A brief look back at 2013 ~ A selection of posts

Royal Courts of Justice, London

2013 has been a most interesting year marked by the limitation imposed on civil legal aid by the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012; the on-going fight for legal aid for criminal cases and the ceaseless attacks on the system of human rights protection offered to all of us by the European Convention on Human Rights and the European Court of Human Rights.  Here are some of the posts on this blog during 2013:


January

Hillsborough - Fresh Inquests - the question of Article 2 compliance - In December 2012, the original Hillsborough Inquest verdicts were quashed by the High Court.  Progress is being made toward holding the new inquests in 2014.

The trial and execution of Derek Bentley - 60 years on

New Year's Eve 2013 (1) - Are Human Rights approaching a knife edge?

Striding Edge, Helvellyn

The protection of human rights is, yet again, in the headlines following  an interview on the Radio 4 TODAY programme by former Lord Chief Justice of England and Wales (Lord Judge) - see The Telegraph 28th December 2013 - European Courts have too much power, says former Lord Chief Justice.   An extract from the interview is available via this Radio 4 link.  

There is much in Lord Judge's comments to take issue with but his views will undoubtedly lend succour to those in the present coalition government who harbour an intense dislike of the European Court of Human  Rights.  After all, it acts as a brake on the massive power that the doctrine of Parliamentary Supremacy (or Sovereignty) confers, in practice, on the executive branch of government.  The latest views of the Secretary of State for Justice and Lord Chancellor are covered by an article in The Guardian 30th December - Grayling says European Court of Human Rights has lost legitimacy.   Some serving judges have also been critical of the European Court of Human Rights.  The recent views of Lord Sumption and Lord Justice Laws were considered here and here (respectively).

There is some counterbalance in the views of Lady Hale and Lord Mance - considered here and see here (pdf).  Lord Mance points out that Parliamentary Sovereignty is unconstrained by any written constitution or document containing fundamental rights.  He highlights some of the changes to law brought about since the Human Rights Act 1998:

Christmas Day 2013

Manchester Christmas Markets 2013

Christmas Day!  The Houghton Weavers once asked- "What's Christmas without a brass band" and so here is a superb selection of carols played by musicians of the Salvation Army.  I hope you enjoy it.  There is also a light-hearted item played by a world famous brass band from West Yorkshire - Brighouse and Rastrick play SANTA.

Let us hope that 2014 proves to be a peaceful and happy year.  There is much to work for if access to justice and the generally high standards of our legal system are to be maintained.  There is much to be done for the less well-off in our country and across the world there are massive challenges. 

Here is a quick glance at a few items of interest ..... 

Nigella Lawson and section 100 of the Criminal Justice Act 2003

The trial of sisters Elisabetta and Francesca Grillo became a media circus because television celebrity Nigella Lawson (pictured) was the key prosecution witness. The Grillos were accused of fraudulently using the credit cards of Charles Saatchi's private company - Telegraph 27th November.   They were acquitted.  The sisters claimed that Lawson had permitted them to use the credit cards in exchange for their silence regarding her drug use.  R v Grillo and Grillo. This was a claim which brought into play the "bad character" provisions in the Criminal Justice Act 2003 Part 11 Chapter 1.

The 2003 Act replaced common law rules relating to bad character evidence and essentially made a fresh start with regard to when evidence of bad character might be used at trial.  Bad character evidence of non-defendants and defendants is addressed by the Act.

Prisoner voting - Joint Committee report and also Scottish Independence Referendum

Prisoner Voting - Draft Bill:

The Parliamentary Joint Committee on the Draft Voting Eligibility (Prisoners) Bill has reported – (PDF/HTML/conclusions).  The report recommends:

...  that the Government bring forward a Bill, at the start of the 2014 -15 session of Parliament, to give legislative effect to the following conclusions:

R v Reynolds - sentencing by Mr Justice Wilkie

Crown Court at Stafford

R -v- Jamie Reynolds

Sentencing remarks of Mr Justice Wilkie

Mr Justice Wilkie has imposed a whole life term on Jamie Reynolds for the murder, on 26th may 2013, of Georgia Williams (aged 17 years 9 months).  The facts of the case are particularly disturbing and there can be little doubt that a whole life term is justified.  Nevertheless, in the light of the European Court of Human Rights judgment in Vinter v UK (Grand Chamber - 9th July 2013), an interesting point is (yet again) raised.

