Sunday, 31 October 2010

Speech by Leveson LJ - Chairman of the Sentencing Council

Visitors to this blog may be interested to read a speech by Lord Justice Leveson - Chairman of the Sentencing Council - see "Sentencing in the 21st Century - The Conkerton Lecture - 21st October 2010."

For more details of the role of the Sentencing Council - see here.

Saturday, 30 October 2010

Another case of leniency for a violent offence?

“What justice? – asks the Daily Mail (30th October) in response to the sentence imposed on Reece Kent (aged 19) who, it is said, repeatedly punched a terminally ill man (Mr Oliver).    The Independent (30th October) also reports this case.

 It is reported that Kent had pleaded guilty to grievous bodily harm and received a 6 month suspended sentence order of imprisonment (suspended for 12 months) combined with a requirement to complete 150 hours unpaid work.  He was also ordered to pay compensation of £1000.  The judge is reported to have said that he decided by the “slightest margin” not to jail him.   

Even allowing for the fact that Kent had pleaded guilty and was therefore entitled to a discount on his sentence, this appears to be another very lenient outcome which only serves to make people think that the law does not and will not protect them.

In certain cases it is possible for the Attorney-General to refer a case to the Court of Appeal as “unduly lenient” – Criminal Justice Act 1988 Part IV.  This applies to a rather limited range of cases.  It includes any offence triable only on indictment (i.e. triable only by the Crown Court).  If the offence is “either-way” (and many are) then a referral can only be made in a limited range of cases set out in an Order .  

The newspaper reports do not inform us of the precise grievous bodily harm offence with which Kent was charged.  There is “infliction of grievous bodily harm” under s.20 of the Offences against the Person Act 1861.  There is also “wounding or inflicting grievous bodily harm with intent” under s.18 of the 1861 Act.  The latter is triable only upon indictment.  The former is an “either way” offence.  It appears that the s.20 offence is not in the list of those which can be referred.  There seems to be a good case for an urgent review of the list relating to either-way offences.


The Attorney-General requires leave from the Court of Appeal to refer a case - (Criminal Justice Act 1988 s36).  A further point to note is that a sentence must not be merely lenient - it must be "unduly lenient."  There are many decided cases on this though each case depends very much on its own facts.  As an example see Attorney-General's Reference 50/2009 - [2009] EWCA Crim 1729.

Also, yet again, we see a case which seems to bear out the need for the publication of sentencing reasons so that the public might have an opportunity to understand what lies behind such a sentence.  As things stand, it is becoming difficult for people to see just what is necessary before violent criminals see the inside of a prison cell.


Thursday, 28 October 2010

Fitness to Plead

In 1831, at the York assizes, a woman called Dyson stood trial for the murder of her illegitimate child by cutting off its head.  The lady defendant was deaf and had never been able to speak.  Even with the use of sign language she could not understand matters such as her right to challenge jurors.  A jury found her "mute by visitation of God" and Parke J - (later Lord Wensleydale) - relied on the authority of Hale to require the jury to find her insane - R v Dyson (1831).

A few years later came the case of R v Pritchard (1836).  Pritchard was also "deaf and dumb" and stood trial for what was then the capital offence of "bestiality."  Alderson B (the trial judge) relied on R v Dyson and empanelled a jury to decide whether he was "mute of malice of by visitation of God."  The jury found the latter and were then required to decide whether he could plead.  They found that he could do so and he entered a not guilty plea.  The jury were then directed to decide whether he was sane or not.  Alderson B told the jury that the defendant could be regarded as sane if he had sufficient intellect to comprehend the course of the proceedings so as to make a proper defence; to know that he could challenge any juror to whom he objected and to comprehend details of the evidence.

The test in Pritchard received the approval of the Court of Criminal Appeal in R v Podola [1960] 1 QB 325 and the test remains the basis of the law although it is outdated and inconsistent with modern psychiatry.

Under modern law, the question of fitness to plead is decided by the judge: Criminal Procedure (Insanity) Act 1964 as amended by the Criminal Procedure (Insanity and Fitness to Plead) Act 1991 and the Domestic Violence, Crime and Victims Act 2004.  The judge must have reports from two or more registered medical practitioners at least one whom must be approved under the Mental Health Act 1983 s.12.  If it is decided that the defendant is unfit to plead then the court moves to the so-called "s4A hearing" to determine whether the defendant did the act or made the omission constituting the actus reus of the offence charged against him.  If there is a finding that the defendant did the act then certain disposals are possible - e.g. a Hospital Order.


The Law Commission has been examining the whole subject of Fitness to Plead and their report is now open for consultation - Consultation Paper 197 "Unfitness to Plead" - published 27th October 2010.  As ever, the document is a masterful and detailed survey of the present law and proposes comprehensive reform.  Responses to the consultation have to be in by 27th January 2011.  It should be noted that somewhat different rules apply in the Magistrates' Court - (see the Consultation Paper Part 8).

Wednesday, 27 October 2010

The Lord Chief Justice at the Commons Justice Committee

As reported by the Daily Mail 27th October, the Lord Chief Justice gave evidence to the Justice Committee and was critical of the excessive use of cautioning as a disposal for violent offences.  He is reported to have told MPs that it was ‘demeaning’ to the victims of violent crimes if prosecutors do not bother taking offenders to court.  The vast majority of people would agree wholeheartedly since, after all, the Lord Chief Justice was saying what many have been saying for some time.

Cautioning for offences of violence ought to be an exceptional course.  Technically, cautions are not convictions though they can sometimes have serious consequences for the individual - e.g. in relation to certain forms of employment.  It is therefore important that arrested persons avail themselves of legal advice before agreeing to accept a caution.

On 18th August, the Daily Mail printed an article claiming that a "caution culture" had taken root in Britain - here.  However that may be, there is no doubt that the use of cautioning rather than prosecution has increased markedly in recent years. Quite naturally, there are fears that cautioning will continue and maybe increase given the present government's desire to reduce the number of Magistrates' Courts.  The Lord Chief Justice's comment is therefore very timely.

Further details about "Cautioning and Diversion" may be seen on the CPS website.

