Friday, 18 August 2017

Brexit ~ Government "Position Papers"

Brexit will place the UK outside the EU Customs Union and Internal Market both of which, under the EU Treaties, are key features of the EU's structure.  The Department for Exiting the EU has published the first two of a series of "position papers."

Future Customs relationship with the EU

Pledge to protect the Belfast Agreement and Common Travel Area - position paper on Northern Ireland and Ireland proposing no physical infrastructure at the border.

Law Society Report on the state of legal aid

Four years ago, the coalition government implemented the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Hundreds of thousands of people who were eligible for legal aid on 31 March 2013 became ineligible the very next day.   Four years on, the Law Society has conducted a review of the legal aid changes introduced under the act. This review concludes that:
1. Legal aid is no longer available for many of those who need it
2. Those eligible for legal aid find it hard to access it
3. Wide gaps in provision are not being addressed
4. LASPO has had a wider and detrimental impact on the state and society
The review includes 25 recommendations to government, focusing on issues including increasing children's access to legal aid, reintroducing legal aid for early advice, and improving Exceptional Case Funding and the legal aid means test.  The report is available via  Law Society 29th June 2017.

Disclosure ~ an on-going problem in criminal cases

The unhappy state of affairs regarding Disclosure is yet again highlighted by a survey being undertaken by the Criminal Law Solicitors Association (CLSA) - CLSA Disclosure Survey.

Disclosure problems appear to beset the criminal justice system - previous recent posts - Stories from the Criminal Courts (6th August) and 19th July 2017 - Making it fair - the crucial matter of disclosure in criminal cases

Tuesday, 15 August 2017

Grenfell Tower Fire - Inquiry terms of reference published

Updated 16th August:

The Terms of Reference for the Grenfell Tower Inquiry have been published by the government and may be read on the Grenfell Tower Inquiry website (HERE).  The terms are those recommended by the Inquiry Chairman - see page 4 of Sir Martin Moore-Bick's letter to the Prime Minister - (HERE).

Over 550 written responses were received in response to the terms of reference consultation and they are summarised at pages 5 to 7 of Sir Martin Moore-Bick's letter to the Prime Minister

Monday, 14 August 2017

EU (Withdrawal) Bill - some other points

This post looks at a few other matters raised by the European Union (Withdrawal) Bill which was presented to Parliament on 13th July.  Explanatory Notes are available - HERE.  Previous posts considering aspects of the Bill are OVERVIEW , ECA Repeal and Exit Day , Retention of Existing EU Law, , Clause 6 - InterpretationFrancovich and Ministerial powers to legislate.

: Legislative Consent

The Scottish and Welsh First Ministers have announced 

Sunday, 13 August 2017

The EU Collection

Few topics have produced as much commentary as Brexit.  Here are my various posts on this crucially important topic.

I do not claim that any of them are in any way authoritative but they are my attempt to set out events as they have occurred, to offer my viewpoint and to offer links to the views of others.   I will add to the list as things develop.

EU and the UK - Collection of Posts - Law and Lawyer posts from 20th February 2016 to 23rd July 2017.

The European Union (Withdrawal) Bill

EU (Withdrawal) Bill - Henry VIII at his best - Ministerial powers to legislate

Henry VIII

The European Union (Withdrawal) Bill, as presented to Parliament on 13th July, sets out to (a) repeal the European Communities Act 1972 on "exit day", (b) preserve legal continuity (but with notable changes) and (c) to define various forms of "retained" law and to specify how such law is to be interpreted.

Clauses 7 to 9 - "Main powers in connection with withdrawal" and Clauses 10 and 11 (Devolution) - are the subjects of this post.

Clause 7 is about legislation to deal with "Deficiencies arising from withdrawal".  Clause 8 is about legislation to comply with international obligations and Clause 9 is Implementation of the Withdrawal Agreement.   The late (despotic) Tudor Monarch - Henry VIII (1491 to 1547) - would have been proud of those clauses which enable secondary legislation to do anything that could be done by Act of Parliament.

EU (Withdrawal) Bill ~ It will be goodbye to Francovich

Francovich 1991
This post continues my look at the European Union (Withdrawal) Bill  with a particular focus on Schedule 1 to the Bill which is entitled "Further provision about exceptions to savings and incorporation."   Legal effect is given to the Schedule by Clause 5(6)

Explanatory Notes are available - HERE.  Previous posts considering aspects of the Bill are OVERVIEW , ECA Repeal and Exit Day , Retention of Existing EU Law and Clause 6 - Interpretation.

