The Family Justice Review (2) - Main recommendations

In November 2011 the Family Justice Review, led by David Norgrove, issued its final report - "Family Justice Review: Final Report."   It is a lengthy and detailed report and builds upon an Interim Report issued earlier this year.  The Review was conducted against the background of certain "guiding principles" set out by the commissioning Ministers - please see Part 1 of this post.

: The Recommendations :

The recommendations are set out at pages 26 to 36 of the report.  For the reasoning underlying particular recommendations it is necessary to look at the subsequent Chapters.  What follows is a reasonably detailed look at the main recommendations.

The child’s voice: pages 45-49 - the report seeks to ensure that children’s interests are truly central to the operation of the family justice system.  Thus, children should be given age appropriate information to explain what is happening when they are involved in public and private law cases and they should be supported so that they are able to make their views known.  The Family Justice Service (recommended by the Review) would take the lead in this area. 

The UK Government should

Rights of Children

Farndon-Holt Bridge

An old stone bridge crosses the River Dee and links the English village of Farndon with the Welsh village of Holt.  For many years, the historic and sinuous boundary between England and Wales was of little practical interest to most lawyers who practised the Law of England and Wales.  (The Bar had, and still has, the Wales and Chester Circuit).  Since the enactment of the Government of Wales Acts 1998 and 2006 things have changed. There is an elected National Assembly for Wales (Cynulliad Cenedlaethol Cymru) based in Cardiff and it is empowered to legislate within certain devolved areas - see Cabinet Office.  As a result, there are now some marked differences between the law in England and that in Wales.

In 1989, the United Kingdom signed the United Nations Covenant on the Rights of the Child.   This came into force on 2nd September 1990 and binds the United Kingdom in international law.  The Convention has not been incorporated by statute into English law.  However, it could be referred to

The Family Justice Review (1) - Overview and Terms of Reference

In November 2011 the Family Justice Review, led by David Norgrove, issued its final report - "Family Justice Review: Final Report."   The report extends to 228 pages.  This was the second major report of the year relating to family law and justice; the other report being that by Professor Eileen Munro - see Law and Lawyers 10th May 2011 Munro Review on Child Protection.

The Family Justice Review was commissioned by the Secretaries of State for Justice and Education and also by the Welsh government Minister for Health and Social Services. The Terms of Reference of the Review are set out at Annex A to the report and are considered in this post (below).  Interestingly, the Terms of reference refer to certain "guiding principles."   These are now considered with my comments in brackets ( ).

The "Guiding Principles" as decreed by Ministers:

The interests of the child should be paramount in any decision affecting them.  (This reflects existing law  - Children Act 1989 s.1. and it is generally accepted that the interests of the child should remain central to decisions.  The present law gives little weight to others involved - e.g. grandparents etc.  For an interesting viewpoint, see

Family Law: contact orders - a case raising novel issues

The 500th Post on this Blog

When the significant adults in a child's life are in conflict, the child can suffer emotional harm.  Disputes arise about matters such as where a child shall live ("residence") or whether the child should have contact with the other adult and, if so, what form that contact should take.   Where agreement is not possible between the disputing adults, the courts may be called upon to make orders under Part II of the Children Act 1989- e.g. residence order, contact order etc.  When such orders are made, it is far from unusual for one or even all of the parties to dislike the terms of the order but the fact remains that the order is a default position defined by the court which was made necessary by the intransigence of the adults.

In making the order, the court will have applied the fundamental rules set out in section 1 of the Children Act - namely that the child's welfare is the court's paramount consideration ("Welfare Principle") and that no order should be made unless the court considers that doing so would be better for the child than making no order at all ("No order principle").

The recent case of  Re P and L (Minors) [2011] EWHC 3431 (Fam) was a dispute about

Twelve Days of Christmas - my selection

Here are some offerings for the Twelve Days of Christmas (or, for the mathematically inclined - this):

1.  Christmas Day - "For Unto Us is Born a Child" - Huddersfield Choral with the Liverpool Philharmonic Orchestra conducted by Malcolm Sargent.  This fine performance was back in 1946.  Then there was His Majesty's speech on 25th December 1939 - "I said to the man who stood at the gate of the year ..."