The Lord Chief Justice also called for reform of the family justice system so that there is less use of the adversarial system - see Law Society Gazette.  He claimed that the adversarial system was not appropriate for settling parental disputes over children.  The system left a great deal to be desired in cases where there was no allegation of child abuse.  Lord Judge said he would be disappointed if the Family Justice Review ended up adhering to the adversarial system in "private law" caes (i.e. cases not involving local authorities).

The Justice Committee is calling for evidence from interested parties in relation to proposed sentencing guidelines for assault cases.  Submissions have to be made by 10th Novermber - see here.

A video of the Lord Chief Justice at the Justice Committee may be seen here.  It is over an hour in length but is well worth watching.

Monday, 25 October 2010

Bribery ... business needs to prepare for the Bribery Act 2010

The Bribery Act 2010 received Royal Assent on 8th April 2010.  It is a complete overhaul of the law relating to bribery and covers bribery both in the UK and abroad.  The Act also goes a long way toward the implementation in English law of the requirements of the United Nations Convention against Corruption.  The Act will come into force in April 2011.  Explanatory Notes to the Act are available.  The Act extends to England and Wales, Scotland and Northern Ireland.



The key features of the Act are: 
  • a more effective legal framework to combat bribery in the public or private sectors
  •  replacement of the fragmented and complex offences at common law and in the Prevention of Corruption Acts 1889-1916 
  •  two general offences covering the offering, promising or giving of an advantage, and requesting, agreeing to receive or accepting of an advantage 
  •  a discrete offence of bribery of a foreign public official 
  •  a new offence of failure by a commercial organisation to prevent a bribe being paid for or on its behalf (it will be a defence if the organisation has adequate procedures in place to prevent bribery)

The last point relating to failure by a commercial organisation to prevent bribery is very important.  "Relevant commercial organisations" are basically registered companies and partnerships and they will have to have procedures in place to prevent bribery - e.g. where a person associated with a company bribes someone in order to get business for the company.  The Secretary of State is to issue guidance about such procedures and the Ministry of Justice is consulting about this - see "Consultation on guidance about commercial organisations preventing bribery."   The sections of the Act dealing with this aspect may be seen here.

Ethical Corporation offers one view as to how business should prepare so as to ensure that may have the defence, under section 7(2) of the Act, of "adequate procedures."  Nevertheless, applying the government's guidance (when issued) will be crucial since the Act clearly bases the defence on this guidance.

Saturday, 23 October 2010

Mental Health Courts

During 2009, so-called “Mental Health Courts” were piloted at Magistrates’ Courts in Brighton and Stratford and an evaluation report has been published – see “Process Evaluation of the Mental Health Court pilot” (September 2010 - Drs. Jane Winstone and Francis Pakes).   The experiences of some offenders dealt with by the “Mental Health Courts” are documented in separate reports which may be read here

If Mental Health Courts are to have any chance of success, appropriate resources are essential and so is training of the judiciary.  Community sentences can be tailored to the circumstances of the particular offender and a key element in a sentence might be periodic reviews by the court of the offender’s progress.  Such “in court” reviews have often proved to be beneficial in dealing with offenders sentenced to a drug rehabilitation requirement.

The evaluation report states that - “Extensive multi-agency collaboration and data-sharing arrangements were achieved in both sites.”  It remains to be seen whether, in these financially difficult times, such resources and training will be available at all the courts as this project is “rolled out.”  

This is an important development in criminal justice but the question remains whether it will be just another “initiative” which flounders for lack of adequate resources.  Alternatives to prison are not necessarily cheap.

Mental Health Courts have been tried in other countries – notably the USA .  For some of the literature on this see National Center for State Courts  which concludes on the positive note that Mental Health Courts showed great promise in their attempt to address the unique needs of the mentally ill who enter the criminal justice system.

Addendum 28th October:   The UK Human Rights Blog has also taken a look at Mental Health Courts.  See the item by barrister Adam Wagner - "Specialist Mental Health Courts are a good idea which may never happen" - 17th September 2010.    Please also have a look at the comments to this post, one of which is from Mr Wagner.

The criminal law and mental health have a complex and somewhat uneasy relationship.  It is hoped to explore some of those issues in later posts.

Thursday, 21 October 2010

Courts facing closure: views of Lord Justice Goldring --- and other matters

On 6th September we asked “Is “Justice” in safe hands”?   That post looked (amongst other things) at the cuts to the Magistrates’ Courts:

“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.”

It would appear that the Senior Presiding Judge – Lord Justice Goldring – agrees wholeheartedly with those views though it is highly unlikely that His Lordship pays much attention to law blogs!  Goldring LJ has responded to the Ministry of Justice proposals to close down many magistrates’ courts and his views may be read in the Solicitor’ Journal.    He points out that the consultation contains factual errors;  fails to take account of travelling times or the impact on family work and he warns of the prospect of further delay to dealing with cases.  Also, the projected savings of £15m ignore additional costs created by the closures and the loss of local courts could damage the recruitment and morale of magistrate.

Following on from the Spending Review, The Guardian claims that one in five prison and probation officers will lose their jobs - see "Policing and Criminal Justice cut by 20%."   Even if The Guardian's headline claim is rather simplistic - (since x% off a budget does not necessarily equate to x% staff) - the impact is likely to be severe.  It is little use seeking to send more offenders on community sentences if the various programmes are not properly manned by well-qualified and experienced personnel.  The delivery of quality community programmes will be even more essential if the confidence of the judges, magistracy and the general public is to be maintained.

In the Family Justice Area, the government has announced that fees charged to local authorities for bringing care proceedings will not be abolished pending the outcome of the Family Justice Review which is looking at reforms to the handling of both public and private law family cases.  The Solicitor's Journal carries the story.

Footnote:  The building pictured above is Salford Magistrates' Court which the Ministry of Justice has included in the proposals for closures.  Although Salford is a distinct city to Manchester and has its own proud history it will end up without a magistrates' court.  The principal reason seems to be that there is no money to refurbish this fine old building.  The outcome will be that two cities will share what is now Manchester City Magistrates' Court which is just about managing to cope at present with Manchester's work.

