Flooding ~ funding for defences ~ legal responsibility

Widespread flooding has left thousands of people devastated, their homes wrecked and struggling local businesses ruined with the north of England most affected - see Winter 2015 Floods: government response.  Severe flooding has occurred over several recent years - previous post - In the Firing Line - the Environment Agency (10th February 2014)

On 2nd December 2014, the coalition government announced a 6 year flood defence programme which will cost £2.3 bn.  Whilst this figure remains in place (see Autumn Statement) it is also reported that the Department for the Environment, Food and Rural Affairs (DEFRA) is to take a 15% cut in its budget over the next years - The Express 14th December.

The government has

A Happy Christmas

24th December:

On this Christmas Eve may I wish all readers a Truly Happy Christmas.  The Christmas message is a one of hope in what can be a very dark world.  May that message shine through like a candle in the darkness during the days and year to come.

Silent Night - King's College, Cambridge

25th December:

Christmas Broadcast by H.M. The Queen - Light will overcome darkness

LIBOR banker's appeal dismissed

On 3 August 2015, after a trial lasting 47 days at Southwark Crown Court before Cooke J and a jury, Tom Hayes ("the appellant") was convicted on eight counts of conspiracy to defraud in relation to the manipulation of the Japanese Yen London Interbank Offered Rate ("Yen LIBOR").

On 3 August 2015, he was sentenced to a total of 14 years imprisonment.

The Court of Appeal (Criminal Division) has dismissed Mr Hayes' appeal against conviction.  His sentence was reduced from 14 years to 11.  Read the judgment of the Court of Appeal.

The prosecution case was that,

Death of Lord Janner

The death of Lord Janner of Braunstone has been reported - The Guardian 19th December.

The proceedings against him were covered in previous posts -18th April; 29th June; 13th August and 7th December.

In April, a decision not to prosecute Janner for 22 alleged serious sexual offences was taken by the Director of Public Prosecutions (DPP) and this decision was based on clear medical evidence as to Janner's dementia.  In June, following a review, this decision was reversed.  The reversal of the decision followed a "Victims Right to Review" process instigated by six of the complainants and conducted by David Perry QC.   Janner's case was sent to the Crown Court and, on 7th December, Mr Justice Openshaw ruled that Janner was unfit to plead - read the decision dated 7th December 2015.

Arrested and refused to give names and addresses ~ Police Reform Act 2002 section 50 ~ charges discontinued.

On 9th November I blogged about three individuals who had been charged with failing to provide their names and addresses to the Police - Law and Lawyers - Arrested and refused to give names - DailyMail complains that they got unconditional bail.

The Police Reform Act 2002 section 50 created a NON-imprisonable summary offence.  It is triable only in the Magistrates' Court and carries a maximum penalty of a fine of £1000 (Level 3).

The three were granted unconditional bail and a trial date set for next year.  It is now reported that the Crown Prosecution Service (CPS) has discontinued proceedings against them due to "evidential grounds" - see Daily Mail 19th December.   No further detail is offered.

Section 50 (taking into account amendments) states:

A brief note on the Strathclyde Review ~ a major constitutional change is proposed

A wolf in sheep's clothing

The Tax Credits row (earlier post) between the House of Lords led to the Prime Minister setting up a review, under the Chairmanship of Lord Strathclyde, to consider the powers of the House of Lords in relation to statutory instruments.  The government had claimed that cuts to tax credits were crucial to its plans for public finances but the cuts were abandoned in the Autumn Statement.

See the Strathclyde review

In October, the House of Lords voted on the Tax Credits (Income Thresholds and Determination of Rates)(Amendment) Regulations 2015.  The Lords did not approve the legislation  but neither did they agree on a so-called "Fatal Motion" to kill it off.  Their votes imposed delay.  As far as legal rights are concerned, the Lords acted within their powers but it is claimed that a constitutional convention giving primacy to the House of Commons in financial matters was breached.

The Strathclyde Review was conducted by hereditary peer Thomas Galloway Dunlop du Roy de Blicquy Galbraith (2nd Baron Strathclyde) along with Jacqy Sharpe (former Clerk of Legislation in the House of Commons and Commons Clerk to the Joint Committee on Conventions in 2006), Sir Stephen Laws (former First Parliamentary Counsel) and Sir Michael Pownall (former Clerk of the Parliaments),

The review offers three options

Stop and Search ~ CJPOA 1994 section 60

Updated 17th December

On Thursday 17th December, the Supreme Court will hand down judgment in R (Roberts) v Commissioner of Police of the Metropolis and another

The issue in the case is - Do stop and search powers under s.60 of the Criminal Justice and Public Order Act 1994 contain sufficient safeguards for the powers to be "in accordance with the law" for the purposes of arts.5 and 8 ECHR?

The appellant, a 38 year old black woman, was stopped by a bus inspector for failing to pay for her journey, and subsequently stopped and searched in the street by a police constable. Her bag was also searched. This took place in an area where a s.60 authorisation was in force (allowing for stop and search without any grounds for suspicion on the part of individual police officers).

As the Court of Appeal (Civil Division) noted

Conflicts with Strasbourg

Russia - Constitutional Court

The Secretary General of the Council of Europe (Mr Thorbjørn Jagland) has issued a statement regarding the stance recently adopted by Russia toward the European Convention on Human Rights.

"Regarding Russia’s new legislation on the Constitutional Court’s competence to examine possible conflicts between judgments of the European Court of Human Rights  (E Ct HR) and the Russian Constitution, the Secretary General of the Council of Europe, Thorbjørn Jagland, recalls that according to Article 46 of the European Convention on Human Rights all member states of the Council of Europe undertake to abide by the final judgments of the Strasbourg Court (to which they are a Party).

