Tuesday, 1 January 2013

A look back on 2012 ~ a blockbuster of a year

What a year!  For any observer of the legal system, 2012 was a blockbuster with numerous stories and an immense amount of comment.  2012 was also the year of the immensely successful Queen's Diamond Jubilee and the Olympics and Paralympics held in London.  These superb events managed to lighten the mood within the country which is beset by seemingly intransigent economic woes.  November 2012 marked the mid-point of the present Parliament which is locked into place for 5 years by the, to my mind ill-considered, Fixed Terms Parliaments Act 2011.  On the legal front, here are just are some of the stories which, for me at least, stood out.

Back In January, the Scottish Independence Referendum 2014 was beginning to attract attention south of the border: Scotland: We need to talk.   Premiership Footballer John Terry said that he would "prove his innocence" at his trial and my comments on burden and standard of proof in criminal cases attracted a lot of views.  One of the purposes of blogging is to try to explain and it is amazing just how much misunderstanding there is about even basic aspects of the legal system.

was the 60th anniversary of the Accession to the Throne of HM The Queen.  I looked back at the Accession in a somewhat poignant post - here.   The frustration of the UK government with the European Court of Human Rights was mounting and a leaked document revealed the government's plans to minimise the influence of Strasbourg

Of course, little is said when the British government wins a case at Strasbourg as it did in March - Lois Austin and others v UK.  This concerned the controversial technique of "kettling"  of persons in the vicinity of a demonstration.  March also saw the sentencing to 56 days imprisonment of Liam Stacey for his comments on twitter about footballer Fabrice Muamba.   Stacey was charged under the Public Order Act 1986 s4A (together with Crime and Disorder Act 1998 s31) - racially aggravated disorderly behaviour ... etc.

In April, the European Court of Human Rights (Fourth Section) gave judgment in the cases of 5 men facing extradition from the UK to the USA.  (Judgment in a sixth case was deferred until later).  The court was required to decide whether their extradition would be compatible with Article 3 and the court was asked to consider representations from various interveners who provided evidence as to the conditions in US high security facilities such as ADX Florence where, at least, some of the men might eventually be held - see Reflections of Babar Ahmed and others v UK   This judgment is, to my mind, unsatisfactory in that it fails to deal convincingly with the arguments of the interveners which included some with immense knowledge of the US penal system and its possible impact on the health of those detained for long periods under "special administrative measures."

April was also marked by the row over time limits at the European Court of Human Rights - Pesky time limits and Abu Qatada.    The parties (i.e. Abu Qatada and the British government) had 3 months from 17th January in which to enter a request that the case be referred to the Grand Chamber.  On 17th April, Abu Qatada's legal team made a request that the case be referred.  However, it appears that the British government considered that the 3 months ended at midnight on 16th April.  This proved to be somewhat embarrassing for the British government - Pesky time limits and Abu Qatada No. 2.   A five judge panel of the European Court of Human Rights held that Abu Qatada was in time.  This was, of course, a finding against the British government which insisted that the time limit expired on 16th April.  In my view, this brinksmanship was unedifying.

Finally, in April, came the important Brighton Declaration -  The Brighton Declaration - a quick first glance.  This, by now almost forgotten document, will lead to some very crucial changes over the next few years.  Interestingly, the declaration looked for rapid execution of judgments - "The Committee of Ministers should be able to take effective measures in respect of a State Party that fails to comply with its obligations under Article 46 of the Convention."  With the UK on the international legal naughty step over prisoner voting, this part of the declaration may come home to haunt the British government.  The declaration also signalled for reform - "It may be necessary to evaluate the fundamental role and nature of the Court to ensure the viability of the court's key role in the system for protecting and promoting human rights in Europe" and the Committee of Ministers was tasked with carrying out "a comprehensive analysis of potential options for the future role of the court, including analysis of how the convention system in essentially its current form could be preserved, and consideration of more profound changes to how applications are resolved by the Convention system with the aim of reducing the number of cases that have to be addressed by the court."  The declaration requires this work to be done by the end of 2015.

May 2012 prompted some posts looking at the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which impacts on many areas including securing a marked reduction in the availability of legal aid in many areas of crucial importance to ordinary people.  Parliament embarked on the Crime and Courts Bill with its plans to bring about a single County Court for England and Wales and a new Family Court.  Strasbourg delivered judgment in Scoppola v Italy which effectively did nothing to lessen the impact of the decision on prisoner voting in Hirst No.2 which binds the UK - Prisoner Voting - Strasbourg has spoken  The decision in Scoppola was presented by mainstream media as an outrage with  Unelected Eurojudges trampling on our democracy.  The UK ended up with 6 months in which to get on with the implementation of the decision in Hirst No. 2.  