Addendum 26th October:  It now seems that Salford Council are putting forward a proposal which may save Salford Magistrates Court - see BBC.  A solution along the lines suggested would make eminent good sense.  The alternative would be closure of a "listed" building which would rapidly deteriorate and become an eyesore in central Salford.

Law Centres in Manchester facing closure

As we watch “high profile” criminal and divorce "ancillary relief" cases proceeding through the courts, it is worth noting that at the far end of the legal scale very valuable Law Centres are now struggling to survive.  This is certainly the case in Manchester where two centres serving deprived areas may have to close before Christmas – see  “Manchester Law Centres may face closure” – The Guardian 21st October 2010.  It appears that the Law Centres have lost out to the Citizen’s Advice Bureau in a tendering process.  For many years, the Centre has provided free legal advice and representation in important areas such as housing, welfare benefits, employment etc.  See South Manchester Law Centre.

Wednesday, 20 October 2010

A world apart from ordinary justice: almost a parallel universe

media video is available of Mr Nigel Pleming QC arguing in the Supreme Court of the U.K. that the men, charged under the Theft Act 1968 s.17 in relation to expenses claims submitted when they were Members of Parliament, may not be tried in the Crown Court.  Mr Pleming stated that it was not because the men claim to be "above the law" but they do claim that only "The High Court of Parliament" may deal with this matter.

From a purely historical perspective, Parliament certainly was the "High Court of Parliament."  Until the Criminal Justice Act 1948, a peer could claim a right to be tried there.  Furthermore, obsolete procedures such as impeachment and Bills of Attainder appear to remain as, albeit, remote and rather theoretical possibilities.  Of course, until the creation of the Supreme Court of the U.K., it was the Appellate Committee of the House of Lords which stood at the apex of British legal systems.  Interestingly, perhaps the principal argument for the creation of the Supreme Court was the separation of judicial functions from the legislature.

A modern Parliament fit for the 21st century should disclaim any jurisdiction in criminal matters and should confine itself to the proper role of a legislature: scrutinising proposed legislation, enacting well-considered new law and holding the executive to account through debate and the various committees.  The trial processes of the Crown Court are designed to ensure due process.  Parliament itself does not have similar procedures and rules of evidence etc.  Any "trial" before Parliament is unlikely to reach modern standards of due process required in criminal trials.

A further aspect of the expenses matter is the question of why have these particular men been singled out for prosecution?  The expenses scandal was widespread and affected (in different ways) members of both Houses of Parliament.  Members from all parties engaged in practices such as "flipping of homes" and these commonplace practices appear to have been generally accepted by the Parliamentary authorities at the time.  Of course, now that the men have been charged, they are perfectly entitled to advance any relevant legal argument in their defence.  That is their absolute right.  It matters not that they are praying in aid outdated and arcane law which really ought to be reformed.

When this costly case - (which has been heard by the Court of Appeal and now has nine Supreme Court justices sitting) - is viewed against the backdrop of massive cuts to legal aid and denial of access to justice for thousands of people it really does make one wonder just what sort of country we are living in.

Addendum 21st October: The Independent "Peers suspended from Lords over expenses claims"

Monday, 18 October 2010

The week ahead - Monday 18th October

The Supreme Court is hearing argument in the M.P.'s expenses case - (R v Chaytor and others).  This is an appeal from the Court of Appeal Criminal Division which held that the Bill of Rights 1688 Article 9 did not protect Members of Parliament from criminal process.  The Supreme Court's website informs us that the issue now is whether the Crown Court has jurisdiction to try a Member of Parliament in relation to the submission of an allegedly dishonest claim for Parliamentary expenses or allowances, or is the court deprived of jurisdiction by either or both of (i) Article 9 of the Bill of Rights 1688; or (ii) the exclusive jurisdiction of Parliament.  Read the Court of Appeal's judgment here.

The appellants have each been committed for trial in the Crown Court on charges of false accounting contrary to s 17(1) Theft Act 1968 arising from their submission of claims for parliamentary expenses and/or allowances at a time when each appellant was a sitting Member of Parliament.

The Supreme Court's judgment in Radmacher v Granatino is expected on Wednesday 20th.  This case concerns the effect of "pre-nuptial agreements."  The details may be read here.  The Court of Appeal's decision handed down in July 2009 may be read here- Court of Appeal.  There is now something of a legal conundrum.  The agreement is not binding but may be taken account of by a judge when making an order under the Matrimonial Causes Act 1973 s.25.  Nine justices of the Supreme Court heard the case.  There is bound to be differences between them.  We shall see.

Delivering the 2010 Tom Sargent Memorial Lecture, Rabinder Singh QC has taken up the theme of whether we need a written constituion.  He thinks that we do.  This is a subject "Law and Lawyers" has touched on previously and will do so again.  There are strong arguments for and against though one feels that the balance of the argument is now tilting towards the need for a written constitution if only because it might prevent politicians changing the playing field for short-term political advantage.

Of course, the news this week is likely to be dominated by the announcement of the Government's Spending Review.  The likely impact of that on justice is expected to be massive and some of the areas for cuts have already been heralded - e.g. magistrates' court closures; reductions in legal aid etc.  One seriously hopes that we do not reach a situation in which access to the courts becomes beyond the ordinary person.  The courts and tribunals of the land must never be allowed to become the playground of just the rich.

Addendum 20th October:  The judgment in Radmacher v Granatino is now available - here. By a majority of 8 to 1, the Supreme Court has upheld the Court of Appeal's decision which, in the circumstances of the case, gave decisive weight to the pre-nuptial agreement entered into in Germany.  Lady Hale was the dissenting justice.  The judgment contains a number of caveats - e.g. pre nuptial agreements will not be allowed to prejudice the reasonable expectations of children of the marriage.  Further analysis will undoubtedly become available from the divorce law experts.

Addendum 21st October:  The Guardian published one view of the Radmacher decision which, according to the writer, is likely to lead to exploitation - here.