Having set out the facts of the case, Wilkie J referred to the Criminal Justice Act 2003 section 269 and to Schedule 21 of that Act.  He then referred to the cases of Jones [2005] EWCA Crim 3115, Mullen [2008] EWCA Crim 592, Bieber [2008] EWCA Crim 1601 - endorsed by the House of Lords in Wellington [2008] UKHL 72 and also to Oakes [2012] EWCA Crim 2435.  The learned judge said:

Assisted Suicide ~ appeals to the Supreme Court of the UK

This week, a nine judge strong Supreme Court of the UK has been hearing appeals concerning aspects of the Suicide Act 1961 section 2(1) Complicity in another's suicide Suicide.  It is perhaps the Nicklinson case which attracted the greater publicity (previous post) though, in this appeal, a Mr Lamb was also joined as an appellant.

In Nicklinson/Lamb, the issue is whether the prohibition on assisted suicide in s2(1) Suicide Act 1961 is incompatible with the appellants’ Article 8 right to respect for private and family life. If the answer is yes, the appellants argue that in order to comply with their Article 8 rights s 2(1) Suicide Act 1961 should be read as including a defence of necessity, so that it would not be unlawful for a doctor to assist, or to have assisted, in the suicide of Paul Lamb and Tony Nicklinson where they had made a voluntary, clear, settled and informed wish to end their lives but were unable to do so without medical assistance. Alternatively, if no such defence is available, they seek a declaration that s2(1) Suicide Act 1961 is incompatible with the appellants’ Article 8 rights, in so far as it prohibits assisted suicide in their circumstances.

A further appeal, being heard at the same time, is that of AM ("Martin").

Sentencing Council - New Guideline Document for Sexual Offences

For individuals convicted of sexual offences, a new sentencing guideline document has been issued by the Sentencing Guidelines Council - Guideline.   The guideline is issued in accordance with section 120 of the Coroners and Justice Act 2009 and applies to all offenders aged 18 and over who are sentenced on or after 1 April 2014.

• Crown Court - Definitive Guideline: Sexual offences
• Update 10 - Magistrates’ Court Sentencing Guidelines

The Crown Court document is lengthy because of the considerable number of sexual offences which it seeks to address.  The majority of the offences are as defined by the Sexual Offences Act 2003.

With regard to a convicted individual's previous "good character", the new guideline says something which is rather interesting.

Consider the guidance for offences of rape.  The listed mitigating factors are: 

Scientology - religious worship and marriage

R (on the application of Hodkin and another) (Appellants) v Registrar-General of Births, Deaths and Marriages (Respondent)
Judgment (PDF)
Press summary (PDF)

This was a "leapfrog" appeal (under Part II of the Administration of Justice Act 1969) from a decision of Ouseley J in the High Court to the UK Supreme Court.   The "leapfrog" was used because a decision of the Court of Appeal - R v Registrar General ex parte Segerdal [1970] 2 QB 697 (Lord Denning MR, Winn and Buckley LJJ) - was binding on the Court of Appeal.  Unlike the UK Supreme Court, the Court of Appeal is bound by its own previous decisions with certain exceptions: Young v Bristol Aeroplane Company 1944.  The House of Lords used to regard itself as bound by its own previous decisions but that was altered by a Practice Direction of 26th July 1966 - [1996] 1 WLR 1234.  The UK Supreme Court did not re-issue the practice direction because it was not necessary - see UK Supreme Court Practice Direction 3.

The Hodkin case concerned an apparently straightforward question of statutory interpretation.  Were premises

Differences with Strasbourg ~ are "battle lines" now drawn?

The Court of Appeal (Civil Division) has considered two appeals by men subject to continuing detention after their "minimum terms" or "tariff periods" have expired. Haney and Khaiyam v Secretary of State for Justice

Mr Haney is serving an automatic life sentence for robbery.  He had a minimum term of 3 years which expired on 13th November 2012.  He claims that his Article 5 and 14 rights have been breached as a result of the delay in his transfer to open prison conditions (such transfer being a condition for his being realistically considered suitable for release by the Parole Board).

