Friday, 23 June 2017

Swift justice ~ Communications Act 2003 s.127

There are times when the administration of justice can be swift as demonstrated by the case of Mr Omega Mwaikambo (M).

It is reported - Mirror 16th June - that M made cups of tea for firefighters as they battled the Grenfell Tower fire.  He noticed that a body had been placed into a body bag and left on the ground.   According to the prosecutor (Tom Little) - M uploaded photographs and video of the deceased inside the body bag and then five photographs of the upper body and the face and the blood that had drained from the body.  According to the defence (Michelle Denney), M found the deceased person and was shocked by the fact the body was there and felt a sense of shock that the body was unattended.  He tried to find someone to come and help but "there was not one else in sight" and he took the photos to "show how the victim was being treated" and get someone's attention.

The offence:

M was charged with two offences under the Communications Act 2003 section 127(1) - Improper use of public electronic communications network. The case was dealt with at Westminster Magistrates' Court.

Wednesday, 21 June 2017

State Opening ~ Confidence and Supply ~ Concerns over Good Friday Agreement

Updated 26th and 27th June -

21st June 2017 is the Summer Solstice and, on this occasion, it is also the State Opening of Parliament when HM The Queen delivers the Queen's Speech setting out the government's plans for the coming session of Parliament.  There will not be a Queen's Speech in 2018 and so this session of Parliament will last for 2 years.  The government's reason for this is the amount of legislation to be considered including what has been referred to as "the Great Repeal Bill" dealing with the legal consequences of Brexit.  The Queen's Speech will be the subject of a 6 day debate in the House of Commons commencing 21st June and ending 29th June.  Proposed amendments to the Queen's Speech will be dealt with on 28th and 29th June.

Sunday, 18 June 2017

Criminal liability of corporations

The Grenfell Tower fire on 14th June is under investigation by the Metropolitan Police.  Mr David Lammy MP called for charges of corporate manslaughter to be brought - see The Guardian 15th June.  Here is a brief look at the relevant law.

Corporations such as limited companies are, in law, legal entities distinct from the individuals who direct them or are employed by them.  The Corporate Manslaughter and Corporate Homicide Act 2007 introduced a statutory offence of corporate manslaughter and abolished the common law liability of corporations for manslaughter.

The offence is defined in section 1 and certain types of organisation may be found guilty of the offence.  The offence is concerned with the way in which the activities of an organisation (e.g. company) are managed or organised.  It has to be shown that this caused a person's death and amounted to gross breach of a relevant duty of care owed by the organisation to the deceased.

Saturday, 17 June 2017

Mrs May is right to decide on an INQUIRY into Grenfell Tower fire

Today, 17th June, it has been announced that 58 people have died as a result of the Grenfell Tower fire which occurred on 14th June.  There has been debate about whether the correct legal response is an inquest or an inquiry.  The Prime Minister has announced that there is to be an inquiry led by a judge.   Fuller details of the inquiry are awaited but it seems likely that it will be held under the Inquiries Act 2005.

It is not that the Inquiries Act 2005 is a perfect tool because the legislation gives Ministers considerable power in relation to certain aspects of an inquiry.  Criticism of the Act may be seen in this Select Committee report at paragraphs 197 and 198.   The Act replaced the Tribunals of Inquiry (Evidence) Act 1921 and was hurriedly enacted as part of the so-called "wash-up" process just prior to the 2005 general election.  Nevertheless, the Act was subjected to post-legislative scrutiny by a Select Committee which made 33 recommendations - Committee Report 11th March 2014.

Friday, 16 June 2017

Civil Contingencies - a brief note

The Royal Borough of Kensington and Chelsea is the location of the 14th June disastrous fire at Grenfell Tower - a high-rise block of flats.  The Borough also has a large number of empty properties and the Council has put in place a number of measures to try to reduce the number - see RBKC Empty Homes and CityA.M 21st April 2017 where it is said that the Borough has the most empty properties of any London Borough.

The Independent 15th June reports that Rt Hon Jeremy Corbyn has called for homes left vacant in Kensington and Chelsea by overseas investors to be “requisitioned” in order to rehouse those left homeless due to the Grenfell Tower fire. Is there a legal power to do this?

The (elusive) decision to leave the EU

Has the UK made a legally valid decision to leave the EU?

