British Institute of Human Rights ~ NEW FACTSHEET

The British Institute of Human Rights has just published a factsheet - available HERE   Please read it.

It is now almost 60 years since the European Convention on Human Rights came into force (on 3rd September 1953).  What does it seek to protect? At its most basic level it protects various rights and freedoms without which human existence would be intolerable.

Tuesday roundup ~ Access to justice; judicial review; Military justice; apologies and pardons'; Jurors and the internet

Access to justice continues to be under attack from the coalition government.  It appears that their latest gambit concerns 'standing' to bring judicial review.

 The Transforming Legal Aid proposals were issued earlier this year and, despite the consultation period being short, resulted in over 13000 responses which, one hopes, are being carefully considered by the Ministry of Justice.

The Justice Committee has decided to issue a report on Transforming Legal Aid.  This follows the committee’s two recent oral evidence sessions – one with representatives of the professional bodies and one with the Lord Chancellor.  The Transforming Legal Aid proposals have attracted what appears to be almost universal condemnation and so it will be of major interest to see the views of the committee.

The Joint Committee on Human Rights

Supreme Court ~ Road Traffic Act 1988 s3ZB ~ Uninsured driving ~ Causing death

UPDATE: The Supreme Court has allowed Mr Hughes' appeal.  There must be something to be properly criticised in the defendant's driving - R v Hughes [2013] UKSC 56.  There mere fact of being on the road (when uninsured etc) is not enough to establish criminal liability when the accident is entirely the fault of another driver.  However, it may prove to be the case that it will not take very much for a driver to be held liable under s3ZB - e.g. he was marginally over a speed limit; or breach of some construction and use regulation; an underinflated tyre etc.  See the judgment at paragraph 32.  Precisely what is required will have to be worked out on a case by case basis.

Lord Hughes handing down the judgment - YOUTUBE 31st July

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The Supreme Court of the UK will hand down judgments in 4 cases on Wednesday 31st July.  One of them is the interesting road traffic law case of R v Hughes.  The Supreme Court's website provides the detail:

Issue

Is an offence contrary to section 3ZB of the Road Traffic Act 1988 committed by an unlicensed, disqualified or uninsured driver when the circumstances are that the manner of his or her driving is faultless and the deceased was (in the terms of civil law) 100% responsible for causing the fatal accident or collision?

Facts

On 25 October 2009, just after 4.30pm, the Appellant,

Sergeant Danny Nightingale ~ A look at his Sentencing

After a retrial, the Court Martial sentenced Sergeant Danny Nightingale to 2 years detention suspended for 12 months.  The sentencing remarks of the Judge Advocate General are HERE.

Previous posts have followed the interesting twists and turns of the case - 21st November 2012 - 30th June 2013 and 2nd July 2013

In 2012, pleaded guilty to charges of possession of a Glock pistol and also possession of ammunition.  He was sentenced to 18 months detention.  In passing this sentence, the court martial found that there were 'exceptional circumstances' to disapply the 5 year minimum sentence normally applicable to possession of a firearm.  Sgt. Nightingale was also given discount for his guilty plea.   On the 2012 sentence see post of 21st November 2012. 

500,000 +

Yippee!!!  Yesterday, the blog exceeded 500,000 page views.  Many thanks to all readers.  Hopefully, I will be plodding on for some time yet.

In that vein,what is in the news?

1) Sergeant Danny Nightingale is to be sentenced this morning. Previous posts 30th June 2013 and 2nd July 2013    Update: Sentenced to 2 years detention - sentence suspended for 12 months).  Sentencing remarks HERE.

2) Parliament has begun to realise that a sound strategy is required for Forensic Science - HERE and see BBC 25th July.  The Forensic Science Service (FSS) was closed down by the coalition government on 31st March 2012.  This Parliamentary report has a 'too little too late' feel about it.  The government cannot claim that it was not warned of the risks.  For example, Law and Lawyers 28th December 2010 drew attention to a letter to The Times (28th December 2010) from some 33 eminent scientists urging the government to rethink the closure of the service.

The Justice Gap blog has an interesting item on this.

The Anti-social Behaviour, Crime and Policing Bill

The Anti-social Behaviour, Crime and Policing Bill was introduced to the House of Commons on 9th May 2013. The Bill is sponsored by the Home Office and the text of the Bill, as at the date of this post, is HERE. There are 153 clauses and 8 schedules.  The Bill will affect a large number of areas of the law and will grant considerable additional powers to the police and to other bodies such as local authorities.

