HS2 ~ Nothing to hide: nothing to fear ?

In March 2011, a Major Projects Authority (MPA) was created by the government in order to enhance scrutiny of major projects. The MPA prepared a report - (the Project Assessment Review or PAR) - on the High Speed Rail 2 (HS2) which, reportedly, raises concerns about the project (Telegraph 30th January).  In June 2013, the Information Commissioner issued a Decision Notice relating to this report - Decision Notice  FER0467548

The Commissioner found that the request should have been considered under the Environmental Information Regulations 2004 and disclosure of the report was ordered.

The government has now used

Lobbying - a controversial matter

It is a natural thing in a democracy that individuals seek to influence politicians with a view to getting some new law enacted or an existing law repealed or amended.  The practice of Lobbying - especially of Ministers by business interests - has grown significantly.  It is said that it is a £2 billion industry!  Prior to becoming Prime Minister, David Cameron spoke said that - “It’s an issue that . . . has tainted our politics for too long, an issue that exposes the far-too-cosy relationship between politics, government, business and money.”   According to Cameron at that time, it was necessary to come "clean about who is buying power and influence.” 

In the near future, the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill  - ("Lobbying Bill") - will receive Royal Assent.  The Bill:

• introduces a statutory register of consultant lobbyists and establishes a Registrar to enforce the registration requirements
• regulates more closely election campaign spending by those not standing for election or registered as political parties 
• strengthens the legal requirements placed on trade unions in relation to their obligation to keep their list of members up to date.

The Bill has been highly controversial

"Skipping" ~ Dogs ~ GCHQ ~ Opposing legal aid cuts ~ Lobbying

The Crown Prosecution Service (CPS) has decided that it is in the public interest to prosecute three men under the Vagrancy Act 1824 section 4.   The story is in The Guardian 28th January - "A man will stand trial next month after being caught taking some tomatoes, mushrooms and cheese from the dustbins behind a branch of Iceland."   This rather old legislation was enacted in the aftermath of the Napoleonic Wars (Wikipedia) of 1803-15.   Usually, in recent times, the Act has been used to prosecute homeless individuals found in deserted buildings etc.  Those who may be prosecuted under the Act include:

" .... every person being found in or upon any dwelling house, warehouse, coach-house, stable, or outhouse, or in any inclosed yard, garden, or area, for any unlawful purpose; ...."

HS2 ~ Why the challenges failed in the Supreme Court

By using the method of a Hybrid Bill in Parliament, has a coach and horses been driven through the European Union's directives aimed at ensuring that important projects are subjected to environmental assessment?  A judicial review of the government's DNS document - High Speed Rail: Investing in Britain's Future - Decisions and Next Steps (Cm 8257, 10th January 2012)- failed in the High Court, the Court of Appeal and now in the Supreme Court.  Judicial review is concerned with legality and not merits.  HS2 may or not be a good idea but the court is not concerned with that.

The previous posts (25th January) and 24th January looked at some of the legal materials at play in the Supreme Court's decision regarding the High Speed Train - High Speed 2 Alliance v Secretary of State for Transport [2014] UKSC 3 - Press Summary

The HS2 judgment - some background information

I have wrestled with the UK Supreme Court's judgments in the High Speed case - (see previous post and  - High Speed 2 Alliance v Secretary of State for Transport [2014] UKSC 3 - Press Summary ).  The judgments are not easy reading and they are inexplicable without, at least, some knowledge of matters such as the Aarhus Convention and two European Union Directives concerned with environmental protection:

Aarhus Convention and to EU Directives - (a) The Strategic Environmental Assessment (SEA) Directive - 2001/42/EC and (b) the Environmental Impact Assessment (EIA) Directive - 2011/92/EU.

Although commonly used, the terms Strategic Environmental Assessment and Environmental Impact Assessment are not actually the correct titles of the directives.   They are, respectively, the "Directive on the assessment of the effects of certain plans and projects on the environment" and the "Directive on the assessment of the effects of certain public and private projects on the environment."