Article 50:

Article 50(1) of the Treaty on European Union states that "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements."  Article 50(2) commences - "A Member State which decides to withdraw shall notify the European Council of its intention ..."

Wednesday, 14 June 2017

Baby Charlie Gard ~ European Court of Human Rights interim measure

The European Court of Human Rights has decided to continue to indicate to the United Kingdom Government that they should provide Charlie Gard, a baby suffering from a rare genetic disease, with such treatment and nursing care as may be appropriate to ensure that he suffers the least distress and retains the greatest dignity consistent, insofar as possible, with maintaining life.  The court's Press release dated 13th June 2017 is available via THIS LINK.  The Press Release states that the "interim measure" continues until the court decides on any substantive application that may be submitted.  In the event that no substantive application is submitted, the interim measure shall be maintained until midnight on Monday 19 June 2017.

Swearing in of MPs

It is a long standing legal requirement that Members of Parliament (House of Lords and House of Commons) are required to pledge allegiance to Her Majesty The Queen.

Based on their opposition to British Sovereignty over Northern Ireland, Sinn Féin representatives have traditionally refused to take their seats in the House of Commons.  It follows that they refuse to pledge allegiance to the Queen.  The consequence is that they may not participate in proceedings in Parliament - e.g. debates, voting, committees etc.   They are permitted to use office accommodation and to claim MP's expenses - Sinn Féin, Allowances and Access to Commons Facilities - 2006.

Monday, 12 June 2017

Monday 12th June - New Lord Chancellor and other matters

The Prime Minister is forming her government and the appointments may be seen via the No. 10 Downing Street website.

Lord Chancellor and Secretary of State for Justice:

Rt Hon David Lidington MP becomes Lord Chancellor and Secretary of State for Justice.  His appointment has been welcomed in some quarters (Law Society, Bar Council) but, for my part, I will wait to see how he performs. There is much to be done in relation to the prison system.  There are also serious issues concerning the reduction of legal aid which took place following the Legal Aid, Sentencing and Punishment of Offenders Act 2011 (LASPO).  Then there is the major programme of modernisation of the court system.  A Prisons and Courts Bill

Sunday, 11 June 2017

Sunday roundup

Baby Charlie Gard:

The Supreme Court has rejected an application for appeal in the terribly sad and distressing case of Baby Charlie Gard.  The application hearing in the Supreme Court may be heard HERE.   See also the Court of Appeal (Civil Division) judgment and the judgment of Mr Justice Francis in the High Court.

The case is now before the European Court of Human Rights with a view to that court hearing the parent's application - BBC News 9th June

Friday, 9 June 2017

General Election June 2017 - the immediate outcome

Updated 10th June:

The General Election held on 8th June 2017 produced what is referred to as a "Hung Parliament" - that is, one in which there is no political party in the House of Commons with an outright majority over all other parties.  The outcome was that the Conservative and Unionist Party won the most seats in the Commons.  The result may be seen at BBC - Election 2017.  The 5 parties with the most seats were:

Conservatives - 318 seats (loss of 12) - 42.4% Vote share

Labour - 261 seats (gain of 29) - 40.0% vote share

Wednesday, 7 June 2017

Reflections on Theresa May's human rights comments

Speaking to voters in Slough on Tuesday 6th June, the Prime Minister (Mrs Theresa May) said that she will make it easier to deport foreign terror suspects back “to their own countries” and would “restrict the freedom and movements of terrorist suspects” if re-elected on 8 June - The Independent 7th June 2017.  Mrs May referred to changing laws if they impeded efforts to fight the increasingly “complex” terror threat.  It was essential to ensure that the Police and Security services have the powers they need as the threat changes, evolves and become more complex.  Mrs May went on to say: “I mean longer prison sentences for people convicted of terrorist offences. I mean making it easier for the authorities to deport foreign terrorist suspects back to their own countries. And I mean doing more to restrict the freedom and the movements of terrorist suspects when we have enough evidence to know they are a threat, but not enough evidence to prosecute them in full in court.  And if our human rights laws stop us from doing it, we will change the laws so we can do it."

Monday, 5 June 2017

Responding to terrorist attacks

Terrorist crimes in Manchester (May 2017) and London (June 2017) prompted the Prime Minister to make this statement in which Mrs May said: "We cannot and must not pretend that things can continue as they are. Things need to change, and they need to change in 4 important ways."

