Monday, 26 October 2020

Joesph Karumba Wangige ~ a second prosecution oppressive

The criminal law has a principle that, in the absence of special cirumstancess, a later prosecution cannot be based on substantially the same facts as resulted in a prior conviction - Beedie [1998] QB 356

This arose in the case of Joesph Karumba Wangige [2020] EWCA Crime 1319 - Davis LJ, Lavender and Pepperall JJ. 

On the night of 26 November 2016, Mr Wangige was driving his Vauxhall Astra and he ran into Mr Russell Lee (32) who was crossing the road. Wangige did not stop. Mr Lee suffered serious injuries from he died on 30 November 2016.

A Collision report was prepared

Wednesday, 21 October 2020

UK Internal Market Bill ~ House of Lords Second Reading

The government's UK Internal Market Bill is before the House of Lords and its second reading commenced on Monday 19 October (Hansard) and continued on 20 October (Hansard).  The Bill contains a number of clauses seeking to enable Ministers to breach international law (i.e. the Withdrawal Agreement).  Specifically, the repugnant clauses are 44 (Power to disapply or modify export declarations or other exit procedures), 45 (Regulations about Article 10 of the Northern Ireland Protocol), and 46 (Further provision relating to sections 44 and 45 etc.  Clause 46 seeks to prevent legal challenge on any ground whatseoever.

Lord Judge, a former Lord Chief Justice of England and Wales, moved a motion of regret that - "this House regrets that Part 5 of the bill contains provisions which, if enacted, would undermine the rule of law and damage the reputation of the United Kingdom.”​ The Bill was read a second time (395 votes to 169) with Lord Judge's motion approved. Lord Judge's speech,

Saturday, 17 October 2020

Brexit: "High hearts and complete confidence" - if only !

With UPDATES 19, 20 and 22 October

 On 16 October, the Prime Minister issued a statement on the UK-EU negotiations and poured cold water on any remaining optimism about the future UK-EU relationship even though, strictly-speaking, a possibility of a trade deal may still exist. 

This followed the outcome of the 15 October EU Council meeting held in Brussels - see previous post of 16 October.

It is worth recalling the 2019 withdrawal agreement and the political declaration

The Withdrawal Agreement recognised the need for both the UK and the EU to take all necessary steps to negotiate 'one or several agreements' governing their future relationship with a view to ensuring that, to the extent possible, those agreements apply from the end of the transition period.'  

In what seems like the now largely forgotten political declaration

Friday, 16 October 2020

UK-EU future negotiations / Constitution Committee Report on Internal Market Bill

The European Council met in Brussels on 15 October and has published its Conclusions regarding the future EU-UK relationship

Difficulties remain over the ‘level playing field', governance, and fisheries.(Please see the end of this post for links relating to these topics).

Council noted that the transition period will end on 31 October and expressed concern that progress on "key issues of interest to the Union is still not sufficient for an agreement to be reached."

Nonetheless, Council reaffirmed the EU's determination to have a "close as possible" partnership with the UK on the basis of negotiating directives of 25 February 2020. The Chief Negotiator (Mr Michel Barnier) wil, continue negotiations "in the coming weeks" and Council called on the UK to "make the necessary moves to make an agreement possible."

As regards the Internal Market Bill

Tuesday, 13 October 2020

Three tier system for Coronavirus restrictions ~ Regulations approved and in force

On 12 October, the Prime Minister announced a new "three tier" system of Regulations aimed at preventing further spread of coronavirus which, according to government data, has already claimed 42,875 lives in the UK. On 12 October there were 13,972 new cases. See Hansard 12 October 2020. The rise in infection (in most areas) from late August has been considerable and it is reported that the government was urged by SAGE to impose a short "lockdown" a few weeks ago - BBC News 13 October.

The new Regulations were "made" by the Minister (Mr Hancock MP) on 12 October 2020 and are - 

The Medium Regulations - (Tier 1 restrictions) - apply

Saturday, 10 October 2020

Troubling times

Following the December 2019 general election, Boris Johnson became Prime Minister of the United Kingdom. He is a man who is noted for ill-judged comments - Business Insider 9 June 2020 - of which the latest is his attack on "lefty" lawyers and other "do-gooders" - The Guardian October 2020.

In an online speech to the Conservative Party Conference, Johnson said - "We’re ..... protecting the public by changing the law to stop the early release of serious sexual and violent offenders and stopping the whole criminal justice system from being hamstrung by what the home secretary would doubtless – and rightly – call the lefty human rights lawyers, and other do-gooders.”

