Brexit ~ some thoughts on an autumn morning

Autumn leaves are with us and so is the mess that has become of Brexit.  In fact, it is a major understatement to describe the situation as a mess.  Where are we now?  A few thoughts ....

Leaving date:

As things stand, the UK leaves the EU on 29 March 2019 - only 168 days away at the time of writing.

Article 50 of the Treaty on European Union is the mechanism by which a Member State of the EU leaves the club.

The fracking protesters ~ sentence ~ was there bias?

The  common law has developed various principles underpinning the integrity of legal process.  An example is the avoidance by decision-makers of bias.  A judge, trying a case, cannot have any direct personal or financial interest in the outcome but the law goes further and seeks to prevent even an appearance of bias.

One of the most famous judicial statements throughout legal history was that of Lord Hewart CJ in Ex p McCarthy [1924] 1 KB 256 - ". . . it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."

Investigatory Powers Tribunal ~ Covert agents and crime

The Pat Finucane Centre has highlighted a case which is before the Investigatory Powers Tribunal (IPT) - Pat Finucane Centre 4 October.

The case has been brought by Privacy International which claims that covert agents recruited by the Security Service are being authorised to carry out crimes within the UK under a policy which has no legal basis.  It is said in the Claimant's skeleton argument that - "No meaningful limits have been disclosed" and "it appears that the Security Service thinks it could, if it thinks it would be in the public interest authorise participation in murder, torture, sexual assault or other grave criminality in the UK.  Neither the victim of the crime, the Police or the Crown Prosecution Service are notified of authorisations.  In practice, this will mean that criminal conduct will not be investigated or prosecuted."  It is also claimed that oversight carried out by the Investigatory Powers Commissioner is "so narrow as to be ineffective."

Brexit-related litigation

This post is a "catch up" on a number of "Brexit-related" applications for judicial review. 

Judicial review:

Judicial review may be described as a legal process by which the senior courts review the lawfulness of official decision-making.  The courts are able to consider whether a public body has acted in accordance with its legal obligations and within its legal powers.  Where legal error is found, the court is able to grant appropriate relief.  Judicial review is not a process to allow judges to replace duly appointed decision-makers such as Ministers, Local authorities, NHS Trusts, Chief Constables and so on.  The court does not entertain mere busybodies since applicants have to show "sufficient interest" to bring judicial review but there is a public interest in ensuring that the rule of law is maintained.

A legal first at the Supreme Court

The Supreme Court hearing on 3 and 4 October 2018 - In the matter of D (A Child) - is of particular interest because it is the first time the court has sat with a majority of female justices.  The court is Lady Hale, Lord Carnwath, Lady Black, Lord Lloyd-Jones, Lady Arden.

Lady Arden was sworn in as a Justice of the Supreme Court on Monday 1st October and the ceremony may be viewed here.   Lord Kitchin was also sworn as a justice at the same ceremony.  Biographies of the 12 justices - 9 male and 3 female - may be read here.

Lady Hale of Richmond - now President of the Supreme Court - was the only female to be appointed to the Supreme Court's predecessor, the Appellate Committee of the House of Lords.

Legal Cheek 17 September 2018

Assaults on Emergency Workers (Offences) Act 2018

The Assaults on Emergency Workers (Offences) Act 2018 (the 2018 Act) received Royal Assent on 13 September 2018.  It is an Act to make provision about offences when perpetrated against emergency workers, and persons assisting such workers; to make certain offences aggravated when perpetrated against such workers in the exercise of their duty; and for connected purposes.

The background is growing concern that emergency workers are also victims of offences.  For example -

This Act extends to England and Wales only and comes into force at the end of the period of two months beginning with the day on which it is passed.

Footballers, flashy cars and motoring offences

Footballers, flashy cars and motoring offences have been in the news recently.

It was reported that  Southampton player Mario Lemina admitted three counts of failing to identify himself in March and May -BBC News 4 September.  Aldershot Magistrates Court dropped the speeding charges, but gave Lemina 18 points on his non-UK driving licence, taking his points tally to 39.   Lemina, 25, of Ashley Heath, Dorset, was fined £660 for each of the three offences, in addition to a victim surcharge.  His Mercedes was caught on speed camera three times breaking the limit.

Birmingham 1974 bombings - "Perpetrator issue" excluded from new inquests

 Bombs detonated on 21 November 1974 in Birmingham and wrecked the Mulberry Bush and the Tavern in the Town.  21 people were killed and 182 injured.  A third explosive device failed to detonate.  Six men - (Hugh Callaghan, Patrick Joseph Hill, Gerard Hunter, Richard McIlkenny, William Power and John Walker) - were arrested and subsequently tried in the Shire Hall of Lancaster Castle before Bridge J and a jury.  The trial commenced on 9 June 1975 and the men, having been convicted, were sentenced on 15 August 1975.  Their convictions were quashed by the Court of Appeal (Criminal Division) on 14 March 1991 - R v McIlkenny, Hill, Power, Walker, Hunter and Callaghan [1991] EWCA Crim 2 - Lloyd, Mustill and Farquharson LJJ.

'Tommy Robinson' case adjourned for written submissions

Mr Stephen Yaxley-Lennon (aka Tommy Robinson)'s contempt case was the subject of  posts 1 June 2018,  5 July and 1 August.

The Court of Appeal - Full Judgment (Bailii) or Full Judgment (pdf)

The appeal in respect of the committal for contempt at Leeds Crown Court was allowed.  Mr Robinson was granted bail and the matter of contempt at Leeds Crown Court was remitted to be heard by the Recorder of London at the Old Bailey.

