A trilogy of important family law cases

July has been a legally busy month with numerous court decisions and other events.  August is usually a little quieter but we shall see!  In this post I draw attention to three recent cases which illustrate the immensely difficult work undertaken by the judges in the High Court's Family Division and in the Court of Protection.  I am not attempting any detailed analysis of the decisions but will say enough to try to bring out the key points.

XCC v AA and others [2012] EWHC 2183 (COP) - Parker J - judgment

This is not an entirely straightforward case but it basically concerned whether there were grounds in English law not to recognise a marriage entered into in Bangladesh between persons referred to as DD and AA.  Parker J concluded that there were "overwhelmingly strong public policy grounds and welfare grounds not to recognise the marriage" and he made a declaration accordingly.

DD has a very significant degree of learning disability, little language, very little comprehension of anything other than simple matters, and needs assistance with almost all aspects of her daily life. Her parents

Consultations and Bills

There are several active consultations:

1.  UK Bill of Rights - The British Bill of Rights - Second consultation - responses required by 30th September

2.  Justice Swift and Sure - Perhaps not strictly a consultation but the Ministry of Justice invited feedback on the White Paper - see Swift and Sure: Has Flashman come up with flash incarceration?

3.  Law Commission - Has a number of consultations running:

a)  Scoping exercise on The Defences of Insanity and Automatism- responses by 18th October

b)  Unfair Terms in Consumer Contracts - responses by 25th October

c)  Scandalising the Court - responses by 5th October

and a number of others - here.

Bills in Parliament:

The Twitter Joke judgment considered

Lord Judge LCJ

Update 30th July:  At 12.20 pm (30th July) the following was posted on the Crown Prosecution Service News Brief -

"Clarification on decision making in Paul Chambers case

The DPP was not the reviewing lawyer in the case of Paul Chambers, but in June he did instruct the team managing it to consider conceding the appeal. This was considered and progressed, however, at a later stage the DPP was advised that, as a matter of law, conceding the appeal would not be possible. This is because it was not possible because the key finding of fact in the case was a finding of the Crown Court, which only the High Court could overturn. The DPP accepted that advice and reluctantly agreed that the appeal had to proceed."

The High Court took the facts from the case stated (Judgment at para 5).  This is normal practice in case stated appeals since such appeals are concerned with questions of law and the High Court does not usually hear the witnesses etc.  The High Court also noted at para 33 that proper respect had to be shown to such findings of fact but the judges clearly saw the Crown Court's finding - that the tweet was menacing - as flawed since no weight was given to some of the evidence and disproportionate weight to other aspects of the evidence (see discussion in para 33 and conclusion in 34).

Subsequently, it appears that the above statement was removed from the CPS website.

For further background to case stated appeals see Magistrates' Courts Act 1980 s111 .... Senior Courts Act 1981 s28 .... Criminal Procedure Rules Part 64 .... and the case of Paul Oladimeji v DPP [2006] EWHC 1199 (Admin).

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The "Twitter Joke" case - (see previous posts of 27th June and 27th July) - has been hailed as a victory for free speech.  Mr Chambers, a young man of entirely good character,  had his conviction quashed as a result of the decision by the Lord Chief Justice who sat with Owen and Griffith Williams JJ - full judgment - [2012] EWHC 2157 (QB).

Nothing in the judgment will prevent the prosecution of those who make serious threats via electronic media.  However, the judgment is likely to ensure that prosecutions are only brought in such cases.

The "tweet" which Mr Chambers made was held not to be a menacing communication within the meaning of the Communications Act 2003 s.127(1)(a).  A message of a "menacing character" is part of the actus reus of the offence (basically, that which must be done to constitute the offence).

The Act:

A person is guilty of an offence if he -

The Twitter Joke appeal ~ Paul Chambers wins the appeal

Mr Paul Chambers

Updated with links 28th July

A Divisional Court of the Queen's Bench Division has allowed the appeal by Mr Paul Chambers against his conviction of the offence under the Communications Act   See the full judgment - [2012] EWHC 2157 (QB) - delivered by the Lord Chief Justice.    This case was discussed in previous posts on this blog - the most recent is here.

