Saturday, 5 March 2011

It's been an interesting week ... ebb and flow ...

 Assange is to appeal

We have had a fascinating few days.  I am indebted to CharonQC for drawing attention to a comment by Geoffrey Robertson QC (speaking for the defence) at Julian Assange's extradition hearing in February - "Sexual encounters have their ups and downs, their ebbs and flows.”    Mr Assange has lodged an appeal with the High Court - (see Telegraph) - against the decision of the judge who heard the case at Belmarsh Magistrates' Court - (see Law and Lawyers 24th February).  At the heart of the case is the thorny legal and highly political matter of European Arrest Warrants and this is discussed in some detail on CharonQC's interesting "Without Prejudice" podcast.

New Queen's Counsel

120 lawyers have been granted the coveted rank of Queen's Counsel (QC).   Joshua Rozenberg wrote about this in The Guardian 2nd March - "Queen's Counsel: the merits of giving the best advocates a badge of excellence."  The Ministry of Justice also mentioned it but were at some pains to point out that they are no longer involved in the selection process which is now done by selection panels independent of the government and the professions.  Six of the appointees are "Honoris Causa" which is awarded to those who have made major contributions to the law of England and Wales outside of the courts.  BabyBarista blog takes a somewhat light-hearted view of the appointments system.

Contempt of court and media websites

The Daily Mail and The Sun have been held to be guilty of contempt of court having published on their websites a photograph of a defendant in an ongoing criminal trial - see Attorney-General v Associated Newspapers [2011] EWHC 418 (Admin). The case is discussed on the UK Human Rights blog - "Warning for bloggers and tweeters as newspapers found guilty of contempt of court."

Fostering and religion-based views

Mr and Mrs Johns had applied to Derby City Council to be short-term foster carers.  They hold strong views,based on their religious belief, that sexual relations should be confined to male/female marriage.  The Council considered
this view to be incompatible with the relevant regulations - (see Fostering Services).   The case is Johns v Derby City Council and the Equality and Human Rights Commission [2011] EWHC 375 (Admin) and is also discussed on the UK Human Rights blog - here.  The court concluded that the attitudes of potential carers to sexuality were relevant to applications for approval.  There is a considerable need for foster carers and this need is perhaps likely to grow as families suffer breakdown resulting from the present economic troubles facing the country.  These troubles appear to be worsening by the day.  One wonders whether decisions such as this, however well founded in law, will result in fewer people coming forward for this crucial role.

Cost of insurance - Court of Justice of the EU decision

Then there is the Court of Justice of the European Union ruling that risk factors based on sex must not be used when determining insurance premiums for car and medical insurance and also in relation to pension schemes - The Independent 1st March.  The ruling takes effect from 21st December 2012.  This may prove to be controversial given that the court referred to the Charter of Fundamental Rights Articles 21 and 23.   In the Lisbon Treaty, the U.K. secured what was described as an "opt out" from this Charter - (see BBC January 2011).   Although the British government might have thought the front door was closed to the Charter, the back door may have remained open !  The law report is Association Belge des Consommateurs Test-Achats and addresses the legal validity of Council Directive 2004/113/EC Article 5(2) - equal treatment of men and women in access to and supply of goods and services.

Judicial pensions and constitutionality

Judicial pensions are very generous.  In modern times there is undoubtedly a political attack on what are sometimes disparagingly referred to as "gold-plated" pension schemes based on final salaries etc.   Most pensioners will have paid handsomely into their pension funds during their working lives and many have seen their income severely reduced.  More may do so as a result of the switch from using RPI index linking to CPI.  Should judges be immune from all this and be allowed to continue in their non-contributory scheme?  The Guardian on 4th March 2011 looked at this and asks whether there is a constitutional principle in issue.  [Readers interested in pensions may wish to read the 17th February debate about the Social Security Benefits Up Rating Order 2011 - order approved by our elected representatives - 247 to 19.]

Government of Wales Act 2006 and the referendum

I am grateful to a comment from Westengland about the referendum held this week in Wales.  At one time, prior to the Government of Wales Act 1998, we could safely say that the law in Wales was generally the same as in England.  Certainly in relation to some twenty devolved areas of policy this is no longer the case.  The 1998 Act created the National Assembly for Wales and empowered it to make law (referred to as "Measures") in relation to some aspects of the devolved areas.  The Government of Wales Act 2006 Part IV provided for a referendum to be held on whether the Assembly should have full law making power in the devolved areas.  The outcome (by a vote of 517,132 to 297,380) was Yes.  Every Welsh County apart from Monmouthshire voted Yes.  Welsh Ministers are therefore empowered (see s.105 of the 2006 Act) to lay a draft order before the Assembly which, if approved, will give the Assembly full law making powers in those areas.


  1. Also, the Welsh referendum approved "direct law-making powers" for the Welsh Assembly. Although the Assembly/Senedd does not have taxation powers yet, its principal legislative instruments will now be called Bills and Acts with an accompanying Welsh Seal.

    This must lead to a distinction between Welsh and English law in practice; will it lead to full legal devolution for Wales (compare Northern Ireland rather than Scotland)?

  2. Ed (not Bystander)5 March 2011 at 17:04

    I would suggest your articles would be much easier to read if you had a bolded heading for each para. It's a bit disorientating otherwise, which slows the reader down.