2.  Boxing Day - "The Wexford Carol" - there are many versions of this lovely old carol - I like this and this. 

3.  27th December - A Denning judgment - dedicated to all those modern judges who seem to lack the time to keep their judgments short and

Habeas Corpus No. 2

A writ of habeas corpus was issued by the Court of Appeal in the case of Yunus Rahmatullah - Law and Lawyers 14th December 2011.   It now appears that the British Government has asked the United States to return him to British custody but the government has been granted further time (18th January) to obtain his production - see Telegraph 21st December 2011.  It is not yet clear whether the US will comply with this request though Memoranda of Understanding (MoU) existed between the UK and US governments relating to Transfer of Prisoners of War, Civilian Internees and Civilian Detainees.  Details of the MOU are in the Court of Appeal judgment.

English Courts are careful when issuing writs and orders since they have to be enforceable.  Consequently, it is essential that those to whom the writ or order is directed are basically able to comply with it.   The primary purpose of the habeas corpus writ is the physical production of the person concerned ('the applicant') before the court - (see Court of Appeal judgment at para 26).

The effectiveness of the

Winter Solstice News and Views

Stonehenge

Updated

The winter solstice has now passed and the days will lengthen.  Over the last few weeks there has been a considerable amount of legal news and the Michaelmas Term has been fascinating.  The following is a selection.

The Court of Appeal: Criminal Division Annual Report:  has been released - see here (pdf 40 pages).   This is a highly interesting and useful document which includes Chapter 3 (Cases of note), Chapter 4 (Other types of appeal and Chapter 5 (Role of the Criminal Cases Review Commission).

Lord Chief Justice's Press Conference: was held on 6th December.   A transcript of the conference is available.  Questions covered a considerable range.  His Lordship refused to comment about the legal aid bill since it was in the political arena and therefore "wiser to say nothing."  In response to a question relating to the effectiveness of the law of contempt of court, Lord Judge responded by saying it came down to what sort of jury system we want.  It has to be one in which the case is decided only on the basis of evidence presented in court and not material discovered by jurors undertaking their own internet research.  Questioning

Lockerbie: 23 years ago today

Addendum:  The following links may be of interest: Lockerbiecase and Daily Mail 22nd December.

 -----

21st December 1988 was the day when Pan Am Flight 103 - a Boeing 747 en route from London Heathrow to New York - was destroyed by explosive devices which detonated as the aircraft, flying at 31,000ft (FL310) approached the small Scottish town of Lockerbie.  A great deal of information about this event may be read at Pan Am Flight 103 (Wikipedia).  In all 270 people were killed: 243 passengers, 16 aircrew and 11 persons on the ground in Lockerbie.

The Air Accident Investigation Branch (AAIB) conducted a through investigation into the causes of the accident and published their report in 1990.

Subsequently, a trial was held at Camp Zeist, Holland.  Scots criminal law applied.  Two men were accused: Abdelbaset Al Mohmed Al Megrahi and Al Amin Khalifa Fhimah.  The trial was conducted by three Scottish judges (Lords Sutherland, Coulsfield and Maclean) and was heard without a jury.  (Scots Law usually requires a jury of 15 in "solemn procedure").  The legal authority for this trial was a Statutory Instrument - The High Court of Justiciary (Procedure in the Netherlands)(United Nations) Order 1998.   This order, "nodded through" at Heathrow Airport by Her Majesty, simply dispensed with jury trial - see Article 5(3) of the Order.  Her Majesty was on her way to Brunei and a Privy Council meeting was held at Heathrow Airport on 16th September 1998.

The opinion of the three judges concluded

Stories of the Day as thoughts turn to Christmas 2011

James Tissot - The Journey of the Magi

The Supreme Court:  Two new justices have been named.  They are the Scottish Judge Lord Reed and Lord Justice Carnwath.  Their appointments are consequent upon the death in June 2011 of Lord Rodger of Earlsferry (who also came from Scotland) and the pending retirement of Lord Brown of Eaton-under-Heywood.

