Crossing the Channel ~ some notes

"Since earliest times, humanity has been on the move. Some people move in search of new economic opportunities and horizons. Others move to escape armed conflict, poverty, food insecurity, persecution, terrorism, or human rights violations and abuses. Still others do so in response to the adverse effects of climate change, natural disasters (some of which may be linked to climate change), or other environmental factors. Many move, indeed, for a combination of these reasons" - New York Declaration for Refugees and Migrants.

Approximately 4000 individuals - mostly young males - have crossed the English Channel this year from France to the UK and, on 11 August, it was reported that the UK and France were working 'at pace' on a plan to halt such crossings - The Guardian 11 August 2020.

This is not a new issue. In November

PC Harper ~ manslaughter ~ sentencing, undue leniency, retrials, young adults

Full maturity and all the attributes of adulthood are not magically conferred on young people on their 18^th birthdays - Lord  Burnett CJ - Clarke, Andrews and Thompson [2018] EWCA Crime 185

On 15 August 2019, three irresponsible young men - Henry Long, Albert Bowers, Jessie Cole - stole a quad bike. It was a planned theft and something they did frequently. The quad bike was towed away from its owner's property. When confronted by the Police they implemented their escape plan.  This required them to disconnect the tow loop from the quad bike and to drive away at speed as soon as all of them were in the car. As they drove away, PC Harper was caught up by the loop which was still attached to the car. He was dragged at high speed over a considerable distance and killed as a result.

The three were charged with murder. A first trial

Be concerned: be very concerned ~ a review of Judicial Review

The 1986 David Cronenberg film "The Fly" contained the line - "Be afraid: be very afraid."  A scientist was working on "teleportation" and started to turn into an insect. He pleaded with one of the characters, "Don't be afraid." The reply was, "Be afraid: be very afraid."

Panel on judicial review:

Last week I wrote about the emergence of government plans regarding the 2019 manifesto commitment to set up a Constitution, Democracy and Rights Commission within the first year of a Conservative government. Although it is not yet fully clear, the

Coronavirus - restrictions imposed in parts of the North of England

Updated - 31 July (1750 hrs) and 4 August (1530 hrs) and 8 August (0730 hrs):

The government has issued information about new rules on social gatherings to be effective from 31 July in certain parts of the north of England - New Rules on gatherings in some parts of Northern England.

This states that - "The government will sign new regulations to make these changes legally enforceable."

Further information is set out by the government at - What you can and cannot do

This webpage begins - "An outbreak of coronavirus (COVID-19) has been identified in parts of Greater Manchester, East Lancashire, and West Yorkshire. The government and relevant local authorities are acting together to

Unfitness to Plead

Under present-day law, if a question is raised in the Crown Court as to whether a defendant (D) is unfit to plead then the question will be decided by the judge. If the decision is that D is unfit to plead then a jury can be asked to determine whether D ‘did the act or made the omission charged against him as the offence” – Criminal Procedure (Insanity) Act 1964 (as amended).

In R v Marcantonio [2016] EWCA Crim 14 the Court of Appeal (Criminal Division) reiterated the law regarding unfitness to plead - see paragraphs 1 to 9. The court stated -

Whether an accused is fit to plead is determined

Is the proposed Constitution, Democracy and Rights Commission to be replaced

Updated 31 July 2020:

Remember the proposed Constitution, Democracy and Rights Commission? According to the Conservative Party's 2019 Election manifesto (discussed here) the plan was to set up the Commission within the first year of a Conservative government.

The Queen's Speech (December 2019) stated - "A Constitution, Democracy and Rights Commission will be established. Work will be taken forward to repeal the Fixed-term Parliaments Act" - previous post 4 January 2020.

It is now reported that the idea of an overarching Commission has been abandoned by the government or, as an article in Conservative Home (23 July 2020) put it, "quietly shelved."

Only the truly naive would believe

Coronavirus Log - Part 5 (from 27 July)

This post is a continuation of the Coronavirus Log.  See Coronavirus Log Part 1 - (December 2019 to 28 April 2020) - Part 2 (29 April 2020 to 24 May 2020) - Part 3 (25 May to 21 June 2020) - Part 4 (22 June to 26 July 2020).

On-going collection of links to media articles about coronavirus and the response to the pandemic.

Office for National Statistics - Coronavirus

Public Health England

Sentencing ~ some developments

The Sentencing Council has published a new guideline for sentencing offenders with mental disorders, developmental disorders or neurological impairments. The new Guidance is effective from 1 October 2020.


Sentencing Council - 22 July 2020 and Sentencing offenders with mental disorders, developmental disorders, or neurological impairments

The following is a very brief

The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 + Other amendments

On 14 July, the government announced plans to required "face coverings" to be worn in shops and supermarkets with effect from 24 July.

The legislation finally arrived at 1.15 pm today when The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 were laid before Parliament. An Explanatory Memorandum is available.

As with other similar Regulations, the legal basis

The ISC's Russia Report ~ some notes

This previous post (17 July) looked at Parliament's Intelligence and Scrutiny Committee ('the ISC').