1.  The attacks were 'bound together by the single, evil ideology of Islamist extremism that preaches hatred, sows division, and promotes sectarianism. It is an ideology that claims our Western values of freedom, democracy and human rights are incompatible with the religion of Islam. It is an ideology that is a perversion of Islam and a perversion of the truth.


Thursday, 1 June 2017

Sentencing - new guidelines

The Sentencing Council has issued new Guidelines for cases where there is a guilty plea.  One guideline applies regardless of the date of the offence to all individual offenders aged 18 and older and to organisations in cases where the first hearing is on or after 1 June 2017. The guideline applies equally in magistrates’ courts and the Crown Court.

Reduction in sentence for a guilty plea: Definitive guideline

New guidelines are also in force for sentencing of children and young people where sentencing takes place on or after 1st June 2017, regardless of the date of the offence.

Sentencing children and young people

Tuesday, 30 May 2017

Some current legal stories

Here are some current legal stories - in no particular order:

"Sometimes you try and you do not succeed" says the Waiting for Godot blog.   The Dublin Case - brought in Ireland by Jolyon Maugham QC and others - sought to establish whether the Article 50 notice could be withdrawn unilaterally.  The litigants hoped that the Irish court would make a reference to the Court of Justice of the EU.  This litigation has now been abandoned for reasons set out HERE.

Professor Mark Elliott of Cambridge University

Saturday, 27 May 2017

The Manchester Arena atrocity

Here in Manchester, it has been a week blessed with the finest of weather that only an English spring can produce.  It was also a desperately sad week in which we saw both the worst and the best of humanity played out in this great northern city. 

 On the evening of Monday 22nd May, at 22.33 hrs BST, a bomb was detonated in the foyer of the Manchester Arena – BBC News 23rd May.   22 people were killed and 116 injured (many seriously) – BBC News 27th May.   The bomb was detonated as people were leaving the Arena following a concert by US singer Ariana Grande.

Thursday, 25 May 2017

Lady Justice Hallett and the jury

On 20th May, Lady Justice Hallett gave the 2017 Blackstone Lecture at Pembroke College, Oxford.  Her topic was Trial by Jury - Past and Present.   This was an interesting lecture, offering a good account of the pros and cons of the jury system.  It concludes by Her Ladyship advocating a continued role for the jury in criminal trials "of sufficient seriousness to society or to the individual accused to justify the use of resources."

"Justifying the use of resources" may not prove to be a primrose path for the jury system and it could prove to be a temptation to politicians who seek to reduce the amount of money spent on justice.  It begs the obvious question as to what level of seriousness will justify the use of a jury.  A commonly offered example is low-value theft where some argue that the right of defendants to elect for jury trial should be abolished.  The right remains but recent reforms to the law in the Anti-social Behaviour, Crime and Policing Act 2014 s.176 should be noted - (Explanatory Notes).

The Trial: Murder in the Family

The Trial: Murder in the Family was screened by Channel 4 over 5 episodes in May 2017.  Simon Davis (played by actor Michael Gould) is charged with the murder of his wife Carla.  The programme has a fictitious script but counsel are practising barristers Max Hill QC and Michelle Nelson for the prosecution.  John Ryder QC and Lucy Organ appear for the defence.  The judge is played by retired judge Brian Barker QC who had a very distinguished career at the Bar and as a trial judge.  He sat in the Central Criminal Court from 2000 to 2015.  The jury is made up of 12 members of the public and we get to see how they go about their consideration of the evidence and their individual viewpoints.

Saturday, 20 May 2017

General Election - What will happen to Fixed-term Parliaments and Human Rights

Updated 25th May 2017

Fixed-term Parliaments:

The Conservative Party manifesto commits to repealing the Fixed-term Parliaments Act 2011.  The Act was passed to underpin the Conservative - Liberal Democrat coalition established after the 2010 General Election.  It sought to prevent the Prime Minister - (then David Cameron) - from "calling an election" at a time of his choosing.

As we have seen recently, the Act did not prevent Prime Minister Theresa May from getting the general election she wanted but she had first to secure a favourable vote from the House of Commons. 

