Tuesday 31 May 2011

A tragic case ....

Lord Taylor of Warwick has been sentenced to 12 months imprisonment in relation to fraudulent Parliamentary expenses claims - BBC 31st May 2011.  Lord Taylor was convicted in January.  He resigned the Conservative Party Whip at the time he was charged with the offences.  Lord Taylor's background and career may be seen here.

The Sentencing Remarks of Saunders J are available on the judiciary website (see remarks).   The judge sets out the dishonest course of conduct which Taylor embarked upon and points out how the use of an address in Oxford caused distress to the person living there who was not a part of Taylor's dishonest scheme.  This was an aggravating feature of the case as well as the conduct being over a prolonged period.  The Judge spoke particularly eloquently about Taylor's life and career and noted that much of it was conducted with "quiet dignity and humour which has characterised so much of his public life."    "All that Lord Taylor has thrown away.  Not by one stupid action but by a protracted course of dishonesty."

"At the core of the offending of both MPs and peers is the high degree of breach of trust and the effect on the reputation of Parliament. That applies equally

Monday 30 May 2011

"Accountability" is not synonymous with "Heads must roll" - but are there really constitutional issues at stake?

Appeal from Judgment of Foskett J -R (Shoesmith) v Ofsted and others [2011] EWCA Civ 642

The Court of Appeal found against the Secretary of State.  The court also found against Haringey London Borough Council but found in favour of Ofsted in relation to the Joint Area Review urgently conducted in November 2008.  See The Guardian 28th May – “Sharon Shoesmith ruling: welcome but few cheers” and “Local Government Lawyer” 27th May.

A Spokesperson for the government said:

“The Government thinks that it was right in principle for Sharon Shoesmith to be removed from her post as Director of Children’s Services.
“There are questions of constitutional importance involved in this case, beyond the specific question about whether Ed Balls should have had a further meeting with Sharon Shoesmith before removing her.
“Our initial application to appeal has been turned down by the Court of Appeal. We intend to pursue an appeal to the Supreme Court.”

This was the reaction to the Court of Appeal decision in the judicial review brought by Sharon Shoesmith (former Director of Children Services at Haringey) against Ofsted, the Secretary of State and Haringey Council – see The Telegraph 28th May 2011.  Few people would disagree with the point that, in principle, Sharon Shoesmith had to be replaced.  As Director of Children Services at Haringey, the buck stopped with her and serious failings were identified in relation to her Department.  Nevertheless, others cannot claim to emerge unscathed and that must include the Rt. Hon. Ed Balls MP who, at the time, was Secretary of State for Children, Schools and Families.   The Judicial Review found Mr Balls wanting in relation to HOW he went about his decision-making.  The review was not concerned with the merits of Mr Balls' actions.

The case does not, as such, raise questions which might be considered to be of constitutional importance so it is necessary to ask just what is in the mind of Ministers in the present government.  They appear to see judicial review as the judiciary exercising too much power and they are seeking ways to stem such judicial activism.  The setting up of the Committee to consider a UK Bill of Rights may also be seen as part of this governmental agenda.

Where the real responsibility lies for Baby-P’s death

Those with whom Baby-P lived carry the direct responsibility for his death.   Tracey Connelly (Baby-P’s mother) pleaded guilty to causing or allowing the death of a child – Domestic Violence, Crime and Victims Act 2004 s.5.  Her boy friend Steven Barker and a lodger (Jason Owen) were convicted on 11th November 2008 of the same offence.  Connelly was given an indeterminate sentence of imprisonment with a minimum term of 5 years.  An appeal was abandoned.  Barker was sentenced to 12 years imprisonment – this sentence to run concurrently with life imprisonment (minimum 10 years) for the rape of a child aged 2.  He later lost an appeal against the rape conviction.  Owen was sentenced by the trial judge to an indeterminate sentence of imprisonment but this was altered on appeal to a determinate sentence of 6 years.

