The Justice and Security Bill - Part 2

Addendum 14th June:  UK Human Rights blog - "Government has still not made case for 'inherently unfair' secret trials, say Special Advocates"


Addendum 6th June:  A further post on UK Constitutional Law Group blog - "Where is the 'Justice' in the Justice and Security Bill?" by barrister Tom Hickman of Blackstone Chambers.  "... it is hard to view the Bill in any way other than as a “win win” for the Government. Secrecy is absolute and scrutiny is in its gift. As drafted, the Bill seriously and needlessly exacerbates the departure from equality of arms that is already inherent in the proposed use of CMP in civil claims."

Addendum 5th June:  A post on the blog of the UK Constitutional Law Group raises further points about this Bill - "The Justice and Security Bill: Some Serious Concerns" - Hayley Hooper, Lecturer in Law at Trinity College, Oxford ... and also see UK Human Rights Blog - post by Adam Wagner - "Criticism remains as dust settles on secret trials bill."


Addendum 4th June 2012 - additional materials: 

Joint Committee on Human Rights 24th Report of Session 2010-12 The Justice and Security Green Paper and the Government response to the 24th report – here. Also,  Government’s response to the Green Paper Consultation and memorandum on human rights issues arising from the Bill.

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Original post: ...

The  Justice and Security Bill - (see also Explanatory Notes) - is the coalition government's attempt to implement certain aspects of the Justice and Security Green Paper.  The previous post on this blog looked at Part 1 of the Bill dealing with Oversight of the Security services.  Part 2 of the Bill - "Restrictions on Disclosure of Sensitive Material." - is the subject of this post.

When looking at the Bill, certain definitions are important and are addressed in Clause 11 (Interpretation) which contains Henry VIII powers to enable courts or tribunals to be added to those in which Closed Material Procedure (CMP) may apply.  I think that there is a possibility that this power could be used to bring, for example, Coroner's Courts within the remit of CMP.  There seems nothing in the Bill, legally speaking, to rule it out.  Time will tell.  Legislative legerdemain?  Possibly !!

Clause 6 enables the secretary of State to apply

The Justice and Security Bill - Part 1 - Oversight

The  Justice and Security Bill - is the coalition government's attempt to implement certain aspects of the Justice and Security Green Paper which was considered in three posts on this blog.  Those posts considered in some detail (1) the Government's case; (2) Proposals and consultation (including Closed Material Procedure) and (3) Oversight.  Those posts contain links to the various judgments which have led to the government bringing forward their proposals.  Those posts also state the various concerns raised about aspects of the Green paper and which continue to be relevant to the Bill.

Structure of the Bill:  The Bill divides into 3 Parts: Part 1 Oversight of Intelligence and Security Activities; Part 2 Restrictions on disclosure of sensitive material and Part 3 General.  There are three Schedules: Schedule 1 The Intelligence and Security Committee; Schedule 2 Consequential Provision and Schedule 3 Transitional provision.

The remainder of this post considers Part 1.

Assange: Supreme Court decision

The Supreme Court has ruled that the request by the Swedish prosecutor for the extradition of Mr Julian Assange was lawfully made - see Judgment and Press release.  For the purposes of the European Framework Decision creating the European Arrest Warrant system and for the purposes of the Extradition Act 2003, the term "judicial authority" included a public prosecutor.  The decision was 5 to 2 with Lady Hale and Lord Mance dissenting.  Lord Phillips only read out a short statement of the court's decision in which it was stated that there was a need for the term judicial authority to have a uniform meaning throughout the European Union.

However, an interesting twist to the case came when, after Lord Phillips announced the court's decision, Dinah Rose QC (counsel for Assange) argued that the majority appeared to have based their decision on the Vienna Convention on the Law of Treaties and that this had not been argued in the appeal.  Rose therefore requested that she be given time to consider the detailed judgments and to consult her client and then to possibly apply for the appeal to be re-opened.  A period of 14 days was allowed.

Addendum 31st May:  The Head of Legal blog has been looking at how this case might develop given the "Vienna Convention" point raised by Dinah Rose QC.  See Carl Gardner's posts of 30th May - "Supreme Court judgment: Assange v Swedish Judicial Authority" and "Could Assange apply to set aside the Supreme Court judgment."   There is also further discussion by Joshua Rozenberg at The Guardian 30th May - "Julian Assange's extradition stayed thanks to quick legal footwork."

The Justice and Security Bill and other things

Update 4th June 2012:  On the Paul Chambers case see New Statesman article reporting that a fresh appeal will be heard on 27th June with the Lord Chief Justice presiding.