Schedule 1 makes frequent appearances in the Bill - see Clause 2(3), Clause 3(5), Clause 4(3).  The wording, on each occasion, is - "This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation).  Tucked away in this Schedule are some very important matters:

Saturday, 12 August 2017

EU (Withdrawal) Bill ~ Clause 6 - Interpretation

Labyrinthine Legislation
With masterly understatement, Dr. Paul Daly (University Senior Lecturer in Public Law, University of Cambridge) wrote that - "Even seasoned lawyers are not going to enjoy navigating these provisions"

This post looks at Clause 6 of the European Union (Withdrawal) Bill  - Interpretation of Retained EU law.  Explanatory Notes are available - HERE.  Previous posts considering aspects of the Bill are OVERVIEW , ECA Repeal and Exit Day and Retention of Existing EU Law.

Definitions in Clause 6:

Friday, 11 August 2017

EU (Withdrawal) Bill ~ Retention of Existing EU law

This post continues my look at the European Union (Withdrawal) Bill as introduced into Parliament on 13th July 2017.  Previous posts are HERE and HERE.  Very little of this complex and cumbersome Bill is easy reading.  Nevertheless, it is of crucial importance for the state of our law in the future. 

Since accession to the EU in 1973, an enormous amount of law has flowed into the UK via the European Communities Act 1972 (the ECA) - referred to in the Miller judgment (para 65) as a 'conduit pipe.'  The general scheme of the EuropeanUnion (Withdrawal) Bill is to retain, with important exceptions, EU law as it exists immediately before exit day and then to give (extensive) powers to Ministers to alter things.   Clauses 2 to 6 are concerned with Retention of Existing EU law.  The Explanatory Notes offer assistance with their interpretation.

Thursday, 10 August 2017

Looking at the EU (Withdrawal) Bill ~ Clause 1 (ECA 1972 repeal and Exit Day)

On 13th July, the European Union (Withdrawal) Bill had its first reading in the House of Commons.  A previous post is an overview of the Bill and also offers links to commentaries by several other writers.

Clause 1 simply states: "The European Communities Act 1972 is repealed on exit day."   This apparently straightforward statement merits closer examination.

The European Communities Act 1972 (ECA) is

Tuesday, 8 August 2017

Patrick Finucane ~ decision not to hold public inquiry reaches Supreme Court

Over 28 years ago, Northern Ireland lawyer Patrick Finucane was gunned down at his north Belfast home whilst he was having dinner with his wife Geraldine and their three children.  Mr Finucane was 39 years old and from a Republican family.  As a solicitor he had advised members of the IRA but he had also represented Protestants accused of terrorist offences.  The British government promised to hold a public inquiry and that promise was made to both Mrs Finucane and to the Government of the Republic of Ireland, the political parties at the Weston Park Conference and to the general public.  See the Good Friday Agreement Implementation Plan 1st August 2001.

In 2010, when the Coalition government was formed, a decision was taken to hold a Review rather than a Public Inquiry. 

Sunday, 6 August 2017

Stories from the criminal courts

Knowing the case against you:

Any person charged with a criminal offence ought to be informed of the prosecution evidence in good time so that the appropriate plea may be entered and, if the plea is not guilty, the defence prepared before trial. This proposition appears self-evident if there is to be a fair trial (as required by English Law as well as Article 6) but, in practice, things do not appear to going too well according to solicitor Robin Murray -  Minted Law - Despatches from the Disclosure Battle Front.   Mr Murray was the winner of the Legal Aid Lawyer of Year Award in 2015. and also winner of Kent Law Society exceptional achievement award 2015.

Friday, 4 August 2017

An abysmal situation - care proceedings - the case of X

Updated 7th August: Re X (A Child) (No. 4)

The case of X (A Child) highlights the lack of clinical, residential and other support services so desperately needed by the increasing numbers of children and young people with mental health problems.  Such children all too frequently come into contact with either the criminal justice system or are the subject of care proceedings or, as in X's situation, both.

X is now 17 years old and she is subject to a care order made on 15th June 2017 by the President of the Family Division - Sir James Munby. The judgment dealing with the care order is X (A Child) (No. 2) - [2017] EWHC 1585 (Fam).

X is also subject to a Detention and Training Order (DTO)

Wednesday, 2 August 2017

Court of Protection

Of all the courts of England and Wales, one of the least understood is the Court of Protection. It is a court empowered by Parliament to decide issues relating to those who lack mental capacity to make their own decisions.  This is a complex field.  The vast majority of people who encounter the Court of Protection will need specialist legal help but it is a regrettable fact that legal aid is not always available under current arrangements.  The absence of legal aid in many important areas can amount to a denial of access to justice and it is a national scandal.  Let's take a closer look at the court.