On 30th July 2006, Mr Kaiyam was sentenced to Imprisonment for Public Protection. A minimum term of 2 years 257 days was ordered.  He claims

Jurors and the internet

The Law Commission has published a report - Juror misconduct and internet publications - (pdf 141 pages) - which includes a recommendation for a new criminal offence for jurors conducting prohibited research.   In total, the report contains 31 recommendations.

Clearly, a case must be decided on the basis of the evidence presented to the court and extraneous material should not be taken into account - The Guardian - Law Commission floats plans to stop jurors researching cases online.

In recent times, a number of jurors have been punished for contempt of court. 

Human Rights Day ~ 65 years since the Universal Declaration of Human Rights

10th December - Human Rights Day.  In a letter to The Telegraph, leaders of many 'civil society groups' have urged that Britain stands firm on the European Convention on Human Rights and the  Human Rights Act. Both of these were inspired by the Universal Declaration of Human Rights.  The British Institute of Human Rights Press Release calls for leaders to stand firm on human rights at home.

It was 65 years ago, on 10th December 1948 that the General Assembly of the United Nations adopted the Universal Declaration of Human Rights - 'recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.'

In the UK,

Lady Hale on Human Rights law ~ her lecture at Warwick

"The British used to be proud of their record on human rights. We are, after all, the land of the Magna Carta, signed by King John at Runnymede in 1215."


"The idea that the citizen might have rights which he could assert against the State was unknown to us"

"The puzzle was how to combine enforceable convention rights with the sovereignty of the UK Parliament"

" ... there are other politicians, some of them now in government, who have identified the Human Rights Act as the problem"  - Lady Hale. 

On 28th November, Lady Hale (Deputy  President of the Supreme Court) delivered the Warwick Law Lecture 2013 (PDF) entitled "What’s the point of human rights?"  The lecture looked at how the European Convention on Human Rights has been developed by decisions of the European Court of Human Rights (E Ct HR) and how the House of Lords and now the Supreme Court have responded to the challenges set by the Human Rights Act 1998.  Without doubt,

Thoughts on the Hamlyn Lecture by Lord Justice Laws

Some judges are now expressing (extrajudicially) their opinions about the European Court of Human Rights. On 20th November, Lord Sumption (Justice of the Supreme Court) delivered the 27th Sultan Azlan Shah Lecture in Kuala Lumpur - The Limits of Law.   His lecture was considered in my previous post.   

Lord Sumption's lecture was followed by Lord Justice Laws on 27th November in the Hamlyn Lectures 2013 - see Lecture 3 Common Law and Europe.   Note - Lecture 1 was entitled Common Law and State Power: Lecture 2 was Common Law and Extremism.

On 28th November, Lady Hale (Deputy  President of the Supreme Court) - Warwick Law Lecture 2013 (PDF) - What’s the point of human rights?

The following is my look at the lecture by Laws LJ.  I express my view as a citizen who quite likes the human rights protection that we have.  I certainly do not wish to see it weakened.

Lord Justice Laws - Common Law and Europe.

There is much of interest in this lecture.

Royal Marine sentenced for murder

On 11th November, the case of "Marine A" (as he was then to be known) was covered - Murder in Helmand.   The Court Martial has imposed  a sentence of life imprisonment with the minimum term of imprisonment before eligibility for parole set at 10 years (less some time on remand).  The sentencing remarks of His Honour Judge Jeff Blackett are here.  In addition, the Marine is to be reduced to the ranks and dismissed with disgrace from Her Majesty's service.

The sentencing remarks state that the court felt it important to send out a strong deterrent message.  Service personnel who commit crimes of murder, or other war crimes or crimes against humanity while on operations will be dealt with severely.  The deterrent message was also intended to reassure the international community that allegations of serious crime will be dealt with transparently and appropriately. 

... and now a look at Lord Judge's entry to the competition

Almost as soon as one speech touching on human rights is digested, another appears.  This time it is former Lord Chief Justice, Lord Judge who delivered an address at University College London - 4th December 2013 - Constitutional Change: Unfinished Business

In fact, Lord Judge's speech is wide ranging and his views about the European Court of Human Rights come in the final paragraphs.

