question.  The distinction between review and appeal has to be borne in mind.  Review is concerned with whether the court (or other body or person) under review has acted within the law.  It is not concerned with the actual merits of the decision reached by the decision-maker.  An appeal differs in that the merits of the decision can be looked at.  The term “superior court of record” has not been properly defined but was perhaps generally understood to mean that decisions of the court could not be reviewed by another court though there might be an appeal process to a further court.  A court of record was also empowered to punish for contempt – e.g. for disobedience of its orders.  Parliament has designated a number of new “courts” as “superior courts of record” – e.g. the Special Immigration Appeals Commission (SIAC) and the Court of Protection.  If there was no possibility at all of judicial review then there would be nothing to stop Parliament designating (say) the Home Secretary as a “superior court of record” and then no judicial review could lie against Home Office decisions.  For an interesting article on these lines see the excellent Scots Law and Practice blog by Jonathan Mitchell QC -  15^th December 2009.  

The Supreme Court’s decision will be awaited with considerable interest.  There is much to be said for the point of view that if Parliament wishes to exclude or limit judicial review then it must say so directly and expressly and not rely on rather antiquated terms of obscure meaning.

For a further article on this subject see Judicial Review of UT – Tax Journal 11th October 2010 – Craig Connal QC

Early December collection ... Are juries under threat; Parliament; Assisted Dying; Victims and a naughty Santa Claus

As an interesting but snowbound week draws to a close, here is further news of legal interest.  (Painting "Winter Breakfast" by Joseph Farquharson 1846-1935).

An article by Rachel Rothwell published in The Law Society Gazette argues that trial by jury is under threat from none other than the judges - "Is trial by jury under pressure from judges?"  This follows a speech by Lord Justice Moses to the effect that trial judges should give the jury a list of questions leading them to a verdict.  Moses LJ has the view that too many expensive appeals are based on the judge's direction to the jury.  The full speech by Moses LJ may be read at "Annual Law Reform Lecture - Inner Temple Hall - 23rd November 2010."

Whilst it may not be very "sexy", the important Budget Responsibility and National Audit Bill is before Parliament.  Readers may recall that, on 17th May 2010, the coalition government set up an Office for Budget Responsibility (OBR).  This Bill will place the office on a statutory basis and define its role.  It will be led by a 3 person Budget Responsibility Committee appointed by the Chancellor of the Exchequer with the consent of the Treasury Select Committee.  The Bill goes on to modernise the National Audit Office's "governance."  The post of Comptroller and Auditor-General will continue but holders of the office will be limited to 10 years.

Joshua Rozenberg, writing in The Guardian, looked at the House of Lords debate on the Parliamentary Voting System and Constituencies Bill - see here for the article.   According to the Daily Mail (4th December) the government will introduce a House of Lords reform Bill in the New Year.  The Bill will replace the present House of Lords by a House of some 300 "senators" elected by proportional representation.  This may be some time coming since it seems that the Bill will be discussed by a Joint Committee of the two present Houses before it enters the legislative process proper.  Meanwhile, the creation of further peerages continues - BBC 19th November bringing the membership of the Lords to around 750.

A "Commission on Assisted Dying" has been formed under the leadership of former Lord Chancellor Falconer.  He was the last of the "old style" Lords Chancellor and was, by virtue of the post, Head of the Judiciary; presided over the House of Lords and also a Government Minister.  He opted not to exercise his right to preside over the House of Lords Appellate Committee (now replaced by the Supreme Court of the UK).  The post was reformed by the Constitutional Reform Act 2005.   Details of the Commission may be read on the Solicitors Journal website.  This commission is not a government appointed investigation.  It operates under the aegis of the "think tank" organisation Demos.  However, there seems little doubt that any report it produces might be very influential in eventually amending the law.  See the Commission's website which invites interested persons to give evidence.  The final case decided by the House of Lords was R (Purdy) v DPP [2009] UKHL 45 when their Lordships directed the DPP to draw up a policy relating to prosecutions under the Suicide Act 1961 s2(1).

Frequently, the victims of violent crime or the families of victims seem to be given little consideration by the authorities.  A thought-provoking item appeared in the Daily Mail 3rd December about Frances Lawrence, widow of Philip Lawrence who was murdered in 1995 by Learco Chindamo.  Just how much information (if any) should surviving relatives be given about killers who have been released?