2012 will see also see the retirement of Lord Phillips of Worth Matravers who is currently President of the court.  Lord Phillips announced that he would retire, slightly early, at the end of September 2012.

Dr. David Kelly:  In June 2011 the Attorney-General - Dominic Grieve QC - rejected calls for an inquest to be held into the death, in 2003, of scientist Dr David Kelly. A judicial review of this decision has also come out against the holding of an inquest - see BBC.  The Hutton Inquiry  was established to look into the circumstances surrounding the death of Dr David Kelly and Lord Hutton decided

Fines ... all is not fine !!

The following appeared this morning on the estimable Crimeline.  I have added a little emphasis !  This is an outrageous public scandal:

"Fines collection

Amyas Morse, Comptroller and Auditor General, reported to Parliament that HM Courts Service, the body responsible for the collection of fines, confiscation orders and penalties imposed by the judiciary and police, has been unable to provide him with proper accounting records supporting those fines, confiscation orders and penalties.

This meant that he could not give an audit opinion on whether transactions and balances were complete, proper to this account and appropriately raised.

The report highlights how limitations in Libra, the case management IT system in use across magistrates’ courts, and similar systems have contributed towards  HM Courts Service’s inability to provide information at an individual transactions level to support the accounts.

Total outstanding debt in respect of fines, confiscation orders and penalties at the end of March 2011 according to the HM Courts Service is £1.9 billion, increased from £1.5 billion in the previous year, while only £457 million is recognised in the account as receivable. The difference of £1.4 billion represents management’s estimate of debt that is at risk.

The Courts Service

As the year draws to a close - farewell to "local justice"

Goole Magistrates' Court

During 2011, many Magistrates' Courts have closed under the government's hatchet-job on local justice.  These closures build on earlier cuts - all imposed under the mantras of "efficiency" and "economy."  The closures are all over the country and have the effect that the magistrates' court system will be concentrated on fewer but, usually, larger courts.  One result will be that those involved in cases may well be subjected to lengthy journeys, often with poor and reducing public transport, and the undoubted stress felt by witnesses will be increased.

A further effect, which is regrettable in my view, is that fewer people will be needed in the future to fill the important - but, sadly,  minimally appreciated - office of Justice of the Peace.  This will only serve to make the law even more remote from ordinary people.  Furthermore,

An Employment Tribunal Award - huge compensation award

It is at Employment Tribunals where questions of unfair dismissal and unlawful discrimination at the workplace are heard.   The case of Dr. Eva Michalak v Mid Yorkshire NHS Trust and 14 other respondents  - (135 page judgment) - was decided at a tribunal in which sat in Leeds.  The case is a sorry tale and the final outcome is a large award of compensation.   The judgment on compensation is set out in a 44 page document - Dr E Michalak v Mid Yorkshire Hospitals NHS Trust and others.  Dr Michalak was awarded £7180 for unfair dismissal and £4,452,206.60p for unlawful discrimination on grounds of sex and race.  See The Telegraph 16th December - "Woman doctor wins £4.5m for being fired after having a baby."

In relation to the sum of almost £4.5m, the NHS Trust and 3 respondents (Dr David Dawson, Dr Colin White and Mrs Diane Nicholls - Human Resources Director at the Trust) are jointly and severally liable.  Clearly, the trust will have the largest pot of money and this is money the NHS can ill afford at any time never mind in this abysmal economic climate.  The fact that

Convicting "solely or decisively" on the basis of hearsay evidence - Strasbourg has ruled

UPDATED

Background:

Horns have been locked between the U.K. and the European Court of Human Rights over the question of whether a defendant has received a fair trial if the evidence against him is solely or decisively hearsay.   Please see the earlier posts which contain links to the various judgments:

"Convicting solely or mainly on hearsay evidence: Strasbourg and London lock horns" - 20th April 2010
"A further bout with Strasbourg coming up?" - 22nd February 2011.

