Thursday 29 April 2010

Tribute to a great lady: Dr Dorothy Height

From time-to-time; irrespective of nationality, culture or creed;  one comes across a person who stands out as a champion of freedom and justice for the individual.  The American civil rights activist, Dr Dorothy Height was such a person.  President Obama has paid fulsome tribute to her.  See White House (Obama meets with Dorothy Height) and President Obama's address at her funeral service.

The caged bird sings with a fearful trill
of things unknown but longed for still
and his tune is heard on the distant hill
for the caged bird sings of freedom.

Wednesday 28 April 2010

Blair Peach: "A matter of deep regret"

It has taken 31 years for detailed information relating to the death of Blair Peach (on 24th April 1979) to be placed in the public domain.  The Metropolitan Police website contains a statement and there are links to more detailed documents.  See also The Independent 28th April.

Blair Peach was an "anti-racism" campaigner who opposed a National Front March through Southall.  The Home Secretary [Mr (later Lord) Merlyn Rees] did not act to prevent the march even though there was massive objection to it.  Even at the time, the policing of this event raised many allegations of police officers using excessive force.  It appears that 14 witnesses claimed to have a seen a Police Officer strike Blair Peach and there was no other evidence to suggest how he came by his injury from which he died.  Nevertheless, politicians and the media generally took the stance that the Police acted properly.

It would appear that investigations are now over and that it is highly unlikely that prosecutions will be brought.  The Metropolitan Police Commissioner says it is a "matter of deep regret" and that it "reflects the way Policing was rather than is".  It would be a massive understatement to say that many people will be wondering whether some things have really altered all that much - see, for example, The Guardian 28th April.  Nevertheless, the publication of the reports ought to be welcomed as a small step toward the achievement of that elusive and  indefinable but necessary concept of "Justice".

See also INQUEST and DKRenton.
Also London Evening Standard 28th April - Yasmin Alibhai-Brown.

Tuesday 27 April 2010


It has been interesting looking around the various blogs and there is obviously considerable comment relating to electoral issues.  Perhaps the main one relates to the possibilities if there is a so-called "hung parliament" - that is to say, a House of Commons in which no single party enjoys an overall majority.   In February 2010, the Cabinet Secretary (Sir Gus O'Donnell) gave evidence to the Justice Select Committee on the constitutional process following a General Election.  He asked the committee to consider a draft document setting out election rules and processes - see Chapter 6 "Elections and Government formation".  It would appear that this draft document has not been subjected to extensive consultation (e.g. with constitutional law experts or, for that matter, with the general, public) and it is hardly surprising that some are questioning the advice which it gives in relation to a "hung parliament".  Particularly trenchant criticism may be seen via the website of "Democratic Audit".  Some serious questions are raised which the reader will need to assess.  Further material may be accessed at UCL.  See also Justice Select Committee 5th report of session 2009-10- "Constitutional processes following a general election".

A further topic of some interest relates to electoral law.  This subject has an extensive history.  Electoral law is (basically) aimed at ensuring that elections are free and fair.  They have not always been (see Great Reform Act 1832) and there have been some concerns raised over the increase, since 2001, in the use of postal voting.  The Representation of the People Act 1983 contains a number of "electoral offences": bribery; treating and undue influence.  Instances of these offences have been thankfully rare in recent times.  Interestingly, even when they occur, it would seem that the Crown Prosecution Service (CPS) will consider a number of factors before actually instituting a prosecution. The 1983 (Part III) also contains a process by which an election may be challenged by way of a parliamentary election petition in the High Court.

The right to vote is a precious thing which we must be vigilant to protect- see Telegraph 17th March 2010.

Monday 26 April 2010

Expenses Claim MPs: Pre-Trial hearing

In the Crown Court, there is often a need for either preparatory or pre-trial rulings.  In either case, under the Criminal Procedure and Investigations Act 1996, there are strict reporting restrictions .  Such restrictions are thought necessary to ensure a fair trial.  The MPs charged over their expense claims will almost certainly benefit from these restrictions in that the hearing scheduled for 27th and 28th May (before Saunders J) will not be reported.  Under the Act the judge may decline to impose reporting restrictions or may impose them to a specified extent.   Therefore, the accused men are being treated according to proper pre-trial procedure laid down by law.  Certain appeal rights exist so it may be that this case will not actually be tried until late 2010.