It was a long running case heard initially in the Magistrates' Court where a District Judge (Magistrates' Courts) found Mr Paul Chambers guilty of the offence under the Communications Act 2003 section 127(1) - sending a  "menacing" communication via a public electronic communications network (PECN).  Mr Chambers appealed against his conviction to the Crown Court and, this time, was found guilty by a judge sitting with two magistrates.   The next step was an appeal - "known as Appeal by Case Stated" - to a Divisional Court of the Queen's Bench Division.  Such appeals are concerned with questions of law.  This appeal was heard by two judges who failed to agree.  A further hearing in the Divisional Court was ordered at which the Lord Chief Justice presided and this second appeal was decided in favour of Mr Chambers.  In all, Mr Chambers was subjected to seven court hearings and over 9 hours of court time.  During the process he lost two jobs.

The Lord Chief Justice set out the relevant sections of the Communications Act 2003 and also the detailed facts (paragraphs 5 to 18).  The legal questions

The London 2012 Olympics are here and other items

Olympics:  The Opening Ceremony of the 2012 Olympics is upon us - London 2012.  The eyes of the world will be on London and the Games which continue until 12th August.  They will be followed by the immensely inspiring Paralympics ~ 29th August to 9th September.  In this cynical age, bedevilled as it is by seemingly insurmountable problems, it is worth reminding ourselves of the fundamental principles said to underlie the Olympics.  "The goal of Olympism is to place sport at the service of the harmonious development of humankind, with a view to promoting a peaceful society concerned with the preservation of human dignity" - Olympic Charter 2011. 

Sport and the law exhibition: The Supreme Court has handed down its last judgments of the Trinity Term.  The Michaelmas Term commences on 1st October.  Meanwhile, the court is hosting an exhibition on sport and the law. Developed in partnership with academics from De Montfort University (DMU) in Leicester and the British Association for Sport and Law (BASL), the exhibition forms part of the official programme of events inspired by the London 2012 Games.  The exhibition is open on weekdays (0930-1630) until the end of September and admission is free.

"Twitter" Joke: Judgment is to be delivered

Coalition in crisis

According to an article in the Daily Mail 25th July, the coalition government is now in crisis over the latest Gross Domestic Product (GDP) announcement.  It is said that the coalition is turning to "in fighting."  In previous Parliaments, the Prime Minister would have brought them all to heel by the mere hint that he might consider calling an election.  One wonders whether the Prime Minister now regrets the enactment of the Fixed Term Parliaments Act 2011 which, basically, says that the next election will be on 7th May 2015.  The Act does not prevent an earlier election but one of the procedures in section 2 of the Act must apply: the House of Commons passes a motion for an election - or - the House votes that it has no confidence in the government and the period of 14 days after the day on which that motion is passed ends without the House passing a motion that it has confidence in the government.

On the GDP announcement see Director of Finance Online

Defending allegations made in care proceedings ~ Costs

The Supreme Court has given judgment in T (Children) [2012] UKSC 36 - Judgment and Press release.  It is a unanimous decision allowing an appeal from the Court of Appeal judgment at [2010] EWCA Civ 1585.

In child care proceedings, it is far from uncommon for very serious allegations (e.g. of sexual abuse against the children) to be made against individuals and those individuals may well wish to contest those allegations.  Legal aid is subjected to means testing which is not particularly generous.  In the absence of legal aid, a person wishing to mount such a challenge will face formidable problems and there is serious potential for massive injustice to them.

Background:

The appeal concerned the liability of a local authority to pay the costs of a party to care proceedings.  The actual care proceedings took place in 2010 at Kingston-upon-Hull County Court where a judge refused to make an order for costs in favour of grandparents and against the Hull Council.  In 2009, the judge had held a very lengthy fact finding hearing which had been spread over some five and a half weeks !   The grandparents of two children were intervening parties to the fact finding hearing.  The grandparents were

Interception of Communications ~ Charging Decision

Interception of Communications - especially "Voicemail" - has been very much in the news recently.  It was revealed last year that reporters working for "The News of the World" newspaper had allegedly hacked into Milly Dowler’s voicemail following her disappearance in March 2002.  This led to the Leveson Inquiry into the "culture, practices and ethics of the media." The owners of The News of the World decided to close the 168-year-old newspaper.  Some form of media regulation is likely to emerge as a result of the Leveson Inquiry - see Draft criteria for an effective regulatory regime.

