Friday 30 December 2011

The Family Justice Review (2) - Main recommendations

In November 2011 the Family Justice Review, led by David Norgrove, issued its final report - "Family Justice Review: Final Report."   It is a lengthy and detailed report and builds upon an Interim Report issued earlier this year.  The Review was conducted against the background of certain "guiding principles" set out by the commissioning Ministers - please see Part 1 of this post.

: The Recommendations :

The recommendations are set out at pages 26 to 36 of the report.  For the reasoning underlying particular recommendations it is necessary to look at the subsequent Chapters.  What follows is a reasonably detailed look at the main recommendations.

The child’s voice: pages 45-49 - the report seeks to ensure that children’s interests are truly central to the operation of the family justice system.  Thus, children should be given age appropriate information to explain what is happening when they are involved in public and private law cases and they should be supported so that they are able to make their views known.  The Family Justice Service (recommended by the Review) would take the lead in this area. 
The UK Government should

Thursday 29 December 2011

Rights of Children

Farndon-Holt Bridge
An old stone bridge crosses the River Dee and links the English village of Farndon with the Welsh village of Holt.  For many years, the historic and sinuous boundary between England and Wales was of little practical interest to most lawyers who practised the Law of England and Wales.  (The Bar had, and still has, the Wales and Chester Circuit).  Since the enactment of the Government of Wales Acts 1998 and 2006 things have changed. There is an elected National Assembly for Wales (Cynulliad Cenedlaethol Cymru) based in Cardiff and it is empowered to legislate within certain devolved areas - see Cabinet Office.  As a result, there are now some marked differences between the law in England and that in Wales.

In 1989, the United Kingdom signed the United Nations Covenant on the Rights of the Child.   This came into force on 2nd September 1990 and binds the United Kingdom in international law.  The Convention has not been incorporated by statute into English law.  However, it could be referred to

Wednesday 28 December 2011

The Family Justice Review (1) - Overview and Terms of Reference

In November 2011 the Family Justice Review, led by David Norgrove, issued its final report - "Family Justice Review: Final Report."   The report extends to 228 pages.  This was the second major report of the year relating to family law and justice; the other report being that by Professor Eileen Munro - see Law and Lawyers 10th May 2011 Munro Review on Child Protection.

The Family Justice Review was commissioned by the Secretaries of State for Justice and Education and also by the Welsh government Minister for Health and Social Services. The Terms of Reference of the Review are set out at Annex A to the report and are considered in this post (below).  Interestingly, the Terms of reference refer to certain "guiding principles."   These are now considered with my comments in brackets ( ).

The "Guiding Principles" as decreed by Ministers:

The interests of the child should be paramount in any decision affecting them.  (This reflects existing law  - Children Act 1989 s.1. and it is generally accepted that the interests of the child should remain central to decisions.  The present law gives little weight to others involved - e.g. grandparents etc.  For an interesting viewpoint, see

Tuesday 27 December 2011

Family Law: contact orders - a case raising novel issues

The 500th Post on this Blog

When the significant adults in a child's life are in conflict, the child can suffer emotional harm.  Disputes arise about matters such as where a child shall live ("residence") or whether the child should have contact with the other adult and, if so, what form that contact should take.   Where agreement is not possible between the disputing adults, the courts may be called upon to make orders under Part II of the Children Act 1989- e.g. residence order, contact order etc.  When such orders are made, it is far from unusual for one or even all of the parties to dislike the terms of the order but the fact remains that the order is a default position defined by the court which was made necessary by the intransigence of the adults.

In making the order, the court will have applied the fundamental rules set out in section 1 of the Children Act - namely that the child's welfare is the court's paramount consideration ("Welfare Principle") and that no order should be made unless the court considers that doing so would be better for the child than making no order at all ("No order principle").

The recent case of  Re P and L (Minors) [2011] EWHC 3431 (Fam) was a dispute about

Sunday 25 December 2011

Twelve Days of Christmas - my selection

Here are some offerings for the Twelve Days of Christmas (or, for the mathematically inclined - this):

1.  Christmas Day - "For Unto Us is Born a Child" - Huddersfield Choral with the Liverpool Philharmonic Orchestra conducted by Malcolm Sargent.  This fine performance was back in 1946.  Then there was His Majesty's speech on 25th December 1939 - "I said to the man who stood at the gate of the year ..."

2.  Boxing Day - "The Wexford Carol" - there are many versions of this lovely old carol - I like this and this

3.  27th December - A Denning judgment - dedicated to all those modern judges who seem to lack the time to keep their judgments short and

Friday 23 December 2011

Habeas Corpus No. 2

A writ of habeas corpus was issued by the Court of Appeal in the case of Yunus Rahmatullah - Law and Lawyers 14th December 2011.   It now appears that the British Government has asked the United States to return him to British custody but the government has been granted further time (18th January) to obtain his production - see Telegraph 21st December 2011.  It is not yet clear whether the US will comply with this request though Memoranda of Understanding (MoU) existed between the UK and US governments relating to Transfer of Prisoners of War, Civilian Internees and Civilian Detainees.  Details of the MOU are in the Court of Appeal judgment.

English Courts are careful when issuing writs and orders since they have to be enforceable.  Consequently, it is essential that those to whom the writ or order is directed are basically able to comply with it.   The primary purpose of the habeas corpus writ is the physical production of the person concerned ('the applicant') before the court - (see Court of Appeal judgment at para 26).

The effectiveness of the

Thursday 22 December 2011

Winter Solstice News and Views


The winter solstice has now passed and the days will lengthen.  Over the last few weeks there has been a considerable amount of legal news and the Michaelmas Term has been fascinating.  The following is a selection.