It is also worth noting that, whilst the Human Rights Act 1998 (HRA) is in force, there is at least the long-stop of human rights to act as a brake on some of these extensive powers since public authorities are required to act compatibly with convention rights (section 6).  We would enter a very uncertain and worrying time if the HRA were to be repealed and judicial review of official decisions and actions was curtailed (as government is now seeking to do).  Perhaps that is precisely why some Ministers (including the present Home Secretary) seek withdrawal from the European Convention and repeal of the HRA.

A glance at the Law Commission's work

The Law Commission reviews areas of the law that have become unduly complicated, outdated or unfair. Following a process of research and consultation, the Commission makes recommendations for reform of the law to Government.  The functions of the Law Commission are set out in legislation: Law Commissions Act 1965  and the Law Commission Act 2009 Some of the Commission's current work includes a discussion paper on the problematic area of Insanity and Automatism.  The criminal law relating to these topics is generally considered to be in need of reform.  The insanity defence continues to be based on M'Naghten's case 1843 - please see the post of 27th July 2011 'Breivik - would he have a defence of insanity in English criminal law?' The Commission has also published its Annual Report 2012-13 and is consulting on their 12th Programme of Law Reform and on Hate Crime.  Responses to an earlier consultation on Unfitness to Plead have also been published. How effective

North Liverpool Community Justice Centre ~ another idea bites the dust!

In 2005, the North Liverpool Community Justice Centre opened with fanfares and great promise of a new and more effective way to administer justice.  Much of the background to the setting up of the Centre may be read in an evaluation report prepared in 2007.  The Centre came about after the then Lord Chief Justice (Lord Woolf) visited the Red Hook Centre, Brooklyn, New York in 2002.  The Home Secretary (David Blunkett) visited in 2003.  Both were impressed with the community justice model they observed and a decision was made to establish a similar centre in the UK.

The Labour government developed a vision for a network of problem-solving US-style community justice centres tackling offending behaviour and listening to what communities expected from their courts. However, North Liverpool, based in a former secondary school on Boundary Lane in Kirkdale at a start up cost of £5.2m, was the only court centre built on that model.  Clearly the running costs proved to be prohibitive from the Ministry of Justice perspective.

Roundup Thursday 18th July

Here is a miscellany of items of general legal interest.

Marriage:  Perhaps THE major development is the enactment of the Marriage (Same Sex Couples) Act 2013 - (PARLIAMENT).  Analysis of this will follow in a separate post.  Most of the Act remains to be brought into force by means of Commencement Orders.

Legal Aid: The Justice Committee has decided to issue a report on Transforming Legal Aid.  This follows the committee’s two recent oral evidence sessions – one with representatives of the professional bodies and one with the Lord Chancellor.  The Transforming Legal Aid proposals have attracted what appears to be almost universal condemnation and so it will be of major interest to see the views of the committee.

The Joint Committee on Human Rights has asked for evidence to be submitted regarding the government's legal aid proposals - (HERE).   Written evidence is requested by 27th September and hearings will take place in October.  The committee has requested that the government do not proceed with changes until the committee has reported.

Activism in the Judicial Committee of the Privy Council ~ scope of 'Malicious Prosecution' extended

The Supreme Court of the United Kingdom (UKSC) and the Judicial Committee of the Privy Council (JCPC) are located in Parliament Square, London.  The Supreme Court owes its existence to the Constitutional Reform Act 2005 - (the CRA 2005).  The Judicial Committee of the Privy Council has a long and interesting history and it was placed on a statutory basis by the Judicial Committee Act 1833 though this was recently amended by the CRA 2005.

The role of the JCPC is explained on the court's website.  Although the JCPC's role has declined, it remains the highest court of appeal for several countries, as well as the United Kingdom’s overseas territories, crown dependencies, and military sovereign base areas. Since most of the court's jurisdiction is external to the UK, its decisions do not strictly-speaking bind the English courts but they are persuasive precedents.  The composition of the JCPC naturally gives its decisions a high legal authority since its permanent judges are also the Justices of the UKSC though others occasionally sit.

A very interesting

Appointment of the next Lord Chief Justice of England and Wales announced

Downing Street has formally announced the appointment of Sir John Thomas as the next Lord Chief Justice of England and Wales Announcement and BBC 16th July.  'Her Majesty The Queen has been pleased to approve the appointment of The Rt Hon Sir John Thomas as the Lord Chief Justice of England and Wales from 1 October 2013. This appointment follows the retirement of The Rt Hon The Lord Judge on 30 September 2013.'  Read Sir John's statement upon appointment.