The present law on interception of communications may be found in the Regulation of Investigatory Powers Act 2000 Part 1 (Communications) Chapter 1 (Interception).  Chapter 1 extends to 20 complex sections but certain interception is lawful if it is in accordance with section 3, section 4 or section 5 of the Act or some other statutory authority.  Where there is alleged agreement to unlawfully intercept communications, it is possible for conspiracy charges to arise. 

Both section 1(1) and 1(2) contains the phrase "in the course if its transmission."  

Criminal Cases: Spouses and Civil Partners ~ Competence and Compellability

The law has leaned against compelling one party to a marriage to testify against the other party.  It has been considered to be both socially undesirable to disturb marital harmony and to be harsh to force one to testify against the other.  However, in the interests of justice, exceptions to this developed both under common law and statute.  It is a moot point whether, in the modern age, the rule should be retained or, if it is retained, whether further modifications to the rule are required.  Since the Civil Partnerships Act 2004 s.84 civil partners are to be treated in the same way as the parties to a marriage.

The Court of Appeal (Criminal Division) has given judgment in R v BA [2012] EWCA Crim 1529 where the court considered a ruling by a trial judge (Mr Recorder Marrin QC) that a wife was not to be compelled to testify against her husband at his trial for an offence under section 2(a) of the Criminal Damage Act 1971 - "A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out, - (a) to destroy or damage any property belonging to that other or a third person; or ...."

Section 80 of the Police and Criminal Evidence Act 1984 (PACE) was considered.  However, the court declined an invitation to construe section 80 so as to remove anomalies and bring it more into line with modern thinking.  That was a matter for Parliament.

Arrests contemporaneously with the 2011 Royal Wedding

In what appeared to be pre-emptive strikes against anything considered to have the potential to be "trouble", around 100 people were arrested in advance of the Royal Wedding held on 29th April 2011.  Some of the legal issues were considered at Law and Lawyers - "Arrests in London on 28th April - Breach of the Peace etc."

The High Court Queen's Bench Division - Divisional Court - Richards LJ and Openshaw J - has given judgment in four linked claims for judicial review concerning the lawfulness of the policing of events at the time of and immediately prior to the Royal Wedding - R (Hicks and others) v Commissioner of Police of the Metropolis and other cases [2012] EWHC 1947 (Admin).  

A central issue was whether the defendant Commissioner of Police operated a policy, or practice on the ground, of equating intention to protest with intention to cause unlawful disruption and adopted an impermissibly low threshold of tolerance for public protest, resulting in the unlawful arrest of persons who were viewed by his officers as being likely to express anti-monarchist views. The individual claims

Death of Mr Ian Tomlinson ~ P.C. Harwood acquitted

Almost 3 years and 4 months after the event, Police Constable Simon Harwood has been acquitted on a charge of manslaughter arising from the death of Mr Ian Tomlinson on 1st April 2009.  In an article in The Guardian 19th July, the Tomlinson family have indicated that they may bring a civil action against the Police - read their comment here.  A Coroner's Court, on 3rd May 2011, decided that Mr Tomlinson's death was unlawful killing.  However, in law, that is not a finding of legal liability against any particular individual.  Statutory Rules applicable to inquests prevent Coroners from framing a verdict in such a way as to appear to determine any question of - (a) criminal liability on the part of a named person, or (b) civil liability.*

See the article by David Allen Green - New Statesman 19th July.

At the time of  the incident, the G20 conference was taking place in London and was being met with vehement protests.  The Police were out in considerable strength and their number included several dog handlers.   Mr Tomlinson was not a protester - merely a man going about his lawful business.  PC Harwood was one of a group of officers.  He came behind Mr Tomlinson and struck him with a baton and then, immediately afterwards, pushed Mr Tomlinson in the back causing him to fall to the ground.   Mr Tomlinson fell

Finger pointing

Steve Coogan not guilty of speeding at Hove seafront declares the BBC 16th July. In fact, it appears that he was found not guilty of the offence of failing to supply information under section 172 of the Road Traffic Act 1988.  This is not a speeding offence though the request for information related to a vehicle alleged to have been speeding.

