Thursday, 30 September 2010

Fixed-term Parliaments Bill ... more constitutional tinkering ....

In July 2010, the government introduced a Bill to establish five year fixed term Parliaments - see Fixed-term Parliaments Bill. Is this Bill either desirable or necessary?

Under present arrangements, a Parliament has a maximum term of 5 years - Septennial Act 1715 (as amended by the Parliament Act 1911).  The present Parliament was elected under present constitutional arrangements.  The Bill will fix the term of even this Parliament at 5 years and the next general election will be held on 7th May 2015.  No doubt this will suit most politicians in the present coalition government but, as political events continue to unfold in the present difficult climate, whether it will prove to suit the nation is an entirely different matter.

Prior to the coalition government being formed, the Liberal Democrats had argued for fixed term Parliaments of 4 years.  They argued that it was wrong for the incumbent P.M. to be able to dictate the timing of the election.  In effect, the party in power had the starting pistol for the race.  The Conservatives did not make any commitment though, in May 2009, David Cameron expressed interest in the idea.  Labour also included them in their 2010 manifesto but did not specify the length.  They also proposed an "All Party Commission to chart a course to a written constitution".   After the general election, the idea became a key element in the Coalition Agreement.

The Bill will abolish the ancient power of the Crown to dissolve Parliament and general elections will only occur as provided for by the Bill.  At present, the power to dissolve Parliament is exercised by H.M. The Queen on the advice of the Prime Minister.  Thus, the Bill effectively removes the right of a Prime Minister to simply request, - (and, by convention, be granted) - a dissolution of Parliament.  Traditionally, this has placed Prime Ministers in a very powerful position and the threat of holding an election could be used to bring awkward M.P.s to heel.   It has also retained flexibility within the constitution which could be of benefit in some, perhaps unforseen, circumstances.

General election on a Motion of the Commons:

Under the Bill, one way in which a general election might be called is Clause 2(1) - if the Speaker of the House of Commons issues a certificate certifying that the House has passed a motion that there should be an "early parliamentary general election".  The drafting of Clause 2(1) is interesting.  It does not appear to actually require a "division" (in which votes are counted).  However, if there is a division then the number of members voting in favour must reach a "number equal to or greater than two thirds of the number of seats in the House (including vacant seats).  The Speaker's Certificate is to be "conclusive for all purposes" and, before issuing a certificate, the Speaker must consult the Deputy Speakers (so far as practicable).  The purpose of such consultation is not entirely clear and the "so far as practicable clause" might be thought in the future to enable a Speaker to avoid consultation.  It is difficult to see why it might not be practicable to consult.

General Election after a Vote of Confidence:

If, in the future, a disastrous administration is in power how can it be forced out of office if they have a fixed term?  The current method is that the government loses a Vote of Confidence in the House of Commons.  This occurred with the Labour government under James Callaghan which lost a Vote of Confidence on 28th March 1979 by one vote - (311: 310).  The Bill alters this arrangement.

Under Clause 2(2), the Speaker of the House of Commons may issue a certificate - (under the Bill it seems that he is not actually required to) - stating that on a specified day the House passed a motion of no confidence in H.M. Government (as then constituted) AND that 14 days after the specified day there has not been a motion expressing confidence in ANY government.  On the face of the Bill, there is nothing to indicate what the governmental position would be during those 14 days.  Could the Party which had just lost the vote somehow reconstitute itself and go on to win a further vote?  In practice, it would usually be one of the other parties which tried to form a government but on what democratic basis should they be allowed to do this without an election?

What if there were to be an early election?

The Bill contains some clauses aimed at dealing with the length of a Parliament following an early election.

The 5 year term - is it absolute?

The Bill - Clause 1(5) - enables an outgoing Prime Minister to fix the general election date within certain limits.  Polling day may not be more than 2 months earlier or later than the basic (5 year date).  It is argued that this is needed to "accommodate short term crises or other conditions".  Foot and Mouth (as in 2001) is given as an example in the Explanatory Notes to the Bill.   It is very much a moot point whether this is either necessary or desirable and, in reality, seems to be included to give some tactical advantage to an incumbent Prime Minister.  There is nothing in the Bill to limit the reasons why a P.M. should use this power.  However, if a P.M. wishes to do so then he must make an Order by Statutory Instrument and a draft must be laid before and approved by a resolution of each House of Parliament.

On one view, Clause 1(5) can be seen as a Bill to extend the lifetime of a Parliament beyond 5 years - even if only marginally and with Parliamentary approval.  If that view prevailed, then the Bill could be vetoed by the House of Lords and could not be passed using the Parliament Acts 1911-49 procedure.  However, one suspects that this argument is weak.

The Clerk of the Commons raised concerns:

Concerns about the Bill were raised by Mr Malcolm Jack - Clerk to the House of Commons - see The Guardian 7th September 2010.  He expressed the view that the judges might end up being drawn into political controversy and that there might be the possibility of challenge under Protocol 1 Article 3 to the European Convention on Human Rights.  He was also concerned that the Bill had not been presented in draft form for scrutiny.  See the Political and Constitutional Reform Committee at which Mr. Jack gave evidence.  His views are entitled to great respect.

