Thursday, 22 December 2011

Winter Solstice News and Views


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
then moved on to look at Parliamentary Privilege.  Lord Judge defended the need for this and stated that he had raised some concerns with the Speaker of the House of Commons and with the Lord Speaker in the Lords.  A number of questions touched upon aspects of the law of murder including "loss of control", joint enterprise and the automatic life sentence.  Lord Judge said - "I would have thought myself that a careful consideration of reform of the law of murder might reduce the call for the automatic sentence to be removed."

An interesting question was put about sentencing for disorder.  "Given that we may be moving into another recession and a period of austerity, do you think there is an argument for the Sentencing Council to set out more clearly, so that it is understood more broadly by the public, the range of sentences that people risk if they take part in activities in the context of disturbances or riots?  The Lord Chief Justice replied that the short answer is, NO.   "I do not think it is necessary. If people have not understood the decisions reached by the court, we cannot really explain them. As with most other things to do with sentencing, there is a wide
discrepancy of views."  This part of the press conference is perhaps surprising.  Is it not precisely where there are wide ranging views that guidance is required?

Questions then moved on to look at disclosure, judicial review, a more diverse judiciary and tweeting from court.  On disclosure; Lord Judge indicated that he did not think that the Criminal Procedure and Investigations Act 1996 was working, "partly because too much is expected of it, and partly because, as I say, the process of investigation has become so much larger."

Turning to judicial review, sympathy was expressed with the recently stated  views of Jonathan Sumption QC.  Lord Judge said - " .... Judges have to be careful to remember that we are enforcing the law. As to that, we have no choice. We enforce the law as we find it to be. I think we have to be careful to remember that we cannot administer the responsibilities which others have. So local authorities have responsibilities, and so on and so forth. I think there is occasionally a danger of an overlap between us deciding what the law is and saying what it is, and then making a judgment accordingly. Occasionally -- and I suppose it is inevitable -- there is an overlap where what we are doing, or the orders that we make, actually impact on the administration for which others are responsible. So when I say I am sympathetic with Mr Sumption's view, it is a genuine sense of sympathy. We have to be careful to make sure that we stay within our proper function."

All in all, an interesting session and I recommend a full reading of the transcript.

Her Majesty's Inspectorate of Constabulary and the August disorder: a report has been issued by HMIC - The Rules of Engagement.  This is potentially far-reaching since it examines methods which might be used in the future to deal with similar outbreaks of disorder.   The Parliamentary Home Affairs Committee concluded that the Police failed to appreciate the magnitude of the riot task.  See their report on the Parliament website.

** The Guardian 21st December - "Plastic bullets should never be an option - history has shown this"

Independent Reviewer of Terrorism Legislation:  David Anderson QC is the independent reviewer of terrorism legislation and has issued a very detailed report on the operation, from December 2010 to September 2011, of the Terrorist Asset-Freezing etc. Act 2010.  The Act gave effect, in domestic law, to certain international legal obligations of the UK - viz: UN Security Council Resolution 1373 (2001) and resolution 1452 (2002).   The Act also provides for enforcement of Regulation (EC) 2580/2001 on specific measures directed at certain persons and entities with a view to combating terrorism (“the EC Regulation”).

An further look at this report may be found on the UK Human Rights blog - "Terrorist asset-freezing: an intrusion too far - Dr Cian Murphy."

Around the blogs etc:  The excellent Justice Gap blog has a look at the Cardiff 3 case - referred to as "a matryoshka doll" of  a case.

"What Price Justice?  Convicting three men of murder in 1990… about £10m. Bringing the officers who caused three innocent men to be convicted of that murder to trial in 2011… about £30m. Causing their trial to collapse? Priceless."

Jack of Kent blog notes that "sitting there, as you scrape the bottom of any barrel, are the lawyers."  He then considers why this - Why are lawyers hated?

Writing in The New Statesman, David Allen Green, says that 2011 was a year of unintended consequences - see article.  "There is something rotten about a political system where the true nature of power relations -- the very stuff of politics -- is routinely exposed by external events. No political system is perfect; but it is not wrong to expect a political system to be able to work in some fashion. Power will always tend to corrupt, and those with power will always tend to abuse it. One good test of a mature political system is to recognise and check these tendencies. But few, if any, would say that the British political system is now working at all well."

Family Law has a good review of 2011.  This is a field of practice which is legally and practically difficult but which touches on aspects of life which are inevitably close to the hearts of those concerned: family, children and home.  There have been many developments during the year - please see the review.

The barrister always has a range of interesting articles.  One of their latest asks whether Historic Abuse trials are reliable.   A number of recent cases in the Court of Appeal Criminal Division have considered old cases: see R v Joynson (convictions for indecent assault quashed) and also R v Hereworth (upholding convictions).

Clerkingwell has some highly pertinent observations from a Barrister's Clerk - see "What they don't teach you ate Bar school."    Qualifying as a barrister an impressive achievement but "it arguably leaves them ill-prepared for many of the fundamental challenges ahead such as the practical, real world application of legal expertise, developing relationships and building a successful, progressive and sustainable practice." 

The National Archives contain over 11 million items and include some strange things: a mummified rat skeleton, a red pyjama suit which was evidence in a 1932 case and a death mask of the 24th Master of the Rolls who also happened to have been Dean of York - see Ministry of Justice for further.

Finally, having visited Wigan on a number of occasions,  I was amused by this tweet by lawyer Professor Gary Slapper:

JUDGE: Isn't ur client aware of the maxim ex turpi causa non oritur actio? COUNSEL: Yes m'lud, the people of Wigan now speak of little else
but can anyone give an illustration of the maxim being applied?

1 comment:

  1. Ex turpi causa ... essentially a claimant is not to be permitted to rely on his own illegal conduct. It is an old principle. More details here.