Saturday 24 April 2010

Youth Court Trial

Persons under age 18 are normally tried in the Youth Courts which are based in Magistrates' Courts throughout England and Wales.  Magistrates have to be specifically authorised to sit in the youth court and the authorisation is achieved by undertaking additional specialist training.  However, where the offence charged is "grave" then trial would be in the Crown Court.

Grave crimes are those offences carrying terms exceeding 14 years for adults or sexual assault or child sex offences.  Before the case is committed to Crown Court there must be a real possibility that a custodial sentence in excess of 2 years would be imposed.

Historically, rape was never tried in youth courts but nowadays certain rape cases may be tried in the Youth Court.  A protocol issued in November 2007 provided that such cases should be heard by a Circuit Judge authorised to try serious sexual offences.  The judge would sit as a District Judge (Magistrates' Courts).  However, the 2007 protocol did not extend beyond rape to other serious sewxual offences.

It now appears that a number of District Judges (Magistrates' Courts) have been trained to deal with these serious cases.  Under a more recent protocol (replacing the one of 2007) such cases would be listed before an authorised DJ(MC) who would first decide whether the case came within the grave crime provisions.  If the decision is to retain the case then it would be tried by the authorised DJ(MC) though the possibility remains of some cases being tried by any other DJ(MC) or a Youth Court Bench.

One wonders whether this "single judge" form of trial is entirely appropriate given the enormous seriousness of conviction for such offences.  Would this be (yet another) example of where there might be a bench chaired by the authorised DJ(MC) but sitting with two experienced Youth Justices?  As things stand, English criminal procedure seems to be moving inexorably to single judge trial.


A glance at house ownership: what do we actually own?

English Land Law is a fascinating legal topic though it is frequently the bane of the law student's life.  Given the economic importance of land, there is a long line of legal development since (at least) the Norman Conquest of 1066.  People will often say - "I have bought a house" - but it is worth reflecting on what precisely, in law, they have bought. Only the Crown actually "owns" the land and the rights of others are fixed by the type of "estate" and "tenure" which they have.

Alan bought a detached "freehold" house (Freeacre) in Birmingham in 1965.   He is now in his 70s and wishes to "downsize" and has found a small cottage in the Cotswolds where he hopes to spend his remaining years.

In 1965, Alan employed local solicitors to do the conveyancing for him.  They had properly investigated the title to Freeacre and it was conveyed to Alan.  There were title deeds.  In law, what was conveyed to Alan was "a legal estate" in the land referred to as a "fee simple absolute in possession".  This gave Alan the right to live at Freeacre and others could inherit the estate from Alan.  [This is where the importance of making a valid will comes in.  Without such a will the rules of "intestacy" would apply].

Another technical aspect of landholding is "tenure".   Historically, this originated in the "feudal system".  It was of major importance given that it was possible to bind landholders ("tenants") to perform certain duties or services.  Occasionally, such "incidents" of tenure are still found.  Today, the most common form of tenure is known as "socage".  The fact that land is held on a "tenure" can still have some practical consquences but they need not concern us here.  [The Law Commission has deferred work on what it referred to as "Feudal Land Law" until the 11th programme of reform].

The "title deeds" were the documents which demonstrated Alan's rights.  This is known as "unregistered title".   In a process which has been on-going for many years, the unregistered system is being phased out and replaced by a system of "registered title" in which the State guarantees a person's title to land.  [Compulsory registration came to Birmingham in 1966].  Suppose Alan sells Freeacre to Brian.  Alan will prove his entitlement to sell and when the title is conveyed to Brian it will be "registered" with the land registry.  Thereafter the title deeds become redundant since what matters will be the entry on the Land Register.  About 70% of land in England is now subject to registered title and the Land Registry has been trying to persuade people with unregistered title to register voluntarily rather than await a transfer of title - e.g. by sale or by will etc.

See - History of Land Registration
Registered and Unregistered title

A lurking sense of unease

In EH v London Borough of |Greenwich [2010] EWCA Civ 344 - Lord Justice Wall (now President of the Family Division) - engaged in trenchant criticism of social services in Greenwich (and perhaps, indirectly, on a wider basis).   Wall LJ stated that he was not engaging in "gratuitous criticism" of social workers but stated that the local authority in the case had acted in a way which was inimical to the ethos of the Children Act 1989 and wholly contrary to good practice in care proceedings.  It is reported that the British Association of Social Workers have expressed "astonishment" at the criticism - see Family Law Week.