  3. @ Westengland - thank you! The vote in wales is another interesting development and one worthy of a more detailed look.

    @ Ed(not Bystander) - thanks and I take your point - I've added a few!

  4. @ Westengland - your comment deserved an immediate response - so I added a paragraph to this post.

  5. And thank you for that quick response! - "!" because whilst you were writing it I was looking at your previous posts, as a means of asking you to post occasionally on legal biographies (such as Birkett's, for example).

    As a layman, biography is one way I've taught myself about the Law, using "biography" to include the legal history of my county, Gloucestershire (from which method I've learned a great deal about the working of English Law - and Welsh Law).

    This leads back to the Welsh and their courts - at present I think separation is inevitable in due course, bearing in mind the "flow" of devolution over recent years and the Northern Ireland example as a continuing comparison.

    I wonder if "localism" in England will include the provincial English courts?

  6. Ed (not Bystander)5 March 2011 at 23:54

    Immensely better, thanks.

  7. "The Daily Mail and The Sun have been held to be guilty of contempt of court having published on their websites a photograph of a defendant in an ongoing criminal trial"

    I find this most disturbing. The idea that courts should be free from scrutiny, or that their activities should be anything other than entirely open.

    Publicity is embarrassing for both the defendant and the complainant, to be sure. But be sure, the cure is worse than the disease.

    Publicity, including naming and showing the face of the defendant is an opportunity for other victims to come forward. It is also an opportunity for someone who might be able to provide an genuine alibi. Naming and showing the complainant might bring forward others who can testify that he or she has made false and vexatious complaints in the past, or it might bring forth further witnesses.

    Openness should be the rule. Your quotation of Bentham was apt: "Publicity is the very soul of justice ... it keeps the judge himself, while trying, under trial." I would add to the Judge, also the jury, the rules of evidence and every other aspect of the law and the trial.

    How far this principle has been eroded is visible in everything from the layout of the court, which ensures that the public cannot see the faces of the witnesses so cannot form their own opinion, (so they cannot judge how the verdict might have been changed by evidence not admitted for example), to the oppressive and unnecessary "security" arrangements whose primary effect is to prevent interested members of the public from viewing trials on a whim.

    As always the interests of someone else are the excuse (be it through security, privacy, the protection of children and so forth), but as always the effect is to close down scrutiny of the courts and of those in power.

    As always, to "protect" us, our rights must be curtailed, and we must all, innocent or guilty, be treated as foolish sheep, we must be under the constant guidance of wise shepherds, whom we must repay by letting them fleece us, and by providing meat for their table.

  8. @ Ben - there was rather more to it than a mere photograph of the defendant. As para 6 of the judgment states: "... an article was published on Mail Online accompanied by a picture which showed Ward holding a pistol in his right hand with his index finger on the trigger whilst he indicated firing a handgun with his left hand. Under the picture was the caption:

    "Drink-fuelled attack: Ryan Ward was seen boasting about the incident on CCTV."

    Therefore I would not read into this decision any attempt to prevent all comment. However, the news media and, for that matter, writers of articles and bloggers must be careful so that anything written does not prejudice a fair trial. As you rightly say, publicity can have beneficial effects.

    Regrettably, court security is a necessary thing but if you wish to observe proceedings you are still able to do so but you will have to submit to the airport-style screens etc.

    I believe that some interests should trump the basic right to public hearings. Many children cases in the family courts are a case in point as are some of the hearings in the Court of Protection. (In both instances there has been some movement back to allowing accredited media reps. to attend). However, there is a risk that these other interests might prevail more than is strictly necessary and the present government is clearly determined to have closed proceedings whenever Ministers choose to raise national security as a concern. The Al-Rawi case is about to come on in the Supreme Court - (use of "special advocates" in civil proceedings etc).

    I have sympathy with your final para. Ministers will always cite public protection as a cover for introducing some draconian law or other - e.g. the control order regime etc. It probably goes back to the old latin tag - "Salus populi est suprema lex."

  9. @ObiterJ, I understand your point but I disagree with it. The courts should not seek to prevent any comment, they should instruct the jury to disregard it. It can and indeed is done that way in another great common-law jurisdiction across the pond.

    Secrecy in the family courts is very often not predecated on the wishes of the parents, and indeed may harm the interests of the children. Though openness may be hard for the parties to bear when things go as well as could be expected, lack of openness is far worse, as Christopher Booker is trying to show.

    Public safety may be the greatest good, but government power is a great danger to it, most especially when allowed to operate without scrutiny. We have as much need for protection against the arbitrary power of the misguided or arrogant bureaucrat as against anything else. Cleveland and Orkney should have taught us that.

  10. @ Ben - I have made Christopher Booker's link - live.

    Christopher Booker in The Telegraph

    Also of great interest is the Justice Report -

    Secret Evidence

    Your point re juries is yet another dimension. I am beginning to form the view that the stance of the judges is worrying for the future of the jury. Their first reaction seems to be to ask whether the jury should be discharged. That is highly expensive and probably not necessary. In the case to which my post referred the trial judge stepped back from the course of action but it entailed a delay to the trial, further legal argument etc. It might well be preferable in many cases to deal head on with the possible prejudice and remind the jurors of their oath to try the case according to the evidence.