The Court of Appeal: Criminal Division Annual Report:  has been released - see here (pdf 40 pages).   This is a highly interesting and useful document which includes Chapter 3 (Cases of note), Chapter 4 (Other types of appeal and Chapter 5 (Role of the Criminal Cases Review Commission).

Lord Chief Justice's Press Conference: was held on 6th December.   A transcript of the conference is available.  Questions covered a considerable range.  His Lordship refused to comment about the legal aid bill since it was in the political arena and therefore "wiser to say nothing."  In response to a question relating to the effectiveness of the law of contempt of court, Lord Judge responded by saying it came down to what sort of jury system we want.  It has to be one in which the case is decided only on the basis of evidence presented in court and not material discovered by jurors undertaking their own internet research.  Questioning

Wednesday 21 December 2011

Lockerbie: 23 years ago today

Addendum:  The following links may be of interest: Lockerbiecase and Daily Mail 22nd December.


21st December 1988 was the day when Pan Am Flight 103 - a Boeing 747 en route from London Heathrow to New York - was destroyed by explosive devices which detonated as the aircraft, flying at 31,000ft (FL310) approached the small Scottish town of Lockerbie.  A great deal of information about this event may be read at Pan Am Flight 103 (Wikipedia).  In all 270 people were killed: 243 passengers, 16 aircrew and 11 persons on the ground in Lockerbie.

The Air Accident Investigation Branch (AAIB) conducted a through investigation into the causes of the accident and published their report in 1990.

Subsequently, a trial was held at Camp Zeist, Holland.  Scots criminal law applied.  Two men were accused: Abdelbaset Al Mohmed Al Megrahi and Al Amin Khalifa Fhimah.  The trial was conducted by three Scottish judges (Lords Sutherland, Coulsfield and Maclean) and was heard without a jury.  (Scots Law usually requires a jury of 15 in "solemn procedure").  The legal authority for this trial was a Statutory Instrument - The High Court of Justiciary (Procedure in the Netherlands)(United Nations) Order 1998.   This order, "nodded through" at Heathrow Airport by Her Majesty, simply dispensed with jury trial - see Article 5(3) of the Order.  Her Majesty was on her way to Brunei and a Privy Council meeting was held at Heathrow Airport on 16th September 1998.

The opinion of the three judges concluded

Tuesday 20 December 2011

Stories of the Day as thoughts turn to Christmas 2011

James Tissot - The Journey of the Magi
The Supreme Court:  Two new justices have been named.  They are the Scottish Judge Lord Reed and Lord Justice Carnwath.  Their appointments are consequent upon the death in June 2011 of Lord Rodger of Earlsferry (who also came from Scotland) and the pending retirement of Lord Brown of Eaton-under-Heywood.

2012 will see also see the retirement of Lord Phillips of Worth Matravers who is currently President of the court.  Lord Phillips announced that he would retire, slightly early, at the end of September 2012.

Dr. David Kelly:  In June 2011 the Attorney-General - Dominic Grieve QC - rejected calls for an inquest to be held into the death, in 2003, of scientist Dr David Kelly. A judicial review of this decision has also come out against the holding of an inquest - see BBC.  The Hutton Inquiry  was established to look into the circumstances surrounding the death of Dr David Kelly and Lord Hutton decided

Monday 19 December 2011

Fines ... all is not fine !!

The following appeared this morning on the estimable Crimeline.  I have added a little emphasis !  This is an outrageous public scandal:

"Fines collection

Amyas Morse, Comptroller and Auditor General, reported to Parliament that HM Courts Service, the body responsible for the collection of fines, confiscation orders and penalties imposed by the judiciary and police, has been unable to provide him with proper accounting records supporting those fines, confiscation orders and penalties.

This meant that he could not give an audit opinion on whether transactions and balances were complete, proper to this account and appropriately raised.

The report highlights how limitations in Libra, the case management IT system in use across magistrates’ courts, and similar systems have contributed towards  HM Courts Service’s inability to provide information at an individual transactions level to support the accounts.

Total outstanding debt in respect of fines, confiscation orders and penalties at the end of March 2011 according to the HM Courts Service is £1.9 billion, increased from £1.5 billion in the previous year, while only £457 million is recognised in the account as receivable. The difference of £1.4 billion represents management’s estimate of debt that is at risk.

The Courts Service

Sunday 18 December 2011

As the year draws to a close - farewell to "local justice"

Goole Magistrates' Court
During 2011, many Magistrates' Courts have closed under the government's hatchet-job on local justice.  These closures build on earlier cuts - all imposed under the mantras of "efficiency" and "economy."  The closures are all over the country and have the effect that the magistrates' court system will be concentrated on fewer but, usually, larger courts.  One result will be that those involved in cases may well be subjected to lengthy journeys, often with poor and reducing public transport, and the undoubted stress felt by witnesses will be increased.

A further effect, which is regrettable in my view, is that fewer people will be needed in the future to fill the important - but, sadly,  minimally appreciated - office of Justice of the Peace.  This will only serve to make the law even more remote from ordinary people.  Furthermore,

Friday 16 December 2011

An Employment Tribunal Award - huge compensation award

It is at Employment Tribunals where questions of unfair dismissal and unlawful discrimination at the workplace are heard.   The case of Dr. Eva Michalak v Mid Yorkshire NHS Trust and 14 other respondents  - (135 page judgment) - was decided at a tribunal in which sat in Leeds.  The case is a sorry tale and the final outcome is a large award of compensation.   The judgment on compensation is set out in a 44 page document - Dr E Michalak v Mid Yorkshire Hospitals NHS Trust and others.  Dr Michalak was awarded £7180 for unfair dismissal and £4,452,206.60p for unlawful discrimination on grounds of sex and race.  See The Telegraph 16th December - "Woman doctor wins £4.5m for being fired after having a baby."