The Head of Legal Blog has raised other concerns about the Bill - it is well worth a read and discusses the views of Mr Jack.  Further comment may be read at "Of Interest to Lawyers".

Our constitutional arrangements in this area have served us well overall.  The Bill would not actually prevent a Prime Minister getting a general election if he wanted one though he would have to obtain a motion in favour - Clause 2(1).  In effect, the government could vote itself out of office!  Furthermore, if the 2005 German experience is any guide, even Clause 2(2) might be used.  In 2005 Gerhard  Schröder deliberately set out to lose a Vote of Confidence.  This Bill is ill-considered, it is self-serving on the part of the coalition government  and it is potentially riddled with problems.  It adds complexity to the constitution and it is unnecessary.

Further and more detailed material:

Explanatory Notes to the Bill

Fixed-term Parliaments - Parliament and Constitution Centre Standard Note - 6th September 2010.

House of Commons Research Paper

Wednesday, 29 September 2010

Making a will? See a competent expert ...

Generally, it is desirable to make a will and to avoid the rules applicable upon intestacy (death without a will).  When a will is “executed” (i.e. made) certain strict formalities apply – (Wills Act 1837).  In addition, at the time of giving instructions for the making of a will, a testator must have “testamentary capacity”.  The basic test for capacity was set out 140 years ago in Banks v Goodfellow (1870) LR 5 QB 549.  The testator must understand the nature of the act (i.e. making a will) and its effects.  He must also understand the extent of the property and be able to understand and appreciate the claims to which he ought to give consideration.

This test, whilst remaining good basic law, has given rise to considerable difficulties.  Some of these are discussed by Peter Boynton in the Solicitor’s Journal – “The Last Litigation” - 27th September 2010. The article highlights some of the considerable difficulties which have arisen in recent cases :-

In the Estate of Key [2010] EWHC Ch 408

Perrins v Holland and others [2010] EWCA Civ 840 – (here, the costs of the case exceeded the value of the estate).

These cases are not necessarily straightforward to understand without a good grasp of “succession law” but they show that it is essential for those who prepare wills to adhere to the relevant guidance and to be sure that the testator has testamentary capacity.  Sometimes, medical opinion may be needed to assist with this  – see BMJ “How to assess capacity to make a will”   This is a difficult area of both law and practice.

Most consumers appear to think that all will writers are solicitors.  This is far from the case – see Law Gazette January 2010.  Unfortunately, will writing remains an unregulated activity and this makes it very important to be sure about the qualifications of anyone undertaking this work.

Interestingly, there is no legal requirement to register a will but it should be retained in a safe place.  Many testators either leave the will with their solicitor or, often, it is simply kept somewhere at home.  However, there is a registration service available – see here.   This could be worth considering since some problems regarding “lost wills” might be avoided.  It is only necessary to register the place where the will is kept.

See Law Society - Wills

Tuesday, 28 September 2010

British Government was aware that the U.S. was mistreating British nationals

It appears that the Labour government (under Tony Blair) was aware that the United States was mistreating UK nationals and residents after January 2002 - (and for some years afterwards) - but they did not seriously protest about it.  This has emerged from documents - (which continue to be heavily redacted) - presented in a case concerning 6 men which is being heard in the High Court.  See The Guardian 28th September 2010

As mentioned in the post immediately below, the U.K. adopted the Convention against torture and other cruel, inhuman or degrading treatment or punishment in December 1988 and the USA did so in October 1994 - also, see here.  As a Convention aimed at the prevention of cruelty to fellow human beings, this must rank as one of the most important conventions entered into by government and the High Court case raises serious questions about the ethical standards of Ministers at the time.

Addendum 29th September 2010: "Torture warnings pushed aside for Britain to join U.S. in war on terror" - The Guardian 29th September.

Further - see BBC - former Attorney-General Lord Goldsmith QC told BBC's Panorama programme that queries about the legality of hooding detainees were not put to him by the Ministry of Defence.  He indicated that there is some reason to believe that not asking was deliberate.

Questions are also raised about the system of military justice and whether military police can really be trusted to investigate the military.  This arises from the aftermath of the action now referred to as The Battle of Danny Boy - see here and here

The Panorama programme "Britain in the Dock" may be viewed HERE.

As much as politicians may wish to "move on" from these matters, it is not going to be possible to do so.  A number of inquiries have yet to report - Baha Mousa and, of course, Chilcot.  In addition, proceedings are on-going in the High Court against the British government.

Monday, 27 September 2010

The Equality and Human Rights Commission challenges the government ...

Earlier this year, the government, very commendably, made public "consolidated guidance" to Intelligence Officers and Service Personnel on the detention and interviewing of detainees overseas and on the passing and receipt of intelligence relating to detainees.  It now appears that the Equality and Human Rights Commission is claiming that the guidance is unlawful (here) whereas the government disagrees (here).  The Commission has suggested ways in which, in their view, the guidance might be amended to make it lawful.  Unless the matter can be resolved then it is likely that the Commission will apply for judicial review of the guidance.