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The much awaited Justice and Security Bill which has finally been published.  This post also looks at the medieval relic of  "Law terms" though "terms" is the wrong term!   Also, Divisional Courts in the High Court; the "Twitter Joke" case;  and the imminent Supreme Court judgment in the Assange case.

The Justice and Security Bill has obviously been in preparation for some time but has now been published - see Bills before Parliament - Justice and Security Bill.   A sticking point within the coalition government seems to have been whether inquests in Coroner's Courts should be brought within the remit of the Bill.  Very soon, I hope to write a post containing a detailed look at the Bill.  The UK Human Rights blog is "on the ball" this morning and has published a post linking to various resources which will assist with analysis of the Bill.  See also the earlier Law and Lawyer posts concerning the Justice and Security Green Paper.

The fact that this matter has gone straight from Green paper to a Bill shows the importance being attached by the government to getting this highly controversial Bill into law.

Keeping Coroner's Courts out of the scope of the bill will avoid the thorny idea of vetted juries.  I cannot imagine that everyone in the present government will be happy about keeping inquests out but the idea of security vetted juries would surely have proved to be unacceptable - see CharonQC - Fancy being a secret juror and be subject to VERY THOROUGH vetting by MI5 and MI6"

Whilst on the topic of inquests, the Home Office has issued a progress report relating to recommendations made by the London Bombings Inquest of 7th July 2005.  In January 2011, the Home Secretary claimed that certain material was subject to Public Interest Immunity (PII).

Law "terms" - The Easter Law "term" comes to an end on Friday 1st June.  The division of the year into "terms" is a  survival

Unduly lenient sentences: a useful power; well used

Rt. Hon Dominic Grieve QC MP

The Criminal Justice Act 1988 s.36 - (1) If it appears to the Attorney General - (a) that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient; and (b) that the case is one to which this Part of this Act applies, he may, with the leave of the Court of Appeal, refer the case to them for them to review the sentencing of that person; and on such a reference the Court of Appeal may - (i) quash any sentence passed on him in the proceeding; and (ii) in place of it pass such sentence as they think appropriate for the case and as the court below had power to pass when dealing with him.

This provision was used recently in the appalling case of

Outrage !! Unelected Euro Judges trampling on our democracy !

Updated 24th May ...

Media Outrage - Much of the popular British media has expressed outrage at the European Court of Human Rights Grand Chamber decision in Scoppola v Italy - (discussed in the previous post).

The Daily Mail sees the decision as "Contempt for our democracy" - "European judges rode roughshod over British sovereignty yesterday by ruling that prisoners must be allowed to vote.  In a devastating blow, they rejected last year's overwhelming vote by MPs for maintaining our historic blanket ban on voting by convicts. The unelected judges instead gave David Cameron six months to obey their diktat or risk having to pay £150 million in compensation to killers, rapists and other prisoners."

The Express - Prisoners to be given the vote - "The meddling Strasbourg court said a blanket ban on inmates in England and Wales voting was unlawful."

The Sun - "Porridge Votes" - "Fury at Euro Judges as Britain forced to give lags election rights" - "The unelected justices in Strasbourg backed a ruling declaring that

Prisoner voting ~ Strasbourg has spoken

Updated 23rd May:

As was said in another case, Strasbourg has spoken !  ("Argentoratum locutum" - per Lord Rodger in Home Secretary v AF No.3 at para 98).  This time, the Grand Chamber of the European Court of Human Rights has handed down judgment in Scoppola v Italy No.3 which this blog recently considered and argued that - "Perhaps the most likely outcome is that the essentials of Hirst will survive but the court will give greater guidance as to the factors to be considered in deciding nationally where the line should be drawn between those prisoners to be allowed a vote and those who are not."

Press release Scoppola v. Italy (no. 3) and judgment

The Court (by a majority of 16 to 1) found no violation of the Convention in relation to the voting ban imposed, under Italian Law, on Mr Scoppola.   Hirst No.2 has survived

MoT Testing ~ Classic and historic vehicles

In November 2011 the Department for Transport issued a public consultation on a proposal to exempt vehicles of historic interest (vehicles manufactured prior to 1 January 1960) in Great Britain (GB) from the statutory "MoT test."  It has now been announced that such an exemption is to be introduced from 18th November 2012 - Department of Transport News Release

The MoT Test has been with us since its introduction by the late Ernest Marples MP (1907-1978) in 1960. 

Sections 45 to 48 of the Road Traffic Act 1988 provide the legislative basis for MoT testing.  The purpose of the MoT test is to ensure that cars, other light vehicles (including some light goods vehicles), private buses and motorcycles over a prescribed age are checked at least once a year to see that they comply with key roadworthiness and environmental requirements in the Road Vehicle Construction and Use Regulations 1986 and the Road Vehicle Lighting Regulations 1989 (both as amended).