Tuesday, 1 August 2017

Tony Blair (and others) will not face trial for "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.  At the time, Tony Blair was Prime Minister; Jack Straw was Foreign Secretary and Lord Goldsmith QC was Attorney General.

In November 2016, District Judge Snow at City of Westminster Magistrates Court was asked to issue a summons to commence a private prosecution of Tony Blair, Jack Straw and Lord Goldsmith for the offence of "aggression."  The District Judge refused to issue a summons on the basis that aggression is not an offence known to the criminal law of England and Wales - see the House of Lords decisions in R v Jones and others [2006] UKHL 16 and R (Gentle) v The Prime Minister and others [2008] UKHL 20.

Sunday, 30 July 2017

Inquiries ~ some updates

Grenfell Tower Update:

The Grenfell Tower Inquiry continues to consult regarding the Terms of Reference.  The consultation period was extended to 4th August 2017 - Grenfell Tower Inquiry website.   The "Inquiry Team" has been appointed. Richard Millett QC is Counsel to the Inquiry.  He has extensive experience of handling complex commercial disputes in a range of specialist areas, with an emphasis on advocacy in court, arbitration and other tribunals. Mr Millett will be assisted by Bernard Richmond QC and Kate Grange QC.

The Department for Communities and Local Government is publishing information about developments relating to Grenfell Tower - HERE.   One important development is that the government has set up a review of Building Regulations and Fire Safety.  The first results from large scale tests of building cladding systems have also been published. The latest tests simulate a tall building and allow experts to understand better how different types of cladding panels behave with different types of insulation in a fire.  See BBC News - 60 Blocks fail new fire test.

Thursday, 27 July 2017

Baby Charlie Gard

Baby Charlie Gard was born on 4th August 2016 and was found to have a complex inherited condition which may be abbreviated to MDDS.  This poignant case has attracted a vast amount of comment in the media and elsewhere but, to obtain a thorough understanding of the situation, there is NO substitute for reading the judgments of the courts and the position statements of the parties.  The statements may be read via Serjeant's Inn 31st July 2017.

MDDS is described by Mr Justice Francis in his judgment of 11th April 2017 at paragraph 52 - Family Division, Mr Justice Francis judgment 11 April 2017 (transcription published May).  Baby Charlie was receiving medical care at Great Ormond Street Hospital (GOSH). On 24th February 2017, GOSH applied to the High Court for certain orders to be made and this application was opposed by the parents - Constance Yates and Chris Gard.  On 11th April 2017, Francis J granted the hospital's application.  The parents appealed to the Court of Appeal (Civil Division).

Employment Tribunal Fees ruled unlawful

The Rt Hon Chris Grayling MP served in the Coalition Government as Lord Chancellor and Secretary of State for Justice from 4th September 2012 to 9th May 2015.  Today, he is Secretary of State for Transport.  I am not proposing to discuss in detail Mr Grayling's tenure as Lord Chancellor apart from noting that, from the viewpoint of access to justice, it was not a glorious period.

Access to justice was made difficult (perhaps impossible) for many people through the removal of whole areas from legal aid (the Legal Aid, Sentencing and Punishment of Offenders Act 2012) and by the introduction of fees to access the law in, for example, employment tribunals - the Employment Tribunals and Employment Appeals Tribunal Order 2013.  In making this Order, Mr Grayling used powers in section 42 of the Tribunals, Courts and Enforcement Act 2007.  The "fees order" resulted in a large reduction in the number of claims brought to Employment Tribunals including so-called "Type B" claims in areas such as unfair dismissal, equal pay and discrimination.  Due to events in the workplace, women are more likely to have to bring such claims than men. Nevertheless, the reasons for making the Fees Order included a desire to deter vexatious claims.

The Trade Union - UNISON -

Tuesday, 25 July 2017

A reminder of times of old

Shire Hall, Appleby

On 1st January 1972, over 800 years of legal history came to an end with the establishment of the Crown Court of England and Wales.  This was one effect of the Courts Act 1971 - (the link is to the Act as originally enacted).   Since the 12th century, judges journeyed from London to preside at the Assizes in all the counties of England and Wales.  The Assizes tried the most serious cases such as murder.  Other courts with criminal jurisdiction were the Quarter Sessions and the Magistrates’ Courts (or Petty Sessions).  The Courts Act abolished courts of assize and quarter sessions and gave their criminal jurisdiction to the newly formed Crown Court.

