Wednesday, 12 June 2019

Prorogation of Parliament to achieve "no deal" Brexit

Let's take back control
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).

Removing Parliament

Tuesday, 11 June 2019

Justice Report ~ Prosecuting sexual offences

Justice Report:

Justice has published the report of Working Party - Prosecuting Sexual Offences

"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."

Friday, 7 June 2019

Dennis Hutchings ~ Application for Judicial Review

"Trial by jury is a hallowed principle of the administration of justice ..." - per Lord Judge CJ in R v Twomey [2010] 1 WLR 630.

A previous post looked at the on-going case of former soldier Dennis Hutchings - Northern Ireland - talking Points (30 October 2018)

Mr Dennis Hutchings (now aged 78) served with the Life Guards Regiment in Northern Ireland.  He is facing trial

Thursday, 6 June 2019

As the Brexit Clock ticks

Updated 11 June - 14 June:

The Brexit clock is ticking.  It is now 56 days since the Article 50 "flexible" extension to 31 October was agreed on 10 April 2019 - read the Council Conclusions and Council Decision 10 April.   147 days are left until 31 October.  The 56 days have seen the elections for the European Parliament, the announcement by Theresa May that she is to resign as Conservative Party leader on 7 June, and the commencement of a Conservative Party leadership election.   The seemingly intractable problem of Brexit remains.

Leadership election:

In the leadership election

Thursday, 30 May 2019

Private prosecution commenced against Boris Johnson

Updated 7 June

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.

The decision to issue the summons was handed down by District Judge (Magistrates' Courts) Margaret Coleman and has been published by the Judiciary - see Marcus Ball v Alexander Boris de Pfeffel Johnson

It is important to note

Wednesday, 29 May 2019

Notable cases - (6) - R v R


House of Lords - Last Judgment 2009
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 [1976] AC 182.

In 1736, Sir Matthew Hale commented

Tuesday, 28 May 2019

European Parliamentary Election 2019 ~ Facts

The European Parliamentary Elections were held throughout the European Union over 23-26 May 2019.  The UK election was on 23 May.  The Parliament has 751 seats and the UK allocation is 73.

The powers of the European Parliament's powers derive from Articles 223 to 234 and 314 of the Treaty on the Functioning of the European Union (TFEU).

After the elections one of the first tasks of an incoming Parliament is to elect a new President of the European Commission (the EU’s executive body).  Member states nominate a candidate for the post, but in doing so they must take account of the European election results.  Moreover, Parliament needs to approve the new Commission President by an absolute majority (half of the existing MEPs plus one). - see How are the Commission President and Commissioners appointed.

The overall voting turnout in the EU

Friday, 24 May 2019

Emmerdale - the Jacob and Maya storyline


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. 

The Sexual Offences Act 2003 is the key legislation containing the definitions of many sexual offences.  The background to the legislation is set out in the Explanatory Notes.  This post looks at two offences

Thursday, 23 May 2019

Notable cases (5) - Attorney-General v De Keyser's Royal Hotel

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 [1965] 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.

De Keyser:

1916, in the midst of World War 1, the

Monday, 20 May 2019

Notable cases (4) - Conway v Rimmer

In Conway v Rimmer [1968] AC 910, [1968] 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.

It took

Thursday, 16 May 2019

Notable cases (3) - Scott v Scott 1913 - Open justice

Viscount Haldane LC (1856-1928)
'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

Open justice:

Scott v Scott  was decided by the House of Lords in 1913 - Viscount Haldane LC, Earl of Halsbury, Earl Loreburn, Lord Atkinson and Lord Shaw of Dunfermline.

Mrs. Scott (appellant) filed her petition

Wednesday, 15 May 2019

Privacy International in the Supreme Court

The Supreme Court has handed down judgment in Privacy International v Investigatory Powers Tribunal [2019] 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.

Background:

The case concerned

Monday, 13 May 2019

Notable cases (2) - Anisminic

Dark forest to sunrise
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

Investigatory Powers Tribunal (IPT) ~ Judicial Review ~ Privacy International

The Investigatory Powers Tribunal (IPT) was created by Part IV of the Regulation of Investigatory Powers Act 2000 (RIPA) and it replaced a number of tribunals created by earlier legislation - e.g. under the Interception of Communications Act 1985 s.7 (as originally enacted).

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.

The Tribunal

Saturday, 11 May 2019

Coroners ~ Suicide ~ Standard of Proof

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.

The principal issues raised

Friday, 10 May 2019

Notable cases (1) - Woolmington

John Sankey 1866-1948
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,

Law Reporting - in brief

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.

Wednesday, 8 May 2019

Donations to Political Parties

European Parliament
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).

According to

Monday, 6 May 2019

Line of Duty ~ Legal angles

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,

Sunday, 5 May 2019

Updates ~ Sunday 5 May

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.