In relation to the sum of almost £4.5m, the NHS Trust and 3 respondents (Dr David Dawson, Dr Colin White and Mrs Diane Nicholls - Human Resources Director at the Trust) are jointly and severally liable.  Clearly, the trust will have the largest pot of money and this is money the NHS can ill afford at any time never mind in this abysmal economic climate.  The fact that

Thursday 15 December 2011

Convicting "solely or decisively" on the basis of hearsay evidence - Strasbourg has ruled



Horns have been locked between the U.K. and the European Court of Human Rights over the question of whether a defendant has received a fair trial if the evidence against him is solely or decisively hearsay.   Please see the earlier posts which contain links to the various judgments:

"Convicting solely or mainly on hearsay evidence: Strasbourg and London lock horns" - 20th April 2010
"A further bout with Strasbourg coming up?" - 22nd February 2011.

Treatment of hearsay in English law:

In the Criminal Justice Act 2003 Part 11 Chapter 2  Parliament enacted what is regarded as a complete code relating to when hearsay may be admitted in evidence at a criminal trial in England and Wales.  The Act is based on the recommendations of the Law Commission in Law Com No. 245 (1997) - "Evidence in criminal proceedings: hearsay and related topics."   (Annex A to the Law Commission's report contained a draft Criminal Evidence Bill though the CJA 2003 differs from this).

The common law hearsay rule sought to provide a safeguard against untested hearsay evidence being given a "probative force which it does not deserve" - R v Blastland [1986] AC 41 at 53 (per Lord Bridge of Harwich).   The common law rule could operate so as to exclude evidence of unquestionable reliability but, for many years, this was accepted on the basis that the accused should have the opportunity to test the evidence at trial.   Some would have replaced the common law rule with an approach which would always have permitted hearsay evidence if the original source or 'best evidence' was not available - (see Review of the Criminal Courts of England and Wales - 2001 - Chapter 11).  The Law Commission's report and the CJA 2003 rejected this approach and adopted a midway position.

The cases:

Wednesday 14 December 2011

Habeas Corpus

The Court of Appeal - Lord Neuberger MR, Maurice Kay and Sullivan LJJ - 14th December 2011

The writ of habeas corpus (see BBC) has, for centuries, been available as a remedy against unlawful detention.  The case of Yunus Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Defence [2011] EWCA Civ 1540  illustrates the use of the writ to seek the return to the United Kingdom of a prisoner held, unlawfully, at Bagram, Afghanistan.  See also Reprieve. and also the comments by solicitors Leigh Day & Co.  who indicate that -

"The application was strongly resisted by the UK government, which argued that Mr Rahmatullah was no longer in its control and that it was improper of the Court to interfere with its relationship with the US authorities."

"This judgment affirms that our client remains

Text-based communication from court

The Lord Chief Justice's Practice Guidance on the use of live text-based forms of communication (including twitter) from court has been issued and replaces the interim guidance issued in December 2010 (Law and Lawyers 28th December 2010).  The document is short and speaks for itself though it is not particularly clear about who will be regarded as a "legal commentator" (see para 10).  For some of the factors to be considered by judges, the Guidance refers to the Consolidated Criminal Practice Direction I 2.2 which is here.

Supreme Court - R v Armel Gnango - murder

In 2008, Armel Gnango was convicted at the Old Bailey of the murder of Magda Priewska.  There was a "shoot out" between Gnango and another man ("Bandana Man").  Magda came innocently upon this event and was killed by a shot to her head.   It was established that Bandana Man fired the fatal shot. He was not arrested.  At the trial, the judge (Cooke J) directed the jury on the basis of joint enterprise and Gnango was convicted of murder.  The murder conviction was quashed by the Court of Appeal - judgment July 2010.  The prosecution appealed to the Supreme Court which has, by a 6 to 1 majority, restored the conviction for murder but has done so on a different legal basis - see R v Armel Gnango [2011] UKSC 59.

Bandana Man would have been guilty of Magda's murder on the basis of transferred malice.  The Supreme Court held that Gnango had aided and abetted Bandana Man's attempt to kill him and, although the bullet meant for him killed Magda, he shared the transferred malice liability of Bandana Man.

The various judgments are very much based on policy considerations.  As Lord Brown put it (at paras. 68 and 69): - " ... to my mind the all important

Tuesday 13 December 2011

A couple of interesting cases: (1) Armed Forces - disobedience; (2) Child Abduction

Royal Courts of Justice, London

Case 1: Court Martial Appeal

The Court of Appeal (Criminal Division) sometimes has the further function of becoming the Court Martial Appeals Court.  In this capacity, the court (Toulson LJ, Openshaw and Hickinbottom JJ) has dismissed an appeal by Leading Medical Assistant Lyons who, on 5 July 2011 at a Court Martial at Portsmouth, was found guilty of intentionally disobeying a lawful command contrary to section 12(1)(a) of the Armed Forces Act 2006. He was sentenced to seven months' military detention, reduction from the rank of Leading Medical Assistant to Able Seaman and dismissal from the service.  See Leading Medical Assistant Lyons v R [2011] EWCA Crim 2808.

The offence under section 12 requires proof

Monday 12 December 2011

Stop delaying justice !

Salford Magistrates Court - closes end of 2011
"Stop Delaying Justice" is a new initiative in the Magistrates' Courts and will take effect from 1st January 2012.  The excellent materials available from Crimeline explain this more and comment that - "It is clear that this approach is not actually new, as it is founded on almost a decade of case law and statutory rules. What this package does is bring those strands together to present a coherent analysis of the way in which criminal litigation must now be conducted."

The Magistrates' Blog (Bystander) comments:

"A lot depends on good teamwork between the Legal Adviser and the parties, but if it works (as it needs to) it will go a significant way towards helping courts to do more cases with fewer resources."

The Justice of the Peace blog  tells us (rightly) that

Europe: an interesting question.

