Friday 30 March 2012

A report, a consultation and an important job vacancy

Home Affairs Committee - report on the US-UK Extradition Treaty  in the conclusion section the committee states:

The Committee is proposing significant changes to the extradition arrangements between the US and the UK not because we are critical of the American justice system but because we recognise the importance of robust extradition arrangements between our two countries. Such extradition arrangements are now threatened by loss of public confidence in the UK and there is a risk that, with time, that lack of confidence will translate into wider disaffection. We believe that the Government should act now to restore public faith in the Treaty by rebalancing the requirements for the provision of information, urgently opening negotiations about the re-introduction of an evidence test, and introducing a forum bar. The Committee believes that these changes will allow for a fair and balanced system of justice between the US and the UK as regards extradition.


Ministry of Justice - Consultation: Punishment and Reform - Effective Community Sentences  - The consultation is open to 22nd June 2012.

 This consultation sets out

Thursday 29 March 2012

You be the judge - Was 56 days imprisonment justified?

Update 30th March - appeal dismissed- see Crown Court sentencing remarks - end of this post

It is reported that Liam Stacey - a 21 year old student - was sentenced by a District Judge (Magistrates' Court) to 56 days imprisonment for his "tweets" in relation to Bolton Wanderers footballer Fabrice Muamba.  See The Guardian "Student jailed for racist Fabrice Muamba tweets" where it is reported that Stacey entered a guilty plea to a charge of racially aggravated disorderly behaviour with intent to cause harassment, alarm or distress contrary to Crime and Disorder Act 1998 s.31 (as read with  Public Order Act 1986 s.4A)

There is no doubt that his tweets were highly, some might say extremely, offensive and there were around 26 of them.  The District Judge (Magistrates' Courts) who sentenced Stacey would have been able to see them all.

Sentencing - general principles:

Sentencing is far from an easy task.  The sentencer must apply all the relevant law (e.g. Part 12 of the Criminal Justice Act 2003 and Part 4 of the Coroners and Justice Act 2009).  In particular,

Wednesday 28 March 2012

Constitution Committee Report on the Judiciary

Updated 29th March:

The House of Lords Constitution Committee has issued a report  which argues that a more diverse judiciary would increase public confidence in the justice system - see Parliament - Constitution Committee. Several recommendations in the report are aimed at improving diversity.  These include placing the Lord Chancellor and the Lord Chief Justice under a legal duty to encourage diversity.  Whilst emphasising that "appointment based on merit is vital and should continue", the report supports applying the Equalities Act 2010 s.159 to judicial appointments so that diversity can be a relevant factor if two candidates are found "to be of equal merit."   Further recommendations include:
  • more flexible working and career breaks for to encourage applications from women and others with caring responsibilities

August 2011 Disorder: Communities and Victims Panel Report

This morning I just thought that I would draw attention to the report by the Communities and Victims Panel into the events of August 2011.  The disorder was covered, quite extensively, on this and other blogs.

In total, the Panel make 63 recommendations.  Lack of money and resources seem to pervade society these days and it must be doubtful whether, in this climate, some of the recommendations will proceed very far.  Many of the recommendations are not particularly of a legal nature, though some of them are.

Themes - The recommendations relate to various themes: Children and Parents; Personal resilience; Hopes and Dreams; Brands; Usual Suspects; Police and Public; Community Engagement, Involvement and Cohesion.

Some recommendations of legal interest -

Greater use of "restorative justice" in "riots related cases" (Rec. 40).  Here is a subject

Monday 26 March 2012

Selecting the Senior Judiciary

Updated 27th March:

The think-tank Centreforum has issued a report - "Guarding the Guardians:  Towards an independent, accountable and diverse senior judiciary" - (PDF, 78 pages - Executive Summary and 7 Chapters).  See also Centreforum's announcement of the report.  The report is by Alan Paterson - Professor of Law and Director of the Centre for Professional Legal Studies at Strathclyde University and Chris Paterson who joined CentreForum as a researcher in April 2011 from city law firm Slaughter and May.