As the "fall-out" from the Baby -P case continues, it was with a "lurking sense of unease" that Foskett J decided against Sharon Shoesmith - see the lengthy full judgment here.  Of course, it is right that dismissal has to be an option where officials are, after fair and proper investigation, found wanting in the performance of their duties.  However, the sense of unease ought to be widely shared by fair-minded people who will see a great deal for concern in the processes used to dismiss Shoesmith and also in the subsequent handling of the case.  It will be no surprise if this "sense of unease" manifests itself by way of the unintended consequence of fewer people taking up child protection work.  [See Baby P- just what is going on?].  Scrupulous fairness must be followed or that unintended consequence may become a certainty.

See "Sharon Shoesmith and the crisis in child protection" - Patrick Butler - The Guardian 23rd April 2010.  See also Family Law Week.

Thursday 22 April 2010

Reviewing Sex Offender Notification Requirements: Supreme Court decision

Under the Sexual Offences Act 2003 s.82, a person sentenced to 30 months imprisonment or more for a sexual offence has a lifelong "notification requirement".  In R (on the application of F) v Home Secretary [2010] UKSC 17, the Supreme Court has issued a declaration of incompatibility, finding this to be a breach of the person's rights under Article 8 of the European Convention on Human Rights.  The court considered that there ought to be a process for the notification requirement to be reviewed if a person is able to show that they are no longer a risk.  Under the scheme of the Human Rights Act 1998, it is now for Ministers/Parliament to determine whether to amend the law.

Wednesday 21 April 2010

An outcome which raises concern

Suppose that the issue in a case is identification.  There are 2 identification parades though the defendant is only "lined up" in one of them.  At neither parade does the prosecution witness "pick out" the defendant and actually picks out others (including a Police "stand in").  This material is not revealed to the defendant as part of the pre-trial disclosure required by law.  Has the defendant's right to a fair trial (Article 6) been breached?  You might think that the answer was YES.  However, it seems that the real test is whether, in all the circumstances of the trial, there was a real possibility that the jury would have reached a different verdict had the disclosure been made.  So said the Supreme Court of the U.K. in McInnes v H.M. Advocate [2010] UKSC7.  Although this appeal came from Scotland, there is no particular reason to suppose that English courts would have a different view.  The decision appears to give appeal courts a free hand to dismiss any appeal no matter how outrageous the prosecution failure by simply substituting its own view of the case for that of a jury.

Disruption to Civil Aviation

The "airspace closure" due to the volcanic activity in Iceland is dominating the news.  The Daily Telegraph (21st April 2010) asked why was the ban ever imposed.  They said that Ministers were put under pressure to explain why British flights were grounded after most European airports re-opened.  Of course, as an initial reaction, the airspace closure must have been the correct decision since safety has to be paramount.  However, it seems that the British authorities have lagged behind Europe in terms of on-going assessment of the situation.  The closure decision will have resulted in enormous financial loss to airlines apart from loss to individuals who have been stranded at airports across Europe and the wider world.  Flight Global reports that the trade body IATA is "furious" at the European response which, it is claimed, was based on incomplete or unreliable information.

The regulation of civil aviation is a complex matter.  There is the International Civil Aviation Authority (ICAO) which sets basic international standards and practises.  The European Union has a Transport Commissioner.  Numerous other agencies also play a role (e.g. The European Aviation Safety Agency (EASA); Eurocontrol) as well as national governments (Dept. of Transport), national regulatory bodies (e.g. Civil Aviation Authority) and providers of services such as National Air Traffic Services.  It is unlikely that a decision to close down national airspace could be lawfully taken at a lower level than national government.

The pity is that the "blame culture" is now swinging into action.  Decisions, based on safety, have been taken in good faith and the volcanic activity still continues and, for all we know, may worsen.  The important thing for now is that those responsible make safety assessments on whatever evidence is available and not be influenced by financial and political considerations.  There will no doubt be a lot of "lessons to be learned" but they will need to await another and calmer day.

See also London Volcanic Ash Advisory CentreFor those interested in the technology have a good look around this website.  Interestingly, Switzerland has been using a laser-based technology to monitor for volcanic ash.  The Airbus website carries very useful information for aircrew. There are over 1500 "active" volcanoes on earth.

Meteorological Office response to Civil Aviation decision to change the engine tolerance levels for the safe levels of ash ingestion into aircraft engines - Met. Office 21st April.

The Times 21st April - Lord Adonis states that the airlines did not force the government's arm.

Addendum 22nd April:  It appears that the "budget airline" Ryanair is refusing to pay the costs of passengers who were stranded - see The Guardian 22nd April.  However, later in the day, there was something of a reversal of attitude - see The Guardian 22nd April.