Addendum 25th October:  See "The Supreme Court and pre-nups: a victory for 40-year-old law?"  Marilyn Stow blog.  A further view is that of Jeremy Abraham writing in the Solicitor's Journal - "Untold riches."  Yet another view appears in The Lawyer 20th October - "Leaning one way."  The there is the view that the decision might have a gender bias - see Hayley Trim's analysis: Conscientious objections: The Dissent of Woman."

Saturday, 16 October 2010

The Compensation "Culture" - "Common sense: common safety"

Lord Young of Graffham's report - "Common sense: common safety" - has been published.  It contains a significant number of recommendations which, if implemented, will affect the "health and safety" regime across the legal system, business, education, local government etc.  The full report may be read here.

The government has welcomed the report and "accepts" the recommendations though some will require legislation if they are to be implemented.  Here is the reaction of No. 10 .   See also  The Guardian 16th October - "Ending the 'compensation culture' is not as simple as it seems"  .  The Cabinet Office coverage of the report may be read  here.

It is worth noting that Lord Young says - 'The problem of the compensation culture prevalent in society today is, however, one of perception rather than reality.'  It is worrying to think that the politicians appear to ignore such comments.  The prime Ministers said - 'A damaging compensation culture has arisen, as if people can absolve themselves from any personal responsibility for their own actions, with the spectre of lawyers only too willing to pounce with a claim for damages on the slightest pretext.'

I recommend a reading of Lawyerwatch - an excellent blog by Richard Moorhead (Professor of Law, Cardiff University) who covers this (and many other) topics.

The Health and Safety Executive has welcomed Lord Young's report - see HSE Lord Young - and the Chair of the HSE (Judith Hackitt) has given an interview about it - here.   Interestingly, one of Young' recommendations is to abolish the Adventure Activities Licensing Authority - see here.

Friday, 15 October 2010

Tribunals: the loss of the AJTC

The Administrative Justice and Tribunals Council is one of the public bodies to be axed under the goverment's reforms. Tribunals are a major part of the justice system - for more information see Lawobserver - Tribunals.  The AJTC (and its predecessor - the Council on Tribunals) has played an important role in ensuring that Tribunals operate to proper standards of procedural fairness.


Richard Thomas, Chairman of the AJTC, said - “Government bodies and local authorities are taking tens of thousands of decisions every day which are of real importance to individuals and their families. This year there will be about a million appeals to tribunals. Although - as the independent voice of the user - we will no longer be able to oversee the administrative justice system, it will remain essential to ensure that users’ needs are central. Much remains to be done to maximise customer satisfaction and access to justice and minimise cost, delay and complexity.”

The AJTC's predecessor was the Council on Tribunals which was created following the Franks Report of 1957 (Cmnd. 218).  Franks itself arose from serious concern about the standards of due process used in the tribunals of the day.  The Franks Report led to the Tribunals and Inquiries Act 1958 which was later replaced by the Tribunals and Inquiries Act 1992.  It is under these Acts that the AJTC has played an important role in the supervision of Tribunals and a key element in this supervision related to the procedural rules.
 
The tribunal structure has been going through major revision as a result of the Tribunals, Courts and Enforcement Act 2007.  This Act seeks to bring all tribunals into a unified tribunal system under judicial control.  Thus, many of the previously separate tribunals (many linked to various government departments) have now been brought within either the First Tier Tribunal (with its six "Chambers") or into the Upper Tribunal (with four "Chambers").

The exact reasoning why the AJTC is no longer considered to be necessary is not clear but it may be that it is seen as unnecessary in the light of the new tribunal structure.  It ought to be incumbent on government to at least justify publicly each individual "cut" being made as part of an exercise which is, according to the Ministry of Justice, aimed at improved "accountability" as well as financial savings.

There is also a  Tribunals Service – an executive agency of the Ministry of Justice – which provides administrative support to certain tribunals.  This service is to merge, from 1st April 2011, with Her Majesty's Court Service.

Thursday, 14 October 2010

The Quango Cull --- Sir Philip Green's "efficiency' report

The government has announced its plans for many of the public bodies.  Many will be abolished.  Functions will be transferred.  Some remain under review.  Others have been spared.  The list may be seen here.   


The Ministry of Justice website gives further information regarding various bodies connected with "justice" generally - see here.

 
Six public bodies will no longer operate as non departmental public bodies:

  • The Youth Justice Board for England and Wales will be abolished and its functions brought within the Ministry of Justice
  • The Legal Services Commission will become an executive agency of the Ministry of Justice
  • The Victim’s Advisory Panel will be abolished
  • The Administrative Justice and Tribunals Council will be abolished
  • Courts boards (19 in total) will be abolished.
  • The Crown Court Rule Committee’s functions will be transferred to the Lord Chief Justice in consultation with other rule committees.

Four public bodies will no longer operate as statutory bodies: 
  • HM Inspectorate of Court Administration will be abolished
  • The Legal Services Ombudsman will be abolished
  • The Magistrates’ Courts Rule Committee’s function will be transferred to other rule committees
  • The Public Guardian Board will be abolished.
 In addition, certain planned functions of the Chief Coroner’s Office may be transferred to alternative bodies.

A primary "driver" behind all of this is supposedly the saving of money though the whole exercise is now being presented as an improvement in "accountability."  It has to be doubted just how much will be saved particularly given the likelihood that many of the staff in "redundant" quangos will be absorbed into new bodies or into the civil service itself.


Sir Philip Green's "Efficiency Review" report has also been published - here.  It is sad indictment of the state of affairs within government administration.  Little wonder really!  Politicians and civil servants are not business people are they?  Few, if any, businesses would survive with anything like the level of profligacy revealed by Sir Philip.

Speaking of "profligacy" the cavalcade of vehicles used to take Herman Van Rompuy (President of the European Council) from Brussels to Paris requries some proper explanation to the increasingly hard-pressed people of Europe - see here.   

Addendum 15th October 2010:  Controversy over scrapping the Youth Justice Board.  See also the view of Frances Crook of the Howard League.