The Secretary General said -  “it will be up to the Constitutional Court of Russia to ensure respect for the Convention if it is called upon to act under the new provisions. The Council of Europe will only be able to assess Russia’s compliance with its obligations when and if a specific case arises. The compatibility of Strasbourg judgments with the national constitutions has been examined in some other member States.  So far, countries have always been able to find a solution in line with the Convention. This should also be possible in Russia."

A Bill signed into law by the Russian President (Vladimir Putin)

Judgment in the Wang Yam case ~ Right of individual petition to Strasbourg

The Supreme Court unanimously dismissed Wang Yam's appeal - see previous post.

A Press summary of the decision has been published as well as the court's judgment delivered by Lord Mance.

The Supreme Court noted that Article 38 of the convention enabled the E Ct HR to  request the UK government to furnish additional information.  Lord Mance said (para 33) - " ... in deciding whether to order that material withheld by governmental authorities from an alleged victim should be disclosed to it, the European Court of Human Rights will consider the independence and thoroughness of the domestic procedure for reviewing the authorities' decision. It will consider in that light whether any and if so what further disclosure should be made. It will by no means necessarily conclude that any further disclosure was required."

May the right of petition to Strasbourg actually be hindered? The Wang Yam case.

The United Kingdom is bound in international law by the European Convention on Human Rights (ECHR).   The road from the UK to the European Court of Human Rights (E Ct HR) opens once Arts. 34 and 35 apply:

Art 34 - The court may receive applications from any person, nongovernmental organisation or group of individuals claiming to be a victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.  The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.  (My  emphasis).

Art 35 - The court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.

A look at the cases of the Shrewsbury Pickets

The Trade Union and Labour Relations (Consolidation) Act 1992 is the principal legislative statement of current Trade Union law.  The 1992 Act not only consolidated many earlier Acts but also made a number of significant changes to the law.  The history of the law prior to this Act was complex and is well described in books such as Smith and Wood's Employment Law.  The "power balance" between Unions and Employers has proved to be exceptionally difficult to find both politically and legally.  The struggle between the Labour Movement and the government was epitomised by the Industrial Relations Act 1971, later replaced by the Trades Union and Labour Relations Act 1974.  The ebb and flow of Trade Union law continues with the latest Trade Union Bill which has passed the House of Commons and is now before the House of Lords - BBC 15th September 2015.

Mark Duggan case ~ no judicial review of College of Policing guidelines

On 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 was referred to as V53.  The other officer was 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.

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.

Mrs Duggan (mother of Mark Duggan) sought Judicial Review

Lord Janner ~ unfit to plead or stand trial

The Judiciary has published the decision of Mr Justice Openshaw regarding whether Lord Greville Janner is fit to plead - read the decision dated 7th December 2015.  The learned judge took the opportunity to restate the test for fitness to plead or stand trial set out in R v Pritchard (1836) 7 Carrington and Payne 303 where Alderson B said:

‘There are three points to be enquired into:- first, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings in the trial so as to make a proper defence – to know that he might challenge any of you [the jury] to whom he may object – and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation.”

Alderson B was stating the law for a jury.  In modern law, the decision as to fitness is taken by the trial judge and not a jury.

Openshaw J's modern formulation of the test is:

Understanding UN Security Council Resolutions

United Nations Security Council Resolutions (UNSCR) are most important at an international level and yet they can be difficult to interpret.  They are not treaties.  Understanding of the proceedings at the Council prior to the resolution is essential to reach a proper interpretation.  Furthermore, they are are not subjected to the sort of detailed examination that accompanies the enactment of national legislation.  Pressures of time and politics are also in play.  For an expert view of how interpretation should be approached see:

Michael C. Wood - Max Planck Yearbook of United Nations Law 1998 - Interpretation of Security Council Resolutions

and for a video presentation see - Michael C. Wood on the Interpretation of UN Security Council Resolutions

Criminal Courts Charge disappears on Christmas Eve ..... government reviewing financial orders

UPDATE 29th January 2016 - Report of Joint Committee on Statutory Instruments raising question over how the charge was removed

Details of the Criminal Courts Charge are in this post of 30th July 2015.   In a speech to the Magistrates' Association, Michael Gove (Secretary of State for Justice and Lord Chancellor) announced that he had laid in Parliament an amending statutory instrument so that - from the 24th of December - the criminal courts charge will no longer be imposed.

The Criminal Justice and Courts Act 2015 section 54 introduced the Criminal Courts Charge.  Section 54 came into force on 13th April 2015 and, on the same date, the Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015 came into force.  It was Paragraph 3 of those regulations which dealt with the amount that had to be ordered and the actual amounts were set out in a Schedule.

Amendment regulations

Human rights proposals delayed ~ Lord Chancellor at the House of Lords Constitutional Committee

The Secretary of State for Justice and Lord Chancellor has given evidence to the House of Lords Constitution Committee and the filmed session is available for viewing.

Questions ranged over several important issues including the Lord Chancellor's Oath;  the dual role of Secretary of State and Lord Chancellor; Constitutional Reform; the Ministerial Code; Prisoner Voting and Reform of the Courts and Tribunal Service.

The most interesting aspect of the session was that Mr Gove said that there will be a Consultation Paper relating to Human Rights Reform and this will now appear in "the New Year" (no specific date offered).  The paper would contain a series of "open ended questions" and would seek as broad a consensus for reform as possible.