Exemptions from MoT testing exist for certain types of vehicle

Lockerbie - Death of Abdelbaset Al-Megrahi

Lockerbie Memorial

21st December 1988 was the day when Pan Am Flight 103 - a Boeing 747 en route from London Heathrow to New York - was destroyed by explosive devices which detonated as the aircraft,  flying at Flight level 310 (31,000 ft) , approached the small Scottish town of Lockerbie.  A great deal of information about this event may be read at Pan Am Flight 103 (Wikipedia).  In all 270 people were killed: 243 passengers, 16 aircrew and 11 persons on the ground in Lockerbie.

The UK Air Accident Investigation Branch (AAIB) conducted an investigation into the causes of the accident and published their report in 1990.

Subsequently, a trial was held at Camp Zeist, Holland.  Scots criminal law applied.  Two men were accused: Abdelbaset Al Mohmed Al Megrahi and Al Amin Khalifa Fhimah.  The trial was conducted by three Scottish judges (Lords Sutherland, Coulsfield and Maclean) and was heard without a jury.   Al-Megrahi was convicted of murder.  Al Fhimah was acquitted.

Al-Megrahi died in Tripoli on Sunday 20th May - The Guardian 21st May 2012 and it is reported that David Cameron has dismissed the possibility of a UK inquiry into the conviction of Abdelbaset al-Megrahi

Earlier Law and Lawyers post - December 2011

Scottish Government:   See the statement by Scotland's First Minister and also links to various materials connected to the return to Libya of al-Megrahi.

Lord Sumption - Speeches

Lord Sumption was sworn in as a Justice of the Supreme Court on 11th January 2012.  Since then he has made two speeches:

• Lord Sumption at the LSE Department of Government (PDF)
  Foreign Affairs in the English Courts since 9/11
  14 May 2012
• Lord Sumption at the Chancery Bar Association (PDF)
  Reflexions on the Law of Illegality
  23 Apr 2012

The latest speech, relating to Foreign Affairs, is considered by Joshua Rozenberg writing in The Guardian 16th May - "If Sumption has his way, courts will hold foreign secretary to account."

Traditionally, there have been areas

Crime and Courts Bill - Single County Court ~ new Family Court ~ Judicial appointments ~ Filming or recording proceedings ~ new Drug Driving Offence

Updated 19th May - see Addendum

As discussed in the post of 15th May, Part 1 of the government's Crime and Courts Bill  - (sponsored by the Home Office) - will create a new National Crime Agency (NCA) and abolish the Serious Organised Crime Agency (SOCA) and the National Policing Improvement Agency (NPIA)..   See the text of the Bill as it stood at First Reading and Explanatory Notes.  For more information see also Home Office - Crime and Courts Bill

This post considers Part 2 - Courts and Justice.  In Part 2 there are various provisions addressing civil and family proceedings; judicial appointments and deployment of the judiciary; payment of fines; enabling the making and use of films and other records of proceedings and community and other non-custodial sentencing.   In addition, this post looks at Part 3 Clause 27 - Drugs and Driving.  As frequently happens, it is likely that further provisions will be tagged on to this Bill as it passes through Parliament.  The opportunity for Ministers to do this seems to be irresistible.

Prisoner Voting - Scoppola v Italy - Will prisoners finally have to be granted the right to vote?

The European Court of Human Rights has announced that, on 22nd May, the Grand Chamber will hand down judgment in Scoppola v. Italy (N° 3) concerning a prisoner’s right to vote.  The case concerns the applicant’s disenfranchisement following his criminal conviction.

Principal facts:

The applicant, Franco Scoppola, is an Italian national who was born in 1940 and lives in Parma (Italy). In 1999, following a violent family argument, he killed his wife and wounded one of his sons. In 2002 the Assize Court sentenced him to life imprisonment for murder, attempted murder, ill-treatment of members of his family and unauthorised possession of a firearm. Under the Italian Criminal Code his life sentence entailed a lifetime ban

Overview of Bills before Parliament and the Crime and Justice Bill Part 1 (National Crime Agency)

The focus of this post is the government's Crime and Courts Bill  which received its 1st Reading in the House of Lords on 10th May.  2nd reading is scheduled for 28th May.  However, a few other Bills should be noted including the government's Defamation Bill  and the Trusts (Capital and Income) Bill .  Also, a potentially important Private Member's Bill has been introduced by Lord Lester of Herne Hill QC - the Inheritance (Cohabitants) Bill