This report argues that senior judicial appointments including those to the Supreme Court are in need of significant reform.  The emergence of a more powerful judicial branch of government provides an important check on executive power but this must be buttressed by a constitutionally appropriate appointments system.  The report sees the present system as being unfit for purpose with the potential to produce a self-perpetuating oligarchy.  It is argued that the appointments system ought to contain a better balance

Thursday 22 March 2012

Marriage - the changing scene

Updated x 2:

According to Article 12 of the European Convention on Human Rights -

"Men and women of marriageable age have the right to marry and to found a family, according to national laws governing the exercise of this right."

In Hamer v United Kingdom (1982) 4 EHRR 139, the European Court of Human Rights stated that marriage, in the context of Article 12, is the 'formation of a legally recognised binding association between a man and a woman' which thereby involves the acquisition of legally recognised social status.   The Hamer case concerned Article 12 in relation to prisoners and a breach of Art 12 was found.   Later, in Rees v United Kingdom (1987) 9 EHRR 56, the E Ct Hr stated that the right to marry guaranteed by Art. 12 refers to the traditional marriage between persons of opposite biological sex.  There was no breach of Art. 12 in the case of a female to male transsexual.  See now the Gender Recognition Act 2004.

In Schalk and Kopf v Austria 2010, the question of Article 12 and same sex marriage was directly raised at the E Ct HR.  Interestingly, the UK intervened in this case.   A male couple complained that the legal impossibility of a same-sex couple marrying under Austrian law violated their right to respect for private and family life and the principle of non-discrimination.  Held, rejecting the complaint, that there is no breach of Article 12 where marriage is available to two people of the opposite sex but not two people of the same sex.

Hence, there is no obligation placed by the Convention on States to recognise same sex marriages or, for that matter, civil partnerships. Of course, the absence of such an obligation does not prevent States from deciding to recognise same-sex marriages or civil partnerships and, in the U.K., civil partnerships have been recognised since December 2005 under the Civil Partnerships Act 2004.  A number of European (and other) States already recognise same-sex marriage - e.g.  Spain, Portugal, The Netherlands, Norway, Sweden, Canada.

The government

Wednesday 21 March 2012

Budget and Tax

Taxation has a long history.  Magna Carta Article 12 declared that, with certain exceptions, a medieval tax known as "Scutage" was not to be imposed unless "by common counsel of our Kingdom."    Charles I  reigned for lengthy periods without calling Parliament and he attempted to raise a tax known as "Ship Money."  The first ship money writ of 1634 simply requested the coastal towns to provide ships, following on from earlier acts of Elizabeth I. This could be justified at a time when pirates threatened coastal trade around the country.  The following year ship money writs were sent to inland areas, provoking increasing resistance, especially after John Hampden refused to pay. The resulting court case - R v Hampden (Case of Ship Money) (1637) 3 St Tr 825 - found for Charles I but by a very small margin, and the judgement, which in effect gave Charles the power to do whatever he wished, alienated almost the entire nation, including many who fought for Charles in the Civil War. Ship money was made illegal by the Long Parliament in 1641.

The Bill of Rights stated that - "levying money

Monday 19 March 2012

Northern Viewpoint - Roundup of legal stories

Daffodils at York

It seems to have been a long, dull and dreary winter but Spring is with us and the gardens are livening up.  It has been an interesting winter from a legal viewpoint.  Rarely has there been so much to discuss and consider.  One almost longs for the halcyon days when there was just a trickle of new legislation and the occasional, but always very important, House of Lords or Court of Appeal decision.  For instance, in the Hong Kong Fir case in late 1961, Diplock LJ shattered our (perhaps naive) belief that terms in contracts were to be classifed as either "conditions" or "warranties."  He indulged in what was said by one judge to be 'gratuitous philological exhibitionism' when he started talking about 'synallagmatic contracts' and pointed out that contracts could contain other terms which came to be referred to as "innominate" terms.  All this was, of course, very useful for lawyers when trying to advise the local builder about some whizz-bang deal he had already signed up to!

More on Rights:

Last week Dr. Michael Pinto-Duschinsky resigned from the Commission on a British Bill of Rights - (Resignation of Michael P-D).  His place has been taken by Conservative peer and barrister Lord Faulks QC and see 1 Chancery Lane.   Thus, the Commission is now

Where angels fear to tread: Lord Neuberger talks about judges talking ...