Friday, 19 May 2017

The Party manifestos and Brexit

The political party manifestos for the 2017 General Election have been published and they offer rather different positions regarding Brexit.  The Conservative and Unionist Party - (unlike 2015, they use their full title in the manifesto) - seeks a "deep and special partnership" with the EU but also states starkly that "no deal is better than a bad deal."  The Labour Party accepts Brexit but puts forward its case for a new approach to negotiations.  The Liberal Democrats will fight against a "hard Brexit" and offer a referendum on the deal reached with the EU.

The 2 year Article 50 clock is already ticking - Article 50(3) TEU -  and the immense amount of negotiation to be conducted is scheduled to begin on 19th June and negotiations will be conducted in accordance with EU Council guidelines - (previous post). The 2 year period is intended to be used to "negotiate and conclude an agreement ... setting out the arrangements for ... withdrawal, taking account of the framework for ... future relationship with the Union."  It is not entirely clear what a framework for future relationship entails but it seems likely that it will have to address fundamental points such as the UK's financial settlement and the rights of EU citizens in the UK and UK citizens in the EU(27).  Whatever the final content of the withdrawal agreement, much detail will remain to be addressed after the 2 year period expires.  Any view that everything can be concluded by March 2019 appears to be unrealistic.

Thursday, 18 May 2017

The Moors Murders ~ Death of Brady

At Chester assizes in 1966, Ian Brady (or Ian Stewart-Brady) and Myra Hindley were convicted of murder.  Described by the trial judge - Mr Justice Fenton Atkinson - as "two sadistic killers of the utmost depravity" - they were sentenced to life imprisonment and never released on parole.  For murder, a life imprisonment sentence had become mandatory following the abolition of capital punishment for murder in 1965 - Murder (Abolition of Death Penalty) Act 1965 (as originally enacted).  Hindley died in prison in 2002 and Brady died at Ashworth High Secure Hospital on 15th May 2017.

Tuesday, 16 May 2017

Brexit - Reflections on a pending divorce

: The UK prepares to leave the EU -  Some reflections on a pending divorce :

Accession to the European Communities:

In October 1971, doubts over many issues affecting Britain's future were aired in a House of Commons debate that lasted six days.  Hansard for 28th October 1971 records that the House of Commons approved the following motion by 356 votes to 244.

"That this House approves Her Majesty's Government's decision of principle to join the European Communities on the basis of the arrangements which have been negotiated."

 On 22nd January 1972 Ministers duly signed the European Treaties.  The European Communities Act 1972 received Royal Assent on 18th October 1972 and the UK acceded to the communities on 1st January 1973.

After 44 years of membership,

Friday, 12 May 2017

Friday roundup

Here is a brief Friday roundup of some legal items of interest.

Brexit - The European Parliament has published a study on the consequences of Brexit on acquired rights of EU citizens living in the UK and British citizens living in the EU-27.  This is a very important aspect of Brexit and it will have to be adequately addressed during negotiations with the EU.  It will be recalled that a considerable number of British citizens living in other EU member states were not permitted to vote in the 2016 referendum - see post of 24th May 2016.

Friday, 5 May 2017

EU Withdrawal ~ "divorce fee"

Updated 9th May

Remember the EU red bus?  "We send the EU £350 million a week - let's fund our NHS instead."  The £350 million per week was misleading and the statement regarding the NHS almost certainly had no true political intent behind it.

UK contributions as a member to the EU:

In February 2017 the government published European Union Finances 2016.  This is the 36th such document and describes the EU budget. 

Wednesday, 3 May 2017

Those unavoidable international courts

Updated 9th May

The United Nations has the International Court of Justice.  The World Trade Organization has a Dispute process including an Appellate Body.  Then there is the European Free Trade Area (EFTA) court and the Court of Justice of the EU (CJEU). These are all examples of international arrangements having specific processes for dealing with disputes.

Writing in The Guardian 3rd May 2017,  Helena Kennedy QC  says that -

Tuesday, 2 May 2017

Will the Withdrawal Agreement from the EU agreement require a referendum?

Will any future treaties agreed with the European Union (EU) require a referendum in the UK?   The Independent "Theresa May warned of fresh court challenge ..." indicates that Dr Andrew Watt, a former radiologist from Glasgow, has sent a letter before action – usually the first step in taking disputes to court – to the Prime Minister, in which he argues that section 2 of the European Union Act 2011 requires a referendum before the UK can leave the EU.