The European Council meeting held in Brussels on 8th/9th December resulted in a decision to establish, by March 2012, a new fiscal "compact" - see the European Council announcement.  It seems likely that all current EU member States except the UK will sign up to this compact.  The word "treaty" has been studiously avoided but the compact will be legally binding in international law on the signatories and is therefore legally speaking a treaty between those states.  According to the European Council's announcement - "Member states undergoing an excessive deficit procedure will have to submit to the Commission and the Council for endorsement the structural reforms they plan to take in order to meet the requirement to correct excessive deficits."  Hence, it appears that the compact seeks to grant the Commission new powers or duties.

The various Institutions

Thursday 8 December 2011

Europe ... Murder ... Hatred ... Gangs ... Committals ... Magistrates ... Sentencing

Surface Chart 1200 UTC 8 Dec

Europe - Today - 8th December - was notable for the country being dominated by a deep low pressure area and a cold front sweeping from west to east.  The wind has been strong and the rainfall considerable.  Combined with the sky hardly getting light, the result has been a miserable day.   This is also the day when European Heads of State and Government meet at the European Council.  According to the Council's announcement, they will "discuss economy, energy and enlargement. In the margins of the European Council, the accession treaty with Croatia will be signed.

The leaders will discuss the overall economic situation, with a focus on structural reforms and fiscal consolidation as the basis for a return to sustainable growth, including exploring the possibility of limited Treaty changes, and proposals for possible steps aimed at deepening economic integration in the EU.

Talks will amongst others be based on the interim report "Towards a stronger economic Union", elaborated by the President of the European Council in close collaboration with the President of the Commission and the President of the Eurogroup. The report addresses economic coordination and convergence in the euro area; budgetary discipline, including possible treaty changes; economic union; and strengthening the existing crisis mechanisms."

Addendum - Friday 9th December -  23 of the 27 EU member States agreed to proceed with a new treaty - see European Council "Agreement on immediate action and on new fiscal rule for the eurozone."   The new inter-governmental treaty is to be signed by March 2012.  The UK opted out - The Independent 9th December.   The political and legal ramifications of this will be profound and cannot be entirely predicted at the moment.  The UK's "opt out" was joined by Sweden, the Czech Republic and Hungary.  However, it seems that Sweden and the Czech Republic are to consult their Parliaments on what to do next.  Hence, they might yet join the other 23.  Would referring the matter back to Parliament have been the better course for the UK government given that sovereignty supposedly lies with Parliament and not with the executive?  This is perhaps an example where the UK's unwritten constitutional arrangements permit the executive too much power.  Only time will tell.  See also remarks of Herman van Rompuy (President of the European Council) - 9th December and also Actuarial Post "Reaction to the Eurozone summit."

Murder:  Meanwhile,

Wednesday 7 December 2011

So - will a referendum be required?

The Guardian 7th December - "David Cameron has threatened to wield Britain's veto to block a revision of the Lisbon treaty if fellow European leaders refuse to protect the position of the City of London at the EU summit in Brussels.  In a marked hardening of his rhetoric, as Eurosceptic Tories called for a recasting of Britain's relationship with the EU, the prime minister said he would not sign any treaty that failed to provide safeguards for Britain's financial services."

Until recently, whether a referendum was held in the UK on anything to do with the European Union (EU) would ultimately have been a matter for Parliament to decide.  There would have been no legal obligation whatsoever to hold a referendum irrespective of what politicians may have said or inserted into election manifestos.  However, since 19th September 2011, the European Union Act 2011 is in force.

The Act requires, in some situations, a referendum to be held (and a favourable majority obtained) before ratification of any treaty which amends or replaces either (or both) of the Treaty on European Union (TEU) or the Treaty on the Functioning of the EU (TFEU) - see the Treaties.

However, it will not

Tuesday 6 December 2011

Reading the Riots: Stop and Search Powers

The Guardian newspaper is continuing to publish details of the Guardian-London School of Economics study into the August 2011 disorder - see READING THE RIOTS.   (Please also see Law and Lawyers - Monday 5th December).   On Monday evening, BBC's Newsnight programme looked at the reasons said to lie behind the disorder.  Their programme contained sections of interviews conducted with people who had been involved in the criminality.  Anger at everyday Police tactics was mentioned frequently as a factor and, in particular, the use of stop and search powers - BBC Newsnight - "England riots study: Anti-Police anger was factor."

The powers of the Police to stop and search are an essential aspect of their overall investigatory powers but, when those powers are applied to individuals, the experience can be humiliating.  Some sections of society are stopped and searched frequently - see The Guardian "Reading the Riots - Humiliating stop and search a key factor in anger towards police" - where it is reported that "interviewees said police treated them in a degrading way when they were stopped – particularly in strip-searching and handcuffing them."  (Emphasis added).  There are also claims that the Police conduct stops and searches with a lack of courtesy with black people being "singled out for stop and search."  The article states that - "It is well established that black people are much more likely to be searched than other groups: of the 675,573 stop and searches in London in 2009-10, 187,889 were on black people – twice as likely as their population would suggest."

These comments are

Monday 5 December 2011

The August Disorder - reports + Is a new EU Treaty coming + Impeachment + 3 excellent posts

The August 2011 disorder is back in the news following the publication of the interim report by the "Riots Communities and Victims Panel" (RCVP) which was set up at the end of August by the Deputy Prime Minister.  In addition, The Guardian is publishing details of a report which they and the London School of Economics (LSE) commissioned - see Reading the Riots.   The RCVP has responded to the Guardian-LSE report.

It is clear enough that the disorder erupted in London after the shooting of Mark Duggan on 4th August and some serious questions remain to be answered in connection with this.   Violence then erupted in other towns and cities in England.  