Finally, for May, the Supreme Court ruled that the European Arrest Warrant issued by Sweden for Julian Assange  was a valid warrant even though it had been issued by a prosecutor.  Soon afterwards, Assange "holed up" in the Ecuadorean Embassy, where he remains at the time of writing.

June saw a number of posts on the Justice and Security Bill.  The Bill is immensely controversial because it will bring into law "closed material procedure" in civil cases in general as opposed to their use in particular areas at the moment.  Much more is likely to be said about this Bill in 2013.

Mr Tony Nicklinson - a sufferer of "locked in  syndrome" - sought declarations that it would be lawful for a doctor to terminate his life, with his consent and with him making the decision with full mental capacity - (voluntary euthanasia).  It had to be doubtful that the court would "Cross the Rubicon" in this matter and this proved to be the outcome.  Judgment in the case of Nicklinson v Ministry of Justice [2012] EWHC 2381 (Admin) Toulson LJ; Royce and Macur JJ was handed down on 16th August 2012.  Mr. Nicklinson died on 22nd August - see BBC 22nd August.  At the time of writing, a hearing in the Court of Appeal is likely - The Guardian 3rd January.

The Assange matter rumbled on through the long summer days and prompted a number of posts including one looking at the status of embassies.

In July we asked - Can Law nail the Libor bankers.  As far as I know, this question continues to await an answer.  Actual individuals engaged in this reprehensible fraud appear to be coated in teflon though investigation is continuing.  In June 2012, the Financial Services Authority imposed a fine of £59.5m on Barclays and, in December 2012, a fine of £160m on UBS AG.

The John Terry case came to trial and he was acquitted.  Also, PC Simon Harwood was acquitted by a jury of the manslaughter of Mr Ian Tomlinson.  Harwood was eventually dismissed from the Police service with the Police Misconduct Hearing adding to the controversy by refusing to consider the question of causation - i.e. whether Harwood's striking of Mr Tomlinson was an operative factor in the death, some time later in a different location, of Mr Tomlinson.  July also saw the end of the incredibly long-running "Twitter Joke" case.  The case concerned remarks made, undoubtedly out of frustration, on Twitter on 6th January 2010.  It took until 27th June 2012, at a hearing before the Lord Chief Justice, for a court to finally rule that he was not guilty under the Communications Act 2003 s.127.

August saw the abandonment of the House of Lords Reform Bill though, in the process the opportunity of making some important reforms was lost - e.g. the removal of Church of England Bishops; the removal from the legislature of peers who are convicted of serious offences and perhaps the final removal of hereditary peers.

Mr Assange was again the the news - Julian Assange: Quo Vadis - and we asked the interesting question - What if Assange ever did get to Sweden

The tendency for the traditional rights of those suspected of crime to come under attack from Parliament was highlighted in Interview after charge: the thin end of the wedge?  Four years after the provisions were enacted the government brought into force from 10th July 2012 post-charge interviews under ss. 22 and 23 of the Counter-Terrorism Act 2008.  The editor of Criminal Law Week did not mince his words and described this as “one of the most sinister pieces of legislation enacted by the Westminster Parliament for many years”.

September was notable for the appointment of Mr Chris Grayling as Secretary of State and Lord Chancellor.  He is not a lawyer and the appointment was, for that reason, unprecedented in modern times and, to say the least, it appeared to go down like a lead balloon with many in the legal profession generally.  I am less sure that such a post should be reserved, as in the past, to a senior lawyer (usually a QC) who happens to be a supporter of the government.  However, I am also unhappy at the joint role of Secretary of State / Lord Chancellor.  The time must surely come for this arrangement to be reviewed.    

The Hillsborough Independent Panel reported in what appears to be a most thorough examination of the available material.  One of the central dissatisfactions with the law's handling of Hillsborough was the inquest process and, of course, the verdicts.  In December the High Court heard an application by the Attorney General for new inquests and the application was granted.  The new inquests should be in 2013.  However, this article - (Guardian 1st January 2013) - is not encouraging.    

Also in September, the new Chief Coroner began to make his mark with his announcement of a ten point plan.   The government oscillated for a long time over whether or not to have this appointment.  In the event, some of the matters enacted in the Coroners and Justice Act 2009 will not come into law - e.g. appeals from Coroner decisions to the Chief Coroner.