Under the guidance, British officers may not cooperate with foreign forces over the interrogation of terror suspects if they “know or believe” that torture will take place.  There is no such restriction where officers believe there is only a “serious risk of torture”, which the commission argues is not consistent with the UK’s international obligations, including the UN convention against torture. - see (link).  A further issue relates to "cruel, inhuman or degrading treatment" where the guidance appears to be somewhat less rigorous.

The European Convention on Human Rights Article 3 also outlaws torture, inhuman or degrading treatment or punishment.  In a number of cases, the European Court of Human Rights has given general descriptions of what makes treatment or punishment "inhuman" or "degrading".  Inhuman treatment has included hooding; continuous loud noises, sleep deprivation, reduced diet and being made to stand against a wall in a painful posture for a lengthy period: Ireland v U.K. (1979-80) 2 EHRR 25.  Degrading treatment has been described as treatment which humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or which arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance: Pretty v United Kingdom (2002) 35 EHRR 1

After the general election, the government announced an inquiry into allegations of British complicity in  torture - The Guardian 21st May.   The Foreign Secretary (Mr William Hague) stated - "It is vital to remember that torture does not help us defeat terrorists; it helps them to try to justify their hostility to us".

See also Cabinet Office - "UK involvement with detainees in overseas counter-terrorism operations

Detainee Legacy Issues - post on Watching the Law

Saturday, 25 September 2010

Making the law; deciding what it means and Bills now before Parliament

Within the U.K. sovereignty rests with "The Queen in Parliament" (Q in P).  Thus, the Q in P is the supreme law making authority for the U.K.  New laws start their lives as "bills" presented to parliament and the bills before parliament at the moment may be seen here.  When a bill has gone through all of the required stages in parliament AND has received the Royal Assent it becomes an Act.   As a basic rule it would become law from the beginning of the day on which Royal Assent was given.  However, it is common practice to delay commencement and to use Commencement Orders as a method of implementation.  Commencement is made even more complex because, very often, different sections of an Act are brought into force on different dates.

The actual interpretation of an Act is a matter for the judges.  The Interpretation Act 1978 sets out a number of key points which commonly arise in interpretation but there are judicial rules and techniques which are used when a court has to decide what legislation means - see here for some of the methods used.  Interestingly, it used to be the rule that the judges would not look at Hansard in order to find out what had been said in Parliament during the passage of an Act.  This rule was changed as a result of the House of Lords decision in Pepper v Hart 1993.  In practice, many judges played mere lip service to the rule - see "Statute Law: Judges as Legislators" (Francis Bennion).  In addition, the Human Rights Act 1998 section 3, states that - "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

In the process of interpretation the judges create additional law. - see Open University Judges and the Law.  An older theory that judges do not make but merely declare the law which they have discovered is now largely discredited - see Declaratory Theory.  The eminent judge Lord Reid said - "We do not believe in fairy tales any more, so we must accept the fact that for better or worse judges do make law."

Where does the European Union fit into this?  There is a massive amount of law making carried out by the European Union.  However, strictly speaking, it only has effect in the United Kingdom by virtue of the Economic Communities Act 1972.  This Act came into force on 1st January 1973 when the U.K. acceded to the communities.

Bills currently before Parliament:

The bills currently before Parliament can be categorised into public bills; private member's bills and private bills.  Public Bills of particular constitutional importance are the Fixed Term Parliaments Bill and the Parliamentary Voting and Constituencies Bill .  There is good reason to be concerned about these - see the comments about the Fixed Term Parliaments Bill on Head of Legal and Of Interest to Lawyers.  Private Members Bills are those raised by individual members of either the Commons or the Lords.  Only a few of these Bills ever get to become law since the government's legislative programme usually dominates.  For example see the Defamation Bill introduced by Lord Lester of Herne Hill QC and the Anonymity (Arrested Persons) Bill.   Private Bills are a third category.  These are bills promoted by some person or body outside parliament e.g. The Leeds City Council Bill.   They are very expensive to promote and follow a particular route through parliament - see Private Bills Factsheet August 2010.

Occasionally a bill appears which has both public and private effect.  This is referred to as a Hybrid Bill.

For completeness it should be added that Parliament also enacts "Measures" for the Church of England - see. for example, here.

Thursday, 23 September 2010

Judicial review: family legal aid tendering

Legal Aid in family cases - judicial review

Given the complexity of family law and practice, the provision of legal representation is crucial.  The Law Society has applied for a judicial review of the tender process used by the Legal Services Commission for provision of legally aided family law services.  The Law Society's skeleton argument may be read here

The Law Society point out that the outcome of the tender process is a reduction in law firms permitted to provide family legal aid services from around 2400 to 1345.  A large number of experienced family lawyers in England and Wales will be precluded from providing essential family legal aid services from 14 November 2010 onwards.  This outcome will have serious adverse consequences for effective access to justice for family law clients .... , including some of the most vulnerable groups in society, such as women and young girls who are victims of domestic violence and forced marriage, and children caught up in domestic abuse and care proceedings."

This situation is a disgrace to justice in England and Wales and it is to be hoped that the Law Society are successful in this review and that a more reasonable outcome eventually results.  Families simply cannot be expected to represent themselves in serious matters such as care proceedings which could result in children being removed from the family.