Sunday, 23 July 2017

EU view of the Article 50 notice ~ but is it correct?

Extended 26th July: Additional links included.

Information regarding Brexit negotiations is available from the European Commission "State of Play of Article 50 negotiations with the United Kingdom" and at the Commission's dedicated website and also from the UK Department for Exiting the European Union - HERE.

The Prime Minister "triggered" Article 50 on 29th March 2017 - see Plan for Britain.  The Commission's "state of play" document asks whether the Article 50 notification can be revoked and offers the stark answer: ".... once triggered, it cannot be unilaterally reversed. Article 50 does not provide for the unilateral withdrawal of the notification." [My emphasis].

The EU refers here to unilateral withdrawal.  Nothing is said about whether the notification can be withdrawn by agreement and there appears to be no reason why the EU and the UK could not agree to "forget the whole thing."

Friday, 21 July 2017

Judicial appointments

Lady Hale (Baroness Hale of Richmond) will become President of the Supreme Court of the United Kingdom upon the retirement of Lord Neuberger - Supreme Court website.  Lady Hale has been Deputy President since 2013 and was called to the Bar in 1969,  QC 1989, High Court Judge 1994, Court of Appeal 1999 and the Appellate Committee of the House of Lords in 2004.  Lady Hale has a retirement age of 75 whereas Lord Neuberger's retirement age is 70 which he attains in January 2018.  The difference is accounted for by the statutory retirement age of 70 introduced by the Judicial Pensions and Retirement Act 1993 but this was not applied to judges already appointed when the Act came into force on 31st March 1995.

The name of the next Deputy President will be announced prior to 2nd October 2017.  The recommendation for this appointment will come from a commission convened by the Lord Chancellor for this purpose.

The Supreme Court will gain three new Justices - Downing Street announcement.  They are Lord Justice Lloyd Jones; Lady Justice Black and Lord Justice Briggs.

On 14th July, the appointment of the next Lord Chief Justice of England and Wales was announced - Judiciary.   Lord Justice Burnett will replace Lord Thomas in September.

Wednesday, 19 July 2017

Making it Fair ~ The crucial matter of Disclosure in criminal cases

A 1976 report by the late Lord Devlin noted that - "In criminal cases, the State has the Police, an agency for the discovery of evidence, superior to anything which even the wealthiest defendant could employ."  The Devlin Report is still well worth reading by criminal practitioners.

The investigative role of the Police gives them very much a monopoly over the collection of information.  Several lines of enquiry might have been followed and a considerable volume of information obtained though the prosecution may not need to use all of it in a particular case.  In our adversarial system, the defence plays a reactive role.  This raises the question of "disclosure" - should ALL of the information gathered by the Police be disclosed to the defence?

Monday, 17 July 2017

Acid attacks ~ government plan ~ sensible review or knee-jerk reaction?

The use of acid to inflict terrible injury is a growing phenomenon - see Acid Violence Organisation - where it is said that in 2016, in London alone, there were 454 crimes involving corrosive substances. On Thursday 13th July there were 5 attacks in London (Telegraph 14th July) followed by calls for greater punishment of offenders.

In September 2015, The Guardian reported that acid attack hospital admissions had almost doubled in 10 years - The Guardian 30th September 2015.

The government has announced an "action plan" to tackle such attacks - Government: 16th July 2017

Saturday, 15 July 2017

R v Viscount St. Davids ~ Communications Act 2003 s.127

I know little of  Rhodri Philips.  In fact, although from time-to-time he has been in the news (e.g. here), I knew almost nothing about him until he appeared at Westminster Magistrates' Court charged with offences under the Communications Act 2003 section 127.  He is a Peer of the United Kingdom with the title of Viscount St. Davids of Lydstep Haven in the County of Pembroke.  This peerage dates from 1918 and the present Viscount inherited it in 2009.  He also holds a number of other, more ancient, titles such as Baron Strange of Knockin - a peerage dating from 1299.  His Wikipedia entry is HERE. The College of Arms maintains a list of the peerage.

Appearing in court for trial

Friday, 14 July 2017

Looking at the EU (Withdrawal) Bill ~ No. 1 - Overview

Whitby Harbour
A Resources list is at the end.

On 13th July, the European Union (Withdrawal) Bill had its first reading in the House of Commons. It is a turgid and difficult document extending to 19 clauses and 9 proposed schedules and it has to be read against a background of other material some of which is listed at the end of this post. Here is a brief overview of the Bill.  Inevitably, a more detailed examination will be required.

