Friday, 29 July 2011

Friday - roundup of some recent legal items

* A Northern Viewpoint *
The last few weeks have produced an amazing variety of legal stories.  Here is my selection on a rather cool northern Friday morning:

The Leveson Inquiry - The terms of reference of the inquiry to be held by Lord Justice Leveson are available - PM announces final hacking inquiry details.  It seems that it may well be over a year before any form of report is produced - The Guardian 28th July "Hacking inquiry: Leveson's length and breadth."  Writing in the Law Society Gazette 28th July, Joshua Rozenberg welcomes the choice of Leveson LJ and points out that Leveson has been scrupulous in declaring his interests.  He met, in his capacity as Chairman of the Sentencing Council, with Rupert Murdoch's son-in-law - Matthew Freud.  The fact that he has had such contact has led some to argue that Leveson should stand aside.  In a political sense this may be right though, in fairness, it seems that any contact has been fairly limited and probably would not disqualify Leveson under the "appearance of bias" tests applicable to the judiciary when adjudicating in court.  Also, as a podcast on the CharonQC blog indicates, the fact that any contacts are now known goes a long way to meeting the question since they can be taken into account.  See CharonQC, Beneath The Wig, Lallands Peat Worrier.  The latter made the interesting suggestion that a Scottish judge could have led the inquiry and thus avoided the "contact with the Murdoch's" issue.

Statement by Lord Justice Leveson at the launch of the Press part of the Inquiry

Supreme Court - as well as granting permission for an appeal on the issue of "limitation" in the nuclear testing case, the Supreme Court handed down five judgments including the Stormtrooper copyright case.   Meanwhile, speculation is now beginning as to who might be the next Supreme Court justices to be
appointed as a result of the death of Lord Rodger and the retirement, in April 2012, of Lord Brown.  The advertisement may be read on the Supreme Court's website and see Joshua Rozenberg's article in The Guardian.   One of the appointees is almost certain to come from Scotland since Lord Rodger was one of the two Scots justices in the court.  There has been much recent comment about "diversity" and, maybe, a further female appointee is a possibility.  It is quite fascinating to see that there is now considerable public interest in this process.  Formerly, new "Law Lords" usually merged from within the ranks of  the judges and this happened without any public comment whatsoever!

The Hookway case - In the light of the decision by McCombe J in  R(Chief Constable of Greater Manchester) v Salford Magistrates' Court and Hookway [2011] EWHC 1578 (Admin) - (the Hookway case),  Law and Lawyers recently looked at Police powers to detain suspects and noted that the Police (Detention and Bail) Act 2011 was rushed through Parliament with a view to trying to ensure that the interpretation placed by the Police upon the Police and Criminal Evidence Act 1984 prevailed.  The 2011 Act purports to be retrospective.

Writing in The Times (28th July), Lord Pannick QC noted that the Supreme Court was set to hear an appeal this week but the appeal was abandoned since, in the government's view, Parliament had addressed the matter.  In his opinion this was unfortunate because it deprived Parliament of the benefit of having the Supreme Court's view as to the proper interpretation of PACE 1984.  On a constitutional point, Parliament would not normally act to reverse a court judgment until any appeals have been determined.

The retrospective effect of the 2011 Act could be challenged since it deprives individuals of their rights under the European Convention on Human Rights.  This is because it removes any claims for unlawful detention which could have been brought on the basis of the Hookway and the Act may therefore be incompatible with Article 5.   Any such challenge would have to rely on the Hookway case and there are strong arguments to the effect that McCombe J's interpretation was right.   Please see the earlier posts on Law and Lawyers - here and here.

Judicial Diversity - see the report - Progress towards delivery of the 'Report of the Advisory Panel on Judicial Diversity 2010'

New appointments to the High Court - see Judiciary for details of new High Court Judge appointments

Lay Judges - several continental legal systems use "lay judges" though the scope of their involvement varies.  There has been a recent conference at which a declaration was signed opposing attempts by governments to abolish or restrict the role played by ordinary citizens as judges and assessors within the justice systems of European States.

Europe and the UK - The European Union Act 2011 has reached the statute book.  Law and Lawyers looked at the Bill - here and here.

Attack on Rupert Murdoch -  At Westminster Magistrates' Court, Jonathan May-Bowles (aka Jonnie Marbles) pleaded guilty to assaulting Rupert Murdoch.  He will be sentenced on 2nd August - a pre sentence report is being prepared.  A sentence of imprisonment is a distinct possibility.  Guardian 29th July.

Out of court disposals - The Inspectorates of the Constabulary and the Crown Prosecution Service have jointly produced a report - "Exercising Discretion: The Gateway to Justice."   This is an important topic and is not as prominent as perhaps it ought to be!   It concerns the already very extensive use of cautions, penalty notices for disorder and the idea of "restorative justice" by which offenders make amends.

See Ministry of Justice item on Restorative Justice

Fees in Tribunals - In "Adjust" the newsletter of the Administrative Justice and Tribunals Council (AJTC), the Council has published its response to the Ministry of Justice idea of imposing fees in the First-Tier and the Upper Tier Tribunals.   This is really a scandalous idea.  The AJTC argues that fees should not be introduced in cases where the individual is challenging a decision made by a State agency.  This seems right in principle since the individual already faces inequality of arms when taking on the State.  The AJTC is to be abolished as part of the Public Bodies Bill.

Contempt of Court - the Daily Mirror and The Sun newspapers have been found guilty of contempt of court in relation to coverage of the murder in Bristol of Joanna Yeates.  The Mirror was fined £50,000 and The Sun £18,000.    The Guardian 29th July 2011.  The case is analysed by UK Human Rights blog - here.   Law and Lawyers 24th January 2011.

The blogs - Confessions of a Family Lawyer looked at care proceedings and the very difficult question of what happens when a report is received that a parent lacks mental capacity to parent.    The Martin Partington blog  has a whole series of very well written and presented items.  This is a thoughtful blog and is well worth adding to your reading list.  Recent posts include the Legal Aid, Sentencing and Punishment of Offenders Bill; House of Lords reform; Getting it right first time - the aim of administrative justice.

As ever, CharonQC continues to both inform and entertain and his podcasts are always well worth listening to.   UK Human Rights has interesting posts on numerous matters including: Police misconduct (R v Maxwell 2010); why the public purse stays closed to a morbidly obese man; an environment case (article by David Hart QC); a look at the Gibson detainee inquiry which is beginning its work a year after David Cameron announced that it would be set up and, a post by Adam Wagner on "Whose law is it anyway" which looks at some simple ways in which the law could be made more accessible to the population.

The lawyer's legal skills should not be confined to knowing the law and the ability to present cases in a court.  The ability to negotiate is crucial.  On the Marilyn Stowe blog is an excellent article about negotiation by Julian Hawkhead (Managing partner at Stowe Family Law's Harrogate office).

Well - there we are for now.  Another week and not another dollar!  At least if it is a wet weekend you will have plenty to read.


  1. Dear Obiter J, I had been hoping that you might have referred to the charges brought against the nurse from Stepping Hill Hospital. These are Aggravated Criminal Damage charges - which to my non-legal eye seem a bit strange. Even though the max is life. Any comments?

  2. I have not covered the story because the case is live in the Crown Court and will eventually come before a jury.

    However, thanks for your comment and perhaps the Criminal Damage Act 1971 will get on to the blog at some stage.