Thursday, 23 February 2012

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
include: Thalidomide; supply of military equipment to Iraq (here); Cash for Questions (here); the MP's Expenses Scandal (here) and phone hacking (here) which, of course, was the catalyst for Leveson's Inquiry.  It is to be hoped that Lord Justice Leveson's eventual report will be supportive of the need for journalists to be able to investigate and print such stories.  The balance which his report will require will not be easy to find.

The House of Lords Communications Committee has issued "A secure future for investigative journalism" - 16th February 2012.  It appears that the Director of Public Prosecutions is drafting prosecution guidance to determine when a journalist might be prosecuted in the event that illegal activity is undertaken as part of investigative journalism.

It was also interesting that the Inquiry showed some interest in blogging and Francis Fitzgibbon QC - who maintains the blog "Nothing Like the Sun" - sent a submission about blogging to the Inquiry - here.  Mr Fitzgibbon's submission is well worth reading.  Some discussion about this may be heard on a podcast at Charon QC.    (Note - 1st March 2012 - Further submissions by "bloggers" to the Leveson Inquiry may be seen at UK Human Rights - Part 1 and Part 2 - where barrister Adam Wagner reports about his own submission).

The Ministry of Justice has published Criminal Justice Statistics up to the end of September 2011.  In the 12 months ending September 2011 there were 1.58 million defendants proceeded against in magistrates’ courts and 1.32 million offenders convicted and sentenced of a criminal offence at all courts.   The statistics also reveal that the number of "out of court disposals" reduced.  The public disorder of August 2011 has had little impact on these figures as those convicted for the public disorder account for less than one per cent in the 12 months ending September 2011.

The closures of court buildings may not have yet reduced costs as much as government might have wished for.  The Law Society Gazette states that the Ministry of Justice is spending some £2.5m yearly on maintenance of redundant buildings which, in the present climate, are proving far from easy to sell.

The Legal Aid, Sentencing and Punishment of Offenders Bill (here) is particularly controversial in relation to the government's proposals for legal aid.  In November 2011, this blog looked at the main objections to the Bill..  The BBC Law In Action now has a podcast in which Joshua Rozenberg considers these proposals.

Some of the law blogs have been particularly busy recently.

UK Human Rights Blog has an impressive list of contributors.  Their recent coverage includes: Court bands autistic woman from having sex; Poor not singled out by rise in University fees, rules court and Sound of tumbleweed greets secret civil trials proposals.  The latter relates to the government's proposals to legislate for major changes to procedure in civil cases and inquests which this blog looked at in some detail in three parts the last of which is here.  65 responses were sent to government and this was lower than one might have expected though many of them argue very cogently against the proposals.   Given that Special Advocates lie at the heart of the proposals, the response of those who have acted in that capacity is of particular interest - Response of the Special Advocates .

Charon QC has commenced writing a weekly Law Review which is recommended reading given its amazing coverage of legal news and comment:   No. 1 Part 1 and No. 1 Part 2.   Beneath the Wig has "Violating Vocabulary - The rhetoric of rape" which looks at how the mainstream media reports rape cases, how those reports could affect victims and juries, and feed the myths surrounding this crime.  The UK Constitutional Law Group blog carries topical posts such as Professor Kate Malleson's "Taking the politics out of judicial appointments" and law lecturer Stuart Lakins' post - "What role should judges play in the constitution Justice Sumption?"

Piracy on the High Seas has massive economic costs and is considered on the companion blog to Law and Lawyers - Watching the Law.    A further topic considered there is the interesting international law case on State Immunity of Germany v Italy (Greece Intervening) which was recently decided by the International Court of Justice at The Hague.  The decision confirms traditionalist views as to where the immunity from civil action of a foreign State should lie.  However, it may be that the court missed a rare opportunity to create an exception  to State immunity for international crimes, grave violations of human rights and international humanitarian law.

The Solicitor's Journal reports the start of a new "pioneering" Family Arbitration Service to be operated by the newly-formed Institute of Family Law Arbitrators (IFLA), backed by Resolution and the Family Law Bar Association.  The Head of Legal Blog (Carl Gardner) questions this development - "Family Arbitration needs a clear legal framework" - I suspect that he is right.  The Martin Partington blog takes a look at planned reforms for the Civil Justice System and also for the Family Justice System.    Regarding reforms to the civil justice system, the government's plans include expansion of mediation;  applying "small claims" procedure to cases involving £10,000 or less (perhaps £15K in due course).   Structural reforms are also proposed including introducing a single county court jurisdiction for England and Wales; moving certain specialist areas of work from the county court to the High Court and also increasing the financial limit below which equity claims may be commenced in the county courts from £30,000 to £350,000.

The Nuremberg Nazi War Crimes Trials were held in the late 1940s.  In 1948, the US Department of War made a film about the trials - "Nuremberg: Its lesson for Today" - which has now been shown, for the first time, in London - see The Guardian 23rd February.    The trailer to the film may also be seen at Youtube.  The British judges who sat at the International Military Tribunal Nuremberg were Geoffrey Lawrence (Lord Oaksey) and Norman Birkett (Lord Birkett of Ulverston).   The idea of holding the trials was questioned by some but, as one prosecutor put it, the 'blood of the innocents cried for justice.' 

Just a selection of the stories ....

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