Section 172 (Duty to give information as to identity of driver etc in certain circumstances.) is, in essence, a finger-pointing provision.  The section was considered in the recent case of Lynes v DPP  [2012] EWHC 1300 (Admin) - McCombe and Hickinbottom JJ.

A speed camera does not identify the driver, only the vehicle. However,

Vicarous liability for intentional tort ~ Roman Catholic Priest

A "preliminary issue" continues to be fought in the case of JGE v Trustees of the Portsmouth Roman Catholic Diocesan Trust.  The decision of MacDuff J is discussed in a previous post of 16th January 2012.  The preliminary issue has now been considered by the Court of Appeal - Ward, Tomlinson and Davis LJJ - (judgment) - which decided that vicarious liability in tort could attach to the Trustees for the conduct of a Roman Catholic priest.  The court considered that the relationship between the Priest and the Trustees was sufficiently akin to employment.  The decision was considered by the Court of Appeal to be a "difficult one" (Ward LJ at 73) and "not easy to decide" - "an elusive point" - Tomlinson LJ at 110.

The judgment of Ward LJ questions - at para 6 - whether this matter should have been pursued as a "preliminary point."

Olympics ~ London 2012 ~ unprecedented security

The scale of the security operation surrounding the London 2012 Olympic Games is massive.

This video posted on Youtube ~ UK enforces Olympic flight restrictions ~ gives some idea of the scale of the operation.  The private security firm G4S informed the government that they could not meet the target of staff required for Olympic Security - see Home Secretary Theresa May explaining the G4S problem to the House of Commons and informing the House that troops are "ready to step in when their country calls."

Of course, all this is being justified on the basis that the powers-that-be are making the public feel safe and that it is better to be safe than sorry.  After all, the horror of a 9/11 style attack hardly needs to be stated and the military are preparing to shoot down any aircraft considered to be involved in such an attack.   Furthermore, some previous Olympic Games have had terrorist incidents such as Munich 1972 and Atlanta 1996.  Preparations for the Games  include placing missiles on the rooftops of buildings.

A whole website is devoted to London 2012 Airspace and a 114 page "Airspace Guide" has been published when the most advisable thing to do might be to go nowhere near any Olympic venue. 

Hardly surprisingly, the idea of turning

Swift and Sure: Has Flashman come up with "flash incarceration"

Nick Herbert MP

I am not a Monday morning person!  (The song Rainy Days and Mondays comes to mind).  This morning I noticed The Guardian's article - "Government outlines plans for fast-track justice" - saying that the government had set out more plans for criminal justice and that there will be "Flash incarceration" of offenders who breach court orders, widespread naming online of those convicted, more witnesses giving evidence via videolink and Sunday court sittings.

Whether this is old wine in new bottles remains to be seen though it cannot be doubted that, despite various criminal justice "initiatives" over recent years, some cases take far too long to come to trial and too many fail to proceed on the day set for trial.  There is a good case for being more focused and getting matters dealt with a swiftly as possible provided that fundamentals of a fair trial are not compromised.  This is fully recognised by the judiciary - see, for example, Early Guilty Plea Scheme.

The White Paper is entitled - "Swift and Sure Justice: the government's plans for reform of the criminal justice system." See Ministry of Justice and the White Paper (pdf).

Having just glanced

The John Terry Case ~ Public Order Act 1986 ~ Crime and Disorder Act 1998

Updated x 2:

Professional footballer - John Terry - has been acquitted at Westminster Magistrates' Court - see Judgment.  His trial was held this week before Senior District Judge (Chief Magistrate) Howard Riddle.(*)

It was said that on the 23rd October 2011 at Loftus Road Stadium London, W12 Mr Terry used threatening, abusive or insulting words or behaviour or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress and the offence was racially aggravated in accordance with section 28 of the Crime and Disorder Act 1998, contrary to Section 5 of the Public Order Act 1986 and section 31(1)(c) and (5) of the Crime and Disorder Act 1998.

