Monday, 31 October 2011

"Rights" without access to justice are not rights at all


Recently Lord Pannick said in a debate in the House of Lords: ‘There are countries where the Government win all their cases in court – but they are not places in which any of us would wish to live.’ Well, buckle up people, because the legal aid bill before parliament is a last call to all passengers on a one-way ticket to just such a country.

This is an extract from an excellent article describing how the legal aid cuts will effectively remove access to justice from the vast majority of people.  If you read nothing else, please read  Justice Gap - Jules Carey -  "What price liberty?  Too much for legal aid."

The organisation Liberty have said that ‘if the bill is passed without substantial amendment, big business, government and other members of a rich and powerful elite will be able to act with impunity’.  How true this will be.  The government claims

Matters Royal

HM The Queen in Parliament

The Commonwealth is a voluntary association of 54 countries that support each other and work together towards shared goals in democracy and development.  In 2009, the Commonwealth reaffirmed certain core values and principles including commitments to democracy. human rights, the separation of powers and the rule of law.  Commonwealth Heads of Government have recently met in Australia and agreed to a charter - to be approved in 2012 - adopting a recommendation of an Eminent Persons Group report - "A Commonwealth of the People - Time for urgent reform."

One interesting development was the agreement reached between 16 States which have H.M. The Queen as Head of State that the succession to the Crown will no longer be based on the common law principle of male primogeniture - see No.10 website for more details.   The rule of law excluding

Saturday, 29 October 2011

Vincent Tabak and the excluded evidence

Vincent Tabak has been convicted of the murder, in December 2010, of Joanna Yeates.  He was tried before Field J and a jury sitting at the Crown Court in Bristol.  The jury convicted him by a 10 to 2 majority.  Tabak had already pleaded guilty to manslaughter (Sky News May 2011).  Media reports include The Guardian 28th October and The Independent 29th October. Tabak was sentenced to life imprisonment (which is mandatory for murder) with the trial judge imposing a minimum tariff of 20 years imprisonment.

The media are now revealing that certain material was not admitted into evidence at the trial - The Guardian 29th October - "Vincent Tabak and the porn searches the jury did not hear about."   On what basis could such information be withheld from the jurors who are, after all, constitutionally, the decision-makers in the case?  It is certainly arguable that all known material ought to be placed before the jury and that they ought to be allowed to consider it along with the guidance given to them by the trial judge.  Indeed, the prosecution had argued that the material ought to have been admitted into evidence but the trial judge ruled against them.

At a basic level, the

Thursday, 27 October 2011

The Legal Aid, Sentencing and Punishment of Offenders Bill - further amendments and a bit of Henry VIII

The passage of the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) through the Commons is almost complete with the report stage set for 31st October.  It is therefore interesting that on 26th October, the Ministry of Justice announced  further and very significant sentencing proposals which could be added to the Bill.  They will be debated by the Commons next week and, if accepted, will be added to LASPO.   In essence, the new proposals are aimed at replacing Imprisonment for Public Protection (IPP) which was introduced in the Criminal Justice Act 2003 and which has proved to be exceptionally problematic.  It therefore seems particularly unfortunate that, by introducing these proposals at a late stage, the Commons will have minimal time in which to consider them.

Imprisonment for Public Protection:

Wednesday, 26 October 2011

Scotland and the European Union - a tricky point.

Edinburgh Castle
The Scottish National Party's 77th Annual Conference was held at Inverness from 20th to 23rd October.  Mr Alex Salmond, Scotland's First Minister and Leader of the SNP, delivered his keynote speech calling for Scottish Independence.  "THIS PARTY WILL CAMPAIGN FULL SQUARE FOR INDEPENDENCE IN THE COMING REFERENDUM", said Mr. Salmond.

If "independence" means that Scotland withdraws from the United Kingdom, then some interesting questions are raised and one of them is whether Scotland would be able to remain a member of the European Union.  This question  is discussed in posts in Firm Magazine 9th May 2011 "Independence: the legal questions" and 26th October 2011 - "UK government lawyers declare an independent Scotland would automatically secede from the EU."    In this context, it is important to see just what the European Treaties have to say about States joining and leaving the EU.

Treaty on European Union - Article 49

Tuesday, 25 October 2011

English Land Law - No.2 - Types of fee simple: settlements and co-ownership

This post is the second in a series on what is, to me, the fascinating subject of English land law though it is, all too often, a subject detested by law students!   The principal problem seems to be that the subject cannot be entirely divorced from its historical development.