The Court of Appeal decision

Friday 27 May 2011

Sharon Shoesmith wins her appeal

Sharon Shoesmith

Basic facts:

In April 2005, Sharon Shoesmith was appointed as Director of Children's Services at Haringey London Borough Council.  The appointment by a Council of such an officer is a statutory requirement - Children Act 2004 s.18.  "Baby P" - who was the subject of a Child Protection Plan put in place by Haringey Social Services - died on 3rd August 2007 aged 17 months.  Those directly responsible for his death were eventually all convicted under the Domestic Violence, Crime and Victims Act 2004 s.5.  Their trial, at the Old Bailey, ended on 11th November 2008.  To say the least, the trial was followed by a media hue and cry demanding that heads roll.  On 1st December 2008, Mr Ed Balls MP (then Secretary of State for Children, Schools and Families) held a Press Conference at which he said that Haringey would be considering the employment relationship "this afternoon and immediately."  He made it clear that his view was the Ms Shoesmith "should not be rewarded with compensation or pay offs" but "that's a matter for Haringey."  On 8th December 2008 she was dismissed without any form of payment in lieu of notice or compensation and her internal appeal against dismissal was rejected on 12th January 2009.  In March 2009, Ms Shoesmith commenced judicial review against OFSTED, the Secretary of State and Haringey Council.  Judicial review is concerned with the legality of decision-making.

Judicial review including appeal:

The judicial review was first heard by Foskett J who, after six days of oral argument and later written submissions, dismissed all of Ms Shoesmith's applications though he did so with a "lurking sense of unease."

Ms Shoesmith was successful on appeal to the Court of Appeal (Civil Division).  The case was

Wednesday 25 May 2011

Westminster Hall - a place of history

Pope Benedict XVI at Westminster Hall 2010
Built in 1097, Westminster Hall is a focal point of British democracy and law.  Many famous Heads of State and eminent politicians have addressed both Houses of Parliament but it is quite rare for the address to be at Westminster Hall:  Albert Lebrun (1939), HM King George VI in 1950, President de Gaulle (1960), HM Queen Elizabeth II (1977, 1988, 1995 and 2002), Nelson Mandela (President of S. Africa in 1996) and His Holiness Pope Benedict XVI (2010).

Over the centuries, Westminster Hall has been a place where the principal English Law Courts sat until the modern High Court was formed by the Judicature Acts 1873-75.   The Hall has witnessed many trials including those of Sir Thomas More and King Charles I.  Interestingly, eleven years after the trials of Charles I, the "Regicides" were tried and nine were subsequently executed.  The Hall was also the place where "Impeachments" took place such as that of Warren Hastings (Governor General of India).  His trial took some 8 years and he was eventually acquitted.  Impeachment may be obsolete but has not been legally abolished.  It is interesting that it was considered by some to be a possibility in 2004 in connection with Prime Minister Blair.

The other notable use of the Hall has been for "Lying in State" usually of a Monarch.  The last occasion was in 2002 - Her Majesty Queen Elizabeth the Queen Mother and, prior to that, Winston Churchill in 1965.  It was said that over 200,000 people filed past the coffin of the Queen Mother.

The fascinating history of this splendid building may be seen on the Parliament website - (Westminster Hall).  See also Pictures from Old Books.

The text of President Obama's Speech to Parliament - The White House 25th May 2011
Watch the ceremony and hear the speech on Democracy Live (BBC 25/5/11)

Tuesday 24 May 2011

The Ian Tomlinson case - a manslaughter prosecution: Victims Commissioner: Fixed Term Parliaments and other Bills

Politicians at G20 in 2009
The Crown Prosecution Service (CPS) has announced that there is to be a prosecution for manslaughter in relation to the death of Mr Ian Tomlinson.  P.C. Simon Harwood is to be charged.  It is a matter of public record that the inquest jury returned a verdict of unlawful killing but a Coroner's court is not permitted to determine questions of criminal or civil liability.  Since criminal proceedings are now active it is not permissible to comment further on the case - see the CPS statement relating to the prosecution.

The families of Victims of Crime:

The Commissioner for Victims and Witnesses - Louise Casey - has pointed out that families who have lost loved ones under terrible circumstances are facing costs of £37,000 on average as they struggle to pick up the pieces - see Ministry of Justice 11th May 2011.