On 21 July the committee issued its long-awaited report on "Russia" - see the report and press release on the ISC website

The report has considerable redactions and an entire Annex is redacted but it is interesting, even if unsurprising, reading. After all,

Physical harm to a child ~ conviction quashed

On 6 December 2019 in the Crown Court at Durham (Judge Adkin and a jury) the appellant (RN) was convicted of two counts of causing or allowing serious physical harm to a child contrary to section 5 of the Domestic Violence Crime and Victims Act 2004 (Counts 1 and 2). RN's appeal against conviction  has been allowed.

RN v R [2020] EWCA Crime 937 - Vice-President of the Court of Appeal (Criminal Division) Fulford LJ, Garnham and Farbey JJ.

Section 5 (as amended from 2 July 2012 by the Domestic Violence Crime and Victims (Amendment) Act 2012) is the offence

Additional Public Health Regulations for England

The Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020 - (SI 2020/750) - are now in force and apply to England only.

The No.3 Regulations are in addition to The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (SI 2020/684) which were amended by the The Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) Regulations 2020 (SI 2020/719).

Regulations

Intelligence and Security Committee ~ Chair, Members, Russia Report

Updated 22 July 2020

ISC Chair and Membership:

Dr Julian Lewis MP (New Forest East) has been appointed Chair of Parliament's Intelligence and Security Committee (ISC). The committee has nine members including the former Secretary of State for Justice and Lord Chancellor Mr Chris Grayling.

The committee had to be reappointed following the General Election held on 12 December 2019. After seven months, the membership has been finalised- see Hansard House of Commons 13 July 2020 and House of Lords 14 July 2020.

It was widely reported that

Sutherland v HM Advocate ~ Supreme Court judgment ~ Paedophile Hunters

The Supreme Court has handed down judgment in Sutherland v Her Majesty's Advocate [2020] UKSC 32.

The legal issue was whether prosecutions based on the covert sting operations of "paedophile hunters" are compatible with the right to private life and correspondence - Article 8 of the European Convention on Human Rights.

According to the court's website - "Paedophile hunters" are "self-appointed vigilantes who impersonate children in order to expose people who they consider to be sexual predators. Some of these groups

Coronavirus: the mix of Law and Guidance

The government's response to the coronavirus pandemic has included making law and issuing guidance but what is the relationship between the two? Are they distinct so that law is that which must be obeyed and guidance is only mere recommendation? These are interesting, and far from easy-to-answer, questions.

Law:

The relevant law includes The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (as amended) where legal restrictions are set out. These apply to

Amendment of the Coronavirus Restrictions legislation

The government has made The Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) Regulations 2020 (SI 2020/719) which amend The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (SI 2020/684) - (see previous post of 3 July 2020).

An Explanatory Memorandum accompanies the Amendment.

Yet again, the powers in the Public Health (Control of Disease) Act 1984 are the basis for this secondary legislation.

The amending legislation will

The "lockdown" Regulations ~ judicial review ~ permission hearing

Simon Dolan and Lauren Monks have been refused permission for a judicial review of the "lockdown" regulations in England - (previous post 27 May).

Judgment of Mr Justice Lewis - Dolan and Monks v Secretary of State for Health and Social Care and Secretary of State for Education [2020] EWHC 1786 (Admin. The applicants sought permission to bring proceedings to challenge the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 as amended ("the Regulations") and what was described as a decision to close schools and educational establishments.

Lewis J noted

The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020

The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 came into force at 00.01 am on 4 July 2020. They replace the previous Health Protection (Coronavirus, Restrictions) legislation.

The No.2 Regulations are made using the powers in the Public Health (Control of Disease) Act 1984. (The same powers were used to make the previous "lockdown" regulations). The Secretary of State considers that the restrictions and requirements imposed by the new Regulations are proportionate to what they seek to achieve, which is a public health response to the coronavirus threat. In accordance with section 45R of the 1984 Act the Secretary of State is of the opinion that, by reason of urgency, it is necessary to make the new regulations without a draft having been laid before, and approved by a resolution of, each House of Parliament.

Leicester is in a somewhat different legal position because specific Regulations have been made for a "protected area" defined mainly by postcodes in the Leicester area (see below).

Is the criminal trial jury under threat ?

"Our justice system is built on the principle that the law will be applied impartially. In the cases that involve the greatest harm to victims and the longest sentences for offenders, juries are the guardians of this principle. Our jury system may be centuries old, but it is still fit for purpose today" - Report by David Lammy (2017).  

I suspect that many people within the criminal justice system and elsewhere fully expected calls for removal of jury trial as a means of dealing with the backlog of criminal cases which actually developed long before coronavirus (Covid-19) arrived.

The Law Society Gazette (27 March 2020) commented- "The backlog of Crown court cases in England and Wales has reached its highest level in

EU and UK ~ Where are we now?

 The transition period will end 31 December 2020:

The UK left the EU on 31 January 2020 and entered into a transition (or implementation) period until the end of 2020.

The Withdrawal Agreement was formally agreed on 29 January just as coronavirus was starting to emerge as a major threat to life, health and the economy.

The European Union (Withdrawal Agreement) Act 2020 gives force, within the domestic legal systems of the UK, to the Withdrawal Agreement.

The Withdrawal Agreement