The closure of BHS - Pensions

Updated June 2017

After 88 years of trading, British Home Stores (BHS) finally closed - ITV News 28th August and Express 28th August.   The Express reports that - "The stores were originally due to be closed on August 22, but the shut down was pushed back so that joint administrators Duff and Phelps and FRP Advisory could sell as much stock as possible to maximise returns for creditors."

In March 2015, Retail Acquisitions Ltd purchased BHS from Arcadia Group Ltd for the sum of £1 - BBC News 12th March 2015.   On 11th March 2015, Sir Philip Green ceased to be a Director of BHS.  Sir Philip was a Director of Arcadia Group from 16th October 2002 until 15th December 2015.  Arcadia Group is in a chain of businesses with a Jersey registered private company called Taveta Ltd at the pinnacle.  Sir Philip Green's wife has control of Taveta Ltd.

BHS went into administration in 2016 - BBC News 27th April 2016 - with serious concerns over the deficit in the pension funds.  The concerns are likely to require the Pension Protection Fund (PPF) to step in to ensure that former employees receive at least some pension.  The Board of the PPF was created by Part 2 of the Pensions Act 2004.  An investigation by the Pensions Regulator - created by the Pensions Act 2004 Part 1 - is on-going.

Brexit and the UK as a Union - an interesting contribution from Aberdeen

Let us suppose that the courts decide that Article 50 (Treaty on European Union) may be "triggered" by Ministers using royal prerogative powers relating to treaties.  According to Mr Scott Styles (Senior Lecturer at the University of Aberdeen School of Law) an interesting possibility then arises - Aberdeenunilaw - Scott Styles - Article 50, the Articles of Union and using the Royal Prerogative to end the union between Scotland and England

Mr Styles' article commences:

"The use of the prerogative power to invoke Article 50 of the TEU has been much discussed since the Brexit vote on 23 June 2016 (including this initial post on the matter and a follow-up post). The present author believes that only an Act of Parliament can be used to invoke Article 50 but if I am mistaken then a very interesting route to Scottish independence potentially opens up.

If the UK government were to persist in arguing that the Prerogative can be used to trigger Article 50 and that submission were to be upheld by the courts then that will logically lead to a conclusion that Westminster will not welcome: that the Prerogative can be used to dissolve the Union between Scotland and England."

If correct in law, this would be a startling consequence.  

Brexit ~ the European Communities Act 1972

The EU Referendum vote in favour of Brexit will eventually require the dismantling of the complex relationship between the domestic law of the UK and the law of the EU.  This will not be a straightforward task and the difficulties should not be underestimated.  It is far from being a matter of simply repealing the European Communities Act 1972.

The European Communities Act 1972:

Here is the European Communities Act 1972 (as amended up to 11th August 2016).  It is - "An Act to make provision in connection with the enlargement of the European Communities to include the United Kingdom, together with (for certain purposes) the Channel Islands, the Isle of Man and Gibraltar."

Beyond Brexit - WTO?

It is almost 60 days since the EU referendum of 23rd June 2016.  Following the resignation of Prime Minister David Cameron, a new government was formed under the leadership of Prime Minister Theresa May who stated during the brief party leadership campaign that "Brexit means Brexit" and she reorganised aspects of the government accordingly.  Detail of the reorganisation is at Parliament Written Statement 18th July.  There is a new Department for Exiting the European Union and also a Department for International Trade.

A the moment, there are many questions as to what the future might hold.  For example, what kind of relationship will emerge between the EU and also with non-EU countries.  Although it was intended to inform the referendum, this Referendum Document gives indications as to what forms of relationship might be possible.

The possibility

Barbaric and planned murder in Lancashire

Crown Court at Preston

The murder of Sadie Hartley (age 60) was "a crime of obsession, of arrogance, of barbarity ..." - Mr Justice Turner.  Sarah Williams (35) and Katrina Walsh (56) were found guilty of the murder at the Crown Court at Preston before Turner J and a jury.

Media reports include Lancashire Telegraph and BBC News 

The Sentencing Remarks of Turner J are available -Sentencing Remarks - and offer a clear example of how, in practice, the Criminal Justice Act 2003 Schedule 21 is applied.  The principal offender was Sarah Williams and a minimum term of imprisonment of 30 years was set in her case.  Katrina Walsh was "a fellow spirit and enthusiastic participant" who had engaged in several preparatory acts and also assisted in trying to cover up the offence.  Also convicted of the murder, Walsh received a minimum term of 25 years.

Schedule 21 paragraph 5 deals with cases of "particularly high seriousness" and para. 5(2) sets out some cases which would normally be regarded in that way.  The list in para 5(2) is in no sense an exhaustive list and so it does not prevent other cases being regarded as being of "particularly high seriousness" - see, for example, Griffiths and others v The Queen [2012] EWCA Crim 2822 (Hughes LJ and Ramsey and Irwin JJ).

Roundup - Items of Interest

Updated 18th August:

Here is a round up of some of the prominent topics at the present time.  In no particular order ....

The future of the civil courts -  see the Interim Report by Lord Justice Briggs and also his final report.  The Martin Partington blog has taken a look at it.

Independent Inquiry into Child Sexual abuse - the appointment of a non-lawyer as the inquiry chairman (previous post) has attracted some comment - see Rightsinfo and also Barrister blogger.

President of the Family Division Viewpoint - see the 14th View from the President's Chambers
and see Family Drug and Alcohol Court (FDAC) and PAUSE.  Lancaster University - Family Court recycles one in three young mums.


Imprisonment for Public Protection (IPP) - this "mess" rumbles along and the government is urged to find a solution - see  Solicitors Journal

New legislation on "Zombie Knives"

Having article with blade or point in public place:

On 9th May 2014, this blog looked at sentencing for possession of bladed or pointed articles.  The offence is governed by the Criminal Justice Act 1988 section 139.  In that post it was noted how the maximum sentencing powers for possession of such articles had been increased by Parliament but there was some concern that actual sentencing did not reflect those increases.

Sentencing Guidance for Magistrates is now available online and this shows that where the offence is committed in dangerous circumstances but the weapon was not used to threaten or cause fear then 6 weeks custody could be appropriate with a sentencing range of High level community order to committal to Crown Court for sentence - see guidance here.  Where the weapon is used to threaten or cause fear and the offence is committed in dangerous circumstances then the guidance is that Magistrates should commit the offence to the Crown Court for sentencing.

There has been growing concern that so-called Zombie Knives have become a weapon of choice for those with criminal intentions.  The government has secured new legislation on such articles.

The Labour Party Leadership Election

The Labour Party is in the throes of its second leadership election in two years - The Labour Party Leadership Election 2016.  The present leader - Rt. Hon. Jeremy Corbyn MP - was elected by the party in 2015 and is facing a challenge to his leadership.  Certain aspects of the rules governing the party have come before the courts and they are of legal interest because they illustrate the court's approach to interpretation of contracts and how contract law applies to unincorporated associations.

In care, out of trouble

On 31st March 2015, there were 69,540 "Looked After Children" in England - (Dept. of Education Statistics).  75% of those were in foster care.  Whilst the legal definition is somewhat more complex, a Looked After Child is basically one who is subject to a Care Order under the Children Act 1989.

94% of Looked After Children do not have any interaction with the criminal justice system.  Early in 2015, the Prison Reform Trust (with the support of the J Paul Getty Trust) launched a review, chaired by Lord Laming, to investigate the disproportionate numbers of children in care who were in custody and to make recommendations for reform.

The outcome of the review has been published - Keeping children in care out of trouble

Brexit - another legal challenge

High Court Belfast

The Irish Times 11th August - Belfast rights campaigner begins legal challenge to Brexit

"A campaigner for the rights of victims of the Troubles has launched the first legal challenge in Northern Ireland to the UK leaving the European Union.  Raymond McCord lodged papers at the High Court in Belfast on Thursday seeking a judicial review of the British government’s move towards Brexit.  His lawyers claim it would be unlawful to trigger Article 50 ... without parliament voting on the move. They also contend it would undermine the UK’s domestic and international treaty obligations under the Good Friday Agreement, and inflict damage on the Northern Ireland peace process."

Chair of the Child Abuse Inquiry

Professor Alexis Jay has been appointed to chair the Independent Inquiry into Child Abuse - see Inquiry Statement 11th August.

Professor Jay led the Independent Inquiry into Child Sexual Exploitation in Rotherham, an investigation into child sexual abuse in the Metropolitan Borough of Rotherham in South Yorkshire.  She is the author of the investigation's report, published in August 2014 - (Law and Lawyers 1st September 2014).

In September 2014 she was appointed to act as an expert adviser to an independent panel inquiry which was intended to examine how the UK's institutions have handled their duties to protect children from sexual abuse.   Following the abandonment of the initial panel inquiry in favour of a statutory inquiry under the Inquiries Act 2005, she was re-appointed as an adviser to the subsequent Independent Inquiry into Child Sexual Abuse chaired by Dame Lowell Goddard.

The Chair is assisted by a Panel of three members: Prof. Sir Malcolm Evans KCMG OBE; Ivor Frank; and Drusilla Sharpling CBE.  Professor Jay was a Panel Member assisting Dame Goddard.  It is not clear whether a fourth panel member will now be appointed.  Although Professor Jay is not a lawyer, the panel members have considerable legal credentials.