Tuesday 20 April 2010

Convicting solely or decisively on hearsay evidence: Strasbourg and London lock horns.

In The Guardian 7th April, Afua Hirsch looked at a speech made by the Lord Chief Justice (Lord Judge) at a Judicial Studies Board event.  Lord Judge made many interesting observations.  The speech prompted Hirsch to observe that the European Court of Human Rights exists exclusively to protect the Convention rights of persons. and that we are losing sight of this important point.  She then refers to a situation in which the English judiciary and Strasbourg have "locked horns."

In English criminal procedure, the admissibility of hearsay evidence is now based on the Criminal Justice Act 2003 which is regarded as a complete code on the topic

Should a person be convicted of a criminal offence where the conviction is based "solely or decisively" on evidence which is hearsay?  In such cases, the defendant will be denied an opportunity to challenge the evidence in court - e.g. by cross-examination.  This is a very difficult issue since witnesses may not be able to testify for a number of reasons - e.g. the maker of a statement is deceased or afraid to attend a trial.  If the "out-of-court" (i.e. hearsay) statements of such witnesses could not be used then a guilty person might escape a merited criminal conviction perhaps for some very serious offence.  However, defendants have a right to a fair trial and the use of such evidence might contravene that right. The English judiciary and the European Court of Human Rights have differed markedly on this subject.  Is the European Convention to be a trump card in such situations?

In Al-Khawaja and Tahery v UK (January 2009) a Chamber of the European Court held that convictions based "solely or decisively" on hearsay evidence breached the right to a fair trial (Article 6 of the Convention).  In R v Horncastle, Marquis, Graham and Carter [2009] EWCA Crim 964 the English Court of Appeal upheld some convictions even though they were based mainly on hearsay and rejected the decision in Al-Khawaja.  The Supreme Court of the U.K. subsequently agreed with the Court of Appeal - see judgment.  The English judiciary considers that the 2003 Act scheme contains adequate safeguards for the accused so that a "sole of decisive" rule is not needed.

Meanwhile, in April 2009, the British government had requested the European Court to refer the case of Al-Khawaja to the Grand Chamber and, in June 2009, the Panel of the Grand chamber decided to defer consideration of the case until the U.K. Supreme Court had given judgment.  Consequently, the Grand Chamber will hear the case in May 2010.

In some quarters this disagreement is being presented as a clash between English common law and European justice.  I think that view is a misrepresentation given that, traditionally, English common law leaned against hearsay evidence and placed considerable emphasis on cross-examination as the best method of testing the evidence of a witness.  However, hearsay has come to be used increasingly as a result of statute law - (now the CJA 2003) - and the move away from basic common law principles has accelerated.  Also, there is now greater emphasis on securing convictions.  The phrase - (attributed to Blackstone) - "... it is better that ten guilty persons escape than that one innocent suffer ..." - carries little weight today.

The Supreme Court's judgment is a detailed analysis of the Strasbourg case law and they give cogent reasons why a "sole or decisive" test is problematic for English criminal trials - (see paragraphs 89-91 of the Supreme Court judgment).  Also, the Human Rights Act 1998 s.2 requires the English courts to "take into account" Strasbourg case law but does not insist that it be followed even if it normally is.

Perhaps the real clash here is nothing to do with the common law as such.  It is a clash between the British trend to rebalance the criminal justice system against the offender and the basic principles of a fair trial set out in the European Convention.   The eventual outcome of this "clash" will be interesting.

Monday 19 April 2010

No more "Law Lords" or "Law Ladies"

Sir John Dyson, the 12th Justice of the Supreme Court , will not be elevated to the peerage.  All the others are peers because they had sat previously in the Appellate Committee of the House of Lords.  Some might see this as either unnecessary or even harsh but the Supreme Court was intended to be a break from the past and, in particular, a break from the involvement of the judiciary in parliament.  See Solicitors Journal.  It is interesting that so much emphasis was placed on the so-called "separation of powers" as an argument for creating the Supreme Court when the legislature itself is effectively dominated by the "executive". 

Should we have a written constitution? Number 2.

On 3rd February, Law and Lawyers asked whether it was desirable to have a written constitution - (view earlier post).  It is worth revisiting that question given that the General Election campaign is now in full swing.  This is a campaign which seems to be concentrating far too much on the personalities of the main party leaders and how they came across in the recent heavily stage-managed television debate.  Important issues seem to be ignored in this personality contest which one writer has referred to as "Britain's Got Politics".