Fixed term Parliaments:

Some time ago, Law and Lawyers

Monday 23 May 2011

Inquiries in Northern Ireland ... and Inquests

The Inquiry into the murder, on 15th March 1999, of Northern Ireland solicitor Rosemary Nelson has reported.  She was killed by a bomb attached to her car and a "loyalist" group known as "Red Hand Defenders" claimed responsibility.  The Rosemary Nelson Inquiry has taken 6 years at a cost of £46.5m.   See the Inquiry website from where the report may be accessed.  An earlier report by retired Canadian Supreme Court Judge Peter de Carteret Cory also considered aspects of the Rosemary Nelson case.

The Rosemary Nelson Report raised

Sunday 22 May 2011

Lord Neuberger - Superinjunctions and other orders

Lord Neuberger MR
Imagine a conversation between the man in the street – (let’s call him Joe) – and a lawyer – (Silkysmooth).  Joe asks why he cannot know the name of some prominent person (X) who, so it is alleged, has been having an extra-marital affair.  Silkysmooth  responds – “The simple answer is that an order of the High Court – known to lawyers as an “injunction” – prevents publication of the name.”  Joe then asks – “Why have they done this?  Surely, there’s such a thing as free speech.”  Silkysmooth - “Because X has a right, under the European Convention on Human Rights Article 8, to respect for his private and family life, his home and his correspondence – and, for that matter, you have the same right.”  Joe replies – “Maybe, but nobody’s interested in me and I can’t afford to get one of those ... what did you call ‘em ... injunctions!  Anyway, what about free speech.”  “Ah yes, Article 10 of the European Convention, I did my Masters thesis at Oxford on that before coming up to London ....”

Joe, rightly suspecting a lengthy monologue by Silkysmooth, interrupts - “Can an injunction stop MPs discussing something in Parliament?”  “No", replies Silkysmooth, “there is something called Parliamentary privilege.  It’s an old law going back to the 17th century or before and is aimed at protecting the ability of Parliament to debate freely.  However, this privilege has its limits.  For instance, it is unclear whether it fully covers some matters such as conversations between an MP and a constituent.  Also, you could be in breach of an injunction by mentioning it to your MP if the injunction prevents discussion with third parties”   “Well, all this ought to be sorted out, Joe says, “why isn’t it?”  “Because sometimes no case has come up to get a ruling”, replies Silkysmooth.

“My wife told me that the judges have too much power and should not be doing these things – after all they are unelected”, said Joe.  “Well”, replies Silkysmooth - (deliberately ignoring Joe’s technical breach of the hearsay rule) – “It is the elected politicians in Parliament who have let the judges do this, by bringing in the Human Rights Act 1998.  The judges are only protecting the rights of those before the courts and this is all they are doing when they issue a superinjunction.” 

“I’ve heard of one those” Joe intervenes, “are we allowed to know one has been issued and can my MP get to know it exists?”  “You are not allowed to know”, insists Silkysmooth – “but your MP may

Saturday 21 May 2011

Lord Collins of Mapesbury

On 7th May, Supreme Court Justice Lord Collins of Mapesbury reached what a good friend of mine used to call the "statutory age of senility" meaning that his retirement, at age 70, as a full time judge was enforced by law.  Lord Collins is notable in being the only solicitor to have ever reached the top of the legal profession both as a Lord of Appeal in Ordinary - (appointed in 2009, he was the 111th such appointment) - and then as a Justice of the Supreme Court of the U.K. upon its commencement in October 2009. 

The President of the Supreme Court, Lord Phillips, told a glittering gathering of the legal establishment at the Inner Temple: "We at the Supreme Court bitterly resent his going. His many qualities have enriched our lives. His outstanding legal knowledge and wisdom has enriched our judgments...and he is an infallible source of advice on which films must not be missed."

Lord Collins will

Friday 20 May 2011

Sentencing Guidelines for Burglary

Hot on the heels of sentencing guideline consultations for assault and drug offences, the Sentencing Council has issued a consultation on sentencing for burglary.  The consultation is open to public comment up to 4th August 2011 – see Professional Consultation document.    In the assault and drug offence consultations a nine point approach was adopted and the same approach has been applied here.

Burglary is legally defined in the Theft Act 1968 s.9 (Burglary) and s.10 (Aggravated Burglary).  In recent years, particularly

Plantagenet Palliser - after 100 years, will Lords reform arrive?

See the draft Bill together with Explanatory Notes.