As is required

High Speed 2 ~ a little light reading for the weekend

The Supreme Court has handed down judgment in a judicial review of the government's plans for a High Speed Rail link between London, Birmingham and other cities further north. - High Speed 2 Alliance v Secretary of State for Transport [2014] UKSC 3 - Press Summary

There are separate judgments by Lord Carnwath, Lord Reed, Lord Sumption, Lady Hale and a joint judgment by Lords Neuberger and Mance.  The challenges failed.

I hope to take a fuller look at the decision next week.  For the time being, the interested reader might take time to read the full judgment and perhaps those of Ouseley J in the High Court (March 2013) and the Court of Appeal (June 2013).

Furthermore,

The Daily Mail asks a good question ....

The Daily Mail 24th January asks why a "violent thug" - named as Vitalijis Zavjaloves (aged 22) -  did not receive a sentence of imprisonment for his attack on Brian Gallagher in Wigan town centre last December.  It is a fair question.  Zavjaloves had pleaded guilt to assault by beating and, at Wigan and Leigh Magistrates' Court, he was sentenced to a suspended sentence order involving four months imprisonment suspended for 12 months with a specified activity requirement, 250 hours unpaid work.  In addition, £600 in compensation was ordered, a surcharge of £80 and £85 in costs.

A salutary lesson for litigants - compliance with rules is seriously important

Courts of law require procedure for their smooth operation but should failure to follow procedure result in serious sanctions?

At one time in our legal history there were numerous "writs" each with its own peculiar process.  Naturally, this was a pitfall even for the lawyers of the day who tirelessly laboured in the old Common Law Courts and the Court of Chancery.  The late 19th century saw reform of the court system.  Procedure was simplified and, for many years, lawyers lived with their rule books such as Rules of the Supreme Court.  (The term "Supreme Court" referred to the High Court. the Crown Court and the Court of Appeal - now known as the "senior courts" - and should not be confused with the modern Supreme Court of the UK which has its own Rules).  In April 1999, the old rules of court were replaced by the Civil Procedure Rules which have now reached their 68th update.   (There are also Criminal Procedure Rules).   

The case of Andrew Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537, saw the Court of Appeal (Civil Division) taking a tough line in relation to the "cost-budgeting" provisions in the Civil Procedure Rules and which were introduced from 1st April 2013.

Solicitors acting

The Magistrates' Courts

The legal system of England and Wales is quite unique with regard to the extensive lay involvement in the administration of justice in the Magistrates' Courts as well as members of the public forming juries in the Crown Court and, occasionally, in other courts such as at certain inquests.  Justices of the Peace (or Magistrates) have been a part of the legal system since at least the reign of Edward III - see Justices of the Peace Act 1361.   The term "lay justice" came into use after the Courts Act 2003 section 9   

In this Act “lay justice” means a justice of the peace who is not a District Judge (Magistrates' Courts).

The District Judge (Magistrates' Courts) is a development of the former Stipendiary Magistrate who was a legally qualified magistrate usually to be found in the larger city courts.

Public Defenders ~ QASA ~ and other matters

Public Defenders:  

A little more on the developing Public Defender Service.  It looks like the PDS is being expanded by the government in order to challenge the independent Bar which has been active in opposing planned cuts to criminal legal aid.

UK Criminal Bar rejects the new Public Defender Service. pic.twitter.com/kNRjgoVCRA
— Mike Gleeson (@MickyG72) January 21, 2014

Some research on the PDS covering the period May 2001 (when the service commenced) to 2004 is available here.

and now to other matters ....

Independent Bar v Public Defender Scheme: Just what is going on?