Whilst not entirely in the forefront of people's minds, various ideas of constitutional reform are hidden away in the party manifestos.  The Labour Party refers to changing how the House of Commons is elected.  They offer an "Alternative Vote" (AV) system which would have to be agreed by the people at a referendum.  They also favour further reform of the House of Lords which would, after a considerable period, become wholly elected.  Further, they state that they will have an all party commission to chart the way to a written constitution though their manifesto appears to fall short of a definite commitment to such a constitution.  The Liberal Democrats state that they would - "Introduce a written constitution. We would give people the power to determine this constitution in a citizens’ convention, subject to final approval in a referendum".  The Liberals also favour a fully elected House of Lords.  The Conservative Party does not promise a written constitution but does promise a "Sovereignty Bill" and replacement of the Human Rights Act 1998 with a U.K. Bill of Rights.  They favour a mainly elected second chamber to replace the current House of Lords.

It therefore seems that, however the next government is formed, "the constitution" will be on the agenda.

Preparing a written constitution for the U.K. will not be an easy task and, if the task is to be undertaken at all, then somehow its preparation must involve the people and, I would add, particularly young people.  The fundamental purpose of a written constitution is that the constitution becomes the fundamental law of the nation.  Very important issues must therefore be addressed such as "where does sovereignty lie".

At present, British sovereignty rests with Parliament which, so it is claimed, is "supreme" in that it may make (or unmake) any law whatsoever.  Such a position is the very opposite of what a written constitution would really require since a written constitution would need to make Parliament itself subject to the ground-rules of the constitution itself.  Without such a basic shift of power, any written constitution would be of very limited value and some might argue pointless.

For a recent and well-argued case for a written constitution I would recommend a reading of "Repairing British Politics: A Blueprint for Constitutional Change" - Richard Gordon QC - Hart Publishing, 2010.

Some will argue that the very doctrine of the Supremacy of Parliament prevents the creation of a constitution in which Parliament ceases to be supreme since whatever constitution is enacted can be unenacted by a later Parliament.  This view is a counsel of despair.  The Supremacy of Parliament is a power-sustaining device which, as Richard Gordon puts it, "... has never received popular endorsement."  It has never been voted for.  If a written constitution were to be adopted by popular referendum, the Supremacy of Parliament could be abandoned in favour of a constitution which also bound parliament.  The Supremacy of Parliament is also seen by many as actually amounting to a "supremacy of the executive" given that the executive controls much of parliament's business - in effect, the "elective dictatorship" which the late Lord Hailsham warned about.

Of course, any written constitution requires interpretation and this is why written constitutions tend to increase the role (some would argue "power") of the senior judiciary.  In the United States there are serious debates about the role of the Supreme Court Justices in interpreting their constitution.  Does the constitution permit an "activist" approach or only an "originalist" approach.  The advocates of these approaches are Justices Stephen Breyer and Antonin Scalia.  A flavour of their debate may be seen at ACS Law.  In essence, the activist would seek to apply the words of a constitution to new situations as they arise whereas the originalist would argue that the constitution says nothing about the new situation and it was therefore a matter for the legislature and not the judges.

Are we really willing to give up the idea of parliamentary sovereignty in favour of a written constitution which limits the power of parliament and the executive and which probably increases the role of the judges as interpreters of the constitution?

Addendum: 20th April: Plans to reform House of Lords leaked - see Current Awareness.

Addendum: 21st April: Is first-past-the-post on its last legs - Telegraph 21st April - Vernon Bogdanor

Friday 16 April 2010

Is all legislation passed since 2000 unlawful ?

The perhaps surprising proposition that all legislation passed since 2000 is unlawful is seriously argued by the Britannia Rules blog.  The argument is that the House of Lords Act 1999 did not amend the Letters Patent by which peers were appointed.  At this stage, I offer the link without further comment other than to say that, if it was to be legally correct, the consquences would be massive.

The creation of a peerage and the law of peerages is complex but most peerages have been created under the Royal Prerogative by issuing Letters Patent- see Bebretts.  [Also, FOIA and here].