See also Solicitors Journal - the judicial review is to be heard by Moses LJ and Beatson J.

Review of family law - The government are conducting a review of family law - see here.  Person wishing to contribute to the consultation must do so by 30th September.

Speech by Lord Justice Wall - President of the Family Division - "Is the family justice system in need of review?"

Maximum sentence for dangerous driving is 2 years imprisonment ...

The maximum sentence of imprisonment for dangerous driving is 2 years.  It is not enough as this case shows - Daily Mail 23rd September 2010.

Tuesday, 21 September 2010

Prisoners and the right to vote

Voting for prisoners has now moved up the government's reform agenda.  The idea is unpopular in some quarters because there is a view that those serving sentences of imprisonment have lost the moral right to participate in the government of the country.  However, the government must act because of the stance adopted by the European Court of Human Rights and the concern expressed by the Council of Ministers that the U.K. has delayed implementation of the court's rulings.  A useful document produced by Parliament looks at this issue in depth - see here.  A previous post on this blog may be read here

The U.K. is bound, as a matter of international law, to implement decisions of the European Court of Human Rights.  In recent times compliance has sometimes been avoided by various methods such as putting the matter out to consultation etc.  [There have been two consultations on prisoner voting].  In other cases, compliance is to the minimum level which Ministers think they can get away with.

Further information is available on the Prison Reform Trust website.

Monday, 20 September 2010

A unified judiciary ... and why not use the local town hall ...

The government is planning to bring the tribunal judiciary in England and Wales under the overall leadership of the Lord Chief Justice.  This will be in addition to the planned merger (by 1st April 2011) of Her Majesty' Court Service and the Tribunals Service.  The aim is to have a unified judiciary encompassing the courts and tribunals.  The powers of the existing Senior President of Tribunals will transfer to the LCJ and a new office of Head of Tribunals Service will be created.  Primary legislation is required and a bill will be introduced as soon as parliamentary time is available.  See Ministry of Justice.

The Local Government Association is suggesting that town halls be hired out for use as courts.  It is claimed that this will increase the speed of justice.  See LGA and also  The Independent 18th September 2010

Cllr Mehboob Khan, chair of the LGA’s Safer and Stronger Communities Board, said:

”Councils already own a number of buildings, available for community activity.  Many town hall chambers would provide the perfect setting for court hearings, with some having existing courtroom facilities.  Local authorities are well aware of the sensitivities of keeping victims and witnesses safe.  Although specialist courts are needed in some cases, in the vast majority of court cases, council buildings would be more than adequate.  It would certainly overcome the problem for rural communities and could maybe provide a boost for council budgets if hire costs were considered.”

Hardly a surprising move from cash-strapped local councils but will government pay to hire a building when the whole objective of closing down local magistrates' courts is to save money?  Historically, many magistrates' courts used to be located in town halls - e.g. Bradford, Yorkshire, Huddersfield etc. - but those courts were closed down and replaced by purpose-built magistrates' courts.

Saturday, 18 September 2010

Magistrates Powers

The Magistrates' Association represents over 28,000 Justices of the Peace who serve in the Magistrates' Courts in England and Wales.  The U.K. is very unique in the extent to which non-lawyers participate in the criminal justice system and the late Lord Bingham of Cornhill referred to the magistracy as"a democratic jewel beyond price".  The Association has recently expressed views on a number of topics: 

Making sure community orders work - on this, the association is absolutely right.  They argue that community orders can be a very effective alternative to a short term custodial sentence if they are robust, effectively planned, properly managed and supervised.   Unpaid work provides visible evidence that an offender is making retribution and affording benefit to the local community for their offending behaviour.  The bold and underlined words are my emphasis but, unless those conditions are met then there can be no public confidence in this form of sentencing.  In particular, this form of sentencing is "labour intensive" in the sense that offenders have to be managed by people who are appropriately skilled and trained.  (Interestingly, a new blog looks at Probation work - see here).  On 16th September, ITV's Tonight programme took a seriously critical look at what actually happens on some community sentences and the findings are disturbing.

Magistrates Association astonished at unpaid fines total - In July 2010, the Audit Commission reported that £1.3 billion was owing in unpaid court orders for confiscation, compensation, fines and costs.  As the association points out - "Criminals will rejoice that they can retain the proceeds of their offending behaviour despite court orders".  Yet again, we see government pressuring the courts to use the fine as a sentence but there is a serious need to consider how the various powers to enforce fines actually operate.  Magistrates' Courts are unable to commit a defaulter to prison unless (a) there is "wilful refusal or culpable neglect" to pay and (b) all other methods of enforcement have been considered.  

Cases sent to Crown Court - The Association is pressing government to implement Criminal Justice Act 2003 s.154 which would increase the maximum sentence available in a Magistrates' Court to 12 months imprisonment.  This echoes concerns expressed by Lord Justice Leveson (Chairman of the Sentencing Council) that some 18-20,000 cases a year are sentenced in the Crown Court but the offender receives no more than could have been handed down by the magistrates.  In part, this statistic arises from the fact that legal aid has been more readily available in the Crown Court than in magistrates though Crown Court Means Testing has now been introduced. 