The law:  The starting point for the offence is the Public Order Act 1986 section 5 -Harassment, alarm or distress

The British Bill of Rights ~ Second Consultation

Update 17th July

In March 2011, a Commission was set up to consider the possibility of the United Kingdom having its own modern Bill of Rights - see Ministry of Justice .  The Commission was mandated to investigate the creation of a UK Bill of Rights "that incorporates and builds on all our obligations under the European Convention on Human Rights."  Thus, any idea of withdrawal from the European Convention on Human Rights is not within the remit of the Commission.  The Commission was required to report by the end of 2012.

One of the original Commissioners (Dr Michael Pinto-Duschinsky) resigned - here.  He was the only non-lawyer Commissioner and was replaced by Lord Faulks QC.  The composition of the Commission looks like a "QC's Club" and is certainly open to criticism but I do not propose to engage further in that here.

At present, the UK is a signatory to the European Convention on Human Rights.  Until the Human Rights Act 1998 came into force on 1st October 2000, the European Convention was only occasionally raised in argument before courts in the UK.  The Act made major changes.  For instance, "So far as it is possible to do so, primary legislation

Presidency of the Supreme Court ~ Lord Neuberger of Abbotsbury

It is confirmed that Lord Neuberger of Abbotsbury will become the next President of the Supreme Court

Announcement from Downing Street

Supreme Court's announcement

Earlier on 12th July, Law and Lawyers said:

On Twitter this morning (12th July) ...  JoshuaRozenberg: I expect Downing Street to announce today that Lord Neuberger will be president of the UK Supreme Court. More on http://t.co/Ue1Glvp6 later.

We shall see.  An article by Owen Bowcott in The Guardian 10th July indicated that the choice was between present Supreme Court Justices Lady Hale, Lord Mance and the present Master of the Rolls (and former Lord of Appeal in Ordinary) Lord Neuberger.


Their legal abilities are undoubted.  The choice should

House of Lords Reform ~ Second Reading

Update:  The Guardian 11th July - "Lords Reform: Cameron plans to offer Clegg watered-down deal"

On Tuesday 10th July, with Labour support, the House of Lords Reform Bill passed its Second Reading by 462 votes to 124 - The Guardian 11th July - though 91 Conservative MPs voted against it.

House of Lords Reform Bill - as introduced to the House of Commons.

Shenanigans in the Commons:

It was widely expected that many Conservative MPs would vote against a House of Commons motion designed to limit to just 10 days the time for debating the House of Lords Reform Bill . In the event, this so-called "timetabling motion" was withdrawn though a possibility remains that there may be a similar motion in the autumn.  By that time the coalition will perhaps have had the whips working harder on various "rebel" MPs.  The outcome is that the Bill will not be proceeding very far in the near future - see BBC 10th July - since Mr Speaker (John Bercow) told MPs that parliamentary rules mean that the Bill will not move on beyond second reading.  The Bill remains "uncommitted" for the time being.

The "headline" features in the Bill are:

• Fewer members
• The majority, 80%, of members would be elected
  
• 90 members, 20%, would be appointed, by an Appointments Commission, on a non-party basis
• Time-limited membership - Once elected, peers would serve a non-renewable 15-year term instead of being members for life
• A reduced number of bishops - The number of Church of England bishops would be cut from 26 to 12
• The chamber would still be called the House of Lords but members would not have to hold peerages.  Parliament to choose a new name for members

Can the law nail the Libor bankers?

Update 31st July:  SFO close to criminal charges over Libor rigging scandal - The Guardian 30th July.
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The Barclays Bank Libor / Euribor matter still has a long way to run.  The House of Commons voted (330 to 226) to hold a Parliamentary Inquiry which will take evidence on oath and be assisted by counsel.  Details such as the precise terms of reference remain to be settled.  The debate was marked by an unseemly row between an irate Ed Balls (Shadow Chancellor of the Exchequer) and George Osborne who appeared to smirk at Balls throughout - see City A.M. 6th July.  This partisanship does not auger well for the proposed inquiry and demonstrates why many, including myself, would have preferred a judicial inquiry even if it took rather longer.  Observers of the political scene may well wonder why phone hacking led to the judicial Leveson Inquiry whereas the manipulation of the inter-bank lending rate does not.