See this advert - Job Description - Queen's Counsel, Senior Higher Courts Advocates and Junior Higher Courts Advocates

The Ministry of Justice is managing a recruitment process for these posts in the Public Defender Service.  Salaries range from £46036 to £125000.  This service is being expanded at the same time as the government's legal aid proposals (i.e. cuts) are likely to make practice at the independent criminal bar unviable, particularly for younger barristers.  It would appear that the government would prefer to have a panel of lawyers in their pay rather than to encourage the fully independent criminal lawyer to survive.  The true reasons for this can only be guessed at.  I know what I think!  The salaries on offer (and other benefits such as leave and pension scheme) will no doubt prove irresistible to some because most independent lawyers working on criminal legally aided cases are by no means the "fat cats" which the Ministry of Justice has portrayed them to be.

More about the PDS

The Chief Inspector's interview about Policing ~ The Times 18th January

The Times headline on Saturday 18th January was - "Police fear inner cities take law into own hands."  This referred to an interview given to The Times by the Chief Inspector of Constabulary (Tom Winsor). Mr Winsor is due to publish a report on the efficiency and effectiveness of the Police and, for that reason, I will confine this post to just a few of the comments as reported by The Times.

Mr Winsor sees a case for reducing the number of Police Forces in England and Wales.  Currently there are 43.  "In time some of these small forces will disappear and indeed it is happening by osmosis already ... these boundaries are meaningless to victims of crime and to criminals."  There is a certain logic in that pointing to a single national force!  Such an entity has usually been resisted on the basis that it would place too much policing power into the hands of a few.  Of course, even if there were to be one Police Force covering England, it is very doubtful

Four years old this week ~ Pro Aequitate Dicere

Law and Lawyers is 4 years old this week (on 14th January).  It has been interesting to look back at the post of the 3rd birthday where concern was expressed about what were then impending changes to legal aid.  They are in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and were implemented on 1st April 2013.  This has minimised the availability of civil legal aid and removed it altogether from some important areas.

As expected, criminal legal aid has also come under attack from the government and the fight to secure as much legal aid in this area as possible continues.  Representation before the courts for those accused of crime is a basic, fundamental requirement of a true democracy.  If you are concerned about the way we are heading, I would urge you to sign the petition at Justice Alliance petition to save access to Justice.

"The European Court of Human Rights does not undermine democracy", said Lord Pannick QC

Writing in The Times (16th January 2014) (£ wall) - Lord Pannick QC argues that The European Court of Human Rights (the court) does not undermine democracy.  Lord Pannick's view follows recent lectures by senior members of the English judiciary which have raised questions about the relationship with the court - see Lord Sumption, Lord Judge, Lord Justice Laws.  Some counterbalancing argument is to be found in lectures/speeches by Lady Hale and Lord Mance.

Lord Sumption warned that the "wholly admirable" text of the Convention has been interpreted in ways leading to a significant democratic deficit.  Pannick argues that Sumption is wrong for two main reasons.

Scotland and the Independence referendum

Doubtless, the subject of the Scottish Independence referendum will come to dominate the news this year.  The referendum is to be held on September 2014.  In the event of a Yes-to-Independence vote, the proposed timescale is:

18^th September 2014: Referendum

 7^th May 2015: Likely Date of General Election in United Kingdom (including Scotland)

 Early March 2016: Agreement between UK and Scotland, and between European Union and Scotland

24^th March 2016: Independence for Scotland (via Acts of the UK Parliament and Scottish Parliament)

 5^th May 2016: Elections to Scottish Parliament

Writing for the UK Constitutional Law Group Blog,

Why bother with human rights?

To read a lot of the media comment about "human rights" - (yuman rights - as I have noticed some media commentators putting it) - you would think they were altogether a terribly bad thing. After all, they can stop government and all sorts of big brothers walking all over you and yours!!! Can't have that - can we?  Good read about this at  The Defence Brief blog.  Well said, sir.

Of course, you might need a spot of legal aid and an expert lawyer if you are to be able to make sure that those rights are meaningful.

For more about the European Convention on Human Rights see Council of Europe. 

European Court of Human Rights ~ Jones, Mitchell and others v UK ~ “What a pity!”