It was the author Anthony Trollope (1815-1882) who invented the fictitious character Plantagenet Palliser who became Duke of Omnium and, even though he had to sit in the House of Lords, Prime Minister of a coalition government.  Palliser sought in vain to decimalise the currency but this reform eluded him.  It is now a century ago since the Parliament Act 1911 limited the powers of the House of Lords and stated in the Preamble:

"Whereas it is expedient that provision should be made for regulating the relations between the two Houses of Parliament:  And whereas it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of hereditary basis, but such substitution cannot be immediately brought into operation:   ...."

A century later, the kind of reform indicated in 1911 has proved to be extremely elusive though, like Palliser, it has not necessarily been for the want of trying.  There was the Bryce Conference of 1917-18; the Parliament Act 1949 further limited the Lords' power, life peerages came with the Life Peerage Act 1958 (and enlivened the Lords), the Peerage Act 1963 permitted disclaimer of peerages; and the House of Lords Act 1999 removed some 654 out of 746 hereditary peers.  Then came the Wakeham report of 2000 followed by a Joint Committee on House of Lords Reform report of 2002 and various White Papers - notably that of 2007 - and now the coalition government's proposals.  Proposals for reform up to year 2000 are helpfully summarised here.

Rodney Brazier - (Professor of Constitutional Law, University of Manchester) - in his book "Constitutional Reform - Reshaping the British Political System" (OUP 3rd Ed)  refers to the "Second-Chamber Paradox" (chapter 5).  It is in this book that the analogy with Plantagenet Palliser appears.  Brazier argues that, on the one hand, our Parliament is enhanced by the presence of some people from outside the world of politics who bring their individual experience and expertise to bear.  Further, the House tends to look at legislation with "something approaching an impartial rigour" and the House is therefore a counterweight to the elective dictatorship.  On the other hand, a House without elected members is "anomalous and unrepresentative." 

The Coalition Government's proposals:

Thursday 19 May 2011

Kicking the "Rhino's Skin" ... (the discomfiture of Mr Clarke) - DNA profiles - the Stephen Lawrence murder

Breaking the Cycle and discount for guilty plea:

In December 2010 Law and Lawyers looked at the White Paper - "Breaking the Cycle ...." - which set out the government's thinking on reforms to the ways in which offenders are dealt with.  One proposal - at para. 216 - indicated that the government wished to give incentive to those who are guilty to so plead at the earliest opportunity and, to assist with this, a 50% reduction in sentence is proposed.   This particular proposal hit the headlines spectacularly on Wednesday 18th May after the Secretary of State for Justice and Lord Chancellor (Rt. Hon. Kenneth Clarke QC MP) gave an interview to Radio 5.  It certainly appeared at Prime Minister's Question Time - (see BBC) - that David Cameron might well now be distancing himself from this proposal.  Under present sentencing guidance a discount of up to one-third is possible for an early guilty plea but "early" would usually be taken to mean by the first appearance before the court which will try the case.  Sentencing guidance suggests only a 10% discount if the guilty plea is entered just as the trial is about to start.


There was further and greater discomfiture for Mr Clarke over

Wednesday 18 May 2011

Intellectual property - the Hargreaves Review reports

Intellectual property is of enormous economic importance.   A review of Intellectual Property and Growth has been conducted by Professor Ian Hargreaves of Cardiff University and the review report (Digital Opportunity: A review of Intellectual Property and Growth) has been published.  The government's Intellectual Property Office (IPO) issued a press statement indicating that changes to intellectual property law could add some £7.9 billion to the U.K. economy.  The press statement contains a summary of the recommendations made by the review.

Intellectual property rights are those rights granted by law to creators and owners of works that are the result of human intellectual creativity.  The main intellectual property rights are: copyright, patents, trade marks, design rights, protection from passing off, and the protection of confidential information.  One of the major difficulties with the law in this field is that the law has a tendency to lag considerably behind new technological innovations.  The law has considerable international dimensions - (e.g. how are intellectual property rights given protection internationally) - and European Union law has much to say on the subject.  See World Intellectual Property Organisation (WIPO).