The first post in the series looked at Estates and Tenure.  This post considers three matters: (1) the types of fee simple which can arise; (2) settlements of land and (3) co-ownership.  There are many twists and turns in the law and a considerable number of practical pitfalls.  This post looks at these matters in outline only. 

1) Types of fee simple -  the fee simple absolute is the type of fee simple most often encountered.  After 1925, the only possible legal estates in land are the fee simple absolute in possession and a term of years absolute.  See Law of Property Act 1925 s.1.  

Certain other lesser forms of fee simple are possible: (a) the

Monday, 24 October 2011

European Union: when must a referendum be held?


One of the interesting things about the U.K.'s membership of the European Union is that very few British people would be able to name the Members of the European Parliament who represent them.   Turnout for European Elections is generally on the low side.  Also, few people could tell of any benefits which accrue to the U.K. from membership such as the European Regional Development Fund and its local implementation - e.g. European Funding in the North West.   However, many (probably a majority) would undoubtedly refer to the negative aspects of membership such as "excessive regulation" etc.    In short, the EU has an abysmal public relations image in most of the U.K. and this is fostered by eurosceptic politicians.  For a different viewpoint, see the article "EU is not a walking disaster." in which Edward McMillan-Scott MP argues that the benefits of membership are significant and that the public mood, whilst eurosceptic, is also ill-informed.

The House of Commons Backbench Business Committee has scheduled a debate on

Thursday, 20 October 2011

News: Undercover officers alleged to have lied: Human Rights - have top judges disagreed: The march toward secret hearings in British courts

Have "undercover" Police Officers lied to courts?

It is alleged that an undercover Police Officer who was prosecuted for his "role" in a protest movement lied to the court by giving a false name and occupation - see The Guardian 19th October "Police Undercover Officer - Court perjury claim" ; The Independent 20th October "Undercover Officer may have put trial at risk" and "The Telegraph" 20th October - "Police Chiefs authorised undercover officers to give false evidence in court."  This has led to the publication of a report from H.M. Inspectorate of Constabulary being delayed - see HMIC News.  The Report - entitled "Undercover Tactics in Public Order and Extremism" - arose from revelations of the involvement of PC Mark Kennedy in an environmental protest - see Law and Lawyers 10th January 2011 and 21st July 2011.

For the view of former Director of Public Prosecutions Lord Macdonald QC see The Guardian 20th October - "Police spies crossed the line."

Have two senior Judges disagreed about Strasbourg's influence in the UK?

The Lords Constitution Committee has continued looking at Judicial Appointments.  On Wednesday 19th October, the President of the Supreme Court (Lord Phillips) and the Lord Chief Justice (Lord Judge) gave evidence which can be seen on Parliament TV.  It is worth watching.  Subsequently, it has been reported that the two disagreed about the influence which the European Court of Human Rights should have in relation to proceedings in UK courts - see The Independent 20th October.    In this context it is worth

Tuesday, 18 October 2011

The Court of Appeal speaks on August disorder sentencing

The Court of Appeal (Criminal Division) has issued judgment in relation to ten appeals against sentences imposed for convictions arising from the August disorder -R v Blackshaw and others  [2011] EWCA Crim 2312. 

On 20th August, in a post related to the August disorder, Law and Lawyers looked at relevant sentencing principles and also at the views arrived at by the Crown Court judiciary in Manchester.  It was clear, even at that stage, that the context of widespread disorder would be seen as a serious aggravation of offences such as burglary, theft and handling stolen goods.   The 20th August post commented that - "It must be doubtful whether the Court of Appeal would adopt a substantially different viewpoint" to that of the Manchester judiciary.  This has proved to be the case though the Court of Appeal said that it is inappropriate for Crown Court judges to "issue, or appear to be issuing, sentencing guidelines."  That is a task for

Monday, 17 October 2011

Hillsborough debate in Parliament

Hillsborough, Sheffield - April 1989

A debate in the House of Commons is to be held from about 6pm this evening (17th October) regarding the release of documents relating to the Hillsborough stadium disaster of  April 1989 - see UK Parliament - E-Petition debate.  This follows an "e-petition" which attracted some 139,000 names.  See BBC 17th October - "Will Hillsborough files be made public?"  Please also see the earlier Law and Lawyers post of 23rd August - "The Hillsborough disaster - April 1989 - the search for information continues."