Finally, for some light relief see BabyBarista which continues "a worm's eye view of the English Bar" in fine style and a video of a certain Santa Claus behaving badly may be seen at CharonQC but it is strictly adults only and for viewing after the "watershed."  You have been warned !

(1) Mr Woolas remains excluded from Parliament: (2) Mr David Chaytor - former MP - pleads guilty

Former MP and Minister Mr. Philip J Woolas remains excluded from Parliament after the Administrative Court gave judgment in a judicial review of the Parliamentary Election Court's earlier decision.  The court's judgment surveys the history of jurisdiction in this area; emphasizes the point that the court has a limited role (given to it by Parliament) in ruling on election petitions and decides (for the first time) that a Parliamentary Election Court is susceptible to judicial review.  This case is a "must read" for students of our constitution - R (Woolas) v The Parliamentary Election Court and others [2010] EWHC 3169 (Admin).  One of the findings of fact (against Mr Woolas) made by the election court was set aside.

It is reported that Mr David Chaytor, the former MP charged with false accounting in relation to parliamentary expenses has now entered a guilty plea - Telegraph 3rd December 2011.  He will be sentenced in January.

Addendum 3rd December 2010:  For an interesting perspective on the Woolas case see Head of Legal blog - "Woolas loses - by a worrying whisker."

Speech by Coleridge J - "Let's hear it for the child ...."

In late November, Mr Justice Coleridge addressed the Association of Lawyers for Children at their 21st Annual Conference.  His speech may be read here and Coleridge J stated that he was expressing his own views though he added that some other judges agreed with him.  It is not the first time that Coleridge J has been outspoken about the effects of family breakdown - see BBC 5th April 2008.   He expressed views about maintaining the authority of the family courts; about "suspended residence orders" which he "invented" and which have since received Court of Appeal approval; and about the need to enforce court orders which he illustrated by talking about contact disputes between parents.

On the enforcement of contact orders see Re L-W (children) [2010] EWCA Civ 1253 - judgment of Munby LJ.   The final words of Sedley LJ are pertinent - "The law does its best in the absence of other means, and modern legislation has done what it can to make the law's own means practical and fair; but the law is not omnicompetent, perhaps most of all when, equipped only with its received or inherent powers, it is called on to intervene in the subtle and unpredictable business of child care and human relations."

Family Justice Review - see Ministry of Justice

Elected Police Commissioners. Is this a good move?

The previous post on this blog took an early overview of the Police Reform and Social Responsibility Bill presented to Parliament on 1st December.  Existing Police Authorities will be abolished and there will be elected Police and Crime Commissioners.  There will also be Police and Crime Panels which will be set up by local authorities.

One may wonder why all of this is seen as so essential at a time when Police Forces have stopped recruiting new officers and are enforcing the retirement of the most experienced officers.  (As an example see BBC report regarding Greater Manchester Police).  The government claims that it will improve the democratic accountability of the Police given that the Commissioners will be elected and the Panels will comprise elected local councillors.  (Police Authorities are mainly Councillors anyway).  According to the Home Office it will put the public at the heart of the fight against crime.

The system proposed by the Bill will hardly be less bureaucratic and its implementation will be very costly.  The Police and Crime Panels will be made up of local councillors but, because local authority and police area boundaries overlap, each Police and Crime Commissioner will be subject to a cumbersome structure of scrutiny by a panel made up of councillors from each of the local authorities involved with the police area.

During October 2010, the Commons Home Affairs Committee heard evidence about the proposals and issued their report "Policing: Police and Crime Commissioners."  A Press Release issued on behalf of the committee indicates briefly some of their concerns - here - including recognition of the point that one of the more likely sources of applicants for Commissioner posts will be from senior Police Officers.  The committee suggests that such officers should have a "cooling off period" of 4 years before being eligible for election.  If that were not the case, an ex-Chief Constable might be elected commissioner and then have to sit in judgment on some of his own previous decisions.

The Association of Police Authorities is, perhaps inevitably, opposing the proposals.  Nevertheless, their measured response is worthy of considerable respect and may be seen via their website - Assoc. of Police Authorities.  They also refer to an independent financial analysis of the proposals which clearly involve huge costs - see here on their website.
 