A further interesting angle relates to Britain's military commitments.  These are immensely expensive but the USA is reported to be concerned about any reductions - see Telegraph 15th October "Liam Fox assures US of Britain's commitment to NATO."  International commitments, such as NATO, lock the UK into considerable expenditure and this means that the cuts are likely to fall disproportionately on other areas such as "social welfare."  

Writing in The Guardian ( "Legal aid delivers justice; kind lawyer's won't"), Afua Hirsch expresses concern about reductions in legal aid and the problems arising in welfare law areas such as housing, debt, immigration etc.  These areas are of enormous importance to many people and, given the recession, the numbers affected may well increase.

On-going matters in Northern Ireland: a legacy of the Diplock Courts

In June 2010, the long awaited and very expensive Saville Report was published – see Law and Lawyers 15th June.   Whilst giving evidence to the House of Commons Northern Ireland affairs Committee, the Inquiry Chairman (Lord Saville of Newdigate) has defended the money paid to Sir Christopher Clarke QC (Counsel to the Inquiry).  Clarke received some £4.5m.

Meanwhile, legal issues continue to arise in relation to convictions in the “Diplock Court” judge-only system of trial which prevailed from 1973 to 2007.  A considerable number of cases have been referred to the Northern Ireland Criminal Cases Review Commission alleging that confessions were obtained by oppressive means and that those confessions were accepted by the Diplock “ courts – The Guardian 11th October 2010 sets out further information.    A number of convictions have already been quashed and compensation paid. 

This form of non-jury trial was suggested by the late judge Lord Diplock (1907-1985) to address problems of jury intimidation in certain cases in which “scheduled offences” were to be tried.  Diplock’s report can be seen here.  Under the Justice and Security (Northern Ireland) Act 2007 the Diplock court system was replaced by a revised system in which the Director of Public Prosecutions for Northern Ireland may issue a certificate to require a judge only trial.  It was considered (after public consultation) that it remained necessary to keep some form of judge only trial for a certain type of case.  This system of certificates was given a limited life of 2 years from 1st August 2007 but, in 2009, this was extended for a further 2 years to 1st August 2011.  Paul Coggins (NI Justice Minister) said in March 2010 that retention of non jury trial continued to be necessary – see BBC.

Much has been written about the Diplock Court system.  The courts relied heavily on confessions.  This stimulated much concern and probably encouraged unacceptable interrogation techniques with the attendant risk of miscarriages of justice.

Under the Criminal Justice Act 2003, non-jury trial is possible in England and Wales if jury intimidation is alleged – Law and Lawyers 24th July.   The affairs of Northern Ireland also had an effect on the rights of defendants in England and Wales in the “right to silence” provisions introduced by the Criminal Justice and Public Order Act 1994.   Almost identical provisions had been previously enacted for Northern Ireland and were basically “copied over” in to the 1994 Act.

An interesting and detailed study - "War on Terror: the lessons from Northern Ireland"  - may be read here.  It is quite lengthy but well worth a read by the student wishing to form a more in depth knowledge.

Addendum 16th October 2010:   Given that this post ought to remind us of the value in society of the jury, it was interesting to read an article by Jon Robins (Guardian 13th October) - "Ricin Trial ullustrates the importance of juries."

Wednesday, 13 October 2010

Assault cases - Guidelines Council consults on revised sentencing framework

The Sentencing Guidelines Council is consulting on a revised framework for sentencing assault cases - see SGC Consultations.  There is a "Public Consultation" and a "Professional Consultation".

The Independent newspaper view of the consultation may be seen here.   The Chairman of the Council (Lord Justice Leveson) claims that the revised guidance is not aimed primarily at cutting prison costs by reducing the use of imprisonment for these offences.  He claims that he is seeking a fair, proportionate and understandable system as well as consistency of approach across the country.  The reader can be the judge of that by responding to, at least, the public consultation.

The consultation looks at the whole range of possible "assault" charges from grievous bodily harm to common assault.

Tuesday, 12 October 2010

Liverpool Football Club dispute reaches the High Court

Today (12th October) the problems affecting Liverpool Football Club will reach the High Court Chancery Division.  At the heart of the case is a dispute between the American "owners" (Messrs. Hicks and Gillette) and the board of directors but the Royal Bank of Scotland - as a major creditor - have a huge interest.  See Telegraph 12th October

The Chancery Division is one of the three principal "divisions" of the modern High Court of Justice.  The others are the Queens Bench Division and the Family Division.  Historically, the Chancery Division's predecessor was the ancient Court of Chancery which emerged in the Middle Ages (probably in the late 14th century and early 15th century).  The court appears to have grown out of a practice by which persons unhappy with the outcome of an action in the common law courts would petition the King's Chancellor to do justice.  The Court of Chancery developed the body of law known as "Equity" which operated alongside the common law.  "Equity" always "followed the common law" but, as part of the process of achieving justice and fairness, the Court of Chancery developed new doctrines such as trusts and new remedies such as the injunction (usually aimed at preventing something).  Interestingly, in the Liverpool FC case, the judge issued an injunction to prevent the American owners seeking to dismiss the directors.

The work of the modern Chancery Division is considerable.  It is complex work and is of major economic importance but does not reach the attention of the media anything like as much as the big criminal cases!  The scale of Chancery work may be seen on the website of the Chancery Bar Association.

For more information about "Equity" as a body of law see here.

Addendum 13th October:  The Independent report on the decision of Mr Justice Floyd may be read here.

Addendum 1 -  14th October:  The District Judicial Court, Dallas County, Texas, USA has issued a "Temporary Restraining Order" against Martin Broughton, Christian Mark, Cecil Purslow, Ian Ayre, The Royal Bank of Scotland PLC, NESVI and Philip Nash.   The legal effectiveness in the UK of this order is questionable but it may be read via The Guardian.

The action in the Texas court has been brought by a number of companies (which are controlled by Messrs. Hicks and Gillette).  The companies include Kop Investment LLC which is based in Dallas, Texas and this is the ultimate "holding company".   Underneath Kop Investment LLC are several other companies (including one based in the Cayman Islands) until one reaches Liverpool Football Club and Athletic Grounds Ltd (which people would ordinarily think of as "Liverpool FC").  This "chain" of companies with a Dallas based company at the top of the pyramid may be the reason why the Texas court considers that it has some jurisdiction in the matter?

