|Daffodils at York|
It seems to have been a long, dull and dreary winter but Spring is with us and the gardens are livening up. It has been an interesting winter from a legal viewpoint. Rarely has there been so much to discuss and consider. One almost longs for the halcyon days when there was just a trickle of new legislation and the occasional, but always very important, House of Lords or Court of Appeal decision. For instance, in the Hong Kong Fir case in late 1961, Diplock LJ shattered our (perhaps naive) belief that terms in contracts were to be classifed as either "conditions" or "warranties." He indulged in what was said by one judge to be 'gratuitous philological exhibitionism' when he started talking about 'synallagmatic contracts' and pointed out that contracts could contain other terms which came to be referred to as "innominate" terms. All this was, of course, very useful for lawyers when trying to advise the local builder about some whizz-bang deal he had already signed up to!
More on Rights:
Last week Dr. Michael Pinto-Duschinsky resigned from the Commission on a British Bill of Rights - (Resignation of Michael P-D). His place has been taken by Conservative peer and barrister Lord Faulks QC and see 1 Chancery Lane. Thus, the Commission is now
not only a lawyers club, it is a Queen's Counsel club. Lord Faulks QC, along with Andrew Warnock and Simon Murray, sent a submission to the Commission on behalf of the Society of Conservative Lawyers.
The question of the United Kingdom's relationship with the Council of Europe, the European Convention on Human Rights and the European Court of Human Rights is perhaps THE major legal issue at the present time. It is absolutely central to the relationship between the individual and the State and I make no apology for the view that government is trying to increase its power at the expense of individual rights. The Charon QC blog touches on this in an eloquent and succinct post - see Without the Convention on Human Rights - our human rights depend on what our government say they are. A couple of other good articles appeared in Law Society Gazette - "Reform could curtail Strasbourg" (by Joshua Rozenberg) and "Media distortion obscures human rights" (by Roger Smith of Justice).
Unpaid fines and confiscation orders:
Yet again, the Ministry of Justice is criticised for failure to enforce in the region of £1.3 billion in confiscation orders and £600 million in unpaid fines. To have this amount of money outstanding is a sad indictment on the system and is made all the worse by the emphasis elsewhere (e.g. legal aid) on the need to make cuts. The Guardian 20th March For more on this see Public Accounts Committee - Report on Ministry of Justice Financial Management. In July 2010 the Audit Commission drew attention to some £1.3 billion outstanding in unpaid court orders. The recent Court of Appeal decision in Ahmad and Ahmed v R  EWCA Crim 391 is of interest in this context. Here, each appellant had benefited in the sum of some £72 million uplifted for changes in the value of money due to inflation to £92,333,667 being the sum that had passed through bank accounts under their control in furtherance of what was a massive carousel fraud. The judge also found that they had not proved on the balance of probabilities that they did not have realisable assets in that sum. None of the money has been paid and any sum eventually realised is likely to be far less than the £184,667,334 owed.
Justice [ ] Gap blog is emerging as an excellent resource. Mr Justice Sweeney wrote an introduction to a new collection of essays about the investigation of miscarriages of justice. With masterful understatement, he noted that - ‘Our system of criminal justice is not perfect.' The collection may be downloaded - Wrongly Accused. In reality, there is no system of criminal justice which is perfect but there is certainly a problem if people think that their system is. Blindness, whether wilful or not, to problems is not only complacent, it is unhealthy. A useful test of a system lies in what may be done to rectify, as far as possible, miscarriages of justice. Important developments occurred following the Royal Commission on Criminal Justice report in 1993 such as the setting up of the Criminal Cases Review Commissions.
There has been something of a fiasco in the courts recently over interpreters and there have been protests against a Ministry of Justice move to outsource interpretation work to a private firm Applied Language Solutions (ALS) - see BBC 8th March. The problem is, according to Crispin Blunt MP, caused by the "grossly overpaid" interpreters themselves - Law Society Gazette 16th March. See also The Guardian 19th March where some of the issues are discussed.