The announcement contains a biography of Sir John.  He was born in Wales in 1947.  Called to the Bar by Gray's Inn in 1969.  Queen's Counsel 1984.  Judge of the High Court 1996 and was a Presiding Judge of the Wales and Chester Circuit from 1998-2001 after which he took charge of the Commercial Court (part of the High Court's structure).  Appointed Lord Justice of Appeal 2003 and Senior Presiding Judge for England and Wales 2003 to 2006.  Vice President of the Queen's Bench Division of the High Court 2008 to October 2011 and thereafter President of the QBD.

This appointment

Kettling and Police Powers

Mengesha v Metropolitan Police Commissioner [2013] EWHC 1695 (Admin) - Moses LJ and Wyn Williams J - is a short judgment on an important issue.  The court had to consider whether the Police can lawfully require individuals 'kettled' (or 'contained') to give their details or be videoed before they are allowed to leave the 'kettle' (or 'area of containment').  A further question related to the legality of the Police retaining CDs showing the individuals for 6 years being the limitation period for civil actions in respect of false imprisonment and malicious prosecution.

On 30th November 2011, the Police authorised a 'kettle' on Panton Street, near Haymarket, London.  About 100 individuals were kettled including the claimant Mengesha who was present as a legal observer.  No one disputed that the containment was justified because serious damage and a breach of the peace had occurred and officers reasonably apprehended an imminent further breach of the peace.

Reflections on an interesting week in Strasbourg

Mordor - Lord of the Rings

This week saw the European Court of Human Rights decide two cases concerning the United Kingdom.  Vinter and others v UK (previous post) dealt with whole life orders imposed (exceptionally) for murder.  Allen v United Kingdom (previous post) was concerned with compensation for miscarriage of justice.  The British government lost Vinter (howls of Ministerial protest and headlines attacking interference by foreign court) and won Allen (Ministers enjoy a glass of Pimms on a sunny evening).

A good article by journalist Grace Dent appeared in The Independent 10th July

Dent's article - entitled - 'Appalled by the fuss over human rights for serial killers? - came after the Vinter judgment and before Allen.   Dent views basic human rights - (though she does not amplify on the word 'basic') - as a buffer zone keeping at bay the 'quiet savage lurking in all of us.'   Leaving to one side any Saints

Compensation for Miscarriage of Justice ~ Allen v United Kingdom

On 12th July, the European Court of Human Rights Grand Chamber gave judgment in Allen v United Kingdom - JUDGMENT - The Guardian 12th July.   The case concerned the refusal to grant compensation to a mother acquitted of the manslaughter of her four-month old son, following the quashing of her conviction.  The E Ct HR held, unanimously, that there had not been a violation of Article 6  of the European Convention on Human Rights.

On 7 September 2000 Ms Allen was convicted of the manslaughter of her four-month old son and sentenced to three years’ imprisonment. The conviction was based on evidence given at her trial by expert medical witnesses who testified that her son’s injuries were consistent with “shaken baby syndrome”, also known as “non-accidental head injury” (“NAHI”), because of the presence of a triad of intracranial injuries.

Legal Aid Debate in House of Lords 11th July

On Thursday 11th July, the House of Lords debated the government's Transforming Legal Aid proposals.  The record of the debate is HERE and the proceedings may be viewed HERE. (the debate is opened by Baroness Deech at approximately 1406).  The House of Lords adopts a far less confrontational atmosphere than the House of Commons but the various speeches were no less critical of the government's proposals.  Many of the speakers pressed the government and the legal profession to work together to find a better solution to the legal aid issue.

Just a few extracts from the debate ......

Meddlesome European Judges ~ the E Ct HR ~ Mubenga Inquest ~ Female Offenders

' .... meddling European judges rule even Britain's most evil killers have human right to seek freedom' - was how the Daily Mail 10th July greeted the European Court of Human Rights (E Ct HR) decision in Vinter and others v UK. The howls from British Ministers were all too predictable - (The Guardian 9th July) - and the decision seems to have reinforced desire within at least the Conservative Party to take the UK out of the European Convention on Human Rights (E Conv HR).  Article 58 of the Convention permits a State to 'denounce' the convention on giving 6 months notice to the Council of Europe.