Treatment of hearsay in English law:

In the Criminal Justice Act 2003 Part 11 Chapter 2  Parliament enacted what is regarded as a complete code relating to when hearsay may be admitted in evidence at a criminal trial in England and Wales.  The Act is based on the recommendations of the Law Commission in Law Com No. 245 (1997) - "Evidence in criminal proceedings: hearsay and related topics."   (Annex A to the Law Commission's report contained a draft Criminal Evidence Bill though the CJA 2003 differs from this).

The common law hearsay rule sought to provide a safeguard against untested hearsay evidence being given a "probative force which it does not deserve" - R v Blastland [1986] AC 41 at 53 (per Lord Bridge of Harwich).   The common law rule could operate so as to exclude evidence of unquestionable reliability but, for many years, this was accepted on the basis that the accused should have the opportunity to test the evidence at trial.   Some would have replaced the common law rule with an approach which would always have permitted hearsay evidence if the original source or 'best evidence' was not available - (see Review of the Criminal Courts of England and Wales - 2001 - Chapter 11).  The Law Commission's report and the CJA 2003 rejected this approach and adopted a midway position.

The cases:

Habeas Corpus

The Court of Appeal - Lord Neuberger MR, Maurice Kay and Sullivan LJJ - 14th December 2011

The writ of habeas corpus (see BBC) has, for centuries, been available as a remedy against unlawful detention.  The case of Yunus Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for Defence [2011] EWCA Civ 1540  illustrates the use of the writ to seek the return to the United Kingdom of a prisoner held, unlawfully, at Bagram, Afghanistan.  See also Reprieve. and also the comments by solicitors Leigh Day & Co.  who indicate that -

"The application was strongly resisted by the UK government, which argued that Mr Rahmatullah was no longer in its control and that it was improper of the Court to interfere with its relationship with the US authorities."

"This judgment affirms that our client remains

Text-based communication from court

The Lord Chief Justice's Practice Guidance on the use of live text-based forms of communication (including twitter) from court has been issued and replaces the interim guidance issued in December 2010 (Law and Lawyers 28th December 2010).  The document is short and speaks for itself though it is not particularly clear about who will be regarded as a "legal commentator" (see para 10).  For some of the factors to be considered by judges, the Guidance refers to the Consolidated Criminal Practice Direction I 2.2 which is here.

Supreme Court - R v Armel Gnango - murder

In 2008, Armel Gnango was convicted at the Old Bailey of the murder of Magda Priewska.  There was a "shoot out" between Gnango and another man ("Bandana Man").  Magda came innocently upon this event and was killed by a shot to her head.   It was established that Bandana Man fired the fatal shot. He was not arrested.  At the trial, the judge (Cooke J) directed the jury on the basis of joint enterprise and Gnango was convicted of murder.  The murder conviction was quashed by the Court of Appeal - judgment July 2010.  The prosecution appealed to the Supreme Court which has, by a 6 to 1 majority, restored the conviction for murder but has done so on a different legal basis - see R v Armel Gnango [2011] UKSC 59.

Bandana Man would have been guilty of Magda's murder on the basis of transferred malice.  The Supreme Court held that Gnango had aided and abetted Bandana Man's attempt to kill him and, although the bullet meant for him killed Magda, he shared the transferred malice liability of Bandana Man.

The various judgments are very much based on policy considerations.  As Lord Brown put it (at paras. 68 and 69): - " ... to my mind the all important

A couple of interesting cases: (1) Armed Forces - disobedience; (2) Child Abduction

Royal Courts of Justice, London

Case 1: Court Martial Appeal

The Court of Appeal (Criminal Division) sometimes has the further function of becoming the Court Martial Appeals Court.  In this capacity, the court (Toulson LJ, Openshaw and Hickinbottom JJ) has dismissed an appeal by Leading Medical Assistant Lyons who, on 5 July 2011 at a Court Martial at Portsmouth, was found guilty of intentionally disobeying a lawful command contrary to section 12(1)(a) of the Armed Forces Act 2006. He was sentenced to seven months' military detention, reduction from the rank of Leading Medical Assistant to Able Seaman and dismissal from the service.  See Leading Medical Assistant Lyons v R [2011] EWCA Crim 2808.