Updated 16th January with links to other commentaries

The aim of the United Kingdom's State Immunity Act 1978 is to grant other States immunity from the jurisdiction of the courts of the United Kingdom except as provided in the Act itself.  A number of exceptions to that general rule appear in sections 2 to 11.

As long ago as 2001, the European Court of Human Rights Grand Chamber decided Al Adsani v United Kingdom - (Grand Chamber 21st November 2001).  Mr Al-Adsani sought to sue Kuwait in respect of injury to his physical and mental health caused by torture in Kuwait in May 1991 and threats against his life and well-being made after his return to the United Kingdom on 17 May 1991.  Mr Al-Adsani's claim was rejected in the Court of Appeal and a further appeal to the House of Lords was refused.  At Strasbourg, it was held that there was no violation of Articles 3 and 6.


On 14th January 2014, the European Court of Human Rights has reached a similar conclusion in Jones, Mitchell and other v United Kingdom  - (European Court of Human Rights Fourth Section).  See also the article in The Guardian 14th January. 

Coroners ~ Duggan case ~ reports

It is reported that the Coroner (His Honour Judge Keith Cutler) who presided over the Duggan Inquest is to invite the Duggan family to 'help shape police gun policy' - The Guardian 12th January 2014.  The judge, who is preparing recommendations on firearms procedure for the home secretary after issues raised at the inquest, described his decision to consult the family as "unusual, perhaps unique" but the right thing to do to achieve transparency.

The Coroner will be in the process of preparing what is now referred to as a 'Prevention of Future Deaths' report - previously known as a 'Rule 43' report. 

After the Duggan case ~ Cameras; Jurors; Stop and Search

It is reported that armed Police Officers will wear video cameras - Armed British police to wear video cameras .  Firearms officers in London are to start wearing video cameras to record evidence of their actions, the Metropolitan police commissioner, Sir Bernard Hogan Howe, said on Thursday.

See also the Daily Mail 11th January   - Metropolitan Police announces £1.6m trial of wearing cameras - where it is reported that "Commanders hope the footage will help restore trust in the force and give an 'objective' account of the most controversial confrontations."

Similar developments elsewhere include those in New York - New York Times 22nd October 2013 -where it is argued that cameras may protect officers against false accusations of misconduct.  " .. by adopting an objective, transparent monitoring system that allows us to defend those unjustly accused and correct or punish those caught abusing their power, we can prove to the public we believe no person should be above the law, particularly those sworn to uphold it." 

Mark Duggan Inquest

Mark Duggan 1981-2011

The evening of 4th August 2011.  At Ferry Lane (Tottenham, London), the Police intercepted and stopped a taxi (or minicab) carrying Mr Mark Duggan.  Mr Duggan got out of the vehicle.  Two shots were fired at Mr Duggan by one of two Police Officers confronting him.  The officer who fired is referred to as V53.  The other officer is W42.  Mr Duggan died as a result.  A handgun was found at the other side of a fence which was alongside the pavement where the Police had shot Mr Duggan.   (There is also a short section of wall).   These are the bare facts of this situation.  Serious disorder followed this event, not only in London but in many other cities and towns.  The disorder was covered extensively on this blog and elsewhere.   The Police claimed that officer V53 had acted in self-defence in the honest belief that Mr Duggan was holding a gun at the time.

The following images - extracted from

The Anti-social Behaviour, Crime and Policing Bill ~ possible amendment

UPDATE 9th January:  The amendment set out below was carried in the House of Lords by a majority of 178.  The debate may be viewed via Democracy Live.


An amendment has been moved to the Anti-social Behaviour, Crime and Policing Bill.  For details see Big Brother Watch and HERE.

LORD DEAR,  BARONESS MALLALIEU,  LORD MACKAY OF CLASHFERN

Page 1, line 8, leave out from “in” to end of line 9 and insert “anti-social behaviour.

