Judicial diversity

Former Magistrates' Court - Kendal

The Judiciary has published Judicial Diversity Statistics 2018 setting out the position as at 1 April 2018.

The data for Magistrates is particularly striking.

The tragic death of Jack Adcock

Jack Adcock

Jack Adcock was born on 15 July 2004.  He died at Leicester Royal Infirmary on 18 February 2011.  The clinical cause of his death was sepsis - a condition explained by the NHS and also see Sepsis Trust.  According to the Trust, five people die every hour due to sepsis.  It is not necessarily easy to detect because it can initially look like flu, gastroenteritis or a chest infection. There is no one sign, and symptoms present differently between adults and children.

The BBC Panorama coverage of this case is an excellent, detailed and very moving programme. 

Controversy over the burqa

Conservative MP and former Foreign Secretary - the Rt. Hon. Boris Johnson MP - caused considerable furore over a piece he wrote for The Telegraph on 5 August - Denmark has got it wrong. Yes, the burka is oppressive and ridiculous - but that's still no reason to ban it.   Mr Johnson expressed surprise that Denmark had joined several other European countries - e.g. France, Belgium - "in imposing a ban on the niqab and the burka – those items of Muslim head-gear that obscure the female face."  He continued to say that he agreed with those who think that the burka is oppressive - "I would go further and say that it is absolutely ridiculous that people should choose to go around looking like letter boxes; ...."

Independence of the Parole Board

Mr Justice Mostyn

In 2009, Mr Wakenshaw received an indeterminate sentence of imprisonment for public protection and has now served the minimum term stipulated within his sentence.   His continued detention is periodically reviewed by the Parole Board to determine his suitability for release.

In judicial review proceedings, Mr Wakenshaw claimed that the Parole Board lacked the requisite independence under the common law and article 5(4) of the European Convention on Human Rights.  He did not wish to prevent his current review going ahead but, more fundamentally, he claimed a declaration that the Parole Board was not an objectively fair adjudicative body.

Pressing issues - (3) - Legal aid

The post World War 2 welfare state comprised the NHS; universal housing; state security (benefits); and universal education.  According to the late Sir Henry Brooke (HERE), Legal Aid was not a pillar of the welfare state even though law underpins crucial matters such as the NHS structure, rights to medical treatment, housing, welfare, education and the general rights of those charged with criminal offences.  Under the Legal Aid and Advice Act 1949 legal aid was to be available in all courts and tribunals where lawyers normally appeared for private clients.  Eligibility should be extended to those of “small or moderate means”, and above a free limit there should be a sliding scale of contributions.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 - (LASPO) - brought about major reform of legal aid.

Pressing issues - (2) - Disclosure

In 2017, Liam Allan, a criminology student at Greenwich University, was charged with six counts of rape and six of sexual assault.  During the trial, the contents came to light of mobile telephone messages sent by the complainant including messages asking Mr Allan for sex.  This material had been held electronically by the Police even though Mr Allan had maintained all along that the sex was consensual.  The outcome was that prosecuting counsel (Mr Jerry Hayes) offered no evidence against Mr Allan and the case against him ended.

The investigative role of the Police gives them almost a monopoly over the collection of information.  Several lines of enquiry might have been followed and a considerable volume of information obtained but the prosecution may not need to use all of it in a particular case.   There is often so-called "UNUSED" material and it is possible that there is unused material which is capable of of undermining the case for the prosecution against the accused, or of assisting the case for the accused.

Pressing issues - (1) - Prisons and Probation

The prison population in England and Wales stood at 83,107 on 3 August 2018 against a "useable operational capacity" of 86,012 - MoJ Prison Population figures.  The terms used in the statistics are defined as:

Mr Yaxley-Lennon (aka Tommy Robinson) ~ Court of Appeal orders re-hearing

On 18 July, an appeal was heard in the contempt of court case of Stephen Yaxley-Lennon (aka Tommy Robinson).  On 1 August, the court - Lord Chief Justice (Lord Burnett), Turner and McGowan JJ - handed down judgment.