It has also been reported (The Times 2nd December) that several former Metropolitan Police Commissioners are in opposition to the plans.  Lord Stevens has said - "...... big cuts (are) coming to police resources.  Is this really the time to be doing this?"  Lord Imbert does not think it right that one person alone can hire or fire a chief constable" since Police chiefs could be put under pressure to take decisions that suited a Commissioner from a particular political party.  Lord Condon said that he would test the legislation in the House of Lords to ensure that it did not threaten the character of British policing.  "The whole basis of policing is the independence of the office of constable.  Whether it is the PC on the beat or the chief constable, no politician can tell him to use his powers in a particular way.  That historical legacy, a covenant with the public that those awesome powers will be used independently of politics, is uniquely British and must be preserved."

A further interesting interview may be viewed via Youtube in which Bill Bratton (a former Police Commissioner in both New York and Los Angeles) is interviewed along with Cllr. Rob Garnham (Chair of the Association of Police Authorities).  Mr Bratton has also been interviewed by the Home Affairs Committee - here.

The Association of Chief Police Officers states that how the Police are subjected to democratic oversight is a matter for Parliament but they raised practical points with the government during the consultation - see here.  Beyond that they reserved further comment.

This Bill seems to be a change which will achieve not very much but will entail excessive election and transition costs and it is being introduced at a time when, according to the government itself, we are in a desperate financial climate.  Sensible?  Probably not.  As ever, constructive comments are welcome.

Police Reform and Social Responsibility Bill - Brief first look

In July 2010 the Home Secretary issued a consultation "Policing in the 21st century: Reconnecting Policing and People" - Home Office website.  A Police Reform and Social Responsibility Bill has now been introduced into Parliament.  The full Bill may be read here and Explanatory notes here.  The Bill divides into 5 parts with 16 Schedules.  Part 1 deals with Police reform.  It will abolish Police Authorities (excluding City of London) and replace them with directly elected Police and Crime Commissioners for each police force outside London, and the Mayor’s Office for Policing and Crime for the Metropolitan Police.

Police and Crime Commissioners will be responsible for holding the chief constable of their police force to account for the full range of their responsibilities. The chief constable will retain responsibility for the direction and control of the police force. Part 1 also contains provisions for establishing Police and Crime Panels for each police area. The role of the Police and Crime Panel will be to advise and scrutinise the work of the Police and Crime Commissioner.

It is a very moot point whether this reform is necessary and whether reform of the Police Authorities might have been more appropriate.  According to their consultation, the government sees the Police as "disconnected from the public they serve."  As for cost, The Guardian 1st December suggests that it will cost £130 m in the first year to set up the new Police and Crime Commissioners. After that, there will be the on-going costs of periodic elections not to mention the staff they are likely to require.  The Guardian quotes Home secretary Theresa May as saying that the Commissioners will cost no more than the Police Authorities.

Part 2 amends the Licensing Act 2003. Licensing authorities, the Police and Local Authorities will have responsibility for controlling noise nuisance and "communities" will have a greater say in licensing decisions.

Part 3 is aimed at creating a new legal regime for controlling Parliament Square, London and the surrounding area.  Sections 132 - 138 of the Serious Organised Crime and Police Act 2005 will be repealed.  The effect of that will be that Public Order Act 1986 s.14 will then apply.  The Bill will require considerable scrutiny here.  It is not unknown for a more restrictive regime to be brought in under the guise of reform.  [See Brian Haw's website]. 

Part 4 deals with the question of issuing arrest warrants on the application of a private prosecutor in relation to certain offences.  The actual offences are listed in Clause 151 which will, once enacted, insert sections into the Magistrates' Courts Act 1980.  This matter arose when certain Palestinians sought a warrant for the arrest of former Israeli Foreign Minister Tzipi Livni - see BBC 15th December 2009.  The consent of the DPP will be required before a warrant can be issued.

Part 4 also contains some provisions relating to the Misuse of Drugs Act 1971 and also powers of seizure under certain local government byelaws.

Part 5 deals with matters such as commencement.  The Act will mainly extend to England and Wales only though some provisions will also extend to Northern Ireland and Scotland.