( )   Anti-social behaviour is—

(a)   conduct that has caused, or likely to cause, harassment, alarm or
distress to any person, or

(b)   in the case of an application for an injunction under this section by
a housing provider, conduct capable of causing nuisance or
annoyance to any person.”

The government has proposed a cross-amendment - HERE.  

Page 1, line 8, leave out “capable of causing” and insert “that could reasonably be
expected to cause”

Previous post of 7th January 2014.

The Anti-social behaviour, Crime and Policing Bill ~ IPNAs

Update 8th January:  An amendment to Clause 1 of the Bill has been put forward in the House of Lords.  See HERE.   This amendment was carried - see also Democracy Live. 

The Anti-social Behaviour, Crime and Policing Bill has almost completed its Parliamentary process.  For some, it is seen as a very illiberal bill - e.g. see the article by George Monbiot in The Guardian 6th January.  Monbiot goes so far as to assert that this is 'the most oppressive bill pushed through any recent parliament.'   Concern was expressed in the Pre-Legislative Scrutiny Report about the continual widening of what amounts to anti-social behaviour - (Page 26 of this report).

An earlier post on this blog looked at the bill when it was first introduced and noted that there remains the long-stop of the Human Rights Act 1998 which public authorities are required to follow.  Here is a good example of why either removing or limiting the scope of human rights protection could result in serious erosion of freedom.  The Bill is replete with human rights implications though, as is usual, the government issued a statement of compatibility.

In this post, I take a brief overview of the Bill

30 years ago ~ The Miner's Strike ~ Emergency Powers

30 years have elapsed since the Miner's Strike of 1984-5.  The Guardian 3rd January 2014 reports that Prime Minister Margaret Thatcher requested plans to be prepared for the use of troops to move coal to power stations.  The article states that Thatcher "was secretly preparing to use troops and declare a state of emergency at the height of the miners' strike – out of fear Britain was going to run out of food and grind to a halt ..."

The phrase "declare a state of emergency" was interesting.  Did such a "declaration" actually give greater power to the authorities? 

The fight for criminal legal aid and justice

Protest ~ Old Bailey, London

Today, lawyers took unprecedented action in their campaign on criminal legal aid.  As far as anyone knows, there has never been a previous day when lawyers have decided not to attend court.  The reasons for the action are well explained in a post on the Legal Cheek blog - This is why criminal lawyers are striking today.



"This year some public sector workers will receive pay rises. Criminal barristers and solicitors, meanwhile, have been told to expect pay cuts of 17.5% for less serious cases and 30% for very high cost cases (VHCCs)."

See also this article and video in which Mark George QC explains clearly the likely impact on justice of the proposals.  Also, this interview (on Youtube) is well worth watching - Sarah Forshaw QC talks to Huw Edwards.  Further excellent comments in The Guardian's article: Legal Aid: is this the cut that kills?

In 2013 there were two consultations on legal aid - see the posts of 4th June 2013 and 5th September 2013.   The government's response to the second consultation is awaited.  There can be little doubt that, if these cuts are implemented, the future for an INDEPENDENT criminal bar will be very grim.  Young talented lawyers will not be able to afford to practice in criminal law and that would have devastating longer term consequences for justice both in terms of prosecuting cases and defending those accused.

The Ministry of Justice also stands charged

A Very Happy New Year 2014

New Year's Eve 2013

A VERY HAPPY NEW YEAR to all readers.  We are only just into the New Year so let's not be unduly serious for today!

The Telegraph informs us that Murderers could get hundreds of years in jail to get round the European Court ban.   Wait a moment ... it may apply to other offenders as well ... The Telegraph goes on .... "Murderers and other offenders convicted of very serious crimes could be given US-style jail sentences lasting hundreds of years to get round a ban by European human rights judges ..."  

The decision in Vinter v UK, is causing the judiciary some problems when sentencing for murder - (as discussed last month) - and a Court of Appeal ruling is imminent.  

I was reminded