Background in brief:

The European Union Referendum Act 2015 enabled the EU referendum of 23rd June 2016.  This resulted in a 52% vote to leave the European Union. 

Tuesday, 11 July 2017

Tuesday morning - roundup of news

The tragic situation of baby Charlie Gard, Grenfell Tower, Arms Sales to Saudi Arabia, Non-jury trial in Northern Ireland, a point of law highlighted by the Coroner's Society and two notable speeches.  These are some of the important stories today.

The Charlie Gard case is back before the High Court - BBC News 10th July.   Great Ormond Street Hospital (GOSH) referred the case back to the High Court after reports of  "new" data from foreign healthcare experts suggested treatment could improve his condition.  The new hearing is before Mr Justice Francis who also conducted the original High Court hearing held in April.  It is particularly notable that legal aid for Charlie's parents is not available at this hearing.

Friday, 7 July 2017

Grenfell ~ How long to an interim report?

The Chair of the Grenfell Inquiry - Sir Martin Moore-Bick - is consulting on the terms of reference for the inquiry - HERE.  The consultation notes that the inquiry will issue an interim report "as soon as possible."  When might that be?

Obviously, at this stage, a definite answer cannot be given to that question but let us see what happened with a couple of previous inquiries.

The Hillsborough Stadium Disaster occurred on 15th April 1989.  Lord Justice Taylor - (later Lord Chief Justice) - was appointed to inquire into the events on that fateful day.  He issued his interim report in August 1989.  Here is a link to the report.  His final report is dated January 1990.

The Bradford City Stadium Fire occurred on 11th May 1985.  Mr Justice Popplewell chaired the inquiry and issued an interim report in July 1985 with a final report in January 1986.

Thursday, 6 July 2017

Grenfell Tower ~ updates

There have been several developments relating to the response to the Grenfell Tower fire of 14th June.

Terms of reference:

The Inquiry Chairman - Sir Martin Moore-Bick - has launched a consultation into its terms of reference which will set out what the Inquiry will cover.  This is a very important development requiring a response particularly from those affected by the fire.  Sir Martin will consider all suggestions made to him when drawing up the terms of reference. He will then make a recommendation to the Prime Minister, who will take the final decision on the terms of reference.   Please read the full statement at - Grenfell Tower Inquiry website and please note the extended timescale to reply to the consultation.

From the outset,

Tuesday, 4 July 2017

Local Authorities, Contingency Planning, Resilience

The Council in the Royal Borough of Kensington and Chelsea has been criticised for its response to the Grenfell Tower fire of 14th June - The Independent 18th June "Emergency taskforce takes over Grenfell Tower relief operation ...." and BBC News 18th June.   The Council's response will eventually have to be assessed against the planning that a Council is required to undertake in preparedness for emergency situations.  The principal legislation is now the Civil Contingencies Act 2004 Part 1 (Arrangements for civil protection).

The Civil Contingencies Act established a new legislative framework for civil protection in the United Kingdom. It imposes duties on those organisations with a role to play in preparing for and responding to emergencies. Local authorities are a Category 1 responder under the Act, and have a key part to play in respect in discharging their duties under the legislation.

Thursday, 29 June 2017

Grenfell Tower Inquiry Chairman

Updated 10th July:

Former Lord Justice of Appeal, Sir Martin Moore-Bick has been appointed Chairman of an Inquiry to examine the Grenfell Tower fire.  This was announced today (29th June) by the Prime Minister - see No. 10 Downing Street, announcement.

A website for the Inquiry has been set up and will be used to provide the latest information on the Inquiry, including details of hearings, evidence and how to contact the Inquiry Team.

Sir Martin was called to the Bar in 1969 and practised mainly as a commercial lawyer.  He became Queen's Counsel (QC) in 1986, was appointed High Court Judge in 1995 and Lord Justice of Appeal in 2005.  He retired from the bench in December 2016.

The all-important Terms of Reference for the Inquiry have yet to be set. 

Wednesday, 28 June 2017

Hillsborough Tragedy 15th April 1989 ~ CPS announces charging decisions

The Crown Prosecution Service (CPS) has made charging decisions in respect of certain individuals connected with the 1989 Hillsborough Football Stadium tragedy.  The announcement may be read HERE.  The announcement states that - "Criminal proceedings have now commenced and the defendants have a right to a fair trial. It is extremely important that there should be no reporting, commentary or sharing of information online which could in any way prejudice these proceedings."

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.