Tuesday, 29 July 2014

Roundup of News and Comment ....

Updated 30th July ...

Over recent days a considerable number of legal "stories" have appeared.  Here are a few - Enjoy ....!

1.  Efficiency review

The Judiciary has announced details of a Review of Efficiency in Criminal Proceedings which is to be led by Sir Brian Leveson (President of the Queen's Bench Division of the High Court).

2.  Criminal Practice Directions will be revised from October 2014

3.  The Guardian newspaper (and its associated website) cover many aspects of law.

a)  Judges have been warned that the government is trying to obtain impunity over torture. 
The warnings came from Richard Hermer QC, acting for Abdel Hakim Belhaj and his Moroccan wife, Fatima Bouchar, who were abducted in a joint MI6/CIA operation in 2004 and secretly flown to Tripoli, where Muammar Gaddafi's security forces tortured him.  A further on-going case is that of Yunus Rahmatullah who was captured by the British in Iraq during 2004 and handed over to the US - (see previous post).

b)  This Guardian article does not pull any punches and claims that it is inhuman to deny the vote to serving prisoners.  It is written from a Scottish perspective but the denial of the franchise to prisoners applies also in England and Wales. 

c)  A further article reports that Alison Saunders (Director of Public Prosecutions) has indicated that she is  seeking to "rebalance" the process in order to reduce the stress caused by the prospect of victims appearing in court. The coroner who conducted the inquest into the death of concert violinist Frances Andrade is writing to Saunders calling for specific changes to avoid further such incidents.  This blog looked at this matter back in February 2013 - Special measures in criminal proceedings.  Andrade was qualified to benefit from special measures (Youth Justice and Criminal Evidence Act 1999) but, as permitted by s.17(4) of the Act, she declined them and chose to give her evidence in person before the court.  She endured a rigorous cross-examination by Brewer's counsel Kate Blackwell QC. Between giving her evidence and the conclusion of the trial, Andrade took her own life.

See CPS website - DPP launches support package for victims - 21st July 2014.

d)  On 22nd July, Joshua Rozenberg looked at - How UK's terrorism law targets words, not just guns and bombs.   The legal definition of terrorism risks criminalising legitimate freedom of expression, according to the UK's terror watchdog. David Anderson QC, the independent reviewer of terrorism legislation, has recommended narrowing the definition in the Terrorism Act 2000. In his annual report, Anderson said the breadth of the UK terrorism definition was graphically illustrated in the David Miranda case , partner of the former Guardian journalist Glenn Greenwald.

Mr Anderson's report may be viewed via the Independent Reviewer's website.

e)  According to this article, the Family Court is now at breaking point because of cuts to legal aid. People are facing child custody and divorce cases without proper advice as private arbitrations rise, says lawyer's body Resolution.

4.  Closed Material Proceedings

Since the enactment of the Justice and Security Act 2013 , it is of some interest to note how many "secret hearings" (known technically as 'closed material proceedings') have taken place.  A report in Express and Star 28th July looks at this.

5.  No win: now fee

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 made changes to "no win no fee" arrangements - known to lawyers as 'conditional fee agreements' ) but what do such agreements actually entail?   A good explanation by Jane Gittins appears at The Justice Gap.

6.  Human Rights

Some sections of the British Press seems to delight in painting the European Convention on Human Rights (ECHR) as a "villain's charter" and the European Court of Human Rights (E Ct H R) as a body of unelected judges making decisions which are inconvenient to government.  This trend was exemplified this week by The Sun newspaper (27th July) - It's time to stop crazy human rights rulings from European Judges.

It was therefore somewhat refreshing to see an article in The Independent highlighting 8 decisions that you probably won't hear Prime Minister David Cameron talking about.

Those pressing for abandonment of the Convention ought to be careful what they wish for. The alternative might well be some form of British Bill of Rights probably riddled with exceptions and at the mercy of untrammeled Parliamentary Sovereignty with each successive Parliament essentially locked in for a full 5 years subject only to the terms of the Fixed Term Parliaments Act

Having said this, some decisions of the E Ct HR contain some problematic reasoning such as the "living together" concept which has emerged from the recent Grand Chamber decision in SAS v France (Judgment of 1st July 2014) where the court upheld the French ban (introduced in October 2010) on wearing of the face veil.  An article on the Strasbourg Observers blog looks at two problematic aspects of the judgment - first, its acceptance of the promotion of ‘living together’ as a legitimate ground for the restriction of fundamental rights, coupled with a wide margin of appreciation; and, secondly, the way it assesses the seriousness of the interference.

7.   Challenge to DRIP

LIBERTY is representing MPs David Davis and Tom Watson in a legal challenge by way of judicial review to the Government's 'emergency' surveillance law - discussed recently on this and other blogs - (for example, here).  Unfortunately, reading the Liberty website did make me wonder about the workings of Parliament itself which appears to have almost entirely rolled over to enact the Data Retention and Investigatory Powers Act 2014.  Some honourable members did register their objection to the process but, nevertheless, the legislation was pushed through unopposed officially.  Mr Davis and Mr Watson argue that the legislation breaches Article 8 of the ECHR and also Arts. 7 and 8 of the EU Charter of Fundamental Rights.

Read the Data retention and Investigatory Powers Act 2014

8.  Child abuse inquiry

On 7th July, the Home Secretary made a statement in Parliament on child abuse investigations.  It was later announced that one of the investigations was to be led by retired President of the Family Division Lady Elizabeth Butler-Sloss whose brother was Attorney-General in the 1980s.  Facing the possibility of apparent bias, Her Ladyship stepped down as Chairman.  To date, a new appointee has not been announced and Ministers are being urged to do so - BBC 25th July.

9.  On the various blogs

The Intrigant published its 17th letter to the Lord Chancellor. and also its 18th such letter.  These letters, in sardonic (even sarcastic) style, are will worth reading for their devastating criticism of Ministry of Justice policy.  The 17th letter looks at prison and probation policy, outsourcing of contracts, IT projects and Operation Cotton.  It concludes - 'In Volume 1 of Campbell’s Lives of the Chancellors it reads “No office in the history of any nation has been filled with such a long succession of distinguished and interesting men as the Lord Chancellor.” Why is it that nobody, except me, can see that that long succession includes you?'  The 18th letter looks at how the increase in fees to bring a case to an employment tribunal has reduced the number of claims.

The blog of Nigel Poole QC considers Heroes and Villains - 'Mr Grayling, Secretary of State for Justice and Lord Chancellor is introducing proposed legislation which he believes will "finally slay much of the "elf and safety" and jobsworth culture that holds back so much of our society."  The Social Action, Responsibility and Heroism Bill was born of a meeting of minds of Mr Grayling and Oliver Letwin .  These Georges have identified their dragon: the law of negligence and civil claims for breach of statutory duty. Heroic stuff.'

The Marilyn Stowe blog continues its first rate coverage of family law matters and Celia Rooney writing on the UK Human Rights looks at the Cabinet Reshuffle, the Legal Aid Residency Test and DRIP

The Head of Legal blog looked at the 4 year period in office of former Attorney General Dominic Grieve QC.   The new Law Officers were sworn in before the Lord Chief Justice and it seems both were elevated to the rank of Queens Counsel.  It was hardly surprising that this provoked some trenchant Twitter observations from lawyers who had spent many long years at the junior bar before qualifying as "One of Our Counsel Learned in the Law."

.... and last, but by no means least, it is great to see Charon QC getting back into harness.  This doyen of the blogosphere has been largely absent for a time because he suffered a bad fall.  We all wish him well for the future.

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