The Eyjafjallajokull glacier: volcanic activity in Iceland

Volcanaic activity in Iceland has resulted in a decision to "ground" most flights in/over U.K. airspace.  The activity is associated with the Eyjafjallajokull glacier.  The rights of many airline passengers affected by this could depend on the rather convoluted EU Regulation 261/2004EU Regulations are binding in the domestic law of EU Member States and do not require specific national legislation to implement them.  Further information is available via Europa and CAA.  What could happen to an aircraft caught by volcanic ash was demonstrated in 1982 by the Galunggung incident which did not end in disaster since it became possible (at a late stage) to regain some engine power.  See also KLM Flight 867 (Tokyo to Anchorage).

Thursday 15 April 2010

Restorative Justice ???

The Labour Party manifesto promises a "Restorative Justice Act" but, unfortunately, does not provide us with any detailed proposals.

Where ‘traditional justice’ is about punishing offenders for committing offences against the state, restorative justice is about offenders making amends directly to the people or organisations they have harmed.  The emphasis is therefore on repairing harm caused by crime.  It is claimed that restorative justice:
  • gives victims a greater voice in the criminal justice system
  • allows victims to receive an explanation and more meaningful reparation from offenders
  • makes offenders accountable by allowing them to take responsibility for their actions
  • builds community confidence that offenders are making amends for their wrong doing.
Is this an idea worth pursuing?  Here is the Home Office viewpoint.  See also Restorative Justice.  Some people will probably dismiss this out of hand as yet another criminal justice gimmick which amounts to going soft on criminals.  However, before doing so, it is worth noting that RJ is succesfully used in many countries.  As an example, see how well developed RJ is in New Zealand and also see Restorative Justice Online.

Wednesday 14 April 2010

Referenda: is there a sudden conversion to them?

"Hold a referendum" is a frequently heard cry.  In the United Kingdom there has only ever been one national referendum.  It was held in 1975 to assess whether U.K. membership of what was then the European Economic Community (or "Common Market") had public support.  In the event, 67% (of a 65% turnout) supported membership.

No referendum was held prior to accession to the original Treaties of Rome.  The Conservative government (with Edward Heath as Prime Minister) signed up to the Treaties and the U.K. acceded to the Treaties by the European Communities Act 1972 which came into legal force on 1st January 1973.

The Labour Manifesto in 2005 promised the public a referendum on what was then referred to as the "European Constitution" but no referendum was ever held since the government argued that the Lisbon Treaty was not the same document at all.  Lisbon was presented by Lord Mandelson as a mere "tidying up exercise".  A more risible and patronising argument you would travel far to find.  Perhaps this shows that British politicians will only play lip-service to the idea of holding referenda.

The 2010 election manifestos of the 3 main parties are now available.  Each refers to holding referendums in a number of policy areas.

Labour: Alternative Voting to the Commons; Open-list PR for a reformed House of Lords; Regional Mayors (with London-style powers); Law-making powers for the Welsh Assembly.  Labour say that they would not join the "Euro" without a referendum.  They promise an "All Party Commission" to consider a written constitution but do not mention a referendum.  [Always presuming that other Parties would participate in such a commission].

Conservative: Local referenda on local issues (if 5% of local population "sign up"); a referendum on greater powers for the Welsh Assembly; amend the European Communities Act 1972 so that referenda would be required prior to any further transfer of powers to the EU.  (They say they will never enter the "euro" and would seek to prevent any future government doing so without a referendum).

Liberal Democrats: Say they remain committed to an "in/out" referendum the next time a British government signs up for fundamental change in the relationship between the UK and ther EU.  [Quite a few "weasel words" there].   In principle they believe in joining the Euro but promise a referendum.  However, the conditions are not yet right for entry.  [Will they ever be?].  The LibDems wish to see a written constitution to be prepared by a "Citizen's Convention" and to be approved by a referendum.

North of the Border, the Scottish Nationalists are still consulting about the holding of a referendum on further deovolution of powers to the Scottish Parliament.  See Draft Referendum (Scotland) Bill.  They say that this will be an "advisory referendum" which appears to mean that it will not have legislative effect but would send a message to politicians both in Edinburgh and London.

Referenda appear to be a good means of assessing public opinion on important issues.  They would widen democratic participation.  Of course, it is perhaps inevitable that politicians will seek to control the topics they will permit a referendum on.  Would they have ever dared to hold one on the death penalty? (Note: the death penalty is now unlawful in Europe so the question cannot arise today but could have done in the past).  Would they ever dare hold one on whether to be in or out of the EU?  A further problem is that a referendum really requires the question to be straightforward even if the issue is not.  Consider what the situation might be if a draft written constitution were presented - e.g. "Do you approve the constitution attached to this Ballot paper in its entirety?  Yes or No."  The problem would be that people would like parts of the proposal and dislike others.  How then do they determine vote?  Presumably, if you feel strongly enough against one aspect then you would have to vote against the entirety.

