The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere
The Royal Wedding was held on Friday 29th April at the Collegiate Church of St. Peter, Westminster - normally simply referred to as “Westminster Abbey.” The Abbey is part and parcel of the Church of England of which Her Majesty the Queen is Supreme Governor . The General Synod (with the three Houses: Bishops, Clergy and Laity) is, in effect, the national assembly of the Church. The Church also has its own clergy, law and internal court structure. The present relationship of the Church to both the Crown and to Parliament are explainable only by history and the constitutional settlement which came about in the turbulent years of the 16th and 17th centuries. The Church has two “Provinces” – Canterbury and York – each with an Archbishop. The Archbishop of Canterbury is referred to as the “Primate of All England” (first Bishop of England) whereas the Archbishop of York is the “Primate of England.” The long history of the Church and its structure make for interesting reading. The Archbishops, along with certain Bishops are entitled to sit in the House of Lords – see House of Lords membership.
Some churches are known as “Peculiars” and this includes Westminster Abbey. Peculiars are places of worship falling directly under the jurisdiction of the Queen though, in practice, they have their own system of management and administration. Westminster Abbey is governed by the Dean and Chapter established by Royal Charter of Queen Elizabeth I in 1560. Mostly, the Peculiars are churches or chapels connected closely to the Royal Family but the Inns of Court Chapels are also Peculiars – e.g. Temple Church.
Tomb of the Unknown Warrior
Places like Westminster Abbey are imbued with our long history as a nation. Close to the Great West Door is the tomb of the Unknown Warrior. In these times
In 2009, some 50325 adult offenders were sentenced for offences relating to controlled drugs. This is a somewhat complex area and is also controversial since there is a wide spectrum of opinion about enforcement including those who argue for legalisation of drugs. The Sentencing Council has issued draft guidance for sentencing and has invited comments which have to be received by 20th June. The draft guidance adopts a similar approach to the Council's recently issued guidance on Assault Offences - (Law and Lawyers 17th March). Once the final guidelines come into effect
An international conference is being held over 26th and 27th April at Izmir, Turkey on the future of the European Court of Human Rights. A joint statement has been issued by Amnesty International, the AIRE Centre, the European Human Rights Advocacy Centre, Interights, the International Commission of Jurists, JUSTICE, and Liberty. The statement is aimed at trying to ensure that certain principles continue to apply.
The statement is well worth reading in full. The U.K. is represented by Kenneth Clarke - see Ministry of Justice. The draft of the conference programme was published by the Council of Europe on 19th April.
Her Majesty The Queen has consented to the marriage of His Royal Highness Prince William of Wales and Catherine Elizabeth Middleton. The marriage is to be celebrated at Westminster Abbey, London on 29th April 2011. The ceremony will attract worldwide interest.
This consent is a legal requirement set out in the Royal Marriages Act 1772. It appears that King George III considered that his brothers had made unsuitable marriages and that consent to marriages ought therefore to be required. He made a recommendation to that effect. The Parliament of the day considered the matter and , according to the Preamble, was "thoroughly convinced" of the "wisdom and expediency" of the King's recommendation. Despite this wording there was considerable opposition to the Act particularly on the part of William Pitt (Earl of Chatham) and Charles James Fox. The Preamble to the Act states that marriages in the Royal Family are "of the highest importance to the State" and that it is therefore desirable that the reigning Monarch gives consent. The 1772 Act s.1 therefore requires descendants of King George II to have this consent - (there are some exceptions). Section 2 enables a marriage to proceed even without consent but Parliament may then
The protests at Ratcliffe on Soar power station were covered by Law and Lawyers in January. The Crown Prosecution Service (CPS) has now issued a very important statement. The legal representatives of 20 protesters convicted of conspiracy to commit aggravated trespass have been invited to appeal the convictions. As a statement by Mike Schwarz (legal representative of those convicted) notes, there are many, as yet, unanswered questions in relation to this disturbing case.
The Jack of Kent blog considers the appeal by way of case stated in the Paul Chambers case. Mr Chambers was convicted - under the Communications Act 2003 s.127 - for "tweeting" in relation to Doncaster (Robin Hood) Airport being closed by snow in the early part of 2010. His "tweet" said - "Crap! Robin Hood Airport is closed. You've got a week and a bit to get
On the law relating to privacy, I commendthese articles by Hugh Tomlinson QC - clearly written and authoritative stuff.