It is unclear whether, given this action in Texas, the Royal Bank of Scotland - (based in Edinburgh) - will now seek to exercise the "nuclear option" of issuing a winding up petition.  The RBS is a major creditor and, lest it be forgotten, above them is the British government which owns some 84% of RBS - (a shareholding managed via UK Financial Investments Ltd).  It may well be necessary for action to be taken to protect the ultimate interest of the hard-pressed British taxpayer in all of this.

Addendum 2 -  14th October:  The High Court has now ruled that the "restraining order" of the Texas Court is ineffective in this country - see here.  Further details in The Telegraph.

Addendum 3 - 15th October:  The restraining order obtained by Messrs Hicks and Gillette was withdrawn and a purchase deal by NESV of Liverpool was concluded.   The deal appears to clear most of the debt owed to Royal Bank of Scotland.  It appears that Hicks and Gillette are persisting in a claim for damages on the basis that the sale is at an undervalue.  See BBC 15th October.  How, against whom and where that claim will be pursued remain to be seen.  Within the English courts, alleged sales of companies at an undervalue have been productive of some very difficult litigation.

Addendum 4 - 16th October:   Messrs. Hicks and Gillette have withdrawn their claim for damages in the Texas Court.  Nevertheless, it is reported that they may bring an action in the English courts - see The Guardian 16th October - though it is claimed that Liverpool Football Club will not be one of the defendants.

Monday, 11 October 2010

A problematic sentence: R v Bolton, Griffin and Marshall - Manchester Crown Court


Some sentences handed down by judges make people wonder just where the law is heading.  Three men in Manchester have just received "Intensive Alternative to Custody" - (which is available in Greater Manchester) - sentences for an appalling crime.  Please read Manchester Evening News 11th October 2010.

It is extremely hard to see why they are not now serving a substantial prison sentence.  Assault occasioning actual bodily harm - to which they pleaded guilty - carries a maximum sentence of 5 years.  It also makes one wonder what help and support is being given to their victim - see here.

The case also highlights the need for "Sentencing Remarks" to be published in full.  The public ought to be entitled to see the reasoning behind sentences handed down in serious cases.  The new Scottish Judiciary website does so.


Addendum 16th October:  The Guardian refers to the case at Manchester in an article by Ian Birrell - "A whirlwind of hatred against the disabled."  Mr Birrell is the father a child with severe learning difficulties.  With reference to the Manchester case he wrote: 'In Manchester this weekend there are three sadistic young men swaggering around, no doubt still laughing, not least at how they escaped jail. And in another part of Britain their scarred victim is trying to rebuild his life, having being forced to move home as punishment for being tortured. Is this really the kind of country we want to live in?

Sunday, 10 October 2010

Why should the Police be accountable --- even to the law?

Why should the Police be accountable, even to the law?  Here is a suggestion  from the Commissioner of the Metropolitan Police that the rules should change so that is made much harder to take legal action against the Police.  Given the undoubted influence that Senior Police Officers and ACPO have over government, are we now entering a time in which government will use their power to amend the law so that State Authorities are able to act against the ordinary citizen without without any fear of the consequences?  I hope not.  READ - The Guardian 10th October 2010.  Maybe, certain senior Police Officers are getting too big for their boots?  One may wonder just - (a) what the Home Secretary's immediate response will be and (b) what will happen "longer term".  Will government quietly accede to the Commissioner's request?

Addendum 11th October:  "Sir Paul Stephenson must not tolerate police abuse of power" - The Guardian, Fiona Murphy.  "The Cost of Poor Policing" - Jules Carey, Guardian 11th October.

Addendum 15th October:  Read the Solicitor's Journal regarding the story of barrister Colin Challenger who was arrested and handcuffed at the High Court.

Saturday, 9 October 2010

Legal news items and some light relief ...


A number of other newsworthy legal stories were in the media this week.  There was a verdict in the Mark Saunders Inquest – see The Independent 8th October 2010.    There was NOT a finding of unlawful killing by the Police.  However, both the jury and the Coroner were critical of aspects of the Police’s conduct – see Telegraph 8th October.    

The Foreign Secretary addressed the Conservative Party Conference and promised the faithful a “sovereignty clause” in a Bill to be presented in the autumn.  He said that EU Directives would take effect in the UK only by the will of Parliament which could be withdrawn.  The idea has already been criticised as Monkeying with Sovereignty (article by barrister Carl Gardner) and as “Hague’s great ‘nonsense’ on Sovereignty” (Charon QC blog).  With respect to those learned writers, I tend to agree.  The principle (in EU law) of the Supremacy of EU Law is well-established by decisions of the Court of Justice of the EU (formerly called - the ECJ).  In fact it was established before the U.K. acceded to the "communities" in 1973.  The matter came to a head in the massively costly Factortame Cases when, by the Merchant Shipping Act 1988, the U.K. tried to exclude Spanish Fishermen from certain waters.  [As far as I could tell, neither side seemed to see the utter folly of over-fishing the sea! ].   Despite the EU doctrine, it remains the case that Sovereignty for the United Kingdom continues to rest with the "Queen in Parliament" and, in English legal theory, they can make or unmake any law they wish.   They could take us out of the EU and it is a legal fact that EU law making only has effect in the U.K. because the Q in P willed it to be so - European Communities Act 1972. We will await Hague's attempt to "square this circle" with interest.  (For more on the Supremacy of EU law see Lawobserver).

 The other address to the Conservative Conference was by Kenneth Clarke who, according to Joshua Rozenberg writing in The Guardian, revealed what cuts mean for the courts – “It’s not just using lawyers that Ministers want to discourage, it’s using the courts themselves”.  An emerging and recurrent theme on this blog is that “access to justice” is severely threatened.


For an enjoyable read and some “light relief” see “London Counsel” on The Baby Barista Blog.