Johnson's reference to the Home Secretary

Friday, 9 October 2020

Coronavirus restrictions ~ possibility of a new restrictions regime as cases rise

Coronavirus is "getting out of control" in the north of England, a minister has said, as she defended government plans to bring in new restrictions.

Gillian Keegan, minister for skills and apprenticeships, said the country was in an "unbelievably serious situation".

That report was published by the BBC on 9 October 2020. The background to the report is government data showing a significant increase in infections - 17540 new cases on 8 October - and rising numbers requiring hospital treatment.

The BBC further reports that a 3-tier system

Thursday, 8 October 2020

The Covert Human Intelligence Sources (Criminal Conduct) Bill

On 5 October, the Covert Human Intelligence Sources (Criminal Conduct) Bill passed its Second Reading in the House of Commons by 182 votes to 20.  Very briefly, the Bill aims to empower various bodies to authorise undercover operatives to commit criminal offences.

The Labour Party's position was to abstain because the party supports putting undercover activities on a statutory footing but 20 Labour MPs voted against the Bill. Labour is calling for additional safeguards in the Bill.  The Guardian 6 October and Labour List 5 October.

Opening the Second Reading debate, the Minister (Mr James Brokenshire MP) set out the purpose of the Bill - "... the Bill deals with participation in criminal conduct by covert human intelligence sources - so-called CHIS. These are agents, or undercover officers, who help to secure prosecutions and disruptions by infiltrating criminal and terrorist groups."

In reality, it is not merely

Tuesday, 6 October 2020

Overseas Operations (Service Personnel and Veterans) Bill

This post considers the controversial Overseas Operations (Service Personnel and Veterans) Bill but first a note about the Independent Review of Administrative Law (IRAL).

The Independent Review of Administrative Law (IRAL) - post 4 August 2020 - issued a call for evidence “on how well or effectively judicial review balances the legitimate interest in citizens being able to challenge the lawfulness of executive action with the role of the executive in carrying on the business of government, both locally and centrally”.

The IRAL panel is chaired by former minister Lord Faulks QC and includes academics and leading administrative law barristers.

The call for evidence, which can be viewed here, commenced on 7 September and is running until midday on 19 October 2020.

 The IRAL was enivisaged by the 2019 Conservative Party manifesto  (Page 48) which also contained this statement (page 52) -

Saturday, 3 October 2020

UK - EU Negotiations on the Future Relationship ~ Round 9

Round 9 of the UK-EU Future Relationship negotiations ended on 2 October with statements by the Chief Negotiators:

Lord Frost - Statement 2 October 2020

Michel Barnier - Statement 2 October 2020

Prime Minister and EU Commission president Ursula von der Leyen will speak in a video call later  - BBC News 3 October 2020

It remains to be seen whether agreement can be reached. Only 89 days now remain to the end of the transition period which, let it be remembered, could have been extended had the UK government so requested.

The United Kingdom Internal Market Bill passed the House of Commons and received first reading in the House of Lords on 30 September. The Bill continues

Thursday, 1 October 2020

The Coronavirus Act 2020 continues


A Guardian headline of 29 September 2020 stated - "The Coronavirus Act is an attack on our liberties. MPs must seize this chance to scrap it." The author, Martha Sprurrier, (Barrister and Director of Liberty) wrote -

"As for democratic process, this Act has done untold damage. Its very existence normalises the concentration of extraordinary power in the hands of the government and the police. It sends a signal to authoritarian regimes the world over – when people think extraordinary times call for extraordinary measures, take full advantage. This week’s vote could not have more riding on it."

There is no doubt that some provisions of the Coronavirus Act 2020 give rise to major libertarian concerns. A notable example is Schedule 21 - Powers relating to potentially infectious persons. (For more detail on Schedule 21 see this previous post of 2 April 2020).

The Coronavirus Bill

Wednesday, 30 September 2020

Lord Kerr of Tonaghmore

The retirement from the Supreme Court of the UK of Lord Kerr of Tonaghmore was noted in a video tribute by the court's President - Lord Reed. 

Lord Kerr's departure from the judiciary is also notable because he was the last appointment as a Lord of Appeal in Ordinary - the "Law Lords" who, until October 2009, sat in the former Appellate Committee of the House of Lords.

Lord Kerr was called to the Bar of Northern Ireland in 1970 and to the Bar of England and Wales in 1974. He was appointed Queen's Counsel in 1983 and to the High Court of Northern Ireland in 1993. He became Lord Chief Justice of Northern Ireland in 2004.

Confusion abounds ~ is a "gathering" in a pub garden in Barnard Castle permitted?