The offence under section 12 requires proof

Stop delaying justice !

Salford Magistrates Court - closes end of 2011

"Stop Delaying Justice" is a new initiative in the Magistrates' Courts and will take effect from 1st January 2012.  The excellent materials available from Crimeline explain this more and comment that - "It is clear that this approach is not actually new, as it is founded on almost a decade of case law and statutory rules. What this package does is bring those strands together to present a coherent analysis of the way in which criminal litigation must now be conducted."

The Magistrates' Blog (Bystander) comments:

"A lot depends on good teamwork between the Legal Adviser and the parties, but if it works (as it needs to) it will go a significant way towards helping courts to do more cases with fewer resources."

The Justice of the Peace blog  tells us (rightly) that

Europe: an interesting question.

The European Council meeting held in Brussels on 8th/9th December resulted in a decision to establish, by March 2012, a new fiscal "compact" - see the European Council announcement.  It seems likely that all current EU member States except the UK will sign up to this compact.  The word "treaty" has been studiously avoided but the compact will be legally binding in international law on the signatories and is therefore legally speaking a treaty between those states.  According to the European Council's announcement - "Member states undergoing an excessive deficit procedure will have to submit to the Commission and the Council for endorsement the structural reforms they plan to take in order to meet the requirement to correct excessive deficits."  Hence, it appears that the compact seeks to grant the Commission new powers or duties.

The various Institutions

Europe ... Murder ... Hatred ... Gangs ... Committals ... Magistrates ... Sentencing

Surface Chart 1200 UTC 8 Dec

UPDATED

Europe - Today - 8th December - was notable for the country being dominated by a deep low pressure area and a cold front sweeping from west to east.  The wind has been strong and the rainfall considerable.  Combined with the sky hardly getting light, the result has been a miserable day.   This is also the day when European Heads of State and Government meet at the European Council.  According to the Council's announcement, they will "discuss economy, energy and enlargement. In the margins of the European Council, the accession treaty with Croatia will be signed.

The leaders will discuss the overall economic situation, with a focus on structural reforms and fiscal consolidation as the basis for a return to sustainable growth, including exploring the possibility of limited Treaty changes, and proposals for possible steps aimed at deepening economic integration in the EU.

Talks will amongst others be based on the interim report "Towards a stronger economic Union", elaborated by the President of the European Council in close collaboration with the President of the Commission and the President of the Eurogroup. The report addresses economic coordination and convergence in the euro area; budgetary discipline, including possible treaty changes; economic union; and strengthening the existing crisis mechanisms."

Addendum - Friday 9th December -  23 of the 27 EU member States agreed to proceed with a new treaty - see European Council "Agreement on immediate action and on new fiscal rule for the eurozone."   The new inter-governmental treaty is to be signed by March 2012.  The UK opted out - The Independent 9th December.   The political and legal ramifications of this will be profound and cannot be entirely predicted at the moment.  The UK's "opt out" was joined by Sweden, the Czech Republic and Hungary.  However, it seems that Sweden and the Czech Republic are to consult their Parliaments on what to do next.  Hence, they might yet join the other 23.  Would referring the matter back to Parliament have been the better course for the UK government given that sovereignty supposedly lies with Parliament and not with the executive?  This is perhaps an example where the UK's unwritten constitutional arrangements permit the executive too much power.  Only time will tell.  See also remarks of Herman van Rompuy (President of the European Council) - 9th December and also Actuarial Post "Reaction to the Eurozone summit."

Murder:  Meanwhile,

So - will a referendum be required?

The Guardian 7th December - "David Cameron has threatened to wield Britain's veto to block a revision of the Lisbon treaty if fellow European leaders refuse to protect the position of the City of London at the EU summit in Brussels.  In a marked hardening of his rhetoric, as Eurosceptic Tories called for a recasting of Britain's relationship with the EU, the prime minister said he would not sign any treaty that failed to provide safeguards for Britain's financial services."

