The Lord Chief Justice at the House of Lords Constitution Committee

On Wednesday 30th January, the Lord Chief Justice (Lord Judge) gave evidence to the House of Lords Constitution Committee.   The session lasted about one hour with Lord Judge answering questions and offering his views on a considerable range of subjects.  Lord Judge retires from office in September 2013 but, as is clear from the committee hearing, he does not intend to disappear from involvement in public life and may give further evidence to the committee.


The discussion - which may be listened to here - covered:

Catching up with the Justice and Security Bill

The Justice and Security Bill completed its progress through the House of Lords in November 2012 and is now being considered by a House of Commons 19 strong Public Bill committee - (see Parliament for the make-up of the committee etc).  The Bill purports to enhance Parliamentary scrutiny of the security services and, very controversially, to introduce 'closed material procedure' (CMP) into civil cases.  This procedure will build into civil litigation closed hearings with minimal publicity and even greater use of Special Advocates.  As previously pointed out on this blog, the use of Special Advocates has seen a considerable increase over the last 10 years and, in many areas of legal process, it can no longer be said that there is truly open justice.  Rather, secrecy reigns.

Court of Appeal (Civil Division) ~ Human Rights Act 1998 ~ Declarations of Incompatibility

Declarations of Incompatibility:

When Parliament enacted the Human Rights Act 1998 (the HRA) it enabled the higher courts to make 'declarations of incompatibility' in relation to legislation.  This was a major innovation in our law.   The HRA section 3 states:  So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.  Section 4(2) applies when a court determines whether a provision of primary legislation is compatible with a Convention right.  If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.  (Note s.4(4) in relation to subordinate legislation).

The effect of a declaration is to put the government on notice that the court considers that there is an incompatibility between the legislation and Convention rights.  This enables the government and Parliament to decide whether to address that incompatibility and, if so, how.  Parliament is not bound to make any changes.  It could choose

Compensation for 'Miscarriage of Justice'

Barry George - denied compensation

The International Covenant on Civil and Political Rights 1976 Article 14(6) gives a right to compensation in some circumstances to those who have been the victim of a miscarriage of justice:

'When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.'

The Criminal Justice Act 1988 s.133 gave effect in national law to the covenant:


'when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.'

Section 133 therefore requires that (a) there is a new or newly discovered fact; (b) showing beyond reasonable doubt; (c) a miscarriage of justice.

The trial and execution of Derek William Bentley ~ 60 years on

Protest at Wandsworth

At 0900 on 28th January 2013 it is 60 years since Derek William Bentley was hanged at Wandsworth Prison for the murder (by shooting), on 2nd November 1952, of Police Constable Miles who, at the time he was killed, was acting in the execution of his duty.  Bentley's trial, and that of Christopher Craig, was held at The Old Bailey from 9th to 11th December 1952 before Lord Chief Justice Goddard and a jury.  Both were convicted of the murder though, in Bentley's case, the jury recommended mercy. Bentley's appeal against conviction was dismissed by the Court of Criminal Appeal (Croom-Johnson, Ormerod and Pearson LJJ) on 13th January 1953.  The rapidity of the timescale is striking.

It was Craig who had the gun and used it to shoot at the Police thereby killing PC Miles.  Craig was aged 16 at the time and the minimum age for capital punishment had been fixed at 18 by the Children and Young Persons Act 1933 section 53. Bentley was aged 18 and therefore liable to the death penalty.

Bentley's execution is widely considered to have been a travesty of justice.  The general view is that, for political reasons, the Home Secretary - David Maxwell Fyfe - was never going to exercise mercy and grant a reprieve.  The refusal was in the face of a petition signed by over 200 MPs.  Parliament was not allowed to debate Bentley's sentence until it had been carried out - see The Guardian 28th January 1953 - Efforts to save Bentley fail.  The Guardian article shows that there was considerable concern at the time about the execution and, over the years, concern was also to develop about the conduct of the trial and the safety of the conviction itself.

The injustice of Bentley's case was compounded by

Fines - all is not fine

Recently it was announced that unpaid fines still add up to £600 million - Law Society Gazette 21st January 2013.  (A vastly greater sum is owed if matters other than fines are considered).  Justice Minister Helen Grant MP is reported to have said that the collection system will be overhauled and a commercial partner brought in to help with collection.

