UK seeks to minimise the influence of Strasbourg

Post updated 1st March

A leaked document has revealed the hand which the UK government is playing in the run up to the High Level Conference on the Future of the European Court of Human Rights due to be held in Brighton in April 2012.

The document may be read at The Guardian - Draft Brighton declaration on the future of the European Court of Human Rights

Since taking on the Chairmanship of the Council of Europe's Committee of Ministers, the UK has made it plain that reform of the European Court of Human Rights is on the agenda.  The Attorney-General spoke on the subject at Lincoln's Inn in October 2011.    In January 2012, the Prime Minister addressed the Parliamentary Assembly of the Council of Europe and Cameron's speech prompted an article in EuropeanVoice by Nicolas Beger of Amnesty International - "A proposal to restrict human rights" - 23rd February 2012.

The package of proposals now put forward by the UK are extremely far-reaching.  They seek to include in the European Convention itself two principles: the margin of appreciation and subsidiarity.  The formal incorporation of these ideas into the convention has the potential to severely restrict the role played by the European Court.  Further proposals relate to

Retrospective law-making - is it catching on?

In countries where the "rule of law" applies, there is usually a dislike of legislation which has retrospective effect.  In this brief post, I do not seek to discuss in any detail the merits or otherwise of the arguments for or against retrospective legislation save to say that with regard to legal certainty, it is important both for individual citizens and business enterprises as well as other legal entities that they can assess the legality and legal effects of a planned action before instituting such action.  They ought not be exposed to the risk of burdensome, ex post changes to the legal rules. This is perhaps especially true when it comes to the question of newly introduced or sharpened penalties or similar sanctions, as well as changes in tax or fee legislation making it more rigid, or prohibitions and injunctions by the authorities, aimed at actions or behaviours that were allowed when they were adopted.

Her Majesty's Treasury has announced

News and Views: A selection

A Northern Viewpoint

Updated 24th February ... and 1st March 2012

Without doubt, recent weeks have produced some fascinating legal material and law-related stories.  Here are some of them.

Habeas Corpus - The Court of Appeal has discharged the Secretary of State from any further obligation in relation to the writ of habeas corpus issued in the Rahmatullah case - see judgment and earlier post.   The Americans would not agree to transferring Rahmatullah and the Court of Appeal decided that there was nothing more it could do.  Was issuing the writ a pointless gesture?  The court said: - "That does not mean that the issue of the writ of habeas corpus was a pointless exercise in this case: it performed its minimum function of requiring the UK Government to account for its responsibility for the applicant's detention, and to attempt to get him released. This case is an illustration of (i) the court performing perhaps its most vital role, namely to ensure that the executive complies, as far as it can, with its legal duties to individuals, in particular when they are detained, and (ii) the limits of the powers of the court, as a domestic tribunal, in that its reach cannot go beyond its jurisdiction, and that jurisdiction does not extend to the US military authorities in Afghanistan."

"The US has broken its promise over Yunus Rahmatullah" - Clive Stafford Smith - The Guardian 23rd February and see Reprieve 23rd February.

The Leveson Inquiry - In the wake of the "phone-hacking" scandal, the Leveson Inquiry was set up under the Inquiries Act 2005 to look at the role of the press and the police.  Module 1 of the Inquiry was concerned with the culture, practices and ethics of the media.   Module 2 is due to commence on 27th February and will look at the relationships between the press and police and the extent to which that has operated in the public interest.  

Over the years, the media has shone light on many situations which were in the public interest (as opposed to being merely of interest to the public).  William Howard Russell reported on the Crimean War and informed the public of the heroism of the men, the errors of the military command, the shortages of clothing and equipment and the ravages of disease - see Victoria Cross History.  More recent examples

Murder, Terrorism - two important cases

Lord Justice Hughes

Law of diminished responsibility:

The law of murder has been recently reformed by the Coroners and Justice Act 2009 Part 2 Chapter 1.  The new provisions gave rise to the Court of Appeal judgment in R v Clinton, Parker and Evans [2012] EWCA Crim 2 relating to the new defence of "loss of control" which has replaced the earlier defence of "provocation."  This case is discussed further here.  A further partial defence is that of diminished responsibility which first entered English law via the Homicide Act 1957.  This defence has been amended by the Coroners and Justice Act s.52.  If a partial defence is successfully pleaded then the result is that the defendant will be convicted of manslaughter and not murder.

