Thursday, 21 July 2011

Some recent cases

The law reports this week contain a number of cases which the reader may find interesting.  My choice today is the following five:-

Case 1 - Ratcliffe-on-Soar:  The power station protester cases have been followed on this blog since the use of an undercover officer was revealed back in January.  The conspiracy to commit aggravated trespass convictions of 20 protesters have now been quashed by the Court of Appeal - R v Barkshire and others [2011] EWCA Crim (B3).  An interesting post, written by David Hart QC, appears on the UK Human Rights blog.  Hart draws attention to the Court of Appeal expressing reservations about a pre-trial ruling (of Flaux J) that the defendants could argue that their conduct was justifiable or excusable on the basis of necessity.  The Court of Appeal did not rule on this and so the point remains open.  It is quite possible that, in the event of some further similar protest, the point will be resurrected but it may not find fertile ground within the judiciary.

Related posts  14 July, 10 June, 10 Jan, 8 Jan - the 8th January post looked at the defence of necessity.  It is likely that the judges would wish to keep any such defence within limits which are as narrow as possible.

Case 2 - Jurors in the local pub:  R v Hewgill, Hancock, Murray [2011] EWCA Crim 1778 concerns a conversation - (in a pub "The Crown" near to the Crown Court at Birmingham) - between two jurors and a defendant who had been convicted but was
released on court bail pending sentence.  The conversation related to another defendant who had not yet been convicted on one count in the indictment.  What effect did this conversation - which was not reported to the trial judge - have on the subsequent verdict?  See the case for the answer!

Case 3 - Sexual Offence Prevention Orders (SOPs):  A considerable body of case law is developing around these orders which form part of the total sentencing package for certain "sex offenders."  These orders are based on the Sexual Offences Act 2003 Part 2 sections 104-113R v Smith, Clarke, Hall and Dodd [2011] EWCA Crim 1772 considers the making of these orders in relation to offenders who had been found guilty of viewing child pornography.  The case does not purport to discuss every aspect relating to the making of these orders.

Case 4 - Family Law - Guardians in Care Proceedings:   The Guardian is usually appointed by the Children and Family Courts Advisory and Support Service (CAFCASS).  Some years ago, many guardians operated freelance.  It was always considered that a guardian had independence in terms of the advice they offer as to matters such as the outcome considered to be the best in the interests of the child or children in question.  A court needs to have very cogent reasons to go against a guardian's considered recommendations.  The independence of guardians has been defended by Sir Nicholas Wall, President of the Family Division in K, C, T v CAFCASS and others [2011] EWHC 1672 (Fam) which concerned the removal of a Guardian in care proceedings.  It was not for CAFCASS to either replace the guardian or to substitute its views for those of the guardian.  The guardian's views were open to be tested in the court which, of course, has the ultimate responsibility for making orders relating to children.

Case 5 - Imprisonment for Public Protection (IPP):  Last but by no means least is R v Smith [2011] UKSC 37.  This case in the Supreme Court concerned Imprisonment for Public Protection (IPP) under the Criminal Justice Act 2003 s225(3) as amended by the Criminal Justice and Immigration Act 2008 s13(1).  A "lifer" prisoner was released on licence and committed robberies.  He was recalled to prison.  When sentencing for the latest offences, the judge imposed a sentence of imprisonment for public protection.  This was challenged but the Supreme Court has held that the sentence was in order.  For more on this case see UK Supreme Court blog.


  1. Re the defence of necessity. Here is a view which I expressed earlier this year by way of a comment to a post on another blog:

    That a defence of “necessity” exists in English law is, as far as I know, generally accepted these days. In Hasan [2005] UKHL 22, Lord Bingham said:

    “The only criminal defences which have any close affinity with duress are necessity, where the force or compulsion is exerted not by human threats but by extraneous circumstances, and, perhaps, marital coercion under section 47 of the Criminal Justice Act 1925.”

    Judges appear to have tried to keep the defence within very narrow limits. Perhaps Dickson J in the Canadian case of Perka v The Queen 1984 came closest when identifying the necessary conditions as including “urgent situations of clear and imminent peril” in which “compliance with the law [would be] demonstrably impossible”.

    Breaking the window of the burning house to rescue a child known to be in there is perhaps a good example.

    The power station protesters planned a trespass with a view to disrupting activities there. They would also have known that their actions would obtain publicity for their “cause” and it has indeed achieved this. However, there is nothing like the immediate imperative to act in a way which breaks the law which would justify a defence of “necessity.”

  2. There are two other items of legal news which relate to previous comments by me, which you may like to discuss soon:

    1: Justice Susan Denham is to be the next Chief Justice of Ireland (the first woman and first Protestant) - a very long time since the first Roman Catholic (Russell) and Jewish (Isaacs) Chief Justices of England; cf. my tip for first female CJ here (Heather Hallett) - any other candidates?

    (this leads to possible notes on Ireland's post-independence legal history and development; which leads to:)

    2: Further decisions by the Welsh Assembly, slowly distinguishing Welsh Law from English Law.

  3. Occasionally I have touched on Northern Ireland - which holds particular interest for me. However, I think there is little "mainland" interest in it - as is the case with so much to do with Ireland. (Note: Osborne reduces the interest rate on UK - Ireland bilateral loan. Not announced in Parliament. Nobody here seems bothered! Did this apathy help to perpetuate the troubles in Northern Ireland?).

    I think it is unwise to speculate about particular names for future posts. All I say is that the selection should be the best person for the job regardless of other considerations.

    Joshua Rozenberg sometimes speculates about names - (e.g. recent Supreme Court appointments) - but he seems to have a great deal of "inside" knowledge.

    The law in Wales is diverging from that of England because of "Welsh Assembly Measures." There has been more devolution of powers to the Welsh Assembly since 1998. Nevertheless, legal basics remain the same and the law remains the same where there is no devolved power.

  4. Er...I was referring to the Chief Justice of Ireland (Phriomh-Bhreitheamh na hÉirann), not the Northern Ireland CJ - see:

    Irish Law is as much a sibling of English Law as Scots Law - indeed, is a closer one, so it's a pity that it has tended to be neglected, as with many other parts of civil society in Ireland, by UK observers.

    Regarding office-holders: I think it is interesting that Russell and Isaacs were appointed so long ago and that the religion of the English CJ is now no longer an issue (until the first Muslim or Sikh is appointed), as it would be in the USA, for example.

    With female judges, I wasn't thinking of names so much as whether there were enough possible, qualified candidates to allow for more women at the senior levels of the judiciary (ie: more "Lady" Justices, a "Mistress" Of The Rolls...).

    The reemergence of Welsh Law is already having a practical effect: eg on health care where treatment may be given to a patient from one country in the neighbouring one or shared between the two, with the inevitable legal considerations in the background . When I bring this up at meetings of the [healthcare] Local Involvement Network I am a member of , I get the "as if we didn't have enough to think about" eye-rolling response in agreement more often or not.

    Returning to Ireland to finish, this time to the North; the rest of the UK is underwriting this legal system in miniature, so why can't we have some regional devolution to the English Circuits as a balance - such as the Court of Appeal sitting in the regional capitals to start with?