According to the Law Commission (2012), "Contempt of court" covers a wide variety of conduct which undermines or has the potential to undermine the course of justice, ..."

The events:

Supreme Court ~ Enhanced Criminal Record Certificates

On 30 July, the Supreme Court handed down judgment in R(AR) v Chief Constable of Greater Manchester [2018] UKSC 47

• Judgment (PDF)
• Press summary (PDF)
• Judgment on BAILII (HTML version)

The Court of Appeal judgment - [2016] EWCA Civ 490.

A reporting restriction applies so that no one shall publish or reveal the name or address of the appellant - referred to as AR - or publish or reveal any information which would be likely to lead to the identification of the appellant or of any member of his family.

Supreme Court ~ A NHS Trust v Y [2018] UKSC 46

On 30 July 2018, the Supreme Court handed down judgment in A NHS Trust v Y (by his litigation friend, the Official Solicitor)  [2018] UKSC 46.

• Judgment (PDF)
• Press summary (PDF)
• Judgment on BAILII (HTML version)

Reporting restrictions apply to this case to protect the identity of the NHS Trust involved, the identity of Y and of others involved in the case.  Full details of the restrictions are set out in the Press Summary.

One for the Wet Towels ~ Scotland's Legal Continuity Bill

"It's one for the wet towels," said Lady Hale at the conclusion of the oral hearings in the Reference by the Attorney-General and Advocate General for Scotland on the UK Withdrawal from the European Union (Legal Continuity)(Scotland) Bill.

Here is a case for lovers of byzantine legal complexity to savour.

Fundamentally, the Scottish Parliament was created by the Scotland Act 1998 and it only has the powers granted to it by the Scotland Act 1998 as amended.  If it is claimed that Scottish legislation is outside the powers of the Scottish Parliament then reference  can be made to the Supreme Court of the UK to determine whether the legislation is within devolved legislative powers.

Notes on the Withdrawal Agreement White Paper (24 July)

Pro-EU Rally, London, June 2018

White Paper:

On 24 July, the government published a White Paper - Legislating for the Withdrawal Agreement between the United Kingdom and the European Union. 

The paper sets out the government's current thinking for a European Union (Withdrawal Agreement) Bill to be introduced in the autumn IF there is a Withdrawal Agreement which Parliament has accepted.  The similarly named European Union (Withdrawal) Act 2018 section 13 specifies the requirements for Parliamentary acceptance of any withdrawal agreement and framework for the future relationship.

247 Days to Brexit ~ Talk of treason !

Clive Dunn as L.Cpl Jones

Updated27 July - see the addendum for Statements of 26 July by Michel Barnier and Dominic Raab.


USA and EU trade:

During his recent visit to the UK, Donald J Trump first claimed that any attempt to keep close ties with the European Union would make a future trade deal with the US unlikely - The Independent 13 July.  Two days later it was reported that the President had insisted the US and UK are “going to end up making a deal” on trade - The Independent 15 July.  All of that is less than two weeks ago and now we see the US President meeting with the President of the European Commission and agreeing to work towards lowering trade barriers with the European Union.  As reported by the BBC 25 July, the two sides would work for zero tariffs, zero non-tariff barriers, and zero subsidies on non-auto goods.  They also agreed to increase trade in services and agriculture, including greater US soy bean exports to the EU.

Owens v Owens ~ Supreme Court dismisses Mrs Owens' appeal

The Supreme Court has handed down judgment in Owens v Owens [2018] UKSC 41.

• Judgment (PDF)
• Press summary (PDF)
• Judgment on BAILII (HTML version)

The sole basis for divorce under the Matrimonial Causes Act 1973 section 1  is that "the marriage has broken down irretrievably."    

Brexit - White Paper on legislation for the Withdrawal Agreement

Further White Paper:

A further Brexit-related White Paper was issued on 24 July 2018 - Legislating for the Withdrawal Agreement between the United Kingdom and the European Union.