Friday, 8 October 2010

Bonfire of the Quangos


Those public bodies known as “Quangos” – the acronym for “Quasi-autonomous non-governmental organisations” – are no longer flavour of the month within government circles even though many of them have important legal and/or regulatory roles.   There is to be a “Bonfire of the Quangos”.  The death warrants to begin this “auto da fé ” will be issued shortly.  However, when the dismantling costs are factored in, the amount of money to be saved in the early years is not as big as many would like or perhaps imagine - The Guardian 7th October 2010 – “Government’s ‘bonfire of the quangos’ plan will cost as much as it saves”.   The "dismantling costs" relate to liabilities for pensions, redundancies and rental contracts.

The Guardian has also set down a list of those quangos which are either to be axed or reviewed – here

The government is pressing ahead with a Superannuation Bill which will place a cap on payments under the Civil Service Compensation Scheme - see Cabinet Officethe Bill and Explanatory Notes.

Under review:

Many might be surprised that some of the bodies in the list even exist – e.g. why we  have an “Advisory Committee on Conscientious Objection” even if, for some individuals serving in the military, it may prove to be necessary – see here?   Other bodies listed for review include some which surely perform necessary functions: the Child Maintenance and Enforcement Commission; the Criminal Injuries Compensation Authority; the Law Commission and the Equality and Human Rights Commission.

To be abolished:

The abolition list includes the Audit Commission; the Human Fertilisation and Embryology Authority; Human Tissue Authority; Security Industry Authority; the Legal Services Commission; the Standards Board for England and Wales.  Many (arguably most) of these perform important functions which will still have to be performed somewhere.  Obviously, if the task remains then so do some of the costs.  

Mergers:

Bodies earmarked for merger include Advisory Committees on Justices of the Peace; the Crown Prosecution Service; various tribunals; the Gambling Commission; the National Lottery Commission; OFCOM etc.   Details of the mergers are yet to be announced but there are significant costs involved in mergers.

Is there a case for a more measured approach to reducing this large array of public bodies?   Is there a danger that the surgery will cause further difficult problems which will then have to be rectified at great costs?  There are certainly considerable risks in a too hasty wielding of the scalpel.  Just one final thought:  the reason for creating a quango has often been a Minister's desire to distance himself from the day-to-day issues for which he might be held accountable if the task remained in his department.  Remember the Michael Howard and Derek Lewis row?

See "Read before burning ...." - Institute for Government   Looks at how the accountability and effectiveness of quangos might be improved.  For a view that "Big Government" is here to stay despite the Spending Review - see here.

Thursday, 7 October 2010

The Parliamentary Voting System and Constituencies Bill


The Political Party conferences are over and the House of Commons will begin sitting on Monday 11th October.  On Tuesday 12th, the Parliamentary Voting System and Constituencies Bill will be debated by a “Committee of the Whole House”.  Constitutionally, the Bill presents the possibility of yet another major change.

First, there will be a referendum – to be held on 5th May 2011 – to see whether the electorate votes in favour of abolishing the present “first past the post” system of election and replacing it with the form of “Alternative Vote” included in the Bill.

Alternative Vote (AV) will permit each voter to indicate an order of preference for each of the candidates – 1, 2, 3 ... etc.  The voter may indicate just one preference.  However, a voter who does this may well limit his or her influence over the eventual outcome since the vote would not count if the chosen candidate failed to secure over 50% of the vote at the first count.

The size of the House of Commons will become limited to 600 members each one representing a new constituency.  [An exception to “new” constituencies is that, in Scotland, the Western Isles and Orkney-Shetland will remain as they currently are].   The task of drawing up the revised constituency boundaries will be undertaken by the four Boundary Commissions and they will have until the end of September 2013 to do so.

An interesting angle, somewhat hidden in the detail, relates to prisoners.  Those prisoners who are not eligible to vote in an election will not be able to vote in the referendum.  The government claims that this will not breach Protocol 1 to the European Convention on Human Rights since, they argue, the referendum is not an election concerning the choice of the legislature.  Article 3 of Protocol 1 states: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”



The key features of the alternative vote system set out in the Bill are that:

Voters rank candidates on the ballot paper in order of preference, using 1, 2, 3 etc.

Voters may express a preference for as many or as few candidates as they wish. This means that a voter may vote for one candidate only if they wish. This is known as an ‘optional preferential’ system.

If after the counting of voters’ first preferences, any candidate has more than 50% of the votes at this stage then he or she is declared the winner. 

If no candidate has more than 50% of the votes counted, then there would be a further round of counting. The candidate in last place is eliminated, and each vote originally allocated to the eliminated candidate is reallocated to a remaining candidate according to the next preference expressed on each ballot paper. 

Where there is no next preference given, the ballot paper cannot be reallocated and is no longer counted. If a candidate has more than 50% of the votes left in the count once this reallocation has taken place he or she is elected. If not, then a further round of counting will take place and the candidate now in last place is eliminated and their votes reallocated. This process continues until one candidate has more than 50% of the votes left in the count, and is elected. 



Other information:

The changes in the Bill were first set out in Coalition: Our Programme for Government

Explanatory Notes to the Bill are also available. 

The Electoral Reform Society website contains excellent information about AV 


AV – the case for reform – Guardian 7th September 2010

Tribune Magazine – 20th September 2010 arguing that Labour should oppose this Bill

“AV opens the door to a new political world in which coalitions become the norm, and single-party majority government a distant memory. Defeat for AV could quickly end the coalition. But success would bind it together – for a long time to come.” - Vernon Bogdanor

Monday, 4 October 2010

Equality Law

On 1st October 2010 much of the Equality Act 2010 came into force.  It is a large Act - 218 sections and 28 schedules.  In addition, there are several statutory instruments fleshing out various aspects of the law.  Much of the "equality / anti-discrimination" legislation passed over the last 40 years is replaced.  The Government Equalities Office website is a valuable resource of information.  Further information is available here.

A number of important aspects of the Equality Act 2010 have not yet been implemented and remain under consideration.  These include positive discrimination in recruitment and promotion as well as age discrimination in services and public functions.

The Equality and Human Rights Commission has also published Guidance and there is a Video Presentation.