The RCVP report's Executive Summary states that "

"13,000 - 15,000 people were actively involved in the riots. More than 4000 suspected rioters have been arrested. Nine out of ten were already known to the police.  In total, more than 5000 crimes were committed, including five fatalities, 1860 incidents of arson and criminal damage, 1649 burglaries, 141 incidents of disorder and 366 incidents of violence against the person.

The overwhelming majority of those brought before the courts so far have been male and had a previous conviction. At least eighty-four people had committed 50 or more previous offences each. Three-quarters were aged 24 or under.

Of children brought before the courts, two thirds had

Friday 2 December 2011

Speaking of legal aid and a Friday look at a few of the blogs

LS Lowry - Street in Snow - 1935
Legal Aid:

Once upon a time, the Lord Chancellor was a very authoritative figure - (some might say autocratic) - sitting at the apex of the judiciary.  Viscount Kilmuir was Lord Chancellor from 1954 to 1962.  In 1955, in a letter to the Director General of the BBC, Kilmuir said that "as a general rule it is undesirable for members of the judiciary to broadcast on the wireless or to appear on television."  He did not mention making public speeches but, no doubt, the same edict applied.   There was to be no interaction with the media without His Lordship's permission.

At the time, the BBC had asked for a serving judge to participate in a radio programme about notable judges of the past.  Kilmuir discussed the matter with the Lord Chief Justice of the day (Lord Goddard) and with other senior judges and decided that the it was important that judges remained "insulated from the controversies of the day."  "So long as a judge keeps

Wednesday 30 November 2011

The Justice and Security Green Paper: Part 3 - Oversight

UPDATED - see links at the end

Cabinet Office - Justice and Security.

See also Part 1 (The government's case) of this series and Part 2 (Proposals and Consultation).  Chapter 3 of the Green paper considers oversight of the services and how this might be changed.   This should be read along with Appendix I to the green paper which offers a possible model for an Inspector-General.

Present oversight arrangements:

Oversight of the Security Service and the Secret Intelligence Service  is divided between the Intelligence and Security  Committee (ISC)  - which is a statutory committee of parliamentarians from both Houses - and the Commissioners: the Intelligence Services Commissioner (currently Sir Mark Waller) and the Interception of Communications Commissioner (currently Sir Paul Kennedy) - see Intelligence Commissioners website.   The Green Paper Appendix G outlines the remit of the Commissioners and Appendix H the role of the Intelligence and Security Committee.

Oversight exists to improve the effectiveness of the bodies being overseen; detect

Tuesday 29 November 2011

Anders Behring Breivik - a paranoid schizophrenic

Psychiatrists assessing self-confessed Norwegian mass killer Anders Behring Breivik have concluded that he is suffering from paranoid schizophrenia - BBC 29th November 2011 - "Norway massacre: Breivik declared insane."  They believe he was in a psychotic state both during and after the twin attacks on 22 July that led to the deaths of 77 people and injured 151.  This finding is subject to review by the Norwegian Board of Forensic Medicine.  His actions showed considerable planning prior to the event.  Whether Breivik would be viewed as "insane" for the purposes of the M'Naghten rules test applicable in English criminal law was considered on 27th July - "Breivik - would he have a defence of insanity in English criminal law?"  

Monday 28 November 2011

The Justice and Security Green paper: Part 2 - proposals and consultation

Cabinet Office - Justice and Security.   

The background:

The real work of protecting national security is a far cry from the fictional world of the James Bond movies which have entertained us since 1962 (Dr. No).  Before looking more closely at the proposals in the green paper, it is worthwhile recalling the structures in place relating to national security.

The day-to-day "On her Majesty's Secret Service" work is undertaken by the Security Service (MI5) and the Secret Intelligence Service (MI6).  These services are now on a statutory basis: respectively, the Security Service Act 1989; Intelligence Services Act 1994 .  The Regulation of Investigatory Powers Act 2000 is a wide-ranging Act dealing with legal powers relating to interception of communications and the various forms of surveillance.  The Security Service comes under the political direction of the Home Secretary.  The Secret Intelligence Service comes under the political direction of the Foreign Secretary.

Oversight of these services is divided between the Intelligence and Security  Committee (ISC)  - which is a statutory committee of parliamentarians from both Houses - and the Commissioners: the Intelligence Services Commissioner (currently Sir Mark Waller) and the Interception of Communications Commissioner (currently Sir Paul Kennedy) - see Intelligence Commissioners website.   The Green Paper Appendix G outlines the remit of the Commissioners and Appendix H the role of the Intelligence and Security Committee.

The government's general case for reform of how security sensitive material is handled in civil legal proceedings including inquests is set out in Chapter 1 of the Green Paper - (discussed at Law and Lawyers - Justice and Security Green paper - Part 1).   Chapter 2 is entitled "Sensitive material in civil proceedings: proposals and consultation questions."   A number of possible

"Let them hate as long as they fear"

Garrow's Law (Sunday 27th November) depicted the (first) trial of  Thomas Picton - "Love or honour? It cannot be both".  Picton was born in Pembrokeshire in 1758, became a soldier and fought with distinction under the command of  Arthur Wellesley - later Duke of Wellington (1769-1852).  At the Battle of Waterloo 1815, Picton (by now a Lieutenant-General) was killed - see his entry on wikipedia.  During his military career, he was appointed as military Governor of Trinidad.  The wikipedia entry states:

"For the next 5 years he held the island with a garrison he considered inadequate against the threats of internal unrest and of reconquest by the Spanish. He ensured order by vigorous action, viewed variously as rough and ready justice or as arbitrary brutality."  By 1801, "reports of arbitrariness and brutality associated with his governorship had led to a demand at home for his removal."