At election time, we see something of a conversion to the idea of holding referenda but will they happen?  I wonder why I am not holding my breath?

The Manifestos:   Labour ......   Conservative .....   Liberal Democrat

Tuesday 13 April 2010

MPs to get legal aid.

It has been announced that the M.P.s charged in relation to their expenses claim will receive legal aid to pay for their defence - see Daily Mail 13th April.  Law and Lawyers has posted on this case before - see here.  Certain media headlines stated that M.P.s who claim to be "above the law" receive legal aid.  That is incorrect since the Bill of Rights and Parliamentary Privilege are part of the law.

The cuts in legal aid for criminal cases brought in by the Labour Government are severe.  Legal Representation in Magistrates' Courts is only provided if the defendant passes a means test AND the case passes the interests of justice test.  The introduction of means testing in Magistrates' Courts took place in October 2006 and was a reversal of government policy which has resulted in many having to appear before magistrates unrepresented.  In the first half of 2010, means testing is being introduced into the Crown Court.   Strictly speaking there is only ONE Crown Court for England and Wales though it sits in different locations but means testing is being introduced according to a "roll out" plan which may be seen at Legal Services Commission.  It will not apply to London until 28th June.  That is convenient for these MPs who are being tried by the Crown Court sitting at Southwark.  This method of introducing means testing appears to be particularly unfair.

Saturday 10 April 2010

Formal Powers of the Crown: New Acts of Parliament: General Election

Tuesday 6th April: Gordon Brown went to Buckingham Palace and asked H.M. The Queen to Dissolve  parliament.  She duly obliged.  A number of Bills were then passed into law as part of the so-called "wash up".  Each of those Bills quickly passed through any remaining stages in parliament and "Royal Assent" was formally given.  In practice, constitutional convention dictates that the Queen does not refuse a request to dissolve parliament or to give royal assent to a bill.

Some important legislation was passed as part of the "wash up" including:

Constitutional Reform and Governance Act 2010
Crime and Security Act 2010
Children Schools and Families Act 2010 - but see The Independent for what has been (controversially) left out of this Act
Bribery Act 2010
Digital Economy Act 2010 - see here
Flood and Water Management Act 2010- see also Pitt review
Energy Act 2010
Equality Act 2010

Some of these Acts are likely to have lasting repercussions and the "wash up" process has, in some instances, absolutely minimised parliamentary scrutiny of the legislation.  It will not be surprising if some of this new law  turns out to be very problematical.  The Acts make some important constitutional changes; deal with the controversial issue of retention of DNA profiles; aim to improve the U.K.'s "resilience" to flooding (which caused millions of pounds of damage in 2007); and the Digital Economy Act has been particularly attacked as handing the government the power to block internet sites that are "likely to be used for or in connection with an activity that infringes copyright."  See Out-Law.Com - "The legislative farce of the Digital Economy Bill".  A further problem is that important provisions relating to Personal, Social, Health and Economic (PSHE) Education were included in the Children, Schools and Families Bill but were dropped to enable the remainder of the Act to pass.  The proposals, which were controversial in some quarters, would have covered a considerable range of matters such as (a) alcohol, tobacco and other drugs; (b) emotional health and well-being; (c) sex and relationships; (d) nutrition and physical activity; (e) personal finance; (f) individual safety; (g) careers, business and economics.

The general election campaign is now getting into full flow and Political Party Manifestos will be published over the next week.  Interestingly, only one incumbent political party in the last 30 years has lost an election - (John Major in 1997).  The Labour Party enjoys a statistical advantage since voting for the House of Commons is based on "seats".  There is a view that the outcome of the election might be a "hung parliament" - that is a House of Commons in which no party has an outright majority of seats.  If that arises, there may be some difficult steps to be taken in the formation of the next government.  In those processes the Queen has a role.  Hopefully, she would seek to exercise her powers so as to reflect as well as possible the voting of the people.  Perhaps to allow for "negotiations" between the parties, the new Parliament will not meet until 20th May.

Friday 2 April 2010

Baby P - just what is going on?