The events at Hillsborough (and certain other disasters) eventually led to major improvements to sports facilities.  Hillsborough also generated an interesting legal legacy through - (a)  cases in tort for negligently caused psychiatric illness and (b) the withdrawal of medical treatment (the "Tony Bland" case) - for further see "The Hillsborough disaster and its legal legacy" - (as written in April 2009.

Some points from the debate:

Saturday, 15 October 2011

Supreme Court decisions: A trio of former Lords Chancellor speak about judicial appointments

Updated 16th October .... The Supreme Court commenced the new Law term by handing down a number of very interesting decisions.  The cases are replete with material for practitioners, academics and law students.  Also, during this week, the President of the Supreme Court - Lord Phillips of Worth Matravers - announced that he will retire at the end of September 2012 - (Solicitor's Journal).

The decisions address questions about whether, under the European Convention on Human Rights, answers to questions put to suspects can be admitted in evidence at trial when the answers were given before the person had access to legal advice.  Although these cases came from Scotland, it will be interesting to see whether the decisions spill over into other parts of the UK.  There was a challenge to an Act of the Scottish Parliament which had been passed to enable those with pleural plaques to claim against insurers if employers (or former employers) were shown to have been negligent.  A further challenge arose to the Immigration Rules where age limits in one of the rules had been purposely raised by the government in order to try to combat forced marriages but some genuine couples were adversely affected by the change.

Thursday, 13 October 2011

Burglary - new Sentencing Guidance

Law and Lawyers looked at the August disorder in a number of posts:  Who will pay?  We all will ! The Riot (Damages) Act 1886 ... Defence of Property - what is permissible ... Some thoughts on a desperate August week ... The recent disorder: bail and sentencing ... Detained persons: blanket refusal to bail ... The August disorder - more sentencing ... August - will voices of calm prevail?

One of the interesting features about this period was the that  a charge of burglary was preferred against some of those who had taken goods from shops.  Burglary is defined by the Theft Act 1968 s.9 which, in amended form reads:


(1) A person is guilty of burglary if -

(a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or

(b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.

(2) The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm therein, and of doing unlawful damage to the building or anything therein.

(3) A person guilty of burglary shall on conviction on indictment be liable to imprisonment for a term not exceeding - (a) where the offence was committed in respect of a building or part of a building which is a dwelling, fourteen years; (b) in any other case, ten years.

(4) References in subsections (1) and (2) above to a building, and the reference in subsection (3) above to a building which is a dwelling, shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is.

Sections s9(1)(a) and 9(1)(b) differ significantly.  For 9(1)(a) entry as a trespasser must be proved but there does not have to be a theft (or attempted theft) but there has to be intention to steal at the time entry.  For 9(1)(b) entry as a trespasser must be proved AND the theft (or attempted theft) must be proved.

A key element of

Tuesday, 11 October 2011

The Supreme Court and its President: some interesting issues for the future

UK Supreme Court, London
On Monday 10th October, Joshua Rozenberg wrote an article published in The Guardian - "Nine men, a Lady and the Master."  The article asked who would replace Lord Phillips of Worth Matravers as President of the Supreme Court.  Lord Phillips had not publicly announced his retirement at this stage.  On Tuesday 11th October, Lord Phillips announced that he would retire on 30th September 2012 - see the Supreme Court's Press Release (11th October) and also  BBC 11th October.    Joshua Rozenberg's article speculates that Lord Neuberger - presently Master of the Rolls - would be in line to become the court's next President though Rozenberg admits of other possibilities including Lady Hale who gave a dissenting judgment in R (McDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33 which appears to have irritated some of her male colleagues - see, for example, the judgment at para 27.

What then, if anything, does the law state about the President of the Supreme Court?  

The Constitutional Reform Act 2005 created the court - section 23(1).  There are to be 12 Judges appointed by Her Majesty by letters patent - s.23(2).  Under section 23(5), Her Majesty may by letters patent appoint one of the Judges to be President and one to be Deputy President of the Court.   The judges, other than the President and Deputy President, are styled Justices of the Supreme Court - section 23(6).   At first sight, the reader might consider that section 23(5) requires the President or deputy to be chosen from one of the Judges already there.  However, that view could not stand with section 26(4) which clearly envisages the possibility of parachuting in an outsider to either the Presidency or Deputy Presidency:

26(4) A person who is not a judge of the Court must be recommended for appointment as a judge if his name is notified to the Prime Minister for an appointment as President or Deputy President.

Section 26 mandates a selection process involving selection commissions for vacancies to the Court including a vacancy in the position of President or Deputy President.  Hence, progression to Deputy or President is not on the basis of the next senior but the selection has to be on merit - see section 27(5). 

The President has a number of functions specified in the 2005 Act.  He may request certain persons to act as Judges of the Court - s.38.  He may issue directions as to the composition of the court when it sits - s.42.  He makes Supreme Court Rules - s.45 and sits on Selection Commissions - s.26 and Schedule 8.  Since the Court's creation, it has appeared to operate on a collegiate model but dissenting judgments are permissible.  There has been a tendency to try to seek a lead judgment with other justices adding any further comments, points of disagreement etc.  However, as far as one can see, there is nothing to prevent a justice issuing his or her own judgment.

Could the Supreme Court assert a power to strike down legislation?

Returning to Joshua Rozenberg's article, an interesting question is raised.

Monday, 10 October 2011

Health and Social Care Bill .. a quick look?

NOTE:  The BILL became the Health and Social Care Act 2012.  This post relates only to the Bill as it was in October 2011.

The creation of the "Welfare State" took place in the period 1945-51.  The National Health Service (NHS) - created by the National Health Service Act 1946 - was, like the provision of Education and Legal Aid, a major plank in the welfare state.    Although the NHS has been extensively modified by successive governments since 1946 - (some might say "mauled") - it still survives.  The latest Act is the National Health Service Act 2006.  Further modification ("mauling") is planned by the coalition government under the terms of the Health and Social Care Bill which has passed the House of Commons and is now before the House of Lords.  To say the least, this is an exceptionally controversial Bill.  It is also a massive Bill extending to 12 Parts (303 Sections) and 24 Schedules.

The Bill was introduced to the House of Commons on 19th January 2011 and underwent extensive amendment in April and July.  It is reported that further concessions by the government are likely in order to get the Bill through the House of Lords - Telegraph 10th October 2011.  There is concern that aspects of the Bill have not received sufficient scrutiny and opponents, including Lord Owen and Lord Hennessy, have said:

"While we accept it is not the role of the House of Lords to challenge the legislation in its entirety .. we do believe it imperative the House of Lords provide a mechanism for far greater in-depth consideration of a number of parts of this bill which cover duties and constitutional issues."

The government case FOR the Bill is amply set out on the Department of Health website which offers a range of 16 "Factsheets" and these include an "Overview of the Bill", "The case for change" and the "Role of the Secretary of State."   Against this are many views which appear to be quite well summarised in Tribune Magazine (11th September 2011) - "Coalition's Health and Social Care Bill will destroy the NHS as we know it, campaigners warn."   It is seen by some as privatisation of care with profit-making providers supplying services.

One key aspect of the Bill concerns where the legal duties to provide services lie.  Currently, it is the Secretary of State who has this duty.  In relation to these "duties" the Bill makes major changes which this post will now consider.

The National Health Service Act 2006:

Saturday, 8 October 2011

Calm Down Dears ...!

The Political Party Conference season usually brings a mix of the serious and the trivial and some of the speeches, albeit about topics of concern, sometimes offer a degree of entertainment.  It was Home Secretary Theresa May (full speech) who claimed that a cat had prevented a deportation.  Kenneth Clarke, Lord Chancellor and Secretary of State for Justice, referred to this as making "laughable and childlike comments" - The Independent

Theresa May, as one of the principal Secretaries of State, normally has to be taken seriously.  She said:

We all know the stories about the Human Rights Act. The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here. The robber who cannot be removed because he has a girlfriend. The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat.

This is why I remain of the view that the Human Rights Act needs to go. The Government’s Commission is looking at a British Bill of Rights. And I can today announce that we will change the immigration rules to ensure that the misinterpretation of Article Eight of the ECHR – the right to a family life – no longer prevents the deportation of people who shouldn’t be here.

She went on

Thursday, 6 October 2011

The Wind of Change in legal services

Autumn 2011 - Rowan Berries
Just over 51 years ago, Prime Minister Harold Macmillan used the phrase "wind of change" in a speech to the Parliament of South Africa. Today, as autumn sets in, the wind of change is blowing and will alter markedly the ways in which legal services are provided to the public. 