Readers may find the website of the Centre for Intellectual Property and Information Law of interest and the Queen Mary Intellectual Property Research Institute. See also the reaction to the report on Legal Week and the Solicitor's Journal - "Review urges government to take action"

Tuesday 17 May 2011

House of Lords Reform

The Deputy Prime Minister (The Rt. Hon Nick Clegg MP) has presented a draft House of Lords (Reform) Bill to Parliament.  The Bill is to be considered in a committee which will report in early 2012.  The proposal involves a House much reduced in size (300 is proposed) and the majority (possibly all) will be elected using the Single Transferable Vote (STV) method of proportional representation.

See the draft Bill together with Explanatory Notes.  A later post will take a look at this important proposal in some detail.  See also Office of the Deputy Prime Minister

It appears that this key constitutional reform will be decided just by the politicians.  No referendum on the reforms is planned.  Should there not at least be some detailed consultation with the people on reforming what is, after all, a Parliament which enacts the laws they have to live by?

The White Paper ends by stating - "This draft Bill marks the transformation of the House of Lords into a democratically legitimate second chamber. It provides our vision for the reform of the House of Lords. The Government looks forward to the results of the work of the Joint Committee which is undertaking pre-legislative scrutiny of the Bill. We will consider their report carefully, but remain committed to introducing a Bill for enactment in time to provide for the first elections in 2015."

Addendum 18th May:  UCL Constitution Unit Press Release - Eight key obstacles on the road to Lords reform.

Commenting on Family Cases

"Justice is not a cloistered virtue: she must be allowed to to suffer scrutiny and respectful, even though outspoken, comments by ordinary men" - Lord Atkin - Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 (PC).  This statement, by one of the most distinguished of British judges, is frequently quoted.  Unfortunately, one of the most difficult areas to comment upon is that of family cases and there is clear tension between the media and the judiciary over this matter.  This is, yet another, area where Articles 8 (Private and Family Life) and 10 (Expression) of the European Convention on Human Rights come into collision.

The previous Labour Government secured the enactment of the Children, Schools and Families Act 2010, Part 2 of which created a new scheme relating to publicity of child family cases.  This scheme would apply across all family courts.  The coalition government announced in October 2010 that it would await await the outcome of the Family Justice Review before deciding whether to commence Part 2 of the 2010 Act.  This leaves the matter of reporting to be  regulated by the Children Act 1989 s.97(2)  and it should be noted that contempt of court proceedings may also arise under the Administration of Justice Act 1960 s.12.  

Issue appears to have been joined between the journalist Mr Christopher Booker and

Monday 16 May 2011

Watch the Supreme Court of the U.K. at work ...

Most hearings before the Supreme Court of the U.K. may now be viewed via the Sky News website.  See also Legal Week and the U.K. Human Rights Blog.  This development is very welcome.  There may be some instances where, for legal reasons, the proceedings are not broadcast.

Saturday 14 May 2011

Court of Protection .... is for the weak and vulnerable not the rich and famous

Over recent weeks, there has been massive coverage of the use of injunctions to protect the private lives of various "celebrities" - (who can afford to bring these cases to court).  Then there has been the case in the European Court of Human Rights of Moseley v U.K. which is discussed on the UK Human Rights blog and by Head of Legal.  Mr. Moseley lost his argument that the European Convention required him to be notified in advance of any plan to publish items concerning his private life.

Far removed from these high profile cases are some profoundly difficult and sensitive cases coming before the Court of Protection.  One such case concerns a lady - (who must be known only as M) - who was admitted to hospital in 2003 suffering from brain stem encephalitis and is now in a "minimally conscious state."  M's family consider that M would not wish to continue living in her current state.  M's mother (W) applied to the Court of Protection for a declaration that M lacks capacity to make decisions as to her future medical treatment and that treatment may be lawfully discontinued.

Proceedings in the Court of Protection are normally

Wednesday 11 May 2011

Supreme Court - Compensation for miscarriage of justice cases

Payment of Compensation for Miscarriage of Justice - some initial thoughts

The Criminal Justice Act 1988 s133 provides for compensation - "when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice." 

Section 133 therefore requires that (a) there is a new or newly discovered fact; (b) showing beyond reasonable doubt; (c) a miscarriage of justice.

