Responsible and sometimes critical comment on topical legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
Pro Aequitate Dicere
The destructive testing of the UK's uncodified constitution continues as the possibility of a Prorogation of Parliament is suggested to enable a new Prime Minister to push through a 31 October "no deal" Brexit. The new PM will be the winner of the Conservative Party leadership contest - selected by 330 Conservative MPs and the 130,000 (or so) party members. The party does not have a majority in the House of Commons and governs with a confidence and supply arrangement with the Democratic Unionist Party (DUP).
"Recent years have seen a surge in sexual offence allegations. The
uncovering of non-recent crimes, a rise in reporting, shifting cultural
attitudes and the internet have all contributed to a large increase of
cases entering the criminal justice system. In turn, this increase has
thrown into the spotlight the complexities of prosecuting sexual
offences. The report calls for important reforms to protect complainants
and vulnerable individuals and recommends stronger obligations on
internet companies to safeguard children and stop online sexual offences
from taking place."
A District Judge sitting at Westminster Magistrates' Court has decided that a summons will be issued to bring Mr Boris Johnson MP before the court in respect of allegations of misconduct in public office.
For centuries, rape has rightly been regarded as one of the most serious criminal offences. Under common law it was defined as 'the unlawful carnal knowledge of a woman by force and against her will.' The required state of mind (mens rea) was an intention on the part of the defendant to have intercourse without consent. The common law position was considered by the House of Lords in the Morgan case in 1975 - reported  AC 182.
Emmerdale is a an ITV Yorkshire "soap opera"
set in a fictitious village in the Yorkshire Dales. The programme is known for tackling difficult subjects and a recent storyline has been about teacher Maya Stepney (played by Louisa Clein) and her pupil Jacob Gallagher (Joe-Warren Plant). Maya Stepney was the girl friend of Jacob's father David Metcalfe (played by Matthew Wolfenden). The story began when Jacob was aged 15 and he and '30-seomthing' Maya became friendly. It developed into an intimate relationship once he became 16.
Prerogative powers have considerable
importance in modern times. This is particularly the case in foreign affairs and defence. In practice, the powers are exercisable by
Ministers who are accountable to Parliament.
In Burmah Oil v Lord Advocate  AC 75, Lord Reid observed that there was practically no authority on the prerogative from the Revolution Settlement of
1688-9 until World War 1. Attorney-General v De Keyser's Royal Hotel is a key House of Lords decision from that period.
In Conway v Rimmer  AC 910,  UKHL 2 the House of Lords (Lords Reid, Morris, Hodson, Pearce and Upjohn) brought about a major change in the way in which claims, usually by Ministers, to avoid disclosure of evidential material were to be handled. Such claims were based on what was then referred to as "Crown Privilege." That term has been replaced by Public Interest Immunity (PII).
Duncan v Cammell Laird:
Thetis, a name from Greek mythology, was also the name given to a T-class Royal Navy submarine built and launched in 1938 by Cammell Laird, Birkenhead.
On 1 June 1939, HMS Thetis undertook diving trials in Liverpool Bay to the north of Llandudno. 103 men were on board. Due to excessive water intake via the torpedo tubes, Thetis sank and her bows became stuck in the sea bed. She was unable to get free. Four men (including the captain) escaped via a small escape hatch but a build up of carbon dioxide in the submarine resulted in the deaths of the other 99.
'In the darkness of secrecy, sinister interest and evil in
every shape have full swing. Only in proportion as publicity has place can any
of the checks applicable to judicial injustice operate. Where there is no
publicity there is no justice.” “Publicity is the very soul of justice. It is
the keenest spur to exertion and the surest of all guards against improbity. It
keeps the judge himself while trying under trial' - Jeremy Bentham
The Supreme Court has handed down judgment in Privacy International v Investigatory Powers Tribunal  UKSC 22. The appeal was heard on 3 and 4 December 2018 before 7 Justices - Lady Hale, Lords Reed, Kerr, Wilson, Sumption, Carnwath and Lloyd-Jones. By a majority, Privacy International's appeal was successful. The Regulatory Powers Act 2000 s67(8) as it stood at the relevant time was not sufficient to exclude (oust) the jurisdiction of the High Court to conduct judicial review proceedings.