Lord Neuberger MR
The Master of the Rolls, Lord Neuberger of Abbotsbury, has delivered the Presidential Address to the Holdsworth Club.  His speech is entitled - "Where angels fear to tread."  It is interesting that, in this speech, Lord Neuberger chose to caution his judicial colleagues about speaking publicly.  Certainly, in recent times, there has been a noticeable increase in the number of speeches delivered by judges and the most senior judges have appeared, reasonably often, at Parliamentary committees.  Lord Neuberger argued that in extra-judicial speaking vigilance was needed and he made seven key points or "possible principles":

  • Judges should be free to comment extra-judicially on a wide range of issues. In doing so they play an educative role. In areas such as constitutional principles, the role and independence of the judiciary, the functioning of the legal system, and access to justice, and even important issues of law, this role cannot be underestimated.

  • Any comment should be made following

Friday 16 March 2012

Lois Austin and others v UK - a further nail in coffin of the right to protest

"Kettle" - London 2001
It is commonly said that, in English law, the individual is free to do whatever is not forbidden by law and that includes freedom to peacefully demonstrate or protest - see Peaceful Protest (Law and Lawyers December 2010) .  The European Convention on Human Rights goes beyond the traditional position of English law by giving specific rights such as the right to liberty, freedom of expression and freedom of assembly and association.  However, in relation to most Convention rights, there are permitted exceptions.  States do not have unfettered discretion as to how rights can be restricted.  For example, under Article 5, the right to liberty may only be restricted for one of the reasons set out in Article 5(1)(a) to (f) and the restriction must be prescribed by law.

The European Court of Human Rights at Strasbourg has handed down judgment in Austin v United Kingdom (15th March 2012).   Factually, the case goes back to 2001 and was the subject of the House of Lords decision in Austin v Metropolitan Police Commissioner [2009] UKHL 5.  This post examines the E Ct HR's majority decision and also the dissenting opinion of judges Fran├žoise Tulkens, Dean Spielmann and Lech Garlicki.  The majority have, in practical terms, handed State authorities a powerful weapon to use in protest situations and this may prove to be a serious inroad into the ability of people to express their opposition to official policy by way of protest and demonstration.

Lois Amelia Austin and three other applicants complained that

Wednesday 14 March 2012

Human Rights - Sir Nicolas Bratza talked to Parliament

On Tusday 13th March, Sir Nicolas Bratza (President of the European Court of Human Rights) gave evidence to Parliament's Joint Committee on Human Rights.  Sir Nicolas was accompanied at the session by Mr Registrar Erik Fribergh who dealt with one 3 part question.  The interesting session may be viewed here:

Many topics were considered including: why the Convention is viewed by the court as a "living instrument", the question of "dialogue" between the court and both national judges and national Parliaments, advisory opinions as proposed by the UK in the draft Brighton declaration, "subsidiarity" and "margin of appreciation", the proposed changes to criteria for admissibility of cases, the court's workload, the advantages of the European Union itself acceding to the European Convention on Human Rights and the appointment of judges.  Judges at Strasbourg are, as Sir Nicolas pointed out, already appointed by a rigorous process and the process includes an election stage.  Sir Nicolas considered that the appointments process had improved considerably over the 14 years that he has been at the court.

If you have just over an hour to spare, this session is essential viewing.

See also Parliament's website - Joint Committee hears evidence on human rights judgments

and The Guardian for the view of Anthony Lester QC that the E Ct Hr needs the reforms proposed by the UK.   There has also been a proposal that applicants to the E Ct HR are charged fees - The Guardian 13th March - "Outcry over plans to charge E Ct HR claimants."

Monday 12 March 2012

Resignation of Dr. Michael Pinto-Duschinsky

On 7th February 2011, this blog posted "Think tank calls for UK withdrawal from the European Convention on Human Rights"   The post offered some, mainly adverse, reaction to Policy Exchange's paper "Bringing Rights Home" which may be accessed via the Policy Exchange website.   The report's author was political scientist Dr. Michael Pinto-Duschinsky.