Article 50 TEU:

Article 50(2) of the Treaty on European Union states:

Monday, 1 May 2017

The EU is in charge ~ Article 50 TEU ~ the phased approach

The message that the European Council is in control of Brexit negotiations come over very clearly from the European Council guidelines for Brexit negotiations finalised on 29th April - previous post.

They refer to a "phased approach" to the negotiations and state that the "main purpose of the negotiations will be to ensure the United Kingdom's orderly withdrawal so as to reduce uncertainty and, to the extent possible, minimise disruption caused by this abrupt change."  Two phases are envisaged for the negotiations - described in this post as (1) Orderly withdrawal and (2) Future relationship.

The European Council is very much in overall control of the negotiating process and the Council reserves the right to alter the guidelines as necessary.  It is crystal clear from the guidelines that a non-member of the EU "cannot have the same rights and enjoy the same benefits as a member."

Sunday, 30 April 2017

Special European Council Meeting 29th April 2017

The European Council has approved guidelines for the Brexit negotiations - see the Council announcement and see European Council (Art 50) Guidelines.

The EU (27) will present a united front in the negotiations which will be conducted in transparency and as a single package. In accordance with the principle that nothing is agreed until everything is agreed, individual items cannot be settled separately.  The EU will engage with the UK exclusively through channels set out in the guidelines and negotiating directives. The European Council will remain permanently seized of the matter, and will update the guidelines in the course of the negotiations as necessary. Negotiating directives will be adjusted accordingly. 

Saturday, 29 April 2017

27th April ~ Bills receiving Royal Assent

The Dissolution of the 2015-2017 Parliament is on 3rd May.  The General Election on 8th June.  The following Bills received Royal Assent on 27th April.  This is the result of the so-called "Wash Up" process.

Thursday, 27 April 2017

Manslaughter by motor vehicle ~ Death of Police Officer

On 5th October 2015, Constable David Phillips of the Merseyside Police was killed when he was struck by a stolen vehicle, driven at speed towards him by Clayton Ronald Williams, who was then aged 18.

On 21st March 2016, in the Crown Court at Manchester (William Davis J and a jury) Clayton Williams was convicted of manslaughter. He was sentenced for that offence and also for offences of burglary and aggravated vehicle taking resulting in death, to which he had previously pleaded guilty.  The sentence was - imprisonment for 20 years for the manslaughter and concurrent terms of 2 years for burglary and 8 years for aggravated vehicle taking resulting in death.  He was also disqualified from driving for life.

Saturday, 22 April 2017

Road Traffic ~ Speeding penalties ~ Dangerous driving

Speeding fines are subject to new sentencing guidelines which are effective from 24th April 2017 - Sentencing Council Guidelines - Speeding.   For an explanation of Fine Bands - see here.   The driver with a recorded speed of 41 to 50 mph in a 30 mph limit will face a Band B fine and 4 to 6 penalty points.  Disqualification is also possible.

Here are two recent cases involving dangerous driving.

Tania Chikwature:

The offence of dangerous driving is defined in the Road Traffic Act 1988 section 2 and the meaning of dangerous driving is set out in section 2A.   One recent example of dangerous driving is that of Tania Chikwature who was driving a Nissan Qashqai in December 2016.  The website of the Cambridgeshire Police has details of the case including video taken from the cab of a lorry which was overtaken by Chikwature on the approach to a roundabout.

Thursday, 20 April 2017

General election on 8th June

There WILL be a general election on 8th June.  The preceding post looked at the requirements for an "early election" in the Fixed-Term Parliaments Act 2011 and the necessary majority was secured in the House of Commons on Wednesday 19th April.  MPs approved the motion for an early general election by 522 to 13.  The support of two-thirds of all MPs required for this motion to pass was reached - Parliament 19th April.

Parliament has to be dissolved 25 working days before Polling Day (8th June).  This means that Parliament will be dissolved on Wednesday 3rd May.

Tuesday, 18 April 2017

Prime Minister wants a general election on 8th June 2017

There MAY be a general election on 8th June 2017 - BBC NEWS 18th April.  This will be subject to securing a vote in the House of Commons for an early election as required by the Fixed Term Parliaments Act 2011

Section 2 of the Act specifies when an early election may be held.   An early parliamentary general election is to take place if -

(a)  the House of Commons passes a motion in the form set out in subsection (2), and

Monday, 17 April 2017

Tony Blair, the Iraq War and Aggression

The war against Iraq began on 20th March 2003.  It caused deep divisions among the people of the UK.  On 18th March 2003, the House of Commons - in which the Labour Party held a large majority - passed a motion supporting the war - 396 votes to 217.