What does the phrase "miscarriage of justice" mean for the purposes of s.133?  This was the issue before a nine judge Supreme Court in R (Adams) v Secretary of State for Justice [2011] UKSC 18.  [Judgment in two cases from Northern Ireland - MacDermott and McCartney - were given at the same time].   A further issue, in the case of Adams, was what was a "new or newly discovered fact."

All the appellants had been convicted of murder but had their convictions quashed and they all claimed compensation under s.133.  The Secretary of State argued that the men had not shown that a "miscarriage of justice" had occurred.

The phrase miscarriage of justice was capable of different meanings.  The Supreme Court set out four categories based on the judgment of Dyson LJ (as he then was) when the Adams case was in the Court of Appeal (Criminal Division) - (here)

Category 1 - the fresh evidence shows the person to be innocent;
Category 2 - had the fresh evidence been available at the trial, no reasonable jury could properly have convicted the defendant
Category 3 - Where the fresh evidence rendered the conviction unsafe in that, had it been available at the trial,a reasonable jury might or might not have convicted the defendant
Category 4 - Where something had gone seriously wrong in the investigation of the offence or the conduct of the trial resulting in the conviction of someone who should not have been convicted

The court noted that the primary object of s.133 was to compensate a person who had been convicted and punished for a crime which he had not committed.  The court eliminated Categories 3 and 4 from the scope of s.133.  Category 3 was outside s.133 since the section required that the miscarriage of justice had to be shown beyond a reasonable doubt.  Category 4 was outside s.133 because it dealt with abuses of process so shocking that the conviction should be quashed even if it did not put in doubt the guilty of the convicted person - an example was the Mullen case decided by the House of Lords in 2004.

Category 1 cases were clearly covered by s.133.   A majority (5 to 4) held that s.133 was not restricted solely to Category 1 cases.  To so restrict it would deprive of compensation some who were in fact innocent but could not establish this beyond reasonable doubt.  The majority stated - "A new or newly discovered fact will show conclusively that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based on it."

The wording of this formula is different to the wording used to describe Category 2.  Clearly the formula includes all Category 1 cases and goes to some extent beyond that. 

According to 4 of the justices, the phrase "new or newly discovered fact" was to be

Tuesday 10 May 2011

Munro Review on Child Protection reports

Professor Eileen Munro has issued her final report on Child Protection. - (pdf - large file) and also see the Munro Review of Child Protection on the Department for Education website.  The report makes 15 recommendations which, Professor Munro claims, will help "shift the child protection system from being over-bureaucratised and concerned with compliance to one that keeps a focus on whether children are being effectively helped and protected."  The government have stated that they will work closely with a group of professionals from across the children’s sector to develop a full response to Professor Munro ’s recommendations later this year.  Professor Munro speaks about her report here.   For earlier posts on this review see Law and Lawyers 10th June 2010 and 11th February 2011.

In March 2011 the Norgrove Review on Family Justice issued an interim report - (pdf - large file).   Discussion of the report may be seen at Family Law Week.

Interestingly, many of the reviews commissioned by the coalition government in its first flush of enthusiasm are now reporting and making significant recommendations.  It remains to be seen whether these recommendations will be translated into practice and, if so, how it will be done in this difficult economic climate.  For example, The Guardian 10th May wondered whether much of the Munro Review will be implemented in the light of cuts to the budgets of local authority social services departments.   Of course, any reduction in bureaucracy is to be welcomed but the fact will remain that reports from social services will be required for the purposes of care proceedings in the family courts.  Once such proceedings are commenced, social workers have to spend considerable time preparing such reports and attending court.

The Munro Review - summary of recommendations:

Monday 9 May 2011

Some recent property cases

Here is a brief look at three recent property cases which raise interesting and important issues.