Subsequently, Dr. Pinto-Duschinksy was appointed to the Commission on a Bill of Rights as one of eight Commissioners and he was the only non-lawyer.  See the post Commission on a UK Bill of Rights (18th March 2011) where the Commission's membership and terms of reference are set out.  The terms seemed to make it clear that government was not contemplating withdrawing the UK from the European Convention since the first term of reference stated -

"The Commission will investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties. "

Thus, according to the terms

Saturday 10 March 2012

Injury to children and vulnerable adults - new legislation

Addendum 2nd July:  The amendments discussed in this post came into force on 2nd July 2012 - see Ministry of Justice Circular 2012/03

The Domestic Violence, Crime and Victims (Amendment) Act 2012 received Royal Assent this week - see the Act.  It makes an important amendment to the Domestic Violence, Crime and Victims Act 2004 - (here).

Section 5 of the 2004 Act created the offence of causing or allowing the death of a child or vulnerable adult.  The 2012 Amendment Act extends section 5 so as to cover causing or allowing "serious physical harm."   The amended section 5 will come into force on a date to announced by Statutory Instrument.  The amendments will not apply in relation to any harm resulting from an act that occurs, or so much of an act that occurs, before the commencement date.

A new section 6A (dealing with evidence and procedure) is inserted into the 2004 Act.  The Schedule to the 2012 Act sets out various consequential amendments to various other Acts.

Section 5 of the 2004 Act - once amended, will read - (changes shown in Blue):

Thursday 8 March 2012

Supreme Court of UK - Nuclear weapon tests; European Arrest Warrants; Deporation to Algeria

1.  Decision to come:

On 14th March, the Supreme Court will hand down judgment in Ministry of Defence v AB and others.  This case arises out of British nuclear testing in Australia and Christmas Island in the 1950s.  There are 1011 claimants in total but the actual application before the court relates to ten "lead cases" which were selected to determine whether the claims could proceed to trial or whether they are statute-barred due to lapse of time under the Limitation Act.   Law and Lawyers looked at this in July 2011 - "UK nuclear testing in the 1950s - the legacy" - a post which was kindly reproduced on the UK Human Rights blog - "Nuclear test veterans appeal to be heard by Supreme Court."

Update - 14th March - The Supreme Court, by a majority of 4 to 3, dismissed the claimant's appeal.  Judgment and Press summary.  A summary of the judgment may be seen at UK Supreme Court blog.

2. Case just argued:

R (HH) v Deputy Prosecutor of the Italian Republic - Parents of young children are wanted on a European Arrest Warrant issued by Italy.  Italy seeks to obtain their extradition so that they can serve lengthy prison sentences imposed, in their absence, for drug trafficking.  The parents have argued that

Tuesday 6 March 2012

Theresa May's trip to Jordan

Update: Abu Qatada talks moving in the right direction, says Theresa May - Guardian 7th March.

The Home Secretary - Rt. Hon. Theresa May MP - is in Jordan holding talks with a view to reaching a deal ("assurances") which the British government hope will enable them to see the back of Abu Qatada who is currently on bail with strict conditions - Channel 4 - 5th March.  The government has been seeking to deport him since August 2005.

Bail was imposed by Mitting J sitting at the Special Immigration Appeals Commission (SIAC) in February - see Othman v Secretary of State for the Home Department [2012] UKSIAC B1 6th February.   Mitting J's short judgment regarding bail is interesting in itself in that the so-called Hardial Singh* principles for deportation were applied and, in Mitting J's view, these are not materially different from the European Court of Human Rights view on what Article 5 (Right to liberty and security of person) requires.  On an application of the Hardial Singh test, Mitting J decided to grant bail rather than keep Abu Qatada in custody where he was for some 6 years.

It was in Othman (Abu Qatada) v United Kingdom [2012] ECHR 56 (17th January) that the Fourth Section of the European Court of Human Rights (ECtHR) held that

Monday 5 March 2012

Human Rights

Updated Friday 9th March and Tuesday 13th March

European Court of Human Rights blog - New ECHR Factsheets - new or updated factsheets about the case-law of the European Court of Human Rights.  15 subject areas with short summaries of the ECtHR's decisions for each area.  The extent to which the government will take the bite is debatable and some of the proposals are controversial.

Equality and Human Rights Commission - Human Rights Review 2012 - the Commission's landmark investigation into the present state of human rights in England and Wales - includes review, case studies and key issues.  The review is a series of documents examining the situation for each of the Convention rights and indicating areas where the UK could improve human rights protection.