The judgment of the European Court of Human Rights became final in the case of Abu Hamza and others.  This enabled five men to be finally bundled out of the UK to the USA.  This was met, generally, by sounds of "good riddance" but analysis of some of the cases made me ask whether it was a time for rejoicing  The cases appear to leave behind a legacy of problems concerning extradition which may well need to be resolved in the future.

As the generally wet summer gave way to a wet autumn, in October, the revelations about the late Sir Jimmy Savile came into the open.  Some of the possible legal issues were looked at here.    The law, free speech and social media were considered in Tweets, Facebook ~ Got to Jail  where the cases of Azher Ahmed and Matthew Woods were considered.  

The Home Secretary got her moment in Parliament when she was able to announce that Gary McKinnon would not be extradited to the USA.  Her decision was based, of course, on protecting his human rights.  (It was later announced that he would not face charges in the UK either).  

Whether an independent Scotland would automatically have European Union membership was a question which came to prominence - Scotland and the EU - No. 2     Earlier, there was a question as to whether the Scottish government had obtained actual legal advice on this issue - Scotland and the EU No.1.   My own belief is that the peoples of these islands will prosper more together than separate and I continue to wonder whether a federal system might not be a better solution than independence.  However that may be, it is not an option for any ballot paper under the Edinburgh agreement signed by Prime Minister Cameron.  The referendum is to be held in 2014 but, during 2013, we can expect to hear increasingly strident noises about it one way or the other. 

November saw the Supreme Court give judgment in a vicarious liability case concerning historic sexual abuse committed at a school in Market Weighton over a 40 year period - Supreme Court ~ Judgment on Vicarious Liability in Tort.

The case of Army Sergeant Danny Nightingale came to public attention and he was released from detention on orders of the Court Martial Appeal Court.  There may be more on this case later.   

The November blockbuster was the Leveson Report on the Press with its recommendation for a self-regulation system with statutory underpinning.  The way forward for this report is in the balance and will undoubtedly be revealed in 2013.  The overwhelming legal opinion seems to be that Leveson got this right but Prime Minister Cameron expressed some reservations at the time Leveson reported.   See Who is to Guard the guards.   Is the Prime Minister right in suggesting that, once Parliament legislates, it becomes easier to enact further legislation since a principle has been conceded or, at least, partially so. Even if Leveson is right in saying that his scheme is not statutory regulation of the press, it is not entirely unreasonable to characterise it as a step in that direction and further steps then eventually become more palatable particularly in the political climate likely to follow something “going wrong.”  Maybe we are becoming rather too ready to abandon various freedoms which have, on the whole, served us well.  Guarding the guardians - the Leveson report and the Rubicon

In November, Abu Qatada was still with us since the Special Immigrations Appeal Commission ruled that any trial in Jordan might involve evidence obtained by torture.  This must be most annoying for the present Home Secretary who, earlier in 2012, went to Jordan where his deportation was discussed.  The European Court of Human Rights judgment would enable his deportation if it could be said beyond doubt that no such evidence would be used against him.  It appears that the government is to appeal by arguing that SIAC applied the "wrong" legal test.

The Secretary of State for Justice / Lord Chancellor produced a draft bill claiming that it was complying with the European Court of Human Rights ruling on prisoner voting.  The draft bill will effectively prevent any decision until the next Parliament but the government will be able to say it is doing something about the issue.  The reader must judge whether such tactics are damaging to the rule of law.

December saw a report into a further historic controversy - the role of government (State) agencies in the death of Belfast solicitor Patrick Finucane.   It remains to be seen whether this report - by Sir Desmond de Silva QC - leads to any further form of inquiry.  For reasons mentioned in the post, this seems doubtful at the present time. 

And then, almost at Christmas, came the much awaited report from the Commission on a British Bill of Rights.  The report gave material to all sides of the argument but there was a majority for some form of British Bill and a minority against.  How the politicians will read this may become one of the issues for 2013 when traditional cudgelling resumes at Westminster.

A year packed with stories not to mention the enactment of some 23 Public General Acts of Parliament and well in excess of 3000 Statutory Instruments.  It is little wonder that our lives are immensely regulated and controlled.  As 2013 unfolds, this blog and many others will hopefully continue to throw some light on the many legally interesting and frequently controversial issues of our time.  To all readers, here's to a Very Happy and prosperous 2013.


1 comment:

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