The media has been almost incandescent this week over the Court of Appeal's decision in ETK v News Group Newspapers  EWCA Civ 439. The appellant, known only as ETK, was a married male working in the entertainment industry. In late 2009 / early 2010 he had an affair with a married woman (referred to as X) who also worked in the entertainment industry. ETK's wife discovered the affair in April 2010 but she and ETK decided to try to continue with their marriage. They had two teenage children. It appears that ETK discussed the matter with his employer and expressed the view that he would prefer in an ideal world not to have to see her (i.e. X) at all and that one or other should leave but both accepted that their working commitments did not then make that possible. They agreed to conduct themselves with due decorum and to continue to perform their duties in a professional way as in fact they did. In December 2010, the employer terminated X's employment. The News of the World wished
It has been interesting to follow the inquest into the death, on 1st April 2009, of Mr Ian Tomlinson. The Inquest has (very commendably) set up a website which offers a great deal of information including transcripts of the hearings. The hearings are before His Honour Judge Peter Thornton QC (the City of London Assistant Deputy Coroner) and a jury. Once a verdict has been returned it will then be appropriate to look at this in more detail.
The Inquest jury was sworn on 28th March and visited the location of the events on 1st April 2009. Live evidence began on 1st April .
The earthquake and tsunami in Japan on 11th March devastated the nuclear power station at Fukushima - see BBC 11/3/11. The magnitude of this disaster is brought home by some haunting (and distressing) pictures published by the Daily Mail. The total of people killed and missing is not known but certainly exceeds 28,000. Dealing with an event of this seriousness requires massive concentration of effort and perhaps even international assistance. What is in place to enable government to manage if some major crisis were to occur in the U.K. ?
Under the previous Labour government, legal powers to handle emergencies were reviewed and the Civil Contingencies Act 2004 (CCA) was enacted. This replaced earlier legislation - in particular, the Emergency Powers Act 1920 and the Civil Defence Act 1948. (Explanatory Notes to the CCA are available). Part 1 of the CCA addresses "Local Arrangements for Civil Protection" and places duties on various bodies - (referred to as "responders") - to assess risks and to prepare plans. In the light of the present economic climate it would be interesting to know if such plans were affected adversely and, if so, how.
Part 2 of the CCA deals with "Emergency Powers" and the term "emergency" is defined in section 19. A power to make emergency regulations is conferred by section 20 but this power is subject to certain conditions applying - section 21 . Regulations could be exceptionally
On 15th March Law and Lawyers noted that the U.K. government had requested the Grand Chamber of the European Court of Human Rights to consider the case of Greens and M.T. v U.K. decided by a chamber of the court on 23rd November 2010.
The Grand Chamber has refused and the U.K. now has 6 months from 11th April 2011 to introduce legislative proposals. The blanket ban within the U.K. on prisoner voting was
Most of the country enjoyed a lovely Spring weekend: sunny and warm. Of course, in party pooping fashion, the usual threat of drought was mentioned and hosepipe bans etc. The F.A. Cup Semi-Final is looming and will, on one report, costs millions in security. (I think my ticket might have been "nicked" so will watch it on TV). Then there is Easter - always a welcome break for many - and then the Royal Wedding which, no doubt, will cost someone somewhere even more millions (here and here).
An Independent Commission on Banking has just issued its interim report and some of the early reaction to it is reported in The Guardian (Monday 11th April). On Sunday 10th, The Guardian asked - "If the banks forsake London, where
It is no exaggeration to describe the turbulent period from Hastings (1066) to the end of the reign of Henry III (1272) as a formative period for English law, the courts and the system of government. Of the eight Kings of this period, especially notable in a legal context were the reigns of Henry II (1154-1189), John (1199-1216) and Henry III when the beginnings of Parliament can be seen. Early forms of "legislation" appeared albeit very different in style to modern legislation - for example the Constitutions of Clarendon 1164 and the Assizes of Clarendon (1166) and Northampton (1176). The period also saw the first textbooks or "treatises" on English Law. The King's courts of justice began to emerge from within the King's Council (or Curia Regis) and Judges begin to preside over cases. People were summoned to give a decision about factual issues and from this process trial by jury developed and proved to be a popular alternative to older forms of trial such as the ordeal. The earliest signs of a legal profession can also be detected. Throughout this period there was endless political difficulty between the Kings and the powerful landowners including what became perhaps the most powerful landowner of all - the Church. These early Kings laid claim to and administered extensive tracts of land including much of what is now France.