In R v Dowds [2012] EWCA Crim 281, the Court of Appeal (Hughes LJ, Simon and Lang JJ) was faced with the question whether acute voluntary

Speeding - Prescribed and Approved Measurement Devices

Road traffic offending continues to produce some interesting judicial decisions.  On 3rd February, the High Court gave judgment in Brotherston and others v Director of Public Prosecutions [2012] EWHC 136 (Admin).    Four drivers had been convicted of speeding - an offence under the Road Traffic Regulation Act 1984 - (sections 84 and 89).  Before the High Court, all four drivers argued that the supposed authorisations relating to the use of certain speed measuring devices for evidential purposes was unlawful.

The devices challenged were the LTI 20.20 TS/M Speedscope; the LTI 20.20 Ultralyte 100.  Both of those are mobile speed cameras.  The operator points the device at the rear of the vehicle which he thinks is speeding and pulls the trigger. This activates a laser beam enabling measurement of the vehicle's speed.  Also challenged was the Gatsometer 24 - a speed camera which operates on radar principles.

Parliament "prescribed" the use

Achieving Best Evidence - Transcripts

Crown Court - Snaresbrook

In a criminal trial, certain witnesses may be allowed to have their evidence-in-chief presented in video recorded form.  When this is done, it may take the form of recordings of interviews prepared in accordance with "Achieving Best Evidence" (ABE) guidance.  There will also be a written transcript of such interviews.  Should the jury be shown such a transcript?

The recent case of R v Aamir Sardar [2012] EWCA Crim 134 has reminded criminal lawyers of principles relating to transcripts laid down by the Court of Appeal in R v Popescu [2010] EWCA Crim 1230 - which, itself, brought together decisions of earlier cases.

In Aamir Sardar's case, there was a failure by both prosecution and defence counsel and also the Recorder to follow the principles set out in Popescu as to (a) the circumstances in which transcripts of an ABE interview should be shown to the jury and (b) the warnings to be given to the jury if the transcript is shown.

The principles set out in Popescu may be summarised as:

Quality Assurance for Advocates: Snakes and Ladders

In 2006, Lord Carter issued his report- "Legal Aid - A market-based approach to reform."   One of Carter's recommendations concerned "Quality Assurance" of advocacy.    At para. 27 he said - "It is essential that clients have confidence in their legal service and that the professional quality of that service is assured."  He further recommended that the responsibility of quality assurance should pass to the legal professions through their relevant professional bodies.

Since then, a lot of very turbulent water has passed under the bridge in the development of a scheme now referred to as the Quality Assurance Scheme for Advocates or QASA.  The scheme is described on the Bar Council website which makes the point that the scheme will regulate the quality of all advocates appearing in the criminal courts in England and Wales, whether they are barristers, solicitors, or legal executives. The Scheme will include all advocates whether they are self-employed or employed, and whether they are acting for the prosecution or defence.  A number of Frequently Asked Questions (FAQs) are also answered - here.

Under the scheme, advocates will be

Sir Stephen Sedley's Essay

Now in retirement, former Lord Justice of Appeal Sir Stephen Sedley has written a powerful essay entitled "Judicial Politics - Stephen Sedley on Separation of Powers."  The text has been made publicly available via the London Review of Books and, given the legal eminence and experience of the author, it is well worth reading in full.

Here is an elegantly written antidote to the 2011 F A Mann lecture delivered by Jonathan Sumption QC who has now taken his seat as a Justice of the Supreme Court - "Judicial and Political Decision-Making: The Uncertain Boundary."  (Lord Sumption made the speech after being selected for the Supreme Court but before being sworn in).

I do not propose to gloss in any way Sir Stephen's essay which concludes by saying of Sumption QC's lecture:

" ... the effect of the kind of critique advanced in this lecture is not neutral. It harms the standing of the judiciary and confidence in the law, just as it would do if a judge, naming no names and citing no instances, were to deliver a public lecture on the perils of judicial corruption. Smoke, in the public mind, means fire. Nobody who knows the history of English public law would deny that there have been decisions which smack at least as much of politics as of law: the condemnation of the Poplar councillors in 1921 for paying men and women equal wages, for example. But that is a long way from the charge that modern public law judges, lacking any jurisprudential compass, routinely cross the boundary separating law from politics."

There is more in the lecture:  a critique of the European Court of Human Rights for trying to make one size fit all – a problem the court itself is well aware of and has been grappling with for decades – and a perfectly tenable argument that the modern growth of public law has been stimulated by a perceived deficit in the democratic process. But there is a possibility that the central allegation of repeated judicial intrusion into the business of government will be seen as a political incursion into the business of adjudication. One leaves the lecture reflecting that if we had parliamentary confirmation hearings for new judicial appointees (something Sumption rightly opposes), this is the kind of manifesto we would get and that politicians would probably applaud. What would happen to a candidate who stood up for the integrity of modern public law and for judicial independence within the separation of powers is anybody’s guess.

For me, Stephen Sedley ranks as one of the finest legal minds of modern times and he is a very fine writer.  Upon his retirement, Sir Stephen's book "Ashes and Sparks: Essays on Law and Justice" was published.

See also the earlier Law and Lawyers post - "Judicial Review: Keep out of politics ... but can the judges do so?"

Other links - added 20th February:   The UK Constitutional Law Blog has published "Lord Sumption and judicial responsibility" and "What role should judges play in the constitution Lord Sumption?"  These articles look at the views of Lord Sumption as expressed in the F A Mann lecture.  The first article is by Tom Adams - Law Lecturer St. Hilda's, Oxford and the second is by Stuart Lakin - Law Lecturer, Reading University.

Dizaei - convicted at second trial

In February 2010, Dizaei, a Commander in the Metropolitan Police, was convicted at a trial before Simon J and a jury of the offences of misconduct in a public office and doing acts with intent to pervert the course of justice.  In May 2011, the Court of Appeal (Criminal Division) - Hughes LJ, Treacy and Cranston JJ - ordered a retrial - judgment - which took place at the Crown Court at Southwark before Saunders J and a jury.  Dizaei was again convicted of misconduct in public office and perverting the course of justice - BBC 13th February.    The BBC's report states that Dizaei may appeal.  Saunders J sentenced him to 3 years imprisonment but 15 months already served will be allowed for.

The sentencing remarks of Saunders J are available on the Judiciary website.   It is interesting that, at the first trial, Dizaei was sentenced to 4 years imprisonment but 3 years was imposed at the second trial.  Saunders J gave his reasons for being able to impose a lower sentence.  The judge said

Prayers at Council meetings ...

The Praying Hands - Durer

Lord Denning once said - "The House of Commons starts its proceedings with a prayer. The chaplain looks at the assembled members with their varied intelligence and then prays for the country."  The practice of beginning a sitting with a prayer continues: see what Parliament's website says about it - Prayers.   Parliament's website also reminds us that "Lords Spiritual" have their place in the House of Lords and see Bishops in the House of Lords.  Furthermore, the Queen's Speech in 2010 ended by Her Majesty saying - "My Lords and Members of the House of Commons - I pray that the blessing of Almighty God may rest upon your counsels."

Many Local Authority Councils have had a practice of commencing Council meetings with a prayer.  The High Court has now held that they have no legal power to make prayers a part of the formal business of a meeting - see R (National Secular Society and Mr Clive Bone) v Bideford Town Council [2012] EWHC 175 Admin (Ouseley J).  Mr Bone was a former Councillor who had tried on two occasions to get the Council to stop their practice of commencing a Council meeting with a prayer.  Both times, the Council had voted against him.  The Secular Society campaigns "from a non-religious perspective for the separation of religion and state and promote secularism as the best means to create a society in which people of all religions or none can live together fairly and cohesively."   Mr Bone became a claimant because the secular society was not a "victim" for the purposes of the European Convention on Human Rights and part of the Society's case involved questions of human rights. 

The decision of Ouseley J can be seen as

High number of care applications for children // Government responds to Norgrove

Updated

The Children and Family Court Advisory and Support Service (Cafcass) has issued some interesting data which should give rise to considerable concern.   Between April 2011 and January 2012, Cafcass received 8,403 new applications. This figure is 12.4% higher when compared to the same period last financial year. Applications received between May 2011 to January 2012 have been the highest ever recorded by Cafcass for these individual months. January 2012 saw the highest ever number of care applications recorded in an individual month, with 903 applications - see Care statistics January 2012

The reasons for this are under debate but it appears that many of the more recent cases are based on neglect as opposed to physical abuse.  Perhaps this is not surprising in the present economic climate.  However, the Guardian 9th February argues that Social Services Departments of Local Authorities are anxious to avoid having the next "Baby-P" case in their area.   There may be something in this.  In care proceedings, it is the court which makes care orders - see Children Act 1989 s.31  and Children Act 1989 s.38

The government has responded to the Norgrove Family Justice Review.  For earlier discussion of the review see the previous post on this blog (30th December 2011).