'Fracking' protesters jailed ~ Public Nuisance ~ excessive sentences

The Independent 26 September reports that three anti-fracking activists have been jailed for halting a convoy of lorries in a four-day protest outside a shale drilling site.  Simon Roscoe Blevins, Richard Roberts, and Rich Loizou, are thought to be the first environmental demonstrators to receive custodial sentences in the UK since 1932.  Blevins and Roberts were each imprisoned for 16 months and Loizou was jailed for 15 months at Preston Crown Court on Wednesday.  Further reports at The Guardian 26 September , Channel 4 News (video) and The Canary.

As is so often the situation, sentencing remarks have not (yet) been published by the Judiciary and so our views are informed by media reports.

The men were sentenced

Did this offender "get away with it"

The Essex Police Federation reports - "Man ordered to pay just £50 after spitting blood in officer's face" - Daily Express 26 September.  An Essex Police Officer who had blood spat in his face during a ‘disgusting’ assault as he made an arrest has hit out at the leniency the courts showed to his attacker.   PC Rhys Linge says his assailant, who was ordered to pay him £50 in compensation, will ‘feel like he’s got away with it’ and that he and his colleagues are feeling increasingly let down by the courts."

The officer

Civil aviation and a "no deal" Brexit

If you book a flight planned to depart after 29 March 2019 then do not be surprised to find a clause in the contract such as "subject to the regulatory environment allowing” the flight to take place.  On how air operators may seek to limit their liability see The Guardian 4 October 2018.


There have been warnings for a considerable time that Brexit could result in international flights being unable to operate - please see post 19 July 2018 - Brexit and Civil Aviation .  In that post I noted the UK government position regarding civil aviation as set out in the White Paper - The future relationship between the UK and the EU - and also included an overview of the existing Civil Aviation Regulatory system.

Court of Session - to ask CJEU if Article 50 notification may be unilaterally withdrawn

Updated 10 October

Scotland's Court of Session (Inner House) has ruled that it can make a reference to the Court of Justice of the European Union on the question of whether notification under Article 50 of the Treaty on European Union (TEU) may be unilaterally withdrawn by the State which gave the notice.  Government arguments to the contrary were dismissed.

Any Wightman MSP v Secretary of State for Exiting the EU [2018] CSIH 62

The petitioners,

Salzburg - 19 and 20 September 2018

Dinner at Felsenreitschule

With just under 190 days to go until Brexit Day - 11 pm on 29 March 2019 - the Prime Minister attended an Informal meeting of Heads of State or Government in Salzburg, Austria.  The meeting, held mainly on 20 September, discussed Internal Security, Migration and, in EU27 format, Brexit.

Leaders concentrated their discussions on three aspects of Brexit: the need to avoid a hard border on the island of Ireland, the future relationship and the organisation of the final phase of Brexit talks.

The outcome of the meeting can only be described as embarrassing for the Prime Minister personally.  The heart was ripped out of the Chequers Proposal.  Much more crucially, the likelihood of a "No Deal" Brexit increased with immensely serious consequences for the UK both economically and politically.

The end of conference statement by the European Council President (Mr Donald Tusk) may be read HERE.   Mr Tusk stated:

High Court judgment - 'expenses incurred' by Vote Leave Ltd

The Electoral Commission designated Vote Leave Ltd as a lead campaigner for the 2016 referendum on UK membership of the EU.  This gave Vote Leave Ltd certain advantages:

The law

Big Brother Watch v United Kingdom

On 13 September 2018, the European Court of Human Rights handed down judgment in Big Brother Watch and Others v. the United Kingdom.* 

The court deal with complaints by journalists and rights organisations about three different surveillance regimes: (1) the bulk interception of communications; (2) intelligence sharing with foreign governments; and (3) the obtaining of communications data from communications service providers.

Ireland v UK ~ 1978 judgment will not be revised

The years 1968 to 1998 were a terrible time in Northern Ireland.  They were the years of "The Troubles" when over 3,600 people were killed and thousands more injured.   Over the course of three decades, violence on the streets of Northern Ireland was commonplace and spilled over into Great Britain, the Republic of Ireland and as far afield as Gibraltar.  Several attempts to find a political solution failed until the Good Friday Agreement of 1998.  The Northern Ireland Act 1998 implemented that agreement and devolved government was restored.  Regrettably, in early 2017, devolved government broke down and the British government is seeking to restore it - UK Government Statement 6 September 2018.

A number of issues

Speech by the Lord Chief Justice in Brisbane, Australia

The Lord Chief Justice, Lord Burnett, has addressed the "Commonwealth Judges and Magistrates Association" annual conference in Brisbane, Australia.  The speech was entitled "Becoming stronger together."

Lord Burnett was principally concerned with judicial independence and his speech draws strongly on a speech in 2016 by Lord Hodge - Upholding the rule of law: how we preserve judicial independence in the United Kingdom (pdf).

Lord Burnett touches upon

Yellowhammer

Leaving the EU on 29 March 2019 without a Withdrawal Agreement in place cannot be ruled out even though negotiations are on-going - read the Secretary of State's Statement of 4 September.   Also see the Secretary of State's speech (23 August) regarding No Deal Planning.

A considerable amount of material is in the public domain to show what the impact of that scenario is likely to be:

Speeding

The famous former footballer Mr David Beckham has entered a not guilty plea to a charge of speeding on the A40 - ITV News - Sky News - BBC News - Manchester Evening News.  It is reported that he was driving at 59 mph in a 40 limit and that Mr Beckham is not denying the speed.  How then can he plead not guilty?

The answer lies in the Road Traffic Offenders Act 1988 section 1 which requires a Notice of Intended Prosecution (NIP) to be "served" within 14 days of the offence.*  The wording of section 1(1) makes it clear that there cannot be a conviction unless the requirement of service is complied with.