The Association goes on to make a number of "recommendations" including one that the government should examine the rights of defendants to elect jury trial for either-way offences.  This is a controversial topic and, in making the suggestion, the association does not appear to consider the basic and highly important rights of the citizen which include a right to trial by jury for certain cases.  In the past, there have been various attempts by Ministers to whittle down the right to trial by jury and they have been rejected - usually in the House of Lords.   Do either the economic climate or sectional interests such as those of magistrates trump the democratic rights of the citizen to jury trial in those cases where a person's good name is at stake?

On the topic of greater sentencing powers see Solicitor's Journal.

Addendum - 19th September: "Former soldiers could make community service tougher for offenders" - The Guardian.  It appears that 3 private companies have been approved by the Ministry of Justice to tender for "community service" programmes.  Also, it appears that "privatisation" of some 10 prisons is being considered.

Addendum - 23rd September: "Magistrates in doubt as summary justice rises" - Telegraph 21st September.

Thursday, 16 September 2010

Rehabilitation of Offenders - (1) Overview

Probably most people would agree that offenders ought to be given the opportunity to rehabilitate themselves into society.  Nevertheless, a balance has to be achieved between the rehabilitation of the offender and public protection from those who have offended and might re-offend if placed in certain situations.  In passing the Rehabilitation of Offenders Act 1974, an attempt was made to achieve such a balance.

It is a complex scheme in which the length of the rehabilitation period depends on the length of sentence imposed and not on the offence for which it was imposed.  Those offenders sentenced to more than two and half years imprisonment will never have that conviction "spent".  Those sentenced to two and half years or less may have their conviction "spent" once a rehabilitation period has been successfully completed (i.e. usually without further conviction in the period).  For some purposes, set out in an "Exceptions order", convictions which attracted even those shorter convictions never become spent.  There are also differences between the scheme applicable to adult offenders and that for young persons who have offended.

Convictions for recordable offences are put on to the Police National Computer and will usually remain there long after they have become "spent" under the 1974 Act.  The Association of Chief Police Officers (ACPO) has issued "guidelines" about the retention of records.

In 2001, Jack Straw announced a review of the 1974 Act .  In 2010, the workings of the Act are again being questioned and NACRO has launched a campaign aimed at persuading MPs that the law is in need of reform.  In particular, the rehabilitation periods are considered to be too onerous and operate to prevent people getting employment.

The workings of the 1974 Act scheme must also be considered in relation to the various types of CRB checks and the various forms of "disclosure" are explained in the CRB Code of Practice   See also the Vetting and Barring Scheme.

Further information about the Act may be read at Your Rights , at Prison Reform Trust and at Criminal Records Bureau.

This makes for a very complex situation and several aspects of it require more detailed consideration which I hope to do in some future posts. 

Is this scheme as unfair on former offenders as NACRO are suggesting?  I suspect that they are right.  The considered views of readers will be more than welcome.

Tuesday, 14 September 2010

Parliamentary expenses and privilege: Supreme Court hearing expected

An appeal by the three former MPs charged with offences relating to parliamentary expenses is likely to be heard by the Supreme Court.  It appears that the point of law to be determined is - "Does the crown court have the jurisdiction to try an MP in relation to allegations of dishonest claims for parliamentary expenses or allowances, or is the court deprived of jurisdiction by article nine of the bill of rights 1688 or the exclusive jurisdiction of parliament?"  Law and Lawyers previously reported on this case here, here, here and here.  See The Guardian 14th September 2010.

Addendum 15th September: - CharonQC takes a brief look at "what if" the Supreme Court rules in favour of the MPs.

Addendum 16th September: - "MPs' expenses case hinges on limits of parliamentary privilege" - Joshua Rozenberg - The Guardian 16th September.  A nine judge court is to sit.

Addendum 20th September: - "Secret Deals still being offered to MPs" - Rosa Prince in The Telegraph 20th September.

Monday, 13 September 2010

Lord Bingham of Cornhill KG

"Where law ends, tyranny begins" - John Locke 1690.

I would not presume to even attempt to write an obituary of Lord Bingham who died on 11th September.  In any event, to my mind, many distinguished writers have already done that with eloquence and they have amply expressed their admiration for a man who stood up for the rule of law and for what that means for everyone.  see, for example, The Guardian .   Apart from his judgments in court, Lord Bingham gave many excellent speeches.

In 2006, he spoke of The Rule of Law at Cambridge University and set out his views of what the rule of law entailed - see here.  The Rule of Law depended on "an unspoken but fundamental bargain between the individual and the state, the governed and the governor, by which both sacrifice a measure of freedom and power which they would otherwise enjoy".  Bingham analysed this into 8 sub-rules:
  • The law has to be accessible - intelligible, clear and predictable
  • Legal rights and liabilities should ordinarily be resolved by law and not discretion
  • The law should apply equally to all except to the extent that objective differences justify otherwise
  • The law must afford adequate protection of fundamental human rights
  • There must be means to resolve, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties are unable to resolve
  • Ministers and public officers at all levels must exercise their powers reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers
  • Adjudicative procedures should be fair
  • The state must comply with its obligations under international law.
Of course, it is debatable whether English law meets all of those criteria.  Nevertheless, Bingham's development of those sub-rules was a tour de force to which he returned, after his retirement as a judge, in his book "The Rule of Law" which should be required reading for all.