Property of Cohabitees - separation and co-ownership of a home:

Kernott v Jones [2010] EWCA Civ 578, is a particularly important (majority) decision of the Court of Appeal relating to property held jointly by unmarried persons.  A further appeal has been heard by the Supreme Court and judgment is awaited.    Lord Justice Wall commenced by stating - "This is a cautionary tale, which all unmarried couples who are contemplating the purchase of a residential property as their home, and all solicitors who advise them, should study."  The Marilyn Stowe blog considers this in "Kernott v Jones: a case of square pegs and round holes" and argues that "cohabitation manifestly does produce a relationship in need of regulation. All we have at present is a hotchpotch of rigid, outmoded and outdated property law to regulate the end of a relationship that may have been every bit as financially complex as a marriage."  When the relationship between cohabitees breaks down there is a clear practical need to sort out the property but it is interesting, as Marilyn Stowe notes, that when Lord Justice Wall (President of the Family Division) stated recently that urgent legislation is required for cohabiting couples, more than 60 per cent of The Times readers surveyed disagreed.  It remains to be seen to what extent, if at all, the Supreme Court will push the boundaries of property law in the absence of specific legislation similar to that applying to divorcing couples.

Law Commission proposals on Cohabitation 
Scotland has legislation in place so that the courts may make certain orders in some cases where cohabitees separate - Family Law (Scotland) Act 2006.

Making a will and Family provision:

When making a will, the basic rule

Saturday 7 May 2011

It's a NO to AV .... but .... what lies ahead?

Parliament of the United Kingdom
The referendum held on 5th May resulted in a decisive rejection of the "Alternative Vote" (AV) as a method of electing the House of Commons - "AV referendum: Britain overwhelmingly votes NO."  68% voted against AV with 32% in favour - the election turnout being around 40%.  The background to this was covered in an earlier post on the Parliamentary Voting System and Constituencies Act 2011 which, apart from the AV issue, seeks to reduce the number of parliamentary constituencies to 600.

Interesting questions now arise.  How will the referendum result affect other constitutional reform proposals and will there be new issues arising?  Of course, the campaign about AV saw members of the coalition government in opposing camps - in particular, the Prime Minister (against AV) and the Deputy Prime Minister (for AV).  Whether this has irreparably fractured the coalition remains to be seen - see, for example, views expressed by Mr Vince Cable about the "ruthless, calculating and thoroughly tribal" Conservatives.

Currently going through Parliament is the Fixed Term Parliaments Bill which is now in the House of Lords and, according to the timetable, could become law by the end of May.    Then there is the continuing and seemingly unsolvable issue of House of Lords reform.  The Deputy Prime Minister was said to be about to introduce a reform bill with a view to achieving a House of Lords with a substantially elected membership but, it now appears, that such a reform may not receive sufficient political support particularly from the Conservatives - see Independent 7th May.   Interestingly, well over 100 new peers have been created on the recommendation of Mr Cameron and the view has been expressed that the Lords is now "full" - BBC 20th April.  and a "think tank" at University College London has reported on the size of the Lords and proposed some short term changes which it sees as urgent.

Potentially, the even

Friday 6 May 2011

Inquest - London Bombs of 7th July 2005

With Addendum of 15th May

The Rt. Hon. Lady Justice Hallett DBE - Acting Deputy Coroner for Inner West London - has delivered a verdict of unlawful killing in relation to 52 deaths caused by the detonation of bombs in London on 7th July 2005 - often referred to now as 7/7.  The learned Coroner's closing remarks are available on the Inquest website.  Lady Hallett has also issued a report under Rule 43 of the Coroner's Rules 1984 - as amended by the Coroners (Amendment) Rules 2008.  The Rule 43 report contains 9 key recommendations - summarised here.   Such a report may be issued where a Coroner is satisfied that the evidence gives rise to a concern that circumstances creating a risk of other deaths will occur or continue to exist in the future, and is of opinion that action should be taken to prevent the occurrence or continuation of such circumstances, the Coroner may report the circumstances to a person who the Coroner believes has power to take action.

The Inquest explored in detail the circumstances of each of the 52 deaths and looked at the adequacy of the emergency response.  It was common ground that the evidence did not justify the conclusion that any failings on the part of any organisation or individual caused or contributed to any of the deaths.  The Coroner took considerable account of expert knowledge as to the effect of bomb blast on individuals in close proximity to the detonation.  Lady Hallett was satisfied, applying a balance of probability test, that each would have died whatever time the emergency services had reached and rescued them.