In the first two-thirds of the speech, Lord Judge asserts that all power must be based on law and that independence of the legal professions, press and media and also the police is essential to the maintenance of the rule of law.  The Judges are the guardians of the rule of law.  Lord Judge notes the influence of the executive over Parliament (para 8) and he reiterates the traditional (Diceyean) theory of the sovereignty of Parliament (9). He is clearly highly concerned at the way in which various changes, affecting the administration of justice, have been brought about with some proposals being deliberately withheld from the judiciary (15 and 18).  He deprecates

My thoughts (as a citizen) on Lord Sumption's Azlan Shah lecture

On 20th November, Lord Sumption (Justice of the Supreme Court) delivered the 27th Sultan Azlan Shah Lecture in Kuala Lumpur - The Limits of Law.  This was followed by Lord Justice Laws on 27th November in the Hamlyn Lectures 2013 - see Lecture 3 Common Law and Europe.   A further lecture on human rights was delivered in Warwick by Lady Hale (Deputy President of the Supreme Court) on 28th November - Lady Hale at the Warwick Law Lecture 2013 (PDF) - What’s the point of human rights?

These speeches / lectures are not only legally informative but they reveal something of the personalities of the speakers and their attitudes to the vastly important topic of human rights protection as it applies both in Europe and in the UK.  Given the fact

Lady Hale joins in ~ speech at Warwick 28th November ~ and the Attorney-General's view on 'Europe'

Following hard on the heels of Lord Sumption and Lord Justice Laws, Lady Hale (Deputy President of the Supreme Court) has joined the fray on human rights.  Here is a link to her speech at Warwick on 28th November.   Here is an antidote to the speeches of her male judicial colleagues.

Lady Hale at the Warwick Law Lecture 2013 (PDF)
What’s the point of human rights?
28 November 2013

The Attorney-General has spoken about The future of Europe: Opportunities and Challenges - (Published 3rd December 2013).  Attorney General says that he believes that European institutions should ensure they abide by the rule of law.

Sumption and Laws ~ Background Notes

Lord Sumption

Laws LJ

We have become accustomed to various government Ministers raising questions about the European Convention on Human Rights (E Conv HR), the European Court of Human Rights (E Ct HR) and the future of UK human rights protection.  See, for example, Theresa May and Chris Grayling on Human Rights - (Public Law for Everyone 30th September 2013).

Some judges are now expressing (extrajudicially) their opinions about what the proper role of the European Court of Human Rights should be.  On 20th November, Lord Sumption (Justice of the Supreme Court) delivered the 27th Sultan Azlan Shah Lecture in Kuala Lumpur - The Limits of Law.  This was followed by Lord Justice Laws on 27th November in the Hamlyn Lectures 2013 - see Lecture 3 Common Law and Europe.

A mother was given a caesarean section while unconscious

Updated 4th December

Christopher Booker in Sunday Telegraph (1st December 2013) - "Operate on this mother so that we can take her baby" - 'A mother was given a caesarean section while unconscious - then social services put her baby into care.'  The mother had been "sectioned" under the Mental Health Act 1983 s.3.

Some more light is thrown on the case by a response from Essex County Council dated 2nd December 2013.   According to this response it was the  Health Trust's clinical decision to apply to the court for permissions to deliver her unborn baby by caesarean section because of concerns about risks to mother and child.  (The application would have been to the Court of Protection).

A fuller article about the case is at Marilyn Stowe Blog where caution is urged in relation to comments -

'Unless and until the full judgment is released, (which I hope it is) we will find out exactly what did happen and until then I would urge no wild speculation, no unwise comment and only the greatest caution. It is not my experience that a High Court judge would make any order unless absolutely satisfied such action was in the best interests of both mother and child and there was no alternative. Furthermore that sectioning a patient is also never done unless there is the greatest need ....'

Of course, the matter raises acutely the need for judgments to be published in all cases by the Court of Protection so that the public can see the reasoning for particular decisions.  Many judgments are available via Bailii - Court of Protection.