"Picton's policy with respect to various sections of the island population had effectively been "let them hate so long as they fear" .... "

"In December 1803 [Picton] was arrested by order of the Privy Council and promptly released on bail set at £40,000.... The majority of the charges against Picton were dealt with by the Privy Council. They related principally to excessive cruelty in the detection and punishment of practitioners of obeah, severity to slaves, and of execution of suspects out of hand without due process. Only the latter class of charge seems to have seriously worried the Privy Council, and here Picton's argument that either the laws of Trinidad, then still the laws of the former Spanish colonial power, or 'the state of the garrison' justified the immediate execution in the cases specified eventually carried the day."

"He was, however, tried

Friday 25 November 2011

The Justice and Security Green paper: Part 1 - the government's case.


In November 2010, the Secretary of State for Justice (Rt. Hon. Kenneth Clarke QC MP) announced the negotiated settlement of litigation brought by individuals who claimed that the U.K. was implicated in their torture - see "Guantanamo civil litigation settlement statement" and "The Al Rawi case settlement - security and the justice system.".   At the same time, Clarke announced that the government would bring forward a Green paper on security and justice.  This has now been issued- Cabinet Office - Justice and Security.   Comments are invited and may be submitted up to 6th January 2012.   Joshua Rozenberg, writing in The Guardian 16th November, referred to the green paper as an "attack on liberty."   Certainly, considerable concerns are raised and the Joint Committee on Human Rights has announced that it will examine the paper.  The following links are to the relevant documents.
The green paper considers the situation where "sensitive material" is required as evidence in civil proceedings (not criminal proceedings) and at inquests (such as the London Bombing Inquest - 7th July 2005).  In addition, proposals are put forward for improving independent oversight of the security and intelligence agencies.  The question of using evidence obtained by interception of communications ("intercept evidence") is not considered since this is referred to as a "separate challenge and a separate government project" which is under consideration by a cross-party advisory group of Privy Counsellors -

The Legal Aid Bill - the principal objections + Youth Justice Board and Chief Coroner saved

The Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) received its second reading in the House of Lords on Monday 21st November.  (TEXT of the Bill).  Many peers were highly critical of the legal aid provisions which are in Part 1 of the Bill.   The next stage of its Parliamentary progress is that a Committee of the Whole House will consider the bill.  This process may well prevent detailed line-by-line scrutiny but will enable many more peers to speak on aspects of the bill which concern them.

Writing in The Times 24th November, Lord Pannick QC summarised the principal objections to Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO).  His article was entitled - "The Legal Aid Bill will turn access to justice into life's little luxury."  In the article, Lord Pannick recognises that legal aid costs money - the annual budget in England and Wales is £2.1 billion.  The Bill aims to cut £350 million.    The following is a summary of his views:

1.    Rights conferred, and the duties imposed, by Parliament are undermined to the extent that people cannot enforce their legal entitlements through the judicial process.

2.    The Bill fails

Wednesday 23 November 2011

The unfolding aftermath of the Iraq War

* Update ~ Addendum of 26th May 2013 *

The military action by the United Kingdom in Iraq has left an on-going aftermath which is, yet again, highlighted by the Court of Appeal (Civil Division) decision in R (Ali Zaki Mousa) v Secretary of State for Defence [2011] EWCA Civ 1334 - on appeal from the Divisional Court [2010] EWHC 3304 (Admin).    Essentially, the Court of Appeal (Maurice Kay, Sullivan and Pitchford LJJ) held that an investigatory process set up by the Secretary of State for Defence did not meet the requirements of Article 3 of the European Convention on Human Rights as interpreted and applied by the European Court of Human Rights.  The process was set up to investigate allegations by a large number of Iraqis that they were subjected to ill-treatment at the hands of members of the British Armed Forces in the period 2003-8.  By putting in place the investigatory process, the Secretary of State considered that an immediate public inquiry was not required though he did not rule one out permanently.  He wished to see how the investigations proceeded.  The claimant (Mousa) applied for judicial review of the Secretary of State's refusal to order an immediate public inquiry.  In the court's words:

"The claimant sought 'a comprehensive and single public inquiry that will cover the UK's detention policy in South East Iraq, examining in particular the systemic use of coercive interrogation techniques which resulted in the … ill-treatment and which makes it possible to learn lessons for the future action of the British military."

Article 3:

"Prohibition of torture - No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

This is perhaps the

Monday 21 November 2011

Robbery and Theft - an interesting case

Some very basic points of criminal law are highlighted by the Court of Appeal (Criminal Division) judgment in George Vinall v R [2011] EWCA Crim 6252. 

The Theft Act 1968 was enacted following the 1966 report of the Criminal Law Revision Committee - "Eighth Report: Theft and Related Offences" - Cmnd 2977, 1966.  It was a "new start" for the law of theft.  The previous law was swept away and offences were framed in what, it was hoped, would be simple language thereby avoiding the technicality of the old law.  Since 1968, the law has been either extended or amended by the Theft Act 1978 and the Theft (Amendment) Act 1996.  The Fraud Act 2006 - (fully in force from 15th January 2007) - made further changes.  Whether the hopes of those who enacted the TA 1968 have been secured is a moot point since the criminal law textbooks take up many pages to analyse the modern law.

The facts of the Vinall case are fairly straightforward - (Judgment para 3).  Two young men were riding along a cycle path and came across three youths (two of whom were the appellants).  The youths adopted an intimidating manner to the cyclists and one cyclist was "punched from his bicycle" by the appellant referred to as J.  The man knocked from the cycle ran away and, it seems, was chased by one or more of the youths.  However, the youths later walked off with the bicycle but abandoned it in a nearby bus shelter.

Traditional Court Dress - does it matter? The Supreme Court's new guidance.

It is quite likely that many will consider it to be a "good thing" for the Supreme Court to have issued Revised Guidance on Court Dress at the UK Supreme Court - (see now Practice Direction 6).

