Wednesday, 27 March 2013

Pre-Easter Roundup of legal news - (1)

Sir Sydney Kentridge QC
There is a massive amount of legal activity at the present time.  Here is a roundup of some it.

1. The highly controversial Justice and Security Bill has cleared the House of Lords.  All that remains is for the Bill to receive Royal Assent.  Implementation will follow and bring about the extension of closed material procedures to civil proceedings.  The Bill enhances Parliamentary supervision over the security services.

2.  New laws for missing persons - Ministry of Justice.  The Presumption of Death Act 2013 ... means relatives can apply for a certificate declaring someone as presumed dead.  The certificate will be equivalent to a death certificate and means those left behind can deal with the legal and financial affairs of the missing person – for example enabling them to stop direct debits and other outgoings.  The changes apply to England and Wales - bringing them into line with Scotland and Northern Ireland.

3.  Crown Court at Manchester - Sentencing remarks of His Honour Judge Martin Rudland in R v Brewer are available - Judiciary R v Brewer and see the earlier post of 11th February.

4.  The judgment of the Court of Appeal (Civil Division) in Othman v Secretary of State for the Home Department has been published.  Interestingly, the government briefed three Queen's Counsel and a Junior to handle this case.  At paragraphs 58 and 59, the Master of the Rolls stated:

"Torture is universally abhorred as an evil. A state cannot expel a person to another state where there is a real risk that he will be tried on the basis of evidence which there is a real possibility may have been obtained by torture. That principle is accepted by the Secretary of State and is not in doubt. That is the principle which SIAC had to apply in the present case in the light of all the evidence that it heard and read. This included evidence as to what had happened and what there was a real risk would happen if Mr Othman faced a retrial on the very serious charges that he faces. SIAC found that there was a real risk that evidence obtained by torture would be admitted at the retrial and that, as a consequence, there was a real risk that he would be subject to a flagrant denial of justice.

In order to succeed in this appeal, the Secretary of State has to show that SIAC erred in law. It is not sufficient to persuade us that we would have reached a different conclusion on the facts and Mr Eadie rightly recognised the difficulty of such an exercise. The Secretary of State accepts that SIAC directed itself properly as to the general legal test to apply. Her case that SIAC nevertheless erred in law is based on a detailed examination of a careful and comprehensive judgment. As we have stated at paras 5 and 6 above, criticisms of this kind of a decision by a specialist tribunal are particularly difficult to sustain. For the reasons that we have given, we are satisfied that SIAC did not commit any legal errors."

5.  'Self-representing litigants' are OUT and 'Litigants in Person' are back - see the Master of the Rolls' guidance  The term ‘Litigant in Person’ (LiP) should continue to be the sole term used to describe individuals who exercise their right to conduct legal proceedings on their own behalf. This Guidance applies to all proceedings in all criminal, civil and family courts.

6.  There are scathing judicial comments in Wright v Wright Supplies Ltd about the problems arising in relation to litigants in person.  Sir Alan Ward said - "We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid."

7.  Loss of control as a partial defence to murder has again been considered by the Court of Appeal (Criminal Division) in R v Dawes, Hatter and Bowyer   The legislation - ss.54 and 55 of the Coroners and Justice Act 2009 - is hardly a model of clarity and was considered previously by the Court of Appeal in R v Clinton - see post of 18th January 2012.

8.  The Lord Chief Justice has issued guidance relating to Victim Personal Statements (and, in murder cases, Family Impact Statements)  in  R v Perkins, Bennett and Hall

9.  Bar and Cab rank rule - The Bar Council, which represents barristers in England and Wales, has published a staunch defence of the cab rank rule. The paper, written at the Bar Council's request by Sir Sydney Kentridge QC, responds to criticisms made in a Legal Services Board (LSB) report on the future of the cab rank rule.  Also have a look at Bar Standards Board - Removal of the 'cab rank' rule a major threart to justice

10.  Cruel and Unusual Punishment - Mark George QC considers the death penalty in the USA -  here

11.  Family Law - a great roundup of developments at Family Lore 26th March

12.  UCL Faculty of Laws pays tribute to the late Professor Ronald Dworkin   Ronald Dworkin is widely accepted as the most important and most controversial Anglo-American jurist of the past forty years.

Prof. Ronald Dworkin

13. Sixteen FACTS about QASA - Legal Half Hour blog

14  ... and if, like me, you have some concern about how government tinkers with constitutional reform then see


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