The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere
Following on from the Prime Minister's speech in Florence, Round 4 of Brexit negotiations have concluded. The Secretary of State's close of talks statement is HERE and the EU Negotiator's (Michel Barnier) statement is HERE. The Prime Minister's speech was said by Mr Barnier to have "created a new dynamic in our negotiations." Talks will resume on 9th October.
In his Round 4 closing statement, Mr Davis referred to publication of an
updated table showing many areas of agreement. For this see Department
for Exiting the EU - Joint Technical Note
TOFF JUSTICE is how The Sun newspaper described the sentencing of Lavinia Woodward who, in December 2016, had used a bread knife to wound her boyfriend- The Sun 26th September. The report is riddled with comments implying that the Judge - His Honour Judge Pringle QC - was far too lenient on Miss Woodward. She was "spared jail" and she "tearfully mouthed “thank you” to Judge Ian Pringle as he let her
off with a suspended sentence - then walked out of court with a huge
smile." The Sun points out that - " ... the judge’s leniency infuriated justice campaigners, who said
offenders from less privileged backgrounds were regularly locked up for
similar attacks." The newspaper also offers three examples of women who had committed similar offences but they are "not posh" and so were jailed. Those included the case of Angela Stead - 2 years for slicing her victim's artery causing severe blood loss.
Magistrates' Courts should have their power of imprisonment doubled. This view was put forward by the Lord Chief Justice (Lord Thomas) when opening a new Magistrates
Association National Office at St. George Wharf (Vauxhall). If adopted, the Magistrates' Court would be able to impose a sentence of up to 12 months imprisonment for a single
imprisonable offence instead of the current maximum of 6 months. Around
10,000 additional cases per year would remain with the magistrates rather than being sent to the Crown Court. The financial saving would be
considerable because, at around £900 per day, Magistrates' Courts
are a cheaper form of justice than trial on indictment in the Crown
Court - (about £3400 per day).
England and Wales has the highest imprisonment rate in western Europe. In 2016, nearly 68,000 individuals were sent to prison and the majority of those (71%) were sentenced for non-violent offences. Sentences of 6 months or less accounted for almost half that figure.
On 7th September, the retiring Lord Chief Justice, Lord Thomas of Cwmgiedd, issued his final annual report HERE and, on 14th September, he gave evidence to the House of Commons Justice Committee. His appearance before the committee may be viewed HERE and a transcript is available.
I believe that Lord Thomas is the first Lord Chief Justice to have been born in Wales since Alfred Lawrence (Lord Trevethin) who served as LCJ briefly from 1921-22. Interestingly, Lord Trevethin's third son was Geoffrey Lawrence who presided at the Nuremberg Trials.
On 12th February 2016, Mr Alliston was cycling at approximately 18 mph down Old Street (London). As he approached the junction with Charlotte Road the traffic lights were at green in his favour. Mrs Kim Briggs was trying to cross Old Street. Mr Alliston ran into her causing injuries which proved to be fatal. It appears from the sentencing remarks of Her Honour Judge Wendy Joseph QC that Mr Alliston saw Mrs Briggs, swerved, slowed to 10-14 mph and was shouting to Mrs Briggs - "Get out of the fucking way."
Following the General Election 2017 and the weakening of the Conservative Party's position in the House of Commons, a "confidence and supply" deal was arranged between the Conservative Party and the Democratic Unionist Party (DUP) in Northern Ireland - Telegraph 26th June.
The agreement is available HERE and it is notable that the DUP agreed to support the Conservative government on
For all the sound and fury, the European Union (Withdrawal) Bill survived its Second Reading in the House of Commons by 326 votes to 290 - (majority 36). The debate and the voting may be seen at Hansard Online - European Union (Withdrawal) Bill - Day 2 . Day 1 of the Second Reading was on Thursday 7th September - Hansard. The House of Commons debate highlighted serious concerns about the Bill including the way in which Parliament is in danger of becoming akin to a rubber stamp for Ministers.
The House of Lords Select Committee on the Constitution has issued an Interim Report on the European Union (Withdrawal) Bill - 3rd report Session 2017-19. The five Chapters in the report an Introduction, EU Law and Exit Day, Delegated powers, Court of Justice of the EU and Devolution.
The report identifies three broad constitutional themes - the relationship between Parliament and the Executive; the rule of law and legal certainty and, thirdly, the stability of the UK's territorial constitution.
I recall a thinly attended "Constitutional Law" lecture held on a chilly winter's day almost 50 years ago. The lecturer, a pleasant and elderly gentleman, turned to "Delegated Legislation." Here was a topic guaranteed to make even the brightest of young eyes glaze over or, as some did, skip the lecture and head for the bar!
The little we needed to learn about Delegated Legislation in order to pass the subsequent constitutional law examination
could have been written easily on a single side of Foolscap Folio paper and copied using a Gestetner machine. Acts of Parliament quite often granted powers to Ministers to legislate. These "delegated powers" left it to Ministers to do lots of seemingly harmless things such as to decide when sections of the Act came into force and fill in the extensive detail needed to implement the Act. Occasionally,
The Grenfell Tower Fire Inquiry Chairman wrote to the Prime Minister on 10th August regarding the Inquiry Terms of Reference. His letter referred to appointment of assessors - (Letter to PM). Sir Martin wrote - " ... I think is is likely that I shall wish to appoint a diverse group of people whose experience extends to the occupation and management of social housing and the administration of local government more generally, as well as to matters of a more scientific nature. At a later stage I may also wish to appoint others to assist on particular aspects of the investigation."
House of Common Briefing Paper No. 8079, 1st September 2017 - The European Union (Withdrawal) Bill by Jack Simson Caird, Vaughne Miller and Arabella Lang. The Paper, which extends to a summary and 11 sections, begins by noting the Bill will bring about a complex mixture of constitutional change and legal continuity and states that it is the most significant constitutional bill introduced since the European Communities Act 1972. Of that there can be no doubt.
Five clear months have elapsed since the Prime Minister notified the EU that the UK would be leaving the EU. On 22nd May the EU Council finalised its negotiating objectives for the starting phase of negotiations.
A first round of talks was held in June and a second round in July. Some progress has been made but Round 3 of the Brexit negotiations ended in Brussels on Thursday 31st August without major progress in the three areas set by the negotiating objectives - Citizen's Rights, the Financial Settlement and the Situation in Ireland.
The EU's principal negotiator - Mr. Michel Barnier - made a statement (HERE) noting that there was "useful clarification on many issues" but no decisive progress on the main subjects. "At the current rate, we are far from seeing sufficient progress to be
able to recommend to the European Council that we begin the discussion
on the future relationship between the United Kingdom and the European
Union at the same time as we will finalise throughout the year 2018 the
The statement by the UK Secretary of State for Exiting the EU is HERE.