The government plans to legislate

Article 2 Duty on NHS Trust: .... Supreme Court decision

Roses at Lyme Park

Updates 14th and 15th February

On 20th April 2005, Melanie Rabone (aged 24) committed suicide by hanging herself from a tree at Lyme Park, Disley, Stockport.  At the time, Melanie was on "home leave" from hospital where she was engaged in treatment for depressive disorder.  Melanie attended the hospital voluntarily as an informal patient - she was not detained under the Mental Health Act 1983.  The responsibility for her treatment rested with what was then the Pennine Care NHS Trust.  (This trust became the Pennine Care NHS Foundation Trust in 2008).

This matter is now the subject of a judgment by the Supreme Court of the U.K. - Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2.  

Melanie's parents, always maintained that the hospital authorities should not have allowed their daughter home leave and they claimed that the Trust was responsible for Melanie's death.  They started proceedings against the Pennine Care NHS Trust (“the trust”) alleging negligence and breach of the right to life protected by article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”).  The trust eventually

Football Banning Orders

I was at a Magistrates' Court this morning.  As it happened, one of the courts was dealing with a Football Banning Order.  Not, I hasten to add, to ban me.  As far as I am aware, nobody has yet been banned for merely watching televised matches at home and bemoaning the latest controversial "offside" decision which I readily confess to doing from time to time - offside rule !  I then await the Saturday evening appeal court - (usually chosen from Messrs. Lineker, Hansen, Shearer and Lawrenson) - to analyse, with laser-like precision, the decisions of the officials !

The Magistrates had to consider whether to make a Football Banning Order against a young man (the respondent).  The Police had brought a complaint against him.  He was not represented.  What follows is a mere outline.

The legislation:

The basic power to make a banning order

60 years a Queen: the Diamond Jubilee

HM Queen Elizabeth II

Writing in The Telegraph on 29th January 2012, Hugo Vickers recalled some of the events surrounding the King's death on the morning of 6th February 1952 - "Diamond Jubilee: the moment that Princess Elizabeth became Queen."

Perhaps one of the most poignant of royal historical pictures is that of HM King George VI at Heathrow Airport bidding farewell to his eldest daughter Princess Elizabeth as she departed in a BOAC Argonaut (Canadair C-4) aircraft for what was planned to be a Commonwealth tour.  The BBC Archives show the departure - "King and Queen see royal departure."    For the King, who must have known that he was terminally ill, this would have been an immensely sad occasion as it would be for any father knowing that he might never see his daughter again.  Only five days later, the King was dead and Princess Elizabeth succeeded to her immense role as Queen.  The succession was, in law, immediate since succession to the title is not dependent on proclamation or coronation or other formalities.  The Queen then returned home to be met at Heathrow by her first Prime Minister - Sir Winston Churchill.

HM The Queen returned to Heathrow - 1952

 State events then followed.  There was an Accession Council on 8th February 1952.   Proclamations were read announcing the Queen's succession.  The first such proclamation was read by Garter King of Arms at St. James' Palace and others were then read in many places including in the City of London and in Edinburgh.   

The magnificent Coronation at Westminster Abbey was not to take place until 2nd June 1953.  Interestingly, a Coronation is not legally necessary as demonstrated by the relatively brief reign of Edward VIII - a mere 325 days.

The 2012 Diamond Jubilee is only the second such event in British history.  Queen Victoria celebrated her Diamond Jubilee in 1897. Victoria reigned for 63 years 216 days - "List of longest-reigning Monarchs."

The Queen and the law:

The Queen's position in relation to the law is interesting.  As Sovereign, she enjoys a personal immunity.  A wider immunity attaching to "the Crown" has been largely removed by the  Crown Proceedings Act 1947 and the Crown Proceedings (Armed Forces) Act 1987.  This legislation is of immense importance constitutionally since it opened up the possibility of the citizen being able to sue "the Crown" - (usually, in practice, some government department).

The "Royal Assent" to a Bill is still required before it becomes an Act of Parliament.  Royal Assent is notified to Parliament by Commissioners and is not, by convention, refused.  Her Majesty attends the State Opening of Parliament and reads "the Queen's Speech" which is prepared for her by the government and sets out the programme for the next session of Parliament.  A debate on the Queen's Speech follows.