The inquests

Wednesday 4 May 2011

Two appointments to the Supreme Court of the United Kingdom

Lord Justice Wilson
It has been announced that Lord Justice Wilson and Mr Jonathan Sumption QC are to be appointed to the Supreme Court of the United Kingdom.  Lord Justice Wilson's background may be seen here.  He is a vastly experienced family lawyer and as a judge he has sat in the High Court from 1993 to 2005 and in the Court of Appeal since then.   Jonathan Sumption QC is a highly regarded commercial lawyer with expertise in European Union law, Competition Law, Public and Constitutional Law.  He has been frequently engaged in overseas jurisdictions, and in recent years has argued cases before the Appellate Courts of Hong Kong and also the Federal Court in Australia.  It was rare for a lawyer to be appointed directly to the House of Lords and Mr Sumption is the first such appointment to the Supreme Court.

Jonathan Sumption QC
Lord Saville retired from the Supreme Court in 2010 and Lord Collins is due to retire.

Supreme Court Press release

No. 10 Press Release

The Guardian 4th May 2011.

See also "Selecting Justices of the Supreme Court ....."

Tuesday 3 May 2011

Ian Tomlinson Inquest - Unlawful Killing Verdict

The jury at the Ian Tomlinson Inquest has delivered a verdict of unlawful killing - see the Inquest Website and The Guardian 3rd May.

It now appears that the Director of Public Prosecutions (Mr Keir Starmer QC) is to review the earlier decision relating to the prosecution of the officer who pushed Mr Tomlinson.  The Inquest was notable for the evidence of a number of pathologists three of whom contradicted the findings of Dr Patel the first pathologist to conduct a post mortem examination.  The jury had been told by the City of London Assistant Deputy Coroner His Honour Judge Peter Thornton QC that, in order to return a verdict of unlawful killing, they had to be sure beyond a reasonable doubt that the Police action caused the death - (see Directions here).

The final directions to the jury may be read here.   The Coroner reminded the jury of the purpose of an Inquest and emphasized that they could not express any opinion on criminal or civil liability.

There will be more to come on this matter.   Apart from the DPP reviewing the decision relating to prosecution, there is to be a Police Misconduct Hearing.

Previous Posts:  15th April 2011 ... 4th October 2010 ... 27th July 2010 ... 22nd July 2010

See Ian Tomlinson Inquest website and the Tomlinson Family's website.

Addendum 5th May 2011:  Press Statement by the Metropolitan Police

How extensive is all this surveillance? ... and some other items

The Guardian 3rd May carried the story of Mr John Catt (aged 86) who, it seems, has had his presence at peaceful protests systematically logged by the National Public Order Intelligence Unit (NPOIU) for some 4 years.  He has been given permission in the High Court to bring an action against the police.  See The Guardian - "Protester to sue police over secret surveillance."  The NPOIU operates under the aegis of the Association of Chief Police Officers (ACPO).  Concern has been rising for some time about the extent of such surveillance - see, for example, The Guardian 25th October 2009, "How Police rebranded lawful protest as domestic extremism."  It makes one wonder just how many people are under similar surveillance.  Maybe one of our elected representatives at Westminster might care to look into it?

How many surveillance cameras are there in Britain and how many times a day is each individual seen on camera?  One survey estimated the number

Sunday 1 May 2011

Arrests in London on 28th April - Breach of the Peace etc.

The Royal Wedding passed off exceptionally well.  It has been estimated that something like a million people were in central London for the occasion and millions more, in many countries, watched the ceremony on television.  Overall the whole occasion had a happy atmosphere with the vast majority of people wishing the couple a great future.  Unfortunately, but perhaps inevitably, there were a number of arrests - (in the region of 100).  A number of people planned a "street theatre" with the idea of showing a mock execution.  The arrest, on the evening of 28th April, of three of these people raises some interesting legal questions.  The three arrested were Professor Chris Knight, Camilla Power and Patrick Macroidan.  The precise basis of the arrests is not entirely clear though "conspiracy to commit a breach of the peace and public nuisance"  has been mentioned - Telegraph 29th April 2011 "Royal Wedding: three arrested for 'mock execution' plan." 

Breach of the Peace:  At common law, a constable is empowered to take reasonable steps to prevent a breach of the peace and persons may be arrested for "breach of the peace."  The origin of this concept seems to date back to possibly Anglo Saxon times when every man had his own "peace" with the King's Peace being the most important.  Today, "the peace" extends