Nuclear test victims:
British victims of nuclear testing lost their case in the Supreme Court. They were arguing that their claims should not be "statute-barred" under the Limitation Act 1980. The Supreme Court's decision is here together with a Press release. An earlier post about the case is here.
More sentencing guidelines:
On 6th March, the Sentencing Guidelines Council published new guidance relating to three topics: Allocation of Cases (that is, how to decide whether an either-way case is to be tried in the Magistrates' Court or the Crown Court), Offences Taken into Consideration (TiCs) and the topic of "Totality". Totality arises when sentencing a person for more than a single offence. The court should pass a total sentence which both reflects all the offending behaviour before it and which is just and proportionate. This is so whether the sentences are structured as concurrent or consecutive. Therefore, concurrent sentences will ordinarily be longer than a single sentence for a single offence. It is usually impossible to arrive at a just and proportionate sentence for multiple offending simply by adding together notional single sentences. It is necessary to address the offending behaviour, together with the factors personal to the offender as a whole. For sight of the new guidance go to - Sentencing
Perhaps the major change here relates to Allocation. As things stand at present, cases are allocated by considering whether, taking the prosecution case at its highest, the sentencing powers of the Magistrates' Court will be sufficient. The new guidance states that - "It is important to ensure that all cases are tried
at the appropriate level. In general, either way offences should be tried summarily unless it is likely that the court’s sentencing powers will be insufficient. Its powers will generally be insufficient if the outcome is likely to result in a sentence in excess of six months’ imprisonment for a single offence.
The court should assess the likely sentence in the light of the facts alleged by the prosecution case, taking into account all aspects of the case including those advanced by the defence. The court should refer to definitive guidelines to assess the likely sentence for the offence."
The new guidance comes into effect on 11th June 2012.
Bills before Parliament:
The are numerous Bills before Parliament - most of them are perhaps unlikely to become law - but the list is interesting and includes Bills to leave the European Convention on Human Rights - (Peter Bone MP); to repeal the Human Rights Act 1998 - (Philip Hollobone MP); Grandparents (Access Rights) Bill - (Andrew Percy); Members of Parliament (Change of Political Party Affiliation) - (Chris Skidmore MP) and the Magna Carta Anniversary (Bank Holiday) Bill - (Eleanor Lang MP).
One particularly interesting Bill is Lord Steel's House of Lords (Amendment) Bill which has passed the Lords and is now with the Commons. This seeks to change the membership of the Lords and to have all life peerages recommended by a Statutory Appointments Commission. Peers who are convicted and receive over 1 year imprisonment would cease to be members of the Lords.
Another Bill is the Trusts (Capital and Income) Bill which seeks to disapply certain rules of law to new trusts. This will make a considerable simplification to trust law. As this is a government Bill, it will have a greater chance of becoming law. What of the government's flagship Bills? The Legal Aid, Sentencing and Punishment of Offenders Bill has its Report Stage in the Lords on 20th March. The Protection of Freedoms Bill had its 3rd reading in the Lords on 12th March. The Health and Social Care Bill had its 3rd reading in the Lords on 19th March. It should not be long before these Bills received Royal Assent and become Acts.
Some of the blogs:
On the subject of Royal Assent, the Head of Legal blog has an interesting post.
Beneath the Wig comments about Sarah's Case - the false retraction of an allegation of rape. The Court of Appeal judgment in Sarah's case is here and the Supreme Court has agreed to hear an appeal. Halsbury's Law Exchange considers this case in "Duress, abuse of process and erasing convictions: the questions raised by R v A" - author barrister Felicity Gerry.
Defence Brief looks at Sobriety Orders and also has a post "Magistrates make me mad."
Martin Partington looks at "What should replace the Adminstrative Justice and Tribunals Council." It has been earmarked for abolition in the "Bonfire of the Quangos" - (Public Bodies Act 2011).
UK Constitutional Law Group looks at the General Power of Competence which the Localism Act 2011 s.1 gives to local authorities. The post is by Prof. Andrew Le Sueur of Queen Mary, University of London.
Much more could be written since there has been an outpouring of case law recently. All in good time. The above is enough for now !!