Queen with Judges at Rolls Building, London

Appointments of Justices of the Supreme Court are made by the Queen on the recommendation of the Prime Minister after the outcome of a selection commission is known.   Further, the Queen approves the appointment of High Court Judges.

An important source of governmental legal power is the Royal Prerogative.  The prerogative powers are extensive and include the power to declare war, to decide dispositions of the Armed Forces, to enter into treaties, the prerogative of mercy, to award honours etc.

Trials in the Crown Court ("on indictment") or conducted in the name of the Queen - referred to as "Regina" or, simply as "R" - e.g. R v Defendant(s).  The prosecution is referred to as "the Crown" and the prosecution evidence is "Queen's Evidence."

The title of "Queen's Counsel" (QC) is also conferred by the Crown using Letters Patent.  This appoints the person as "One of Her Majesty's Counsel learned in the law" and gives that lawyer a special status within the profession.  QCs wear a silk gown and this explains why the process is referred to as "taking silk."  A number of QCs Honoris Causa are also appointed - for example, to distinguished academic lawyers.

Notes: 

Edward VIII reigned for 325 days and abdicated in December 1936.  He was never crowned.  This event propelled Prince Albert, Duke of York to the throne as King George VI.  By Act of Parliament, Edward's abdication brought about a "demise of the Crown" and the next in line succeeded to the throne - His Majesty's Declaration of Abdication Act 1936.

See also Demise of the Crown  and Demise of the Crown Act 1901 providing that Crown appointments do not cease when there is a demise of the Crown.

Legal News and Views

Whitby Pier in Snow

Over the last few weeks there has been a torrent of legal news as well as many decided cases.  Here are some of the stories:

Undercover Policing - In 2010, revelations about the activities of Mark Kennedy, a police officer working undercover for the National Public Order Intelligence Unit (NPOIU), led to the collapse of the trial of six people accused of planning to shut down a large power station in Ratcliffe-on-Soar, Nottinghamshire. Later that month, Her Majesty‟s Inspectorate of Constabulary (HMIC) announced a review of the systems used by the NPOIU to authorise and control the development of intelligence.  This report outlines the findings and recommendations made by Her Majesty's Inspectorate of Constabulary.  Law and Lawyers looked at the Ratcliffe-on-Soar story here.

"Goodyear" and terrorism - Mohammed Chowdhury and Shah Rahman pleaded guilty to various "terrorism" offences after a so-called "Goodyear" hearing which

European Dimension: a trio of items

Rights of Defendants:

The European Union has published factsheets on the Rights of Defendants in Criminal Proceedings.  The Bar Council and Criminal Bar Association played a leading role in preparing the factsheet for England and Wales - (see Bar Council Press release).  The UK link has further links to the separate jurisdictions in the UK.

Julian Assange:

On 1st February, the Supreme Court commenced hearing the appeal by Julian Assange relating to the request by Sweden to extradite him.  The UK Supreme Court blog has a preview of the case and see previous post 2nd November 2011 - "Assange - European Arrest Warrants"  The  Supreme Court hearing will end on 2nd February. 

The point in issue is whether the Swedish prosecutor is to be regarded as a "Judicial Authority" for the purposes of the European Arrest Warrant Framework Decision (implemented in England and Wales by the Extradition Act 2003 Part 1).  If the Supreme Court decides that the prosecutor is not a judicial authority, then the extradition request will fail.

For a view that Mr Assange might be in Sweden by Easter, see Head of Legal Blog
and also on Head of Legal - "What if Julian Assange won?" - an interesting look at potential problems which could arise in the event that the Swedish warrant turns out to be invalid 

New EU Treaty is coming: - but UK not to be a signatory:

European Union Member States - except for the UK and the Czech Republic - agreed to proceed to a Treaty on Stability, Coordination and Governance in the Economic and Monetary Union - see Europa.  The aim is that Member States will sign up in March and will enter into force once it has been ratified by at least 12 euro area member states. It will be legally binding as an international agreement and will be open to the EU countries which do not sign it at the outset.  Interestingly, the Europa website states that the aim is to incorporate the Treaty into EU law within five years of its entry into force.   The Treaty will impose a "balanced budget rule" rule and Court of Justice of the EU will have certain jurisdiction in this area.  The Prime Minister's statement to the House of Commons is here.