According to The Guardian 16th April 2017, an attempt to bring a private prosecution of Tony Blair for the crime of aggression was rejected by a District Judge (Magistrates' Courts) at Westminster Magistrates' Court.  The judge refused to issue a summons but, as far as I can ascertain, the reasons of the judge for doing so were not published.  The Guardian report goes on to say that the present Attorney General - Jeremy Wright QC - is involved in proceedings in the High Court in which the District Judge's decision is being challenged.  The Attorney seeks to stop the prosecution and the basis for doing so is that the crime of aggression is unknown to English law.

Friday, 7 April 2017

School attendance ~ Isle of Wight Council v Platt

The Education Act 1996 section 444 defines two offences applying to parents of children of compulsory school age.

(1)  If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.

(1A)  If in the circumstances mentioned in subsection (1) the parent knows that his child is failing to attend regularly at the school and fails without reasonable justification to cause him to do so, he is guilty of an offence.

The Supreme Court

Tuesday, 4 April 2017

Police Bail Pre Charge ~ A note on changes to the law

The Policing and Crime Act 2017 is yet another large Act comprising 184 sections (divided into 9 Parts) and 19 Schedules.  A further 204 pages of Explanatory Notes have been published.  Police Powers are the subject of Part 4 of the Act which encompasses several aspects of the law including amendment of the law relating to PRE-charge Bail.

The problem:

A considerable number of cases have raised concern about the length of time that individuals have been subjected to Police Bail whilst investigation continues.  Conditions attached to such "pre-charge bail" have, at times, been very onerous.  One high profile example was the case of BBC Presenter Mr Paul Gambaccini who was falsely accused of a sexual offence - see Telegraph 10th October 2014 and The Independent 3rd March 2015.  Apart from the trauma of being falsely named as a suspect, Mr Gambaccini was suspended from work by the BBC.

Saturday, 1 April 2017

Gibraltar - a rock and a hard place

Updated 5th April 

The DRAFT guidelines of the European Council for the forthcoming Brexit negotiations contain much that is sensible but paragraph 22 is an "elephant in the room":  "After the United Kingdom leaves the Union, no agreement between the EU and the United Kingdom may apply to the territory of Gibraltar without the agreement between the Kingdom of Spain and the United Kingdom."

This post offers some tentative thoughts on this paragraph which brings into the arena the long-standing tension between the UK and Spain over Gibraltar. 

Friday, 31 March 2017

EU Commission - Brexit negotiation taskforce

The previous post looked at the DRAFT guidelines  issued by the European Council for the conduct of Brexit negotiations with the UK.  The European Commission will do most of the actual negotiation.

The EU Commission has published details of the negotiating team (or Taskforce) that will be handling the UK's Brexit negotiations - see Taskforce on Article 50 negotiations with the UK   The EU negotiating team will be head by French politician Michel Barnier.

The European Parliament has published Article 50: How the future of EU-UK relations will be decided and, on 29th March, a DRAFT was published of Conditions for approving UK withdrawal agreement.  The draft will be debated and voted on by the European Parliament on Wednesday 5th April. It attaches great importance to fair treatment of EU-27 citizens and stresses the need for reciprocity and non-discrimination between UK citizens living in the EU and EU citizens living in the UK.

On 1st March the EU presented a White Paper on the future of Europe: Avenues for unity for the EU at 27.  This paper has relevance because it looks at ways in which the EU will develop towards 2025 and those will be crucial years for the UK as it departs from the EU.

European Council - DRAFT guidleines for Brexit negotiations

The European Council has issued DRAFT guidelines for the conduct of Brexit negotiations.

Commenting on the draft, Mr Donald Tusk (European Council President) outlined the main points which would be treated as fundamental:

"Our duty is to minimise the uncertainty and disruption caused by the UK decision to withdraw from the EU for our citizens, businesses and Member States. As I have already said, in essence it is about damage control.