Fountains Abbey, Yorkshire
Henry II (1154-1189)
Henry II established the foundations of central power. He exercised control over a vast land area (including much of France) and was indefatigable in his travels around his domains.
Originally, every man had his "peace" and it was a crime for another to break that peace. Naturally, the King's Peace was the greatest of all. Henry built upon this concept of the "Peace" which dated back to Anglo-Saxon times and it was extended so that eventually it covered the entire country and any crime could be viewed as a breach of the King's Peace and therefore triable in the King's Courts. The notion of the "Peace" survives to this day in matters such as arrest for breach of the peace and the power of Magistrates to Bind Over a person to Keep the Peace.
Litigants were attracted into the King's courts because
Two responses to the government's green paper "Breaking the Cycle" have been published - see Judiciary website. One is from Lord Justice Thomas (Vice-President of the Queen's Bench Division and Deputy Head of Criminal Justice) and Lord Justice Goldring (Senior Presiding Judge of England and Wales). The other is from the Council of Circuit Judges.
These responses are well worth reading completely. The Circuit Judges wish to see a much simpler sentencing framework in a single Sentencing Act which might even have a fixed period of time (e.g. one Parliament) during which it cannot be amended. An interesting idea here but will it find favour with hyperactive politicians? The concept of "payment by results" (e.g. to providers of rehabilitation programmes) makes them "uneasy" and
On 1st April, an important change came about with the merger of Her Majesty's Courts Service (HMCS) (formed in 2005) and the Tribunal Service (formed 2006). The new body, an executive agency of the Ministry of Justice, is "Her Majesty's Courts and Tribunal Service." Mr Jonathan Djanogly MP (Parliamentary Under-Secretary of State, Ministry of Justice) informed Parliament that the agency is "responsible for the administration of the criminal, civil and family courts and tribunals in England and Wales and non-devolved tribunals in Scotland and Northern Ireland." The service has a Chief Executive and a Board and operates within a Framework Agreement arrived at between the Lord Chancellor Rt Hon Kenneth Clarke QC MP), the Lord Chief Justice (Lord Judge) and the Senior President of Tribunals (Lord Justice Carnwath).
In 2010 the government issued a Consultation about the Unified Court and Tribunals Service - (see Platform for the Future). This consultation was aimed at seeking views about the benefits which a unified service might bring. The headline merger decision had already been taken. The response to the consultation was issued on 1st April.
It is reported that the judges are critical of aspects of the sentencing proposals which have been put forward by Kenneth Clarke QC MP (the Secretary of State for Justice) in the green paper "Breaking the Cycle" - looked at on this blog last December. The green paper (para 216) suggested the possibility of a 50% reduction for an early guilty plea as a means of getting the guilty to plead and save the costs of a trial. The judges argue that reducing sentences by more than one-third would fail to recognise the seriousness of the offences and may lead some into making false admissions.
The Court Martial - (see Armed Forces Act 2006 s.154) - sitting at Portsmouth has adjourned until 14th April whilst Judge Advocate McGrigor considers representations relating to apparent bias made to him by counsel - see Portsmouth News. The case concerns a Royal Navy Medical Assistant Michael Lyons who has claimed conscientious objection to carrying out rifle training prior to deployment to Afghanistan. Lyons' counsel has argued that there could be an appearance of bias as opposed to actual bias because, in 2004 the judge advocate had acted as prosecutor for the Royal Air Force in the trial of a Muslim air reservist who absented himself from duty in Iraq.
One of the fundamental principles of English Law is the presumption of innocence. We do not declare a person guilty of any crime - however heinous the crime - until guilt is proved by admissible evidence adduced before a properly constituted court which, for serious offences, normally requires a jury trial. What then were certain individuals thinking about in Swindon this week? See BBC Report 28th March - "Sian O'Callaghan's accused remanded in custody."
Christopher Halliwell has been charged with the murder of Sian O'Callaghan. On 28th March, he appeared before magistrates sitting at Swindon and was duly "sent" for trial under the provisions of the Crime and Disorder Act 1998 s.51. Such hearings are now a mere formality. No bail application may be made to magistrates in a murder case. On 30th March he appeared before the Crown Court but no application for bail was made. He will next appear in the Crown Court on 8th April but this hearing will be via a video link.