The Defamation Bill - one way and another, this bill has been a long time in gestation and a very good analysis may be seen at Inforrm's Blog.  A new "serious harm" test will be introduced.  The common law defence of "justification" will be replaced with a defence of "truth."  A new statutory defence of "honest opinion" will replace "justification."  There will be a new defence of "responsible publication on a matter of public interest" and a new defence of qualified privilege relating to peer-reviewed material in scientific or academic journals.  More court reports will become covered by absolute privilege.  The statutory presumption that libel actions will be tried by a jury is to be removed.  (The last such jury trials was in 2009).  The rather archaic Slander of Women Act 1891 will be repealed.  Explanatory Notes for the bill are available.

See also UK Human Rights Blog (20th May) - How will the defamation bill protect free speech?
and also Jack of Kent blog (website of David Allen Green) - Libel Reform - Resources for the Defamation Bill 2012

Trust Law - The Trusts (Capital and Income) Bill  makes technical

Queen's Speech 9th May 2012

Updated 11th May and 12th May

The Queen delivered the Queen's Speech in the House of Lords.  Details of the speech are available via the No.10 Downing Street website.

19 Bills are referred to in the Speech and these include a Crime and Courts Bill; Defamation Bill; House of Lords Reform Bill and a Justice and Security Bill.  More details of the Bills may be seen at The Guardian "All the Bills and what they mean."  See also "Plans for secret hearings in civil cases brought forward" and "Overhaul of libel law"

Reform of the House of Lords has been the wish of reformers for a very long time - as discussed on an earlier post on this blog - 20th May 2011.  See also the earlier posts on the Justice and Security Green Paper.

The ceremony of the State Opening of Parliament is redolent with history.  The three elements

Strasbourg finds against the UK - MS v UK

The prolonged police detention of mentally-ill man without adequate medical care violated his Convention rights - M.S. v. the United Kingdom (application No. 24527/08).  In a judgment which is not final, the Fourth Section of the European Court of Human Rights held, unanimously, that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights; it held, by a majority, that there had been no violation of Article 13 (right to an effective remedy) of the Convention.

The case concerned the detention of a mentally-ill man in police custody for more than three days.  The Court held in particular that the applicant’s prolonged detention without appropriate psychiatric treatment had diminished his human dignity, although there had been no intentional neglect on the part of the police.


The applicant, M.S., is a British national who

Pesky Time Limits and Abu Qatada - No.2

On 19th April Law and Lawyers posted on Pesky Time Limits and Abu Qatada.  In that post it was argued that when a judgment was handed down on 17th January, it would be 17th April when the 3 month time limit for a party to request a reference to the Grand Chamber would expire.  (Such references are permitted by European Convention on Human Rights Article 43).  This view was based on the court's own case law - 5th section of the E Ct HR in Otto v. Germany.  Abu Qatada lodged his request for a reference on 17th April.  A five judge panel of the European Court of Human Rights has held that he was in time.  This is, of course, a finding against the British government which insisted that the time limit expired on 16th April.

Interestingly, the expiry time was not entirely easy

LASPO - Part 3 Chapter 9 - Offences and Criminal Law

Part 3 of the Legal Aid Sentencing and Punishment of Offenders Act 2012. (LASPO) deals with Sentencing and Punishment of Offenders. Part 3 divides into 9 Chapters which cover a very considerable range of criminal justice issues: 1. Sentencing; 2. Bail; 3. Remands of children otherwise than on bail; 4. Release on licence; 5. Dangerous Offenders; 6. Prisoners; 7. Out of Court disposals; 8. Rehabilitation of Offenders; 9. Offences (including more legislation on the use of reasonable force in self-defence).  The 9 Chapters cover sections 63 to 141 and bring into play Schedules 9 to 27.

Previous posts on this blog have considered LASPO Part 1, Part 2, Part 3 Chapter 1 and Part 3 Chapters 2 to 8.  This post is the final one of this series on LASPO and looks at Part 3 Chapter 9  where a number of new criminal offences are created.

I hope that this series will give the reader at least an overview of this very detailed and far-reaching legislation.

LASPO - Part 3 Chapters 2 to 8

Part 3 of the Legal Aid Sentencing and Punishment of Offenders Act 2012. deals with Sentencing and Punishment of Offenders. Part 3 divides into 9 Chapters which cover a very considerable range of criminal justice issues: 1. Sentencing; 2. Bail; 3. Remands of children otherwise than on bail; 4. Release on licence; 5. Dangerous Offenders; 6. Prisoners; 7. Out of Court disposals; 8. Rehabilitation of Offenders; 9. Offences (including more legislation on the use of reasonable force in self-defence).  The 9 Chapters cover sections 63 to 141 and bring into play Schedules 9 to 27.  The previous posts on this blog have considered LASPO Part 1, Part 2 and Chapter 1 of Part 3.  This post is an overview of Chapters 2 to 8.