In 2008, he delivered the Grotius Lecture to the British Institute of International and Comparative Law and devoted much of it to a devastating analysis of the legal basis used by the British government to justify the Iraq War - see Telegraph.  Perhaps unsurprisingly, Jack Straw and Lord Goldsmith expressed their disagreement.

In March 2009, Lord Bingham addressed the Convention on Liberty - here.   He spoke of liberty and addressed threats to it arising from advances in technology and the serious concerns about security in the modern world.

In 2008, Bingham gave a judgment in R (Bancoult) v Foreign Secretary [2008] UKHL 61.  The case concerned the Chagos Islanders and their treatment at the hands of Britain.  His judgment is a model of clarity.  Article 9 of the British Indian Ocean Territory (Constitution) Order 2004 denied anyone a right of abode in the islands,  Bingham, dissenting, held this to be unlawful.  First, there was no prerogative power to make an Order in Council containing article 9.  However, if that was wrong, the article was (a) irrational (made for no good reason) and (b) was made in clear breach of a clear representation by the Secretary of State.

Perhaps Bingham's grand theme was that of rights and liberty.  " .... we are not, as we are sometimes seen, mere custodians of a body of arid prescriptive rules but are, with others, the guardians of an all but sacred flame  which animates and enlightens the society in which we live ...."

The UK Supreme Court blog has an eloquent tribute to Lord Bingham - here and see here what is said on behalf of the Justices of the Supreme Court.

Burglary: undue leniency and policing cuts

The latest sentencing statistics available are for 2008 and may be accessed on the Ministry of Justice website - here.  

The Telegraph 11th September said - "Revealed: not a single burglar gets maximum jail sentence".    The maximum sentence for burglary of a dwelling is 14 years and for other premises is 10 years - see here.

Where the offender is guilty of a third domestic burglary, then there may be a minimum sentence of 3 years but this can be quite readily avoided since the Powers of Criminal Courts (Sentencing) Act 2000 s.111 gives the judge a considerable discretion based on particular circumstances relating to the the offence or to the offender - see here.  It appears that, in 2008, there were 611 offenders in this category.  Only 145 of them received in excess of 3 years. 

The Court of Appeal recently set out new sentencing guidance in R v Saw [2009] EWCA Crim 1  Obviously, any effect of this judgment could not be reflected in the 2008 figures.  The Lord Chief Justice said - "The starting point must always - we emphasise, always - be that burglary of a home is a serious criminal offence,  The principle which must be grasped is that when we speak of dwelling house burglary, we are considering not only an offence against property, which it is, but also, and often more alarmingly and distressingly, an offence againts the person".  

Those who argue for more lenient sentencing often make the point that it is "being caught" which is the principal deterrent.  Against that, it could be argued that the chances of being caught are likely to reduced if, due to financial pressures for cuts in services, there are fewer front-line Police Officers.  Does this not make it even more important that those convicted of burglary face very tough sentencing?  See BBC 10th September and  London Evening Standard 10th September and Manchester Evening News 11th September.

Wednesday, 8 September 2010

The law of murder: implementation of further reform

For acts or omissions on or after 4th October 2010, there will be changes to the law of murder: see Coroners and Justice Act 2009 Part 2 Chapter 1.  The reforms relate to the partial defences to murder of diminished responsibility and provocation.  If successfully pleaded, these defences reduce the conviction to one of manslaughter.  There is also a reform to the law of Infanticide. The new law is well summarised by Anthony Edwards writing in the Law Society Gazette.

Diminished responsibility:

The new law of diminished responsibility refers to "abnormality of mental functioning" which has to arise from a "recognised medical condition".  This change allows for a wider spectrum of mental illness and enables the law to keep pace with developments in medical science.  The abnormality of mental functioning must have "substantially impaired" the defendant's ability to do "one or more" of three "things" which are:

  • to understand the nature of his conduct; 
  • to form a rational judgment; 
  • to exercise self-control.  

Finally, the abnormality of mental functioning must provide an explanation for the defendant's acts or omissions in doing or being a party to the killing.  An abnormality of mental functioning will provide such an explanation if it causes, or is a significant contributory factor in causing, the defendant to carry out that conduct.  It will be for the defendant to establish this defence to the civil standard: balance of probabilities.

Loss of control:

The next reform is arguably more problematic.  The common law partial defence of provocation will be abolished and replaced by a new partial defence of "loss of control".

If the defendant's acts or omissions in doing or being a party to the killing resulted from the defendant's "loss of self control" then the defence may be available.  The loss of self control has to arise from a "qualifying trigger" AND a person of the defendant's sex and age, with a normal degree of tolerance and self-restraint and in "the circumstances of the defendant", might have reacted in the same or in a similar way to the defendant.  It will not matter whether or not the loss of control was sudden.  This latter point may be of help to those who final break after a lengthy period of abuse - often referred to as "slow burn" - see, as an example, the case of Kiranjit Ahluwalia.