Essentially, traditional court dress (gown, bands and wigs) need not be worn where all the parties to a case agree and also the Justices agree.  The Revised Guidance states that the court will normally agree - thereby begging the question of when might they not agree.  It appears that the initiative for this came from a UKSC User Group.  The Guidance notes that court dress is not worn in family cases.  Further, the Justices of the Supreme Court do not wear robes - (apart from during ceremonial occasions) - and they decided not to impose this obligation on advocates.

Prior to the creation of the Supreme Court, the House of Lords was at the apex of the UK's legal world.  The Lords of Appeal in Ordinary ("Law Lords") did not wear legal dress - (again, apart from formal events such as the State Opening of Parliament) - and this carried over into

Saturday 19 November 2011

Access to Justice - Human Rights - chuck 'em all in the melting pot !

A bubbling cauldron of our rights?

The Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) is now in the House of Lords.  Riding on the back of the economic crisis, the Bill aims to not only reduce legal aid expenditure but also either to remove it completely or severely restrict it in several key areas.   For example, as Justice for All pointed out on 24th October:-

"Legal Aid will only be able to assist with housing cases and debt cases in the most desperate situations involving "immediate risk of loss of home."  Only employment cases involving discrimination will remain eligible for legal aid funding.  All other social welfare law cases, including 100% of benefits advice, is being removed, even for complex appeals and tribunals."

Furthermore, under Clause 12, legal advice to those held in police custody would be means tested.

It has been stated that a right of unimpeded access to a court is a "principle of our law" which, "even in our unwritten constitution must rank as a constitutional right" - see the judgment of Steyn LJ (as he then was) in R v Secretary of State for the Home Department ex parte Mark Francis Leech [1993] EWCA Civ 12.  The late Lord Bingham, in his estimable book "The Rule of Law", argued that means had to be provided for "resolving, without prohibitive cost or inordinate delay, bona fide disputes which the parties are unable themselves to resolve."

The House of Lords Constitution Committee has produced a

Thursday 17 November 2011

The new Levellers? Hardly.

.. where the Putney debates took place
In early October I visited a pleasant market town in Derbyshire.  In one of the cut price bookshops I found a copy of Trevor Boyle's "Civil War - The Wars of the Three Kingdoms 1638-1660"  - (see British Civil Wars).  This is a vivid account of those turbulent years from 1638 when the Scots signed the National Covenant to the end of the Protectorate in 1659.  This 17th century conflict, long referred to simply as the "English civil war", was actually war across the three interconnected Kingdoms of Charles I.  The bloodshed in all three continued up to the Restoration  of the Monarchy in 1660.  One aspect of this period was a movement known as The Levellers.  They emphasized popular sovereignty, extended suffrage, equality before the law and religious tolerance.  They produced a number of documents referred to as "Agreement of the People" which pressed for constitutional change.  The Agreement was debated at St Mary's the Virgin Church in Putney - The Putney Debates 1647.  .

One of the leading Levellers was Thomas Rainsborough.  On the first day of the Putney Debates he said:

"I think that the poorest he that is in England has a life to live as the greatest he; and therefore, truly, sir, I think it's clear that every man that is to live under government ought first by his own consent to put himself under that government; and I do think that the poorest man in England is not at all bound in a strict sense to that government that he has not had a voice to put himself under."

Of course, words can only be understood properly

Wednesday 16 November 2011 the order of the day. Financial Transaction Tax - Nein und abermals nein ! !!

The crisis in the "Eurozone" is exceptionally worrying and, at the time of writing, the contagion appears to be spreading.  The extent of the UK's exposure to all of this is not at all clear.   The view has been expressed, notably by the German politician Volker Kauder, that the UK must help rescue the Eurozone - (Telegraph 15th November 2011).  It also appears that Kauder is of the opinion that the UK could not block a proposed financial services tax which has been described by George Osborne as a bullet aimed at the heart of London and which was rejected in April 2011 by the Confederation of British Industry (CBI).

Within the UK, "Euroscepticism" appears to be the order of the day and comments such as that of Volker Kauder will only serve to add fuel to the eurosceptic fire.   On Monday, speaking at the Lord Mayor's Banquet,  David Cameron referred to himself as a sceptic though his speech left no doubt that leaving the EU is not in our national interest and 50% of our trade is with Europe. Cameron

Monday 14 November 2011

The Leveson Inquiry gets underway

The Leveson Inquiry:

Lord Justice Leveson has now started his Inquiry into the culture, practices and ethics of the press and proceedings can be followed via the Inquiry's website. and this includes video of the sessions.  A second stage of the Inquiry will examine the extent of unlawful or improper conduct within News International and other newspaper organisations.  The Terms of Reference for the Inquiry, which is being held under the Inquiries Act 2005, were set by the Prime Minister in July.    The first stage of the inquiry is to be conducted in four modules.   Six assessors are sitting with Lord Justice Leveson.  Counsel to the Inquiry are Robert Jay QC with David Barr and Carine Patry Hoskins and their backgrounds are published on the website.  So called "Core Participants" at this stage are News International; the Metropolitan Police; Victims; The Guardian News and Media Ltd and others.

Interestingly, the setting up of the Inquiry has coincided with the appointment of a new Chair of the Press Complaints Commission (PCC)- Lord Hunt of Wirral - who took this position in October 2011.  The Guardian published an interview with Lord Hunt in which he explains the approach he hopes to take to his duties.   Historically, freedom for the media to publish matters of public concern and interest was hard won and it is notable that Lord Hunt refers to the radical M.P. John Wilkes (1725-98) who said:  "The liberty of the press is a birthright of a Briton and is justly esteemed the firmest bulwark of the liberties of this country."  Those words have a certain resonance in the light of various events such as the M.P.'s expenses scandal and it should be remembered that it was the press which revealed the extent of "phone-hacking" which will eventually be examined by the Leveson Inquiry.  (John Wilkes 1725-98).