Upon a calmer analysis, the Vinter case does NOT tell the UK that it cannot apply whole life orders to the worst murderers.  The judgment requires a review of the need for continued detention after a period of perhaps 25 years with periodic reviews thereafter.  There has to be a penological reason for continuing detention such as

Vinter v UK ~ 'whole lifers' and the thorny issue of release

As noted in the previous post, the Grand Chamber of the European Court of Human Rights held that the United Kingdom breached Article 3 of the Convention by imposing whole life orders without possibility of review for murder: Judgment

At Strasbourg, the British government argued that English law already permits the release of a prisoner serving a whole life order.  The government's case was based on section 30  of the Crime Sentences Act 1997 as interpreted by the Court of Appeal in  R v Bieber.  Despite that argument, the court noted that Prison Order 4700 Chapter 12 contained an 'explicitly stated and restrictive policy' on which the section 30 power would be exercised.  The Prison Service Order provides that release will only be ordered in certain exhaustively listed, and not merely illustrative, circumstances - e.g. terminal illness.   The Order was highly restrictive.  This looked very much like the government saying one thing but doing another.   

The court found that the applicable domestic law lacked clarity.   The Prison Order

Vinter and others v UK ~ European Court of Human Rights

The Grand Chamber of the European Court of Human Rights has held that the United Kingdom is in breach of Article 3 of the Convention by imposing whole life orders without possibility of review for murder.  The key words there are without possibility of review.  The court's judgment does not mean that such prisoners will necessarily be released but it does mean that the UK must put in place a review process so that any whole life order can be reconsidered in the light of circumstances.  Given that the imposition of whole life orders is already exceptional, it is perhaps unlikely that many such prisoners will be ultimately successful in securing their release and, even if they did, release would be on licence.  The power of the Secretary of State to act on compassionate grounds remains in place: section 30 of the Crime Sentences Act 1997.


Previous post - 28th November 2012 - Whole Life Terms for Murder - Vinter and others v UK

The court's judgment

The following is from the court's press release:

Inquest or Inquiry? Litvinenko

Update 3rd October - Litvinenko's widow to seek judicial review of decision not to hold an inquiry - RTE Ireland 

Update 12th July - an Inquiry has been ruled out even though the Coroner (Owen J) requested it - BBC News UK 12th July


Update 9th July:  Judicial Review concerning public interest immunity in Litvinenko proceedings - Temple Garden Chambers
The judgment of the Administrative Court is HERE. 

Article 2 of the European Convention on Human Rights imposes an obligation on States to carry out an effective investigation into certain deaths.  As an example, the duty normally arises where a person is killed by Police Officers - e.g. the Azelle Rodney Inquiry or where there is the death of a person in custody - e.g. Nicholas Wheller Inquest.  In England and Wales, inquests are held by the Coroners Courts.  Those courts and their procedure are undergoing a programme of changes based on the Coroners and Justice Act 2009 and further changes were implemented with effect from 2nd July 2013.

A number of recent cases have demonstrated that a Coroner's inquest may not always be practicable and, if that proves to be so, the alternative becomes an inquiry held under the Inquiries Act 2005.  Such inquiries are particularly costly and lengthy.  For example, the Azelle Rodney Inquiry has just reached its conclusion after some 3 years and a cost exceeding £2m.

As the law stands, one reason why

Brief Notes on the Azelle Rodney Inquiry

Update 31st July 2014 - The former Police Officer, referred to as E7, has been charged with the murder of Azelle Rodney.  See the Crown Prosecution Service announcement on this.

In April 2005, Azelle Rodney (then aged 24) was shot by the Metropolitan Police - BBC 5th July 2013 and The Independent 5th July.  In June 2010, the Azelle Rodney Inquiry. was set up, under the Inquiries Act 2005.  The inquiry terms of reference were:  ‘To ascertain by inquiring how, where and in what circumstances Azelle Rodney came by his death on 30 April 2005 and then to make any such recommendations as may seem appropriate.’

Retired judge, Sir Christopher Holland was appointed Chairman of the Inquiry and details of the 'Inquiry Team' are available.   Up to December 2012, the total costs of the Inquiry have exceeded £2m with legal costs of £1,438,054.  The Inquiry is the first time that a fully Article 2 compliant public inquiry has been held. 