Another important area is how the Act will affect charities.  Subject to a number of caveats, the Act gives charities an exemption so that they can restrict benefits to people who have a shared "protected characteristic" - (e.g. to provide benefits to old people).  The Charity Commission has issued some guidance in this area.

Dealing with persons appearing before courts and tribunals is a further aspect.  The Judicial Studies Board has issued - "Fairness in courts and tribunals: A summary of the Equal Treatment Bench Book".  This is essential reading for anyone involved in any capacity with courts and tribunals.

The Ian Tomlinson case - further controversy

In July, it was announced that no criminal charges were to be brought against the Police Officer (P.C. Harwood) who pushed Mr Ian Tomlinson - see here.  There has still to be an inquest into Mr Tomlinson's death and this is not likely to happen before May 2011.  There is also to be a Disciplinary Hearing against the officer - see post of 27th July.  It now appears that the Metropolitan Police are keen to get the Disciplinary hearing over with before the end of the year - report in The Guardian Monday 4th October 2010.  The Guardian comments as follows:

"One factor for the Met's decision to hold the hearing before the inquest is that it could be less damaging for its reputation if Harwood appears at the inquest as a former officer."

The actual source for that viewpoint is not stated but the sentence is very unsatisfactory since it might be read as suggesting that the outcome of the Disciplinary Hearing is already determined.

Given the problems involved with the various post-mortem examinations it would seem preferable that the disciplinary hearing is not held until after the inquest.  There is a clear conflict between the views of
Dr. Patel - who was (controversially) appointed to conduct the first post-mortem - and the other experts as to the cause of death.  It should also be noted that the CPS in making the decision not to prosecute ended their statement by saying - "At the conclusion of the inquest the matter will be reconsidered by the CPS in the light of any evidence which may be presented".  That is surely another factor pointing against holding the disciplinary hearing before the inquest since the holding of the disciplinary hearing might well go against any such reconsideration of the prosecution decision.  Ultimately, whilst the Metropolitan Police might well wish to move on from this matter, the public interest in getting the process right is overwhelming.

Sunday, 3 October 2010

The Ministry of Justice: Turkey; Secure Training Centres

The U.K. Government supports Turkey's desire to become a member of the European Union - see, for example, David Cameron's speech 27th July 2010.  The Ministry of Justice, even in these times of cuts and national austerity, has been able to send Lord McNally (Minister of State) to Turkey to look at a probation project for young offenders.  The project involves Turkish officials working with "MoJ experts" to develop training programmes and manuals for staff working with young offenders - see Ministry of Justice 1st October 2010.  Given that legal aid here is being slashed to the bone, it would be good to know whether Turkey is bearing the cost of this and, if so, by what amount.

Restraint in Secure Training Centres:

 In England there are 4 Secure Training Centres (STC). There has been an on-going issue relating to the use of various methods of restraint on the young persons held in such centres.  Two manuals have now been issued by the Ministry of Justice to deal with "Physical Control in Care" and "Personal Protection" for personnel - see Ministry of Justice.

The deaths of Gareth Myatt and Adam Rickwood raised the public profile of this issue.   A Parliamentary Joint Committee on Human Rights examined the subject in the 2007-8 session and issued a detailed report.  In R(C) v Secretary of State for Justice [2008] EWCA Civ 882, the Court of Appeal quashed rules aimed at amending the Secure Training Centre Rules 1998.  In December 2008, the Ministry of Justice published a review report into restraint across Young Offenders Institutions, Secure Training Centres and Secure Children's Homes - see here.  In August 2010, it was reported that the Youth Justice Board was to offer "conflict resolution" training in an attempt to stem the use of restraint - see Children and Young Persons Now 10th August 2010.

In January to March 2009, restraint was used in England's 4 STCs on 478 occasions.   In April to June 2009 it was used 535 times - Children and Young People Now - 25th May 2010

Secure Training Centres date from the Criminal Justice and Public Order Act 1994 which provided for Secure Training Orders and enabled the management of the centres to be "contracted out".  Secure Training Orders were later renamed Detention and Training Orders.

It is a moot point whether the Ministry of Justice is still on top of the problems relating to STCs and, in particular, the use of restraint.  Perhaps the UK government might be better applying itself to putting our own house in order rather than spending time in Turkey?

Saturday, 2 October 2010

Family Law and legal aid .... do families not bleed?

The High Court has quashed the tendering process used by the Legal Services Commission to award legal aid contracts to family law firms - see Law Society and Law Society Gazette.  See also the earlier post on Law and Lawyers.   Unfortunately, this is likely to be akin to winning a skirmish whilst eventually losing the war.  The government plans to turn the Legal Services Commission into an executive agency of the Ministry of Justice - (Guardian 3rd March).  There is little doubt that the objective will remain to reduce the number of legal aid firms practising in this area.  Arguments that vulnerable children may well suffer appear to cut no ice.

The Times 30th September, published an article by Camilla Cavendish - "If we cut legal aid, do families not bleed?"  Cavendish pointed to a care case relating to three children in which Coventry City Council had pressed ahead with proceedings but eventually had to admit that it lacked evidence to support its claims.  After hearing an application brought by the BBC, the judge ordered that the Council could be named.  In an earlier judgment on the case (here), the judge noted that costs were approaching £400,000 and this was a matter of concern when the children were "happy, settled and, within the bounds of what is possible in the confines of their overcrowded home, well cared for".  The family could not have defended itself without legal aid used wisely by a good lawyer.

High Court rules family contract round unlawful - Solicitors Journal 30th September 2010.

Coventry City Council v X, Y and Z (Care Proceedings: Costs: Identification of Local Authority) [2010] EWHC B22 (Fam) 

Addendum 18th October:  The judgment of the High Court quashing the tender process is at Law Society v Legal Services Commission [2010] EWHC 2550 (Admin).

The law of murder - changes to the partial defences


As discussed here, changes to the law relating to the partial defences to murder come into force on Monday 4th October.  A slide (powerpoint) presentation - prepared by Crimeline (Solicitor Andrew Keogh) - may be viewed here.

Changes to the law on homicide 'reduce options for men' - Solicitors Journal 4th October 2010.