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