The reference to "the circumstances of the defendant" is stated to be a reference to all of his circumstances other than those whose only relevance to his conduct is that they bear on his general capacity for tolerance or self-restraint.  This is not entirely clear and it will be interesting to see how the courts apply it.  (The explanatory notes may assist).

Where a defendant acted out of a "considered desire for revenge" then this defence will not be available.

Qualifying triggers:

The new law of "qualifying triggers" is complex.  A qualifying trigger may be the defendant's fear of "serious violence" from the victim against the defendant or another "identified person".  A further qualifying trigger is where the defendant's loss of self control was attributable to things done or said (or both) which constituted circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged.   There may be a combination of both triggers.  There are a number of limitations .  Fear of serious violence is to be disregarded to the extent that it was caused by a thing which the defendant incited to be done or said for the purpose of providing an excuse to use violence.  Further, a sense of being seriously wronged by a thing done or said is not justifiable if the defendant incited the thing to be done or said for the purpose of providing an excuse to use violence.  Finally, the fact that a thing done or said constituted sexual infidelity is to be disregarded.

Burden of proof for loss of self control:

The defence must raise "loss of control" by evidence.  Whether they have achieved this is a question for the trial judge.  If they have succeeded then the Crown must prove to the criminal standard that the defence is not made out. The statute indicates that it is a matter of law and for the judge to decide whether the defendant has sufficiently raised the issue.

These changes are far from easy to both interpret and apply.  Appellate decisions will doubtless result.

In some quarters, the reform of provocation law has been seen as driven by a political feminist agenda -see "An unjust, feminist view of murder" - Sunday Times 30th July 2008.

Three tiers of homicide - a further possible change?

It seems likely that further changes to the law of homicide will arise if, as seems likely, the government adopts the "three tier structure" put forward by the Law Commission.  The Guardian 8th September 2010 reported that the Director of Public Prosecutions is supporting such a change.  Homicide would then comprise first and second degree murder and manslaughter.  A degree of caution ought to be adopted here since the categories may prove, in practice, to be problematic and a degree of "under-charging" is a possibility - (as already occurs with the various degrees of assault).

It is disappointing that the new government has not opted for a thorough overhaul of the law of homicide.  Piecemeal reform is adding complexity to an already over complex situation.

Addendum - 9th September:  See "Murder by misnomers" - The Guardian - Afua Hirsch.
"Pressure grows for reform of murder law" - Ian Dunt in 8th September.

Addendum - 14th September:  "Calls for murder law reform may be ignored" - UK Human Rights Blog

Addendum - 20th September:  "Killing by Degrees" - interesting article on the need for fundamental reform, a need which has existed for many years.  Despite the massive amount of criminal justice legislation since the 1960s, the law of murder remains as defined by common law.

Addendum - 25th October:  "Homicide Reform under the CAJA 2009" - Rudi Fortson QC - Seminar held 16th October by the Criminal Bar Association of England and Wales.  This is a very detailed look at the reforms but ought to be read by all practitioners.

Update Addendum 17th January 2012:  The Court of Appeal Criminal Division - R v Clinton, Parker and Evans [2012] EWCA Crim 2 - Lord Judge CJ, Henriques and Gloster JJ.  The first appellate decision on the newly defined law of loss of control.

Tuesday, 7 September 2010

A welcome to a new website and a long needed idea ...

Halsbury's Law Exchange is a new and very welcome website which seeks to communicate to the government ideas on legal reform.  It will promote debate through papers, reports, events and media pieces.  The website includes a BLOG (Openminds), an OPINION FORUM and YOUR IDEAS may also be submitted.  The site is independent of government.

It is a fact that many hundreds of ideas have been submitted to the YOUR FREEDOM website which was set up by the coalition government but it is not yet possible to point to any resulting change to the law.  As a general rule, the public usually has law imposed on it and Halsbury's Law Exchange is a good step towards better public engagement in the legal process.

Another blog, dealing with family law matters, is Pinktape - an attractive site which is well worth a look.

Police Sergeant jailed for 6 months

Police Sergeant Mark Andrews of the Wiltshire Police has been jailed for 6 months for assault occasioning actual bodily harm to Pamela Somerville.  See The Guardian 7th September.  It appears that an appeal is likely.

Following the conviction of Andrews, a statement was issued by Wiltshire Police which may be read here. It is good to know that the Wiltshire Police "respect the decision of the court"!

Law and Lawyers looked at the exacting professional standards expected of the Police here.  Further blogging on this story may be read at David Allen Green's blog.

The Wiltshire Police sutody suites were inspected by HM Inspectorate of Prisons and HM Inspectorate of Constabulary in 2009 and their report is here.   Hopefully, they will continue to check on progress regarding implementation of the considerable number of recommendations which they made.  Also, I wonder whether other Forces will read the report and check to see how they measure up against the same recommendations?

Addendum:  Police Sergeant Andrews has been granted bail pending appeal against both conviction and sentence - see Guardian 13th September.

Monday, 6 September 2010

Is "Justice" in safe hands?