Thursday, 30 March 2017

The Great Repeal Bill - White Paper unveiled

The Secretary of State for Exiting the European Union has presented the government's White Paper on the "Great Repeal Bill" to the House of Commons - White Paper - Legislating for the United Kingdom's Withdrawal from the European Union.  The actual Bill will not be published until early in the next session of Parliament.  The White Paper is little more than an overview of how the government plans to proceed with Brexit.  It lacks detail.

Over the 44 years since the UK's accession to the European Communities, EU law has become virtually part of the DNA of the law governing the UK.  Its influence extends to almost every area of our lives.  Extracting the UK from this is bound to be a difficult and complicated task going well beyond a simple repeal of the European Communities Act 1972.

Wednesday, 29 March 2017

Article 50 notice - The end of the beginning

"This is not the end. It is not even the beginning of the end but it is perhaps, the end of the beginning."  Those words of Winston Churchill seem apt today as the UK government takes the formal step of commencing the withdrawal of the UK from the EU.

Article 50 of the Treaty on European Union (TEU) was "triggered" today and the letter from the Prime Minister to the EU Council President may be seen via this link.   See also the Prime Minister's statement in the House of Commons
The European Parliament has published "How the future of EU - UK relations will be decided"  Starting today the UK and the EU have two years to negotiate a withdrawal agreement. In addition the two parties will need to start determining their future trade relations, though this is expected to take significantly longer than two years.

The withdrawal negotiations are to be conducted in accordance with guidelines to be issued as a draft by the European Council almost certainly later this week.  The European Council (27 member states) will convene on 29th April.  The UK remains a member during the negotiations but may not participate in Council discussions about Brexit - see Art 50(4).  The negotiation will be conducted by the European Commission acting on behalf of the Council.

Tuesday, 28 March 2017

R v Alexander Wayne Blackman - sentencing for manslaughter

On 15th March, the Court Martials Appeal Court substituted a conviction for manslaughter in the case of former Royal Marine Alexander Wayne Blackman - previous post.   The substitution of a manslaughter conviction was on the basis of diminished responsibility at the time of the offence (September 2011).  On Tuesday 28th March, a sentence of 7  years imprisonment was imposed - read the court's sentencing remarks.  The court directed that time on remand in service custody be counted towards the sentence.  Mr Blackman remains dismissed from the Armed Forces but this is NOT with disgrace.

Monday, 27 March 2017

An unfair proposed amendment to the Prisons and Courts Bill

Note: Due to the General Election called for 8th June, the Prisons and Courts Bill will not proceed - Law Society Gazette

The offence of rape is among the most serious in our criminal law. The maximum available sentence is life imprisonment.  Rape Crisis England and Wales has published figures from the government's Overview of Sexual Offending in England and Wales (January 2013).  It is said that approximately 85,000 women and 12,000 men are raped in England and Wales each year and that conviction rates for rape are far lower than other crimes, with 5.7% of reported rape cases ending in a conviction.

Thursday, 23 March 2017

Criminal justice ~ Pre Recorded Cross-Examination and Re-Examination.

The Youth Justice and Criminal Evidence Act 1999 Part 2 Chapter 1 (YJCEA) introduced into English law a range of "special measures" which may be applied when "vulnerable and intimidated witnesses" give evidence at a trial.   Changes were made by the Coroners and Justice Act 2009 sections 98-103 which came into force on 27th June 2011.   The law is summarised on the Crown Prosecution Service website.
There is no doubt that for many witnesses attendance at court is a highly daunting and even frightening experience.  "Special measures" are intended to assist vulnerable and intimidated witnesses to give their best evidence in court by relieving some of the stress associated with giving evidence in the public arena of the courtroom.  Special measures apply to witnesses (whether prosecution or defence) but they do not apply to defendants.
Possible measures are -

Lord Chancellor was "completely and utterly wrong"

On Wednesday 22nd March, the Lord Chief Justice - (Lord Thomas) - gave evidence to the House of Lords Constitution Committee.  The session may be viewed via this link, lasts approximately one hour and looks at a considerable number of problems facing the legal system and the judiciary.