Law and Lawyers 5th August - Dame Lowell Goddard quits.

Immunity from criminal process of Special Missions

Special diplomatic missions (or just Special Missions) have existed since the beginnings of diplomatic relations between States and they continue to be used from time-to-time.

In R (Freedom and Justice Party and others) v Secretary of State for Foreign and Commonwealth Affairs and the DPP [2016] EWHC 2010 (Admin) the High Court (Administrative Court) was faced with this question of law:

"Whether members of special missions visiting the United Kingdom with the approval of the First Defendant ("the FCO") enjoy personal inviolability and/or immunity from criminal process pursuant to a rule of customary international law to which effect is given by the common law."

The court (Lloyd Jones LJ and Mr Justice Jay) held:

Court of Appeal allows publication of redacted judgment relating to Child C

On 21st June, Ellie Butler's parents - Ben Butler and Jennie Gray - were sentenced at the Central Criminal Court - see the Sentencing Remarks of Mr Justice Wilkie.   Ben Butler was sentenced to life imprisonment for the murder of Ellie and the judge fixed his minimum term at 23 years (less days on remand).  He also received 5 years for Child Cruelty.  Those sentences are concurrent.  Jennie Gray was sentenced to 18 months imprisonment for Child Cruelty and 24 months for Perverting the Course of Justice.  Her sentences are consecutive.

A post of 23rd June 2016 looked at Ellie's case and the Serious Case Review which took place following her death.

In 2014, care proceedings took place in the High Court relating Ellie's younger sibling - referred to as C.  The Court of Appeal (Lord Dyson MR, McFarlane and Burnett LJJ) has now ruled that a redacted judgment in those proceedings may be published.  It is available via the Judiciary website.

For further discussion of this see UK Human Rights blog 9th August 2016 

Independent Child Abuse Inquiry - Dame Lowell Goddard quits

Updated 6th August:

In a terse letter to the Home Secretary (Amber Rudd MP), the Chair of the Independent Inquiry into Child Abuse has resigned.

The Home Secretary's statement, accepting the resignation, may be read here.

There have been murmurings about matters such as the time Lowell Goddard took away from the inquiry, her remuneration and even about her ability.  Whether this played a part is unclear.

The BBC 4th August published the correspondence and a statement from Lowell Goddard.

Legal Aid Agency cancels a notable contract

Updated 15th August:

The Legal Aid Agency (LAA) has cancelled its legal aid contract with Public Interest Lawyers (PIL).  The LAA considers that PIL has breached contractual requirements and reached this opinion "after a thorough review of information provided by PIL, following the investigation by the Solicitors Regulation Authority (SRA) into the firm."  See the LAA's announcement.  

The Telegraph 2nd August 2016 - 'Ambulance chasing' law firm that hounded British troops over false claims of Iraq abuse banned from public funding

The Telegraph 3rd August 2016 - Top lawyer facing criminal inquiry where it is said that the Legal Aid Agency is to pass a dossier to the National Crime Agency.   The article also states that a National Crime Agency spokesman said: “We do not confirm or deny the existence of investigations or the receipt of specific intelligence. Where we receive intelligence we look at it and assess whether it is appropriate for us to take action or refer on to other agencies.”

Mr Phil Shiner - Head of Strategic Litigation at Public Interest Lawyers (International) - is facing disciplinary proceedings before the Solicitors Disciplinary Tribunal (SDT) and see The Telegraph 23rd June 2016 where it is reported that Mr Shiner was said to believe he is the subject of a “personal vendetta” by the Government.

Child Sexual Abuse Inquiry ~ allegations involving the late Lord Janner

As Home Secretary, Theresa May (now Prime  Minister), set up the Inquiry into Child Sexual Abuse with New Zealand Judge Lowell Goddard as its chair - Law and Lawyers 4th February 2015 - Independent Panel Inquiry into Child Sexual Abuse

The inquiry is being held under the Inquiries Act 2005. The Terms of Reference require the inquiry to consider the "extent to which State and non-State institutions have failed in their duty of care to protect children from sexual abuse and exploitation."  The terms go on to state  that - "It is not part of the Inquiry’s function to determine civil or criminal liability of named individuals or organisations. This should not, however, inhibit the Inquiry from reaching findings of fact relevant to its terms of reference."

13 cases have been selected for investigation at this stage and those include one against a named individual - the late Lord Janner of Braunstone QC.  That raises the issue as to just what facts may be determined about Janner without encroaching on to the forbidden territory of deciding liability.