Until recently, whether a referendum was held in the UK on anything to do with the European Union (EU) would ultimately have been a matter for Parliament to decide.  There would have been no legal obligation whatsoever to hold a referendum irrespective of what politicians may have said or inserted into election manifestos.  However, since 19th September 2011, the European Union Act 2011 is in force.

The Act requires, in some situations, a referendum to be held (and a favourable majority obtained) before ratification of any treaty which amends or replaces either (or both) of the Treaty on European Union (TEU) or the Treaty on the Functioning of the EU (TFEU) - see the Treaties.

However, it will not

Reading the Riots: Stop and Search Powers

The Guardian newspaper is continuing to publish details of the Guardian-London School of Economics study into the August 2011 disorder - see READING THE RIOTS.   (Please also see Law and Lawyers - Monday 5th December).   On Monday evening, BBC's Newsnight programme looked at the reasons said to lie behind the disorder.  Their programme contained sections of interviews conducted with people who had been involved in the criminality.  Anger at everyday Police tactics was mentioned frequently as a factor and, in particular, the use of stop and search powers - BBC Newsnight - "England riots study: Anti-Police anger was factor."

The powers of the Police to stop and search are an essential aspect of their overall investigatory powers but, when those powers are applied to individuals, the experience can be humiliating.  Some sections of society are stopped and searched frequently - see The Guardian "Reading the Riots - Humiliating stop and search a key factor in anger towards police" - where it is reported that "interviewees said police treated them in a degrading way when they were stopped – particularly in strip-searching and handcuffing them."  (Emphasis added).  There are also claims that the Police conduct stops and searches with a lack of courtesy with black people being "singled out for stop and search."  The article states that - "It is well established that black people are much more likely to be searched than other groups: of the 675,573 stop and searches in London in 2009-10, 187,889 were on black people – twice as likely as their population would suggest."

These comments are

The August Disorder - reports + Is a new EU Treaty coming + Impeachment + 3 excellent posts

The August 2011 disorder is back in the news following the publication of the interim report by the "Riots Communities and Victims Panel" (RCVP) which was set up at the end of August by the Deputy Prime Minister.  In addition, The Guardian is publishing details of a report which they and the London School of Economics (LSE) commissioned - see Reading the Riots.   The RCVP has responded to the Guardian-LSE report.

It is clear enough that the disorder erupted in London after the shooting of Mark Duggan on 4th August and some serious questions remain to be answered in connection with this.   Violence then erupted in other towns and cities in England.  

The RCVP report's Executive Summary states that "

"13,000 - 15,000 people were actively involved in the riots. More than 4000 suspected rioters have been arrested. Nine out of ten were already known to the police.  In total, more than 5000 crimes were committed, including five fatalities, 1860 incidents of arson and criminal damage, 1649 burglaries, 141 incidents of disorder and 366 incidents of violence against the person.

The overwhelming majority of those brought before the courts so far have been male and had a previous conviction. At least eighty-four people had committed 50 or more previous offences each. Three-quarters were aged 24 or under.

Of children brought before the courts, two thirds had

Speaking of legal aid and a Friday look at a few of the blogs

LS Lowry - Street in Snow - 1935

Legal Aid:

Once upon a time, the Lord Chancellor was a very authoritative figure - (some might say autocratic) - sitting at the apex of the judiciary.  Viscount Kilmuir was Lord Chancellor from 1954 to 1962.  In 1955, in a letter to the Director General of the BBC, Kilmuir said that "as a general rule it is undesirable for members of the judiciary to broadcast on the wireless or to appear on television."  He did not mention making public speeches but, no doubt, the same edict applied.   There was to be no interaction with the media without His Lordship's permission.

At the time, the BBC had asked for a serving judge to participate in a radio programme about notable judges of the past.  Kilmuir discussed the matter with the Lord Chief Justice of the day (Lord Goddard) and with other senior judges and decided that the it was important that judges remained "insulated from the controversies of the day."  "So long as a judge keeps