The Attorney General warned MPs that a speedy parliamentary investigation would potentially threaten to prejudice a criminal trial - “If there are criminal investigations or enquiries then it will be difficult.”  “Any inquiry by this House will have to be managed in light of that process because it mustn’t interfere with it.”

The Serious Fraud Office (SFO) Director (Mr David Green QC) made

August 2011 Disorder ~ Judicial and Court ~ Statistics

"There are three kinds of lies: lies, damned lies and statistics."  The phrase is something of a warning to exercise care when reading statistics.  Nevertheless, two interesting statistical offerings from  the Ministry of Justice and one from the Attorney-General's Office are worthwhile reading.  Make of them what you will.

August 2011 Disorder:

A "Statistical Bulletin on the public disorder of 6th to 9th August 2011."   The bulletin gives updated information on those brought before the courts for offences related to the public disorder of 6th to 9th August 2011. Information is provided on those individuals brought before the courts; their initial outcomes and sentencing based on data available up to 8th June 2012.

The Ministry of Justice comments -

Healthcare Regulation ~ Nursing and Midwifery Council ~ Strategic Review

CHRE Strategic Review - July 2012:

An article in the Daily Mail 3rd July made disturbing reading - "Rogue nurses who attack and steal from patients handed 'licence to abuse' as report reveals how few are actually struck off."   The author, John Naish, took a look at a number of issues relating to standards in healthcare in England and Wales.

The Council for Healthcare Regulatory Excellence (CHRE)  has published a strategic review of the Nursing and Midwifery Council (NMC).  It is a damning report - Strategic Review of the NMC - 3rd July 2012  and read the NMC response .

The CHRE was called in by Anne Milton MP, Parliamentary Under-Secretary of State for Public Health, in January to see why the NMC was failing to improve, particularly in its handling of cases about nurses’ and midwives’ fitness to practise. The report, published on 3 July, highlighted problems ‘at every level’.

The NMC’s long standing problems include confusion about its regulatory purpose, weak governance, poor planning, unreliable management information, and inadequate information technology. The NMC is currently recruiting a Chair and Chief Executive. The strategic review made 15 recommendations for changes in leadership, culture, finance and operational management.

The Regulatory system:

The regulation of health professionals is a complicated 

The heads begin to roll ~ Barclays ~ Libor aftermath

Following on from the Financial Services Authority report into fixing of Libor and Euribor rates - (discussed in an earlier post - here) - Mr Bob Diamond has resigned as Chief Executive of Barclays - Telegraph 3rd July.  The Statement by the Chancellor of the Exchequer 28th June contained no support for Mr Diamond and, in reality, he had must have had little option but to depart irrespective of his precise role in the Libor/Euribor matter.  He will be giving evidence to Parliament and is perhaps unlikely to pull his punches.  It is reported that he might receive as much as £17m in severance pay.


On 2nd July, the Prime Minister announced a Parliamentary Committee of Inquiry and it seems that this will report by the end of 2012 with a view to any findings informing the content of planned banking legislation in 2013.  (The planned legislation is to implement the report of the Independent Commission on Banking ).  Inevitably, there are mixed feelings as to the desirability of politicians conducting this inquiry - (e.g. The Guardian 3rd July) - but it seems that judicial inquiries (such as Leveson), for all their independence from the executive, may be proving to be too lengthy and costly for the government's taste and, of course, they may also prove to be very uncomfortable for politicians. 

See the statement in Parliament  (2nd July) of the Chancellor (George Osborne MP) which contains information about steps being taken and refers to the Terms of Reference of the Parliamentary Inquiry.


Amidst this financial maelstrom, a little light relief is thankfully available - see Charon QC - Advanced fraud for the modern banker.  

Addendum 4th July:  It seems that the plans for a Parliamentary Inquiry are already in turmoil - Daily Mail - "Cameron's bank probe in chaos: Inquiry Chairman threatens to quit before it starts and Labour warns of cover up." 

Addendum 5th July:  The law catches up with Libor - Alex Bailin QC 

and Telegraph "Government wins vote on Barclays inquiry and agrees to compromise on format" - the House of Commons rejected a judicial inquiry though the Attorney General intervened in the debate to warn against a speedy inquiry.