Media comment:  The Telegraph 1st December "Police Commissioners could get their own political advisers" .... "Parliament Square to be cleared for Royal wedding" .... "Top prosecutor to approve arrest of foreign officials" 

Roscoe Lecture 2010 - Lord Justice Leveson speaks of Criminal Justice in the 21st century

Lord Justice Leveson delivered the 2010 Roscoe lecture in Liverpool on 29th November.  His speech - entitled "Criminal Justice in the 21st Century" - may be read here.  He considers a number of important issues which will need to be addressed.

Parliamentary Privilege and the expenses claims - Supreme Court judgment

The Supreme Court has issued judgment in the Parliamentary "Expenses Claims" case - see here.  A press summary is available - here.  For the earlier Law and Lawyers posts on this see here.  The Supreme Court has clarified that it is for the courts to determine what is a "proceeding in Parliament" when interpreting Article IX of the Bill of Rights.  Nevertheless, the court would pay careful regard to views expressed in Parliament.

Contrary to some views expressed in the media, the men were never claiming that they were somehow "above the law."  Rather, they argued that a special aspect of the law offered them a defence in to a criminal charge.  Neverthless, it is a pity that Parliament has not taken opportunities to reform the law in this area and that such costly proceedings have occurred.  In 1999, Parliament published "Parliamentary Privilege - First Report."  This contains a detailed discussion of Article IX of the Bill of Rights 1689.  The report also made a number of recommendations which do not seem to have been actioned.  They included a call for Parliament to clarify the scope of the prohibition in Article IX and that the term "proceeding in Parliament" should be defined as was the case, since 1987, in Australia.

A separate line of argument that the claims were within Parliament's "exclusive jurisdiction" was also rejected.

Late November News Items - 2

A report from the London School of Economics (LSE) argues that the law should be changed so that sex offenders can be permitted to adopt, foster or work with children - see LSE Report and The Guardian 30th November Afua Hirsch.  The report argues that indivdual cases should be considered on their merits and that a blanket ban is discriminatory.  Whatever the logic in this pathway of reasoning, it is perhaps a pathway which the government will be unlikely to follow.

However, in these areas the law tends to alter from time-to-time as public opinion changes though the courts do not seek to lead such opinion.  Certainly, the European Convention on Human Rights is viewed by Strasbourg as a living instrument and not one set at the date the Convention came into force originally.  In Re P [2008] UKHL 38 the House of Lords held that a ban in Northern Ireland on unmarried couples adopting was discriminatory. A recent case in the High Court (Administrative Court) considered the scheme under the Safeguarding of Vulnerable Groups Act 2006 - see R (Royal College of Nursing and others) v Home Secretary and Independent Safeguarding Authority [2010] EWHC 2761 (Admin).  Here the fact that persons were listed without being able to make representations was held to be a breach of Article 6 of the European Convention on Human Rights.

Statements made in accordance with the Criminal Justice Act 1967 s.9 are commonplace and allow mostly uncontroversial evidence to be admitted without the need to call a witness.  Over the years they must have saved thousands of hours of court time.  In Wood v DPP [2010] EWHC 1769 (Admin) a technical point was raised that the statement served on the defence was not absolutely identical in form to that received from the witness.  The only difference was the date on the documents.  The High Court had little truck with this argument.  In the past such technicalities were admired but they are now viewed as lacking merit and having no place in a modern criminal justice system.

For the law student - an interesting speech has been made by Christos Pourgourides (Chair of the Committee on Legal Affairs and Human Rights, Council of Europe) in which it is argued that some litigation could be prevented if national courts were to recognise clear trends in the Strasbourg Court's jurisprudence.  See the speech - "Strengthening Subsidiarity: Integrating the Strasbourg Court's case law into national law and judicial practice."  It is a forceful argument though the English judiciary is merely required to "take into account" such decisions - Human Rights Act 1998 s.2.  Full speech here .... article at ECHR blog.

Well done to the CharonQC blog which is in the running for an award from the American Bar Association - see here. The blog has started an interesting series of Podcasts about Legal Education - they are well worth listening to.

Finally, the UK Supreme Court is looking at moving towards saving masses of paper by introducing electronic document management - see Press Release.

Picture above - "Sheep in the Snow" - artist Joseph Farquharson 1846-1935.