"Justice" is under serious threat.  Here is some of the evidence:

1). A massive cull of family law solicitors has been announced by the Legal Services Commission.  An article by family lawyer Marilyn Stowe describes the situation as a "bloody beheading" - see Solicitors Journal "Law will tear us apart" - 16th August 2010.  The cuts are savage.  To quote from the article - "Lawyers and their clients - the most vulnerable and the neediest clients - are on the receiving end of savage cuts and a mutilated service.  I can't help but reflect that the bankers who brought about this recession are reporting fat profits once more, but that desperate families in need can no longer have the access to justice to which they are entitled.  It leads one to wonder, in despair: does justice have any value at all?

A judicial review of the Legal Services Commission's decision-making has been brought by the Law Society and this will be heard on 21st September with judgment expected on 24th September - see Law Society 3rd September 2010.

Whilst this process of denial of justice to ordinary people continues apace, it seems that the Supreme Court is getting ready for a NINE judge hearing about a pre-nuptial agreement signed in Germany.  Does this matter really require a NINE member court?  The case is Radmacher v Granatino and the Court of Appeal judgment may be seen here.   Then there was the "cheat's charter" judgment in Tchenguiz v Imerman [2010] EWCA Civ 908.  The case concerned the confidentiality of information relating to the assets of divorcing couples.  Paragraph 88 of the judgment, with the notion of spouses having separate studies, makes one wonder just which planet some of the judges live on.  As ever, it is nice to know that justice, like the Ritz Hotel, is open to everyone.

2). The previous Labour government started the hatchet job on magistrates' courts and the axe has been taken up with relish by Kenneth Clarke.  The vast majority of criminal cases are dealt with by the magistrates' courts and access to such courts is essential.  The closures will mean that many victims and witnesses will have to travel further to get their cases heard.  The extended travel distances will inevitably result in more people failing to turn up on the day especially if, as seems likely, the usual attention is paid to wintry conditions on the roads.  The axeing of "local justice" will also have the effect of disengaging from the legal system those active citizens who care about things and who have been willing to give their time to serve as magistrates.

3). Legal aid in magistrates' courts is now at a minimal level since defendants have to pass both a means test AND an interests of justice test.  There are many cases in which the interests of justice test is met but the defendant's means exceed the very modest legal aid ceiling.  The result is more defendants trying to represent themselves and, in doing so, the appear to be coming to rely on dubious sources of law - see "Tricks and cheats are the price of culling legal aid" (Guardian 5th September 2010).

Legal aid in the Crown Court is also means tested under a scheme of the Labour government which the new coalition allowed to continue.  The Legal Services Commission is asking for comment about the implementation of this scheme.

4). Prison does not work is the other Kenneth Clarke mantra.  Of course, he was referring to short term prison sentences which it is claimed do little or nothing to rehabilitate offenders though society is given a short break from their activities.  Short term prison sentences are expensive.  The alternative is "community sentencing" but the various programmes have to be properly funded and resourced with experienced trained personnel.  There are serious concerns about both of those aspects- see the article by Ian Blair in the Guardian 6th September "So, prison's a party, is it?"   We seem to be in some danger of a worst of all worlds scenario: moving away from using imprisonment whilst not having an effective alternative.

Sunday, 5 September 2010

The blue touchpaper: reflections on science and law.

For me, the story of the week was the debate triggered by Professor Stephen Hawking about "M-theory" and the creation of the universe.  Many of the world's leading religions became very defensive when challenged by his view that it was "not necessary to invoke God to light the blue touch paper and set the universe going" - ("The Grand Design" - Stephen Hawking and Leonard Mlodinov - Bantam Press 2010).  See Telegraph 3rd September - "Religious leaders dismiss 'God not needed' comments".  Hawking considers that the universe could have been created because there is a law of gravity which would cause the universe to create itself.  This is a fascinating debate and the views of Hawking are, as ever, both elegant and superbly expressed.

It is interesting to consider how physical science and law differ.  Science strives for strict explanation or proof.  The law does not usually have that luxury.  Based on the information available, a legal decision maker forms an opinion.  That may be an opinion that person A is guilty of some offence or that B and C are bound by a contract or that D acted in a negligent manner causing damage to E etc.  The "information available" (i.e. the evidence) may come from a multitude of sources though it is often from witnesses who observed some event.  The judges have set down various standards of proof for criminal and civil matters.  In criminal cases, guilt must be proved beyond a reasonable doubt.  In civil cases, proof on a balance of probabilities will suffice.  Those standards have been explained in a number of appellate decisions and, in the application of the standards, opinion may properly differ. The result is that law, unlike strict science, is more akin to a complex form of art which exists for the general good order of society in which it is necessary to be able to resolve disputes in a reasonable manner.

Whilst there is an important overlap between science and questions of proof in law - (e.g. as in the use of forensic evidence) - it seems that science has to pursue rigorous proof because its fundamental purpose is to seek to explain why things are.  The law exists for more practical purposes and this requires that, from time to time, there will be errors and proper processes must be in place to rectify, as far as possible, those errors.  However, the law cannot have the luxury of existing in pure theory but must exist with a degree of imperfection though this should never lead to complacency.

As ever, the reflections of readers are more than welcome ....