The Inquiry has concluded

Thursday roundup

Vinter and others:

On 9th July, the European Court of Human Rights Grand Chamber will give judgment in Vinter and others v United Kingdom.  The applicants, Douglas Gary Vinter, Jeremy Neville Bamber and Peter Howard Moore, are British nationals who were born in 1969, 1961 and 1946 respectively. All three men are currently serving sentences of life imprisonment for murder.  When convicted the applicants were given whole life orders, meaning they cannot be released other than at the discretion of the Secretary of State on compassionate grounds (for example, if they are terminally ill or seriously incapacitated).

Press release
Webcast of the hearing

Previous posts are Whole Life Terms for Murder - Vinter and others v UK  28th November 2012 and Whole Life Terms for Murder  16th May 2013.

The court will rule

Family Law - some recent developments in childcare law

An update on SOME of the recent developments in child care family law


Supreme Court of the UK: - In the matter of B (a child) [2013] UKSC 33 - (judgment ... press summary ... Youtube 12th June) - concerned

(1) the criteria for making a care order under section 31 of the Children Act 1989 when the risk is of future psychological or emotional harm, and

(2) the role of the appellate courts once a trial judge has made an order.

The majority judgment was set out in 8 propositions:

The Justice Committee ~ Hearing of 3rd July 2013 ~ Legal Aid

Update - 3rd July:  The session is over - Watch it Here.

Update 4th July:  Solicitors Journal   Fresh consultation to be launched in September after 'detailed talks' with Law Society
Chris Grayling, the justice secretary, put the Law Society in the driving seat on the criminal legal aid cuts while repeatedly attacking barristers and the Bar at ... meeting of the justice select committee. The only other concession was to exempt babies under 12 months old from the proposed 'residence test.'

Update 5th July:  Uncorrected transcript of oral evidence- Parliament


The House of Commons Justice Committee meets today to question the Secretary of State for Justice and Lord Chancellor (Mr Chris Grayling MP) about the proposals on Transforming Legal Aid.  As published, the particular focus of this session is to be Price Competitive Tendering (PCT).

The Committee has 12 members including its Chairman Sir Alan Beith MP (Liberal Democrat).  The political party make up of the committee is 1 Liberal Democrat, 5 Conservative, 5 Labour and 1 Plaid Cymru.  Some of the Justice Committee members spoke in the recent backbench debate on legal aid .

As indicated

Legal Aid - a possible shift in the government's position - Law Society's alternative proposals

Mr Chris Grayling MP

Updated 4th July - see addendum:

Beset on all sides by criticism of plans to reform criminal legal aid and in advance of his appearance before the Justice Committee on 3rd July, the Secretary of State for Justice and Lord Chancellor (Mr Chris Grayling MP) has indicated that choice of solicitor will be retained in any reforms - The Independent 1st July.

Perhaps Mr Grayling hopes that he will now receive an easy ride from the committee.  Whether that is so remains to be seen.  According to the published information, the Justice Committee hearing is about Price Competitive Tendering but there is much more to the  Transforming Legal Aid proposals - e.g. prison law cases, judicial review etc.  (Law and Lawyers ~ Responses to Legal Aid consultation).

The Justice Secretary welcomed  the Law Society’s recognition

Ian Brady - Tribunal hearing June 2013

It was in 1966 that Ian Brady and Myra Hindley were convicted at Chester Assizes* (Fenton Atkinson J and a jury) of the murders of children.   Both were sentenced to life imprisonment.  Hindley died in November 2002.  Brady has been held in Ashworth Hospital since 1985.  The hospital is part of Mersey Care NHS Trust and is one of only three hospitals in the country providing services for patients who require treatment and care in conditions of high security.

Brady has recently argued at a Mental Health Review Tribunal hearing that he should be transferred to prison.  However, the tribunal rejected his argument - DECISION with reasons to follow.  (The reasons became available in January 2014 - Judiciary).  See also BBC 28th June.   The tribunal announcement, published on the Judiciary website, states that Brady

Sgt Danny Nightingale - Military justice under the microscope (2)

Update 10th July:  Sgt. Nightingale has been convicted - The Guardian 10th July  and BBC News England 10th July.  Sentencing to be at a later date.

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This post is based on The Times leading article of 1st July 'Army chiefs go to war with SAS' - (here - £ paywall).

On Monday 1st July, The Times reported that the Danny Nightingale case (see previous post) coincides with concerns in the Army over the SAS after a decade of combat operations in the Middle East.  'Sources said that the chain of command was uneasy about an apparent culture of impunity in the regiment and was determined to "grip" the situation' and further.   An amnesty for illegal weapons, which was instituted after Sergeant Nightingale's arrest, is understood to have shocked senior officers.'

The Times further reported