LASPO - Part 3 Chapter 1 - Sentencing

Part 3 of the Legal Aid Sentencing and Punishment of Offenders Act 2012. deals with Sentencing and Punishment of Offenders.  Part 3 divides into 9 Chapters which cover a very considerable range of criminal justice issues: 1. Sentencing; 2. Bail; 3. Remands of children otherwise than on bail; 4. Release on licence; 5. Dangerous Offenders; 6. Prisoners; 7. Out of Court disposals; 8. Rehabilitation of Offenders; 9. Offences (including more legislation on the use of reasonable force in self-defence).  The 9 Chapters cover sections 63 to 141 and bring into play Schedules 9 to 27.

In December 2010 Law and Lawyers looked at the Green Paper - "Breaking the Cycle ...." - which set out the government's thinking on reforms to the ways in which offenders are dealt with.  This post looks at the Sentencing aspects in LASPO Part 3 Chapter 1.   Many of the changes are aimed at improving then efficacy of community sentencing and some new requirements for Community Orders enter the law.  Certain amendments are made to youth justice - referral orders, detention and training orders and youth rehabilitation orders.  The maximum sentence power of the Magistrates' Court will be lifted.  Some sentences (Custody Plus and Intermittent Custody) are consigned to history.  More of the detail follows together with links to the relevant sections.

LASPO - Part 2 - Litigation funding and Costs

Lord Justice Jackson

Introduction:  

Part 2 of the Legal Aid Sentencing and Punishment of Offenders Act 2012. deals with some aspects of Litigation funding and Costs.  It is vital to note from the outset that LASPO is by no means the full story.  Other reforms, not requiring primary legislation, are in the pipeline including amendments to Civil Procedure Rules.  The international law firm - Kennedys - views the changes in LASPO as part of an integrated package of reforms - (see Kennedys - Liability Brief - March 2012).  Downloadable from this last link is a Briefing Paper which contains a very useful diagram illustrating the reform package.

Part 2 of LASPO implements, but only in part, Lord Justice Jackson's recommendations set out in his report of December 2009 (published January 2010) - see Judiciary - The Jackson report.  Between November 2010 and February 2011, the Ministry of Justice consulted on the Jackson report and issued their response on 29th March 2011 - the various documents may be seen via National Archives.   Over 600 formal responses were received. In general, defendant

LASPO - Part 1 - the detail

Rt. Hon. Kenneth Clarke PC QC MP

General:   Part 1 of the Legal Aid Sentencing and Punishment of Offenders Act 2012. deals with Legal Aid.  The 43 sections of Part 1 deal with both civil and criminal legal aid.  Schedule 1 (Civil Legal Aid) is of central importance. Most of the provisions of the Act come into force on such day as the Lord Chancellor (pictured) or the Secretary of State may appoint by order.


In many ways, the Act is a radical rethink and is designed to save some £350m per year on legal aid.  The Legal Services Commission will disappear to be replaced by a Director of Legal Aid Casework ('the Director') - a civil servant appointed by the Lord Chancellor.  The Act offers the Director some independence but only in respect of individual case decisions.  Whether this arrangement will prove to be satisfactory remains open to question.  Civil servants are always influenced by the general ethos of the Department to which they are attached.

The Act is a marked improvement on the original Bill since, due to significant pressure from interested parties, the government conceded on a number of important points such as the definition of domestic violence, the need for legal aid for certain appeals, removal of the idea of means testing police station legal advice etc.  On this, see the article by John Wotton (President of the Law Society).  For anyone who thinks that the return of a Labour government will mark a return to pre-LASPO days (or even better) see the article "Labour would rebalance the justice system."

In civil proceedings, legal aid becomes

A tragedy - LASPO Part 1

The Legal Aid Sentencing and Punishment of Offenders Bill received Royal assent and is now, therefore, the Legal Aid Sentencing and Punishment of Offenders Act 2012.  Part 1 of the Act - dealing with legal aid provision - is, in my view, a disgrace.

Lord Bach, the Shadow House of Lords Spokesman on legal aid has resigned - The Guardian 2nd May 2012.

Lord Bach described the legislation as a "bad day for the British justice system". The former criminal barrister said he had stayed on to fight the bill but would now go to the backbenches.

"I was determined to see this through," he said. "It's such a rotten bill. This