The White Paper confirms that the EU (Withdrawal Agreement) Bill will:

• be the primary means by which the rights of EU citizens will be protected in UK law;
• legislate for the time-limited implementation period; and
• create a financial authority to manage the specific payments to be made under the financial settlement, with appropriate Parliamentary oversight

See Hansard Online - Statement to House of Commons 24 July.

Foreign Fighters and the Death Penalty ~ Government policy criticised

On Monday 23 July, an Urgent Question was asked in the House of Commons about "Foreign Fighters and the Death Penalty" - Hansard Online.  It had come to light that the UK government had agreed to provide information to the USA relating to Alexanda Kotey and El Shafee El-Sheikh who were captured in Syria in January 2018.  The men are said to be part of a Jihadi group - referred to as "the Beatles" - and known for its brutality to captives including murder by beheading.  The group included Mohammed Emwazi who was killed by a drone attack in 2015.

Brexit negotiations - Preparing for No Deal - Reaction to White Paper

19 July:

The EU Commission, in a Press Release 19 July,  has adopted a Communication outlining the ongoing work on the preparation for all outcomes of the United Kingdom's withdrawal from the European Union.  The Press Release states -

On 30 March 2019, the United Kingdom will leave the EU and become a third country. This will have repercussions for citizens, businesses and administrations in both the United Kingdom and the EU. These repercussions range from new controls at the EU's outer border with the UK, to the validity of UK-issued licences, certificates and authorisations and to different rules for data transfers.

Today's text calls on Member States and private parties to step up preparations and follows a request by the European Council (Article 50) last month to intensify preparedness at all levels and for all outcomes.

Preparing for the Withdrawal of the UK from the EU

The Commission has also issued Brexit Preparedness Notices addressing numerous sectors.

20 July:

Brexit and Civil Aviation ~ Irish Taoiseach issues warning

The civil aviation sector is a vital part of the UK economy, contributing £52bn to UK GDP in 2016 and supporting close to a million jobs. Flights to or from Europe accounted for 63% of all passengers who passed through UK airports in 2016.

Mr Leo Varadkar is the Taoiseach of Ireland.  Speaking after a cabinet meeting in Derrynane House, Co Kerry, Leo Varadkar claimed Ireland’s airspace may be out of bounds for UK jets if they go down the route of a hard Brexit and ban the EU from fishing in their waters - News Letter 18 July.  This statement was condemned as "shameful blackmail" by Mr David Bannerman MEP  (Conservative) but perhaps we should not be too quick to condemn.

We have been here before - Law and Lawyers January 2018 - What if no deal? EU Commission Notice - Air Transport and see the Air Transport Notice 11th December 2017.  The only sensible conclusion is that "no deal Brexit" poses a massive threat to civil aviation as made clear by the British Airline Pilots Association in October 2017.

See also  Brexit Preparedness Notices addressing numerous sectors including Air Transport and Aviation Safety.

See also Aviation Law Review September 2017 and Getting the Deal Through - Air Transport EU - October 2017

UK Government proposals:

Two further Brexit-related Bills - Customs/Taxation - Trade

This post looks at two important Brexit-related Bills: the Taxation (Cross-Border) Trade Bill 2017-19 and the Trade Bill 2017-19.

Taxation (Cross-Border) Trade Bill:

Sometimes referred to as "the Customs Bill", the government's Taxation (Cross-Border) Trade Bill 2017-19 allows the creation of a functioning and independent customs, VAT and excise regime after Brexit.  It is a Bill to -

Electoral Commission - Vote Leave and others

Vote Leave Limited was a designated lead campaigner in the 2016 EU Referendum campaign.

The Electoral Commission has published the conclusions of its investigation into Vote Leave’s EU referendum spending.  The Commission found significant evidence of undeclared joint working between the lead leave campaigner, Vote Leave, and the campaign group BeLeave.  The report (pdf) may be read via -