Baby-P died of his injuries on 3rd August 2007.  This appalling case dominated the headlines in late 2008 - see e.g. The Independent 18th November 2008.  The media spotlight fell particularly on Haringey Social Services and on Sharon Shoesmith who headed the department.  She was dismissed and is now challenging that dismissal in the courts - see Telegraph 7th October 2009.  It appears that OFSTED reports were amended - allegedly under pressure from Children's Minister (or his officials) - to remove criticism of the NHS and the Police and to concentrate solely or mainly on the failings of social services.  The Times 2nd April carries the story and in a further article sets out how the criticism of the NHS and the Police was removed.

It is often convenient to blame social services in these appalling cases and it is clear enough that there were serious failings in relation to Baby-P.    As those experienced with "child care" cases know all too well, local authority social services departments usually have high caseloads.  Money is tight and they frequently have a limited number of experienced social workers.  Also, social services are not the only agency which can be involved.  For instance, the Police and medical personnel are often involved with problem families.

What is needed here is a thorough and honest assessment of the roles played by everyone in this tragedy including the Department for Children, Schools and Families and its Minister (Mr. Ed Balls).  The memory of a little child who died of shocking injuries deserves no less.  The impression of scapegoating now exists and must be properly allayed.

Those directly responsible for Baby-Ps neglect and injuries are now serving imprisonment - BBC.  

Addendum 3rd April:  The Guardian reported that, according to an e-mail revealed in court, Police were aware that Jason Owens (one of those convicted) was living with Baby-P's mother.  Also, Ed Balls (Children's Minister) denied any involvement in the preparation of the report which he used as the reason to dismiss Shoesmith - see here.

Thursday 1 April 2010

An Easter Miscellany

This week saw a 66 year old shopkeeper fined and "tagged" by Trafford Magistrates' Court.  She pleaded guilty to two offences under the Animal Welfare Act 2006 - sections 4 and 11 - see Daily Mail - and the commentator Richard Littlejohn asserts that we are drowning in "regulations and jobsworths" and that the wrong people are being appointed as magistrates - see here.  (I disagree with the latter remark).  Magistrates use sentencing guidelines and the guidance for the section 4 offence may be seen at page 22 of this document

A rather more serious case was that of Police Sergeant Smellie who stood trial for assaulting a woman at the G20 protests in 2009.  The case was heard by a District Judge (Magistrates' Court) and he was acquitted on the basis of "self defence".  The Guardian carried an article by George Monbiot containing some trenchant criticism of this verdict.  It is to be noted that the female victim did not give evidence at the hearing.  "Self-defence", as is often pointed out, is not strictly a "defence" but it offers a justification for the defendant's conduct.  The defendant has to establish a basis that he acted in "self-defence" and it is then for the prosecution to show, beyond a reasonable doubt, that he did not act in self-defence.  The "perceptions" of the defendant at the time of the incident are also very relevant since he is judged according to the circumstances which he believed existed: R v Gladstone Williams 1984.  The amount of force used must have been "reasonable" in the circumstances.  That, in broad terms, is the law.  Having said this, I have some sympathy with the view of George Monbiot that Police Officers should not be tried by single judges.  There is an essential need for the public to see that the trial process is fair to all parties and for them to have confidence in it.  Monbiot argues that a jury should be used but juries are only used in the Crown Court.  As the law stands, the choice of court depends on the offence charged and, if the offence is "either-way", on the seriousness of the offence.  One possible alternative to a judge sitting alone might have been a judge sitting with two experienced lay magistrates (JPs) - a format which was successfully used here.

The various blogs have been busy this week. Jack of Kent has the interesting libel case of BCA v Singh [2010] EWCA Civ 350 which is concerned with "honest belief" and "fair comment".  Jack's blog has shown particular interest in this case - have a look.  The case has very important implications which are discussed here 

Head of Legal has argued that now is not the time to go for a written constitution.  Of Interest to some lawyers has followed the machinations (involving Jack Straw) over the appointment of the Head of the High Court's Family Division and, in the end, Sir Nicholas Wall has been appointed.  The Magistrates' Blog has picked up on the appointment of a Victim's Commissioner and also on Allen v United Kingdom where the European Court of Human Rights has ruled that a defendant's rights under Article 5 were breached when a judge refused her request to attend a hearing about her bail.  There is a very outspoken opinion by Judge Bonello.   Charon QC - a most interesting and entertaining blog - has launched an excellent new publication- Insite Law Newswire - 1st Edition.

Easter now beckons and the garden needs tidying.  Have a good one and let's hope the weather picks up.

Addendum 1st May 2010:  The lady "tagged" for the "goldfish" offence has had her appeal against sentence heard.  The sentence was changed, very sensibly, to a conditional discharge.   See Manchester Evening News.