UK Human Rights Blog has a post - "The Commission on a Bill of Rights should open up" - Adam Wagner 5th March 2012.  Essentially argues, in my view correctly, that this Commission needs to interact better with the public including the provision of better information about the Commission's work.  Some information about the Commission for a Bill of Rights may be found via Ministry of Justice.  The UK Human Rights Blog has also started a series written by Dr Ed Bates of Southampton University.  The series examines the Draft Brighton Declaration.  Here is Part 1

Please see the earlier post on this blog - "UK seeks to minimise the influence of Strasbourg" which takes a look at the Draft Brighton Declaration on the future of the European Court of Human Rights.  This was the document which came into the public domain by way of a leak to The Guardian newspaper.  Why did the government wish to keep it under wraps?  I have not seen an answer to that.

and for those who really wish to delve into this important and fascinating subject, I recommend this trio:

The Justice [ ] Gap - Know Your RightsUK Constitutional Law Group and Human Rights Doctorate

Update:   UK Human Rights blog now has further posts

Sunday 4 March 2012

Blacklisted workers and "Justice and Security"

The Central London Employment Tribunal has decided a case in which it emerged that, over a period of some 30 years, a blacklist of workers has been maintained on behalf of the construction industry - The Guardian 3rd March 2012 - "Police are linked to a blacklist of construction workers."  and also see Weightmans LLP - "Tribunal rules against worker blacklisted for raising health and safety concerns."

The tribunal case involved a Mr David Smith, who had a 36-page file against his name and was victimised repeatedly for highlighting safety hazards on sites, including the presence of asbestos.  David Clancy, investigations manager at the Information Commissioner's Office, told the Central London Employment Tribunal adjudicating on Smith's claims against construction giant Carillion that "there is information on the Consulting Association files that I believe could only be supplied by the police or the security services".  It further appears that a civil action in the High Court is under consideration against some 39 companies.  Some 100 victims are seeking redress.

In the light of the government's proposals for Closed Material Procedure (CMP) in certain

Saturday 3 March 2012

Proceeds of Crime: Civil Asset Recovery

An old "run-down" chapel located in a smart suburb, bought at an undervalue.  The same property renovated to high standards with beech flooring, modern kitchen and bathroom - all from unidentified sources.  A lifestyle with expenditure including £11,525 on a gold watch and various cars (a Lexus, a Bentley Mulsanne, a Porsche and an armour-plated BMW).  Lack of any evidence of either a legitimate or any source of income.  This is some of the evidence by which the High Court concluded that Mr Aaron Coghlan was engaged in unlawful conduct as a drug dealer between 1999 and April 2004 - see Serious Organised Crime Agency v Aaron Charlton Coghlan and Claire Lisa Burgoyne [2012]EWHC 429 (QB) Simon J.  The outcome of the case was that the house (referred to as "The Chapel") was recoverable property and will, under the court's order, vest in the Trustee for Civil Recovery.

Mr Coghlan has had an interesting life.  In 1996, he was

Friday 2 March 2012

Secret Courts Condemned

"Secrecy, being an instrument of conspiracy, ought never to be the system of a regular government" - Jeremy Bentham (1748-1832)

Until this week, reaction to the government's green paper on "Justice and Security" has been muted.  It has taken the form of detailed and reasoned submissions and has tended to come mainly from organisations and individuals with a legal background.  Writing on the UK Human Rights Blog, barrister Adam Wagner, somewhat despairingly, referred to the "sound of tumbleweed greeting secret civil trials proposals."

There are now 77 published responses on the Justice and Security website - with the possibility that more may yet be published.   Given that "Special Advocates" are at the heart of the proposed "Closed Material Procedure" (or CMP), the two-part excoriating response from those practising in this capacity is particularly interesting.  They said - "The introduction of such a sweeping power could be justified only by the most compelling of reasons. No such reason has been identified in the Green Paper and, in our view, none exists."  They find the CMP proposal to be "insupportable" and urge government to consider an alternative system of security cleared lawyers receiving information subject to 'protective orders' as used in the USA.

This week, the Daily Mail has commendably