On Tuesday 29 September, the Prime Minister, on a visit to Exeter, was asked to clarify whether people from two  households in the north east of England were allowed to meet in a pub garden. He gave an unclear answer. This story is covered by Camilla Tominey in The Telegraph 29 September - "Boris Johnson Covid rules confusion reflect the palpable sense of chaos at Number 10" Later in the day, Johnson issued a statement to correct the position. The Guardian 29 September also covered the same story.

Part of the problem here is that, at the time Johnson spoke on 29 September, the new Regulations were not in the public domain. The new regulations appear as an amendment to existing regulations applicable to NE England. 

They amendments were "made" by the Minister on 29 September and contain a statement that they were laid before

Tuesday, 29 September 2020

Coronavirus ~ serious on-going concerns

The new University year commenced this month but many new students are finding that it is likely to be far from the experience they actually wanted.  Students in Halls of Residence in Manchester were "locked in" following positive covid tests on some 127 students - Manchester Evening News Friday 25 September 2020.  

The legality of the University's action was questioned with comment that, in the absence of statutory authority, the students might have been "falsely imprisoned" - see Evening Standard 28 September

False imprisonment

Friday, 25 September 2020

Coronavirus restrictions: The Thicket of legislation - Update (24 September)

By mid-August the "lockdown" had eased with cafes and pubs trading again. Customers returned to local shops and, in early September, schools and Universities resumed. The late summer weather continued to be generally warm and sunny enabling people to enjoy life outdoors whenever possible. Of course, even in August, the pandemic was far from over and caution continued to be vital to minimise the spread of the virus. 

Unfortunately, but perhaps unsurprisingly, the rate of infection

Thursday, 17 September 2020

Scotland's Advocate General resigns ~ Internal Market Bill furore

Lord Keen of Elie QC was Advocate General for Scotland from 29 May 2025 to 16 September 2020. His resignation letter states that over the past week he had found it increasingly difficult to reconcile what he considered to be his obligations as a Law Officer with the policy intentions in the UK Internal Market Bill. 

He stated - "I have endeavoured to identify a respectable argument for the provisions at clauses 42 to 45 of the Bill but it is clear that this will not meet your policy intentions." He concluded by saying - "Your government faces challenges on a number of fronts and I fear that the UKIM Bill in its present form will not make these any easier."

During the House of Commons debate of 8 September, Sir Robert Neill QC MP

Tuesday, 15 September 2020

Internal Market Bill Second Reading ~ a note

The UK Internal Market Bill passed its Second Reading in the House of Commons on Monday 14 September. The vote was 340 to 263 (majority 77). 30 Conservative MPs abstained and two voted against the bill. See Hansard for the full debate. The House has therefore affirmed the bill in principle - (Erskine May para. 28.45). The next stage is Committee of the Whole House - UK Parliament UK Internal Market Bill and a number of amendments to the Bill have been tabled.

The Internal Market Bill contains a number of provisions (Clauses 42 to 45) which, if they become law and are actually applied, will place the UK in breach of the withdrawal agreement. Furthermore, it is arguable that the Bill itself is a breach of certain of the UK's obligations under the withdrawal agreement - for example, Article 5 (Good Faith) which requires the parties to refrain from "any measures which could jeopardise the attainment of the objectives of" the Agreement.

Saturday, 12 September 2020

UK Internal Market Bill and Devolution

My previous two posts - HERE and HERE - focussed on concern about the UK Internal Market Bill and the provisions dealing with the powers of Ministers to disapply aspects of the Withdrawal Agreement.

This is not the only bone of contention in the Bill. Described in some quarters as "an abomination" the Bill will undoubtedly impact on the devolution settlements as is well explained in these links:

Information for Government - Explainer - Internal Market Bill

Centre on Constitutional Change - The Internal Market Bill: implications for devolution

House of Commons Library Research Briefings - UK Internal Market Bill

The government claims that the Bill will "boost" the Scottish economy but that claim is refuted by the Scottish Government which plans to refuse legislative consent to the Internal Market Bill.

Like so much to do with Brexit - which a majority of Scotland's electorate opposed - the Bill is feeding demands for Scottish Independence. The Welsh Government described the Bill as an attack on democracy. Welsh voters supported Brexit.

12 September 2020

Friday, 11 September 2020

UK-EU talks Round 8 and furore over the Internal Market Bill

The 8th Round of negotiations between the UK and the EU concluded on 10 September though talks between officials will continue over the coming days. As shown by the statement of the EU's chief negotiator (Michel Barnier) major differences between the two sides continue to exist. The UK's negotiator (Lord Frost) issued a brief statement stating - "We remain committed to working hard to reach agreement by the middle of October, as the Prime Minister set out earlier this week. We have agreed to meet again, as planned, in Brussels next week to continue discussions.”

Without question, the United Kingdom