The session covered, among other things, the need for the Lord Chancellor to uphold the independence of the judiciary.  Lord Thomas was of the view that the present Lord Chancellor was "completely and utterly wrong" in the view she took at the time of the infamous Daily Mail "Enemies of the People" headline.  I wrote about it at the time - A Jewel Beyond Price 5th November 2016.  Lord Thomas said that judges can be criticised and he welcomed constructive criticism of decisions but there was a difference between criticism and abuse.  According to Lord Thomas, the headline has resulted in some litigants in person saying that circuit judges are enemies of the people.

Friday, 17 March 2017

European Union (Notification of Withdrawal) Act 2017

Update 20th March 2017 - Article 50 will be triggered on 29th March - see this statement.  The European Council President stated that draft guidelines for the subsequent negotiations will be issued within 48 hours of the Brexit notification.

The European Union (Notification of Withdrawal) Act 2017 is in force.  Royal Assent was given on 16th March.  The legislative journey began on 26th January, after the Supreme Court’s judgment in the Miller case.

The Act gives the Prime Minister the power to notify the European Council of the United Kingdom's intention to withdraw from the EU. This will commence the 2 year period referred to in Article 50 of the Treaty on European Union.  During that time, negotiations will take place with a view to concluding an agreement with the UK, setting out the arrangements for withdrawal, taking account of the framework for the UK's future relationship with the Union.   Article 50 requires the negotiations to be conducted "in the light of the guidelines provided by the European Council."  At present, no such guidelines have been published.  The 2 year period can be extended as provided by Article 50.

Thursday, 16 March 2017

R v Alexander Wayne Blackman ~ Conviction reduced to manslaughter

In September 2011, Royal Marine Sergeant Blackman and his unit were operating in Helmand Province, Afghanistan.  They came across an insurgent who had been severely wounded by helicopter fire.  Sergeant Blackman killed the insurgent.

At a trial by Court Martial, Sergeant Blackman was convicted of murder, sentenced to life imprisonment with a minimum term to serve of 10 years.  He was also reduced to the ranks and dismissed with disgrace from the Armed Forces.  His defence at trial was that the insurgent was already dead. but this was rejected by the Court Martial.  No defence of diminished responsibility was raised and no psychiatric evidence was called at trial.  A psychiatric report was obtained for sentencing purposes.   On an appeal in 2014 to the Court Martial Appeals Court, the conviction for murder was upheld but the minimum term was reduced to 8 years.

Tuesday, 14 March 2017

Mental Health - Law Commission proposes replacing Deprivation of Liberty Safeguards (DoLs)

In 2014, the Supreme Court decided the Cheshire West case - [2014] UKSC 19.   The case was about the criteria for judging whether living arrangements made for a mentally incapacitated person amounted to a deprivation of liberty.  If they do, then, then the deprivation has to be authorised, either by a court or by the procedures known as the Deprivation of Liberty Safeguards (DoLs), set out in the Mental Capacity Act 2005.  

The Law Commission has examined the law in this area and, on 13th March, issued a report. 

Sunday, 12 March 2017

A Trilogy of Speeches

Lord Neuberger (President of the Supreme Court) delivered the Neill Lecture at Oxford on 10th February 2017.  He retires this year and the selection process for his successor is well underway.  The Supreme Court was created by the Constitutional Reform Act 2005 and replaced the Appellate Committee of the House of Lords.   Lord Neuberger was a Lord of Appeal in Ordinary from 2007 to 2009 and became Master of the Rolls on 1st October 2009.  In 2012 he was appointed President of the Supreme Court and, under his leadership, the Supreme Court has developed a remarkable degree of public acceptance largely because of the ways in which it communicates with the general public through televised hearings, prompt publication of judgments and press releases on the court website.  The handing down of judgments also appears on Facebook.  Additionally, members of the court are frequent guest speakers and the content of their speeches is always of considerable interest not only to lawyers but to the public.  Lord Neuberger's speech at Oxford is no exception and it may be read at - "20 years a judge: Reflections and Refractions" - Neill Lecture, Oxford Law Facility 10th February 2017.

Saturday, 11 March 2017

Two libel cases

The law of defamation developed at common law but has been modified in various ways by Parliament.  For example, the Defamation Act 2013 (fully in force 1st January 2014) introduced a "serious harm requirement."

Judgments in the two decided cases are available via the Courts and Tribunals Judiciary website:

Hourani v Thomson and others [2017] EWHC 432 (QB) Warby J 

Monroe v Hopkins [2017] EWHC 433 (QB) Warby J