There are concerns that

Wednesday 9 November 2011

Cohabitation: what about the house? Part 2 - Jones v Kernott [2011] UKSC 53.

Post updated 10th November and further links added 11th November


The Supreme Court has given its judgment in the appeal by Patricia Ann Jones against the decision of the Court of Appeal in Kernott v Jones [2010] EWCA Civ 578.    The Supreme Court's judgment is Jones (Appellant) v Kernott (Respondent) [2011] UKSC 53 and a "Press Summary" of the judgment is also available.  The Court of Appeal's decision was discussed on Law and Lawyers 4th November 2011 - "Cohabitation: what about the house?  A cautionary tale."

The case was about the shares in a home which unmarried cohabitees held.  It is an example of the type of property dispute which the courts have wrestled with for well in excess of 40 years.  A full analysis of the law involves a lengthy journey.  It would take us back to at least Pettit v Pettit [1970] AC 777, [1969] UKHL 5; then Gissing v Gissing [1971] 1 AC 886, [1970] UKHL 3 and, twenty years later, to  Lloyds Bank v Rosset [1991] 1 AC 107, [1990] UKHL 14.  The next principal stop would be just four years ago with Stack v Dowden [2007] UKHL 17 and now Jones v Kernott.   Many many other cases, with all their factual twists and turns, would be encountered en route.  A full reading would take many hours and the reader would have to wrestle with discussion of concepts such constructive trusts, resulting trusts and proprietary estoppel which have, from time to time, been used by the judges in the absence of a statutory scheme to decide the cases before them.  The law has been, and regrettably remains, unclear and unsatisfactory.

The facts of Jones v Kernott:

It is convenient to set out the essential facts which can be taken from the Supreme Court's Press Summary:

Monday 7 November 2011

Extradition - the Scott Baker Review

Gary MacKinnon - facing extradition to US
Joshua Rozenberg wrote in the Law Society Gazette (27th October) that the Baker report on extradition is something to build on.   [Scott Baker Report - "A review of the United Kingdom's Extradition Arrangements"].  It is a lengthy report of 488 pages but is of considerable interest in terms of the detailed review of the history of extradition as well as the existing law.  However, it should be noted that the review was set up to examine certain specific areas - see Home Office announcement setting up the review.

A "Westminster Hall" debate will take place in Parliament on 24th November - BBC News.

The report has some rather surprising main conclusions.  One is that the European Arrest Warrant system "broadly speaking operates satisfactorily" but points to problems arising from the number of warrants issued by some countries and also emphasizes the need to improve procedural rights.  Para. 1.14 of the report states:

Saturday 5 November 2011

Will owners of manorial rights benefit from fracking?

Tremors - Fracking
The existence of enormous amounts of natural gas under mainland England has been revealed - see The Guardian 23rd September 2011 , the article in Oil price and the pressure group "Frack Off."    Estimates are that some 200 trillion cubic feet of gas is there for the extraction.  One process for its extraction is known as "fracking" (hydraulic fracturing).  Naturally, the economic value of this will be immense.  It is reported that certain "Lords of the Manor" are set to "cash in" - see The Telegraph 5th November 2011 - "Lords of the Manor to cash in on fracking."  How might these individuals - holding what many see as archaic rights - be able to "cash in."

Rights of Landowners:

In general, a landowner (strictly, the owner of the fee simple absolute in possession) will have a right to everything in, on or over the land - or, as it was once described, "Everything up to the sky and down to the centre of the earth" - Cobbett v Hill (1870) LR 9 Eq 671 at 673 per James V-C.  In fact, this is fanciful

Friday 4 November 2011

Cohabitation: what about the house? A cautionary tale.

When a relationship comes to an end, there is often the issue of what will happen to any land acquired during that relationship.  From a legal viewpoint, the ideal situation is that the parties will have provided precisely for this situation but, all too often, that is not the case and sometimes the problem has to be thrashed out in the courts.  The case of Kernott v Jones [2010] EWCA Civ 578 (Wall, Jacob and Rimer LJJ) is an example in point.   The case concerned a house acquired by Patricia Ann  Jones and Leonard Trevor Kernott.  They bought it in May 1985 and it was conveyed to them as joint tenants.  The parties separated in late 1993.  In March 2008, Mr Kernott purported to sever the joint tenancy - (which would turn them into tenants-in-common).  In the period from 1993 to 2008, Patricia Jones had assumed responsibility for all outgoings as well as maintenance of the children of the relationship.  The basic question was - in what shares did the parties own the property?  The Court of Appeal (by a majority) held that the parties owned the property as tenants-in-common on equal shares and not, as decided by the High Court and County Court, in shares of 90% to Patricia Jones / 10% Leonard Kernott..

Wall LJ described the case as a cautionary tale and said:

Wednesday 2 November 2011

Assange - European Arrest Warrants

Judgment has been handed down in Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) - President of the Queens Bench Division (Sir John Thomas) and Ouseley J.  It is interesting, for reasons which will become apparent, that the respondent in the case is referred to as a "Prosecution" authority.  Mr. Julian Assange is fighting against a request by Sweden for his extradition using the European Arrest Warrant procedure and the High Court has ruled in favour of his extradition.

Grounds of appeal:

Mr Assange based his appeal on 4 grounds which were all rejected by the court:

1. The European Arrest Warrant was not issued by a Judicial Authority
2. Offences 1-3 in the Warrant did not meet the dual criminality test - (i.e. criminal in England and Sweden)
3. The condition in the Extradition Act 2003 s.2(3) was not satisfied as Mr Assange was not an "accused"
4. The issue of the warrant and subsequent proceedings were not proportionate.

With regard to Ground 1, the court noted