It is just over 50 years since the seminal House of Lords decision in Anisminic v
Foreign Compensation Commission which brought about a major change in
the approach to statutory provisions seeking to protect decision-making
bodies (mainly tribunals) from judicial review. Many such bodies have a specialist remit but nevertheless one that is limited by the relevant legislation. In very simplistic terms, a tribunal given power to make decisions about apples is not empowered to make decisions about oranges. Of course, such bodies have to decide whether a particular matter comes within their remit. The question arises - What is the effect if the body makes a legally wrong decision? Should such a decision be capable of 'immunisation' from judicial review?
History - Judicial Review:
The first common law court was the Norman Curia Regis at the time of William I (1066 - 1087). After the Norman conquest
Although its name includes the word "Tribunal" it lies
outside the general
tribunal structure . The President of the IPT is Lord Justice Singh and there are nine other members including 2 High Court Judges - Edis and Sweeney JJ. The qualifications for tribunal membership are set out in RIPA Schedule 3.
At around 5.20 in the morning of 11 July
2016 James Maughan was found hanging in his prison cell at HMP
Bullingdon. A ligature had been tied to the bedframe and attached to his
neck. He was pronounced dead shortly thereafter. There was evidence
that in the past he had mental health and other problems and that
there had been previous attempts at suicide and self-harm.
In such circumstances, an inquest was
required to be held and was held. The inquest took place between 9 and
12 October 2017 before the Senior Coroner for Oxfordshire and a jury.
In 1935, Reginald Woolmington (W) was tried for the murder, in December 1934, of his wife (Violet). His trial was held at the Somerset Assizes in Taunton on 23 January 1935 but, after only one hour and twenty-five minutes, the jury was unable to agree. In those days a jury had to be unanimous and majority verdicts were not introduced until the Juries Act 1974. Mr Woolmington (W) then faced a second trial at Bristol Assizes (Mr Justice Swift and a jury) on 14 February. He was convicted and sentenced to death. The death penalty for murder lasted until the Murder (Abolition of the Death Penalty) Act 1965.
One remarkable feature of the case is the short timescale of less than 2 months from the alleged murder to trial and sentence. Timescales today are usually very much longer. For instance,
Thanks to generations of "Law Reporters" we have an extensive heritage of law reports in which are recorded the details of cases, the legal arguments, the reasoning of the judges and their decisions on the law. Case law, as found in the various law reports, is a source of law through the
mechanism of the doctrine of precedent. According to this doctrine, a court is bound by the decisions of a court above it in the hierarchy and,
usually, by a court of equivalent standing. Superior courts have the
power to overrule decisions of lower courts and in certain cases to depart from their own decisions. The modern doctrine of
the binding force of judicial precedent only fully emerged when there
was good law reporting and a settled judicial hierarchy.
In a televised interview, Mr Nigel Farage would not reveal the name of a donor who gave s "small" donation of £100,000 to his recently formed Brexit Party - The New European 5 May 2019. Mr Farage told his interviewer - Sophy Ridge of Sky News - that the name would be revealed at the end of July which is, of course, well after the European Parliament Elections currently scheduled for 23 May 2019. In an earlier interview with LBC's Iain Dale, Mr Farage was similarly "coy" about sources of money though he said that 70,000 people had registered at £25 each (= £1.75m).
Series 5 Episode 6 of BBC Television's Line of Duty (Cast List) was screened on Sunday evening 5 May. The programme has offered gripping viewing as the fictitious AC12 led by Police Superintendent Ted Hastings (Adrian Dunbar) battled to reveal corrupt elements in the Police Service. With at least one more series on the horizon, it is perhaps no surprise that the programme delivered some, but not all, of the answers viewers had been waiting for - Digital Spy 5 May.
We discovered that Ted Hastings was not "H" because there is no "H" even though we had been led to believe that there was! In a previous series,
In February, the Home Secretary deprived Shamima Begum of British Citizenship. That decision was considered in this post of 23 February 2019 and it is understood that she is appealing the decision. It is now reported that the Bangladeshi Foreign Minister has said that she would "face
the death penalty" for terrorism if she came to Bangladesh - BBC News 3 May 2019.