ABS in force:

Alternative Business Structures (ABS) are now in force.  This stems from the Legal Services Act 2007 Part 5.   Interestingly, despite the 4 years this has been coming, the only regulatory body currently entitled to licence new business structures is the Council for Licensed Conveyancers - see Law Society Gazette "Premier Property Lawyers becomes first firm to register as an ABS."  The number of ABS is expected to expand markedly in the future and more regulatory bodies (such as the Solicitors Regulatory Authority) will be permitted to issue licences.  Significantly, non-lawyers will be able to have ownership of (or shares in) businesses providing legal services.

According to the Ministry of Justice Fact Sheet, the main benefits of ABS are:

Tuesday, 4 October 2011

Rolls Building now in use: Oligarchs fighting in London: Premiership football viewing etc

The Rolls Building, Fetter Lane, London

High Court extension:

The latest extension to the High Court's accommodation in London is the "Rolls Building" and it has come into use.  Russell Conway, writing in the Solicitor's Journal 3rd October "The Rolls Treatment" - noted:

"It is deeply unsettling and almost embarrassing .... to see our legal aid system being destroyed and £350m a year slashed from the legal aid budget and yet we are now apparently blessed with what is described as the largest specialist centre for the resolution of financial, business and property litigation any-where in the world. The question is: who will be using these facilities? And at who’s expense?"

Later, the article states:

"The Ministry of Justice seems to have found the money for the Rolls building. Quite where it has found it from one can only shudder to speculate. Are we funding the Rolls building out of the savings from legal aid? Now, that is a very scary thought indeed. Are we really putting together a luxurious trial centre to be used by Russian oligarchs, multi-million pound companies and billionaire property companies at the expense of public funding?"

Set against this viewpoint is the fact the London is a major centre for international dispute resolution and this makes a very significant contribution to the UK economy.    The High Court has operated a Commercial Court since 1895 and the court's procedures reflect the special requirements of international commerce.  Many cases in the court involve parties who are resident or incorporated abroad.  For further see COMBAR (Commercial Bar Association).

The Ministry of Justice' s website gives

Sunday, 2 October 2011

Michaelmas News Roundup

Northern Viewpoint - Friar's Crag
The "season of mists and mellow fruitfulness" has begun, not with mists, but glorious sunshine and, for the UK, stunning temperatures - "the HOTTEST 2nd October since the dinosaurs were wiped out" (per CharonQC "Postcard from the Staterooms ..").  29th September is Michaelmas - one of the old "quarter days" - and, this year, the Michaelmas Law term begins on 3rd October and ends 21st December.   Not that the senior courts have been entirely quiet during August and September as even a quick glance at the excellent Bailii database of judgments shows.   This is a database which provides a superb service to lawyers and public alike.  Without it we would all be the poorer and access to this essential legal resource would be lost.  It is independent of government and needs funds - please see the article by barrister Adam Wagner in The Guardian 27th September - "Let's not forget Bailii in campaign for open justice online."

Having just written the previous Law and Lawyers post entitled "Protection of Rights", up pops Theresa May - (Home Secretary) - to let us know that she "personally" would like to see the Human Rights Act axed.  After all, it sometimes causes problems for the Home Office !!   Of course, we already knew that she was no fan of the Act or, for that matter, of some decisions of the Supreme Court which have gone against her department - see 16th February - "The government is disappointed and appalled by this ruling."  Mr Cameron joined in the chorus on the Andrew Marr show to inform us that he backs Theresa May over the Act and he referred to it creating a "chilling culture."  He then reiterated the point that he wants a British Bill of Rights.  Combined with the drastic cuts to legal aid embodied in the Legal Aid, Sentencing and Punishment of Offenders Bill, the future for good human rights protection in the UK is looking increasingly depressing.

A more optimistic viewpoint regarding the future of human rights protection in the UK is Adam Wagner's post on UK Human Rights blog - "Reports of the Human Rights Act's death have been greatly exaggerated." 

From 1st October, it has become illegal to sell tobacco products via vending machines.  This change in the law came about because of the Health Act 2009 s.22 which inserted s.3A into the Children and Young Persons (Protection from Tobacco) Act 1991.  See the Protection from Tobacco (Sales from Vending Machines)(England) Regulations 2010.

In criminal law, the Court of Appeal has commenced hearing