A recent decision of the Administrative Court demonstrates the inefficiency existing in the system of fine enforcement - R(Purnell) v South Western Magistrates Court [2013] EWHC 64 (Admin).  The case highlights the fact that London has four databases to store information relating to fines.  Offenders are not, of course, obliging

Supreme Court 23rd January ~ a glance at three judgments

The Supreme Court handed down three judgments.  The cases concerned whether legal advice privilege extended to advice received from qualified accountants; the validity of a European Arrest Warrant and an appeal from Scotland relating to the meaning of 'pre tax profit' in a deed under which a percentage of such profit had to be paid to charitable foundations.

See the judgments being delivered via YOUTUBE UK Supreme Court

R (on the application of Prudential plc and another) v Special Commissioner of Income Tax and another [2013] UKSC 1.  The appeal related to whether legal advice privilege existed when the advice came not from a lawyer but from an accountant.  A more general question was whether legal advice privilege extends, or should be extended, so as to apply to legal advice given by someone other than a member of the legal profession, and, if so, how far legal advice privilege thereby extends, or should be extended.

By a 5 to 2 majority, the Supreme Court refused to extend the scope of legal advice privilege.  Legal advice privilege should not be extended to communications in connection with advice given by professional people other than lawyers, even where that advice is legal advice which that professional person is qualified to give. To do so would extend legal advice privilege beyond what are currently, and have for a long time been, understood to be its limits.

Extending legal advice privilege

High Court judgment on liability for 2008 accident in Leicester

Mrs Justice Swift has given her judgment in Ayres v Odedra [2013] EWHC 40 (QB).   The Daily Mail - 19th January - carried an article about the case - Drunk Royal Marine hit by car as he stood in the road with his trousers down can claim MILLIONS in compensation, judge rules. 

In a nutshell, Swift J held that the driver (Mr Odedra) was liable for negligence when his car struck Mr Ayres in a narrow, single lane, one-way Leicester street in September 2008.  Swift J ruled that Odedra had NOT acted either deliberately or recklessly.  However, applying the law of contributory negligence, Swift J held Ayres to be 20% at fault because of his 'very foolish' conduct.  Ayres suffered severe damage to his right leg but also very severe brain damage as a result of him falling against the kerb and banging the back of his head.

Ayres had

Undercover Policing ~ High Court 17th January

Updated 19th January

17th January saw an interesting decision in the High Court in relation to actions brought by individuals who allege that, whilst engaged in protests, they were 'tricked' by undercover police officers into having intimate sexual relations.  The Guardian 17th January 2013 - Police spies court case suggest sexual relations with activitists were routine.  Claims have been lodged under the Human Rights Act 1998 sections 6 and 7 as well as claims at common law for torts alleged to have been committed by the Police.  There are two sets of claimants.  The actions brought by one set go back to the Ratcliffe-on-Soar climate change protests.  The actions in the second case relate to  members of the Cardiff Anarchists Network (“CAN”).

Criminal cases ~ Undercover police activity revealed:

Two years ago, this blog looked at the sentencing of certain climate change protesters - Law and Lawyers 8th January 2011.  They had been convicted of conspiracy to commit aggravated trespass at Ratcliffe-on-Soar power station.  A trial of further defendants, due to commence on 10th January 2011, was discontinued

3 years old ~ Self representation (a bleak outlook)

Law and Lawyers blog is now three years old.  2012 was an amazing year with a vast array of legal stories.  Already, 2013 is promising to be as busy and as interesting and the aim is that this blog will continue to throw some light on the laws which govern us and the lawyers who implement those laws.

2013 will see the implementation of severe cuts to civil legal aid.  These were enacted in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and will come into force on 1st April 2013.  The cuts, pressed through Parliament during the Lord Chancellorship of Kenneth Clarke, are savage and brutal and will undoubtedly deny access to justice for thousands of people in crucial areas such as disputes within families about children (subject to exceptions), and most medical negligence cases.  Legal aid will be restricted in other areas such as housing, immigration and welfare benefits.  Furthermore, funding for alternative sources of legal advice is drying up - see, for example, Law Society Gazette 9th January 2013 - Birmingham Law Centre faces axe after a century.

Eweida and others v UK ~ a look at what is being said?

Update 20th January

The European Court of Human Rights (E Ct HR)  Chamber Judgment in Eweida and others v United Kingdom was handed down on Tuesday 15th January.  The court comprised 7 judges and the judgment is not final for a further 3 months so as to allow for any requests that the case be referred to the Grand Chamber.  Given the extensive coverage of the case in both the media and on other blogs, I do not propose to offer anything more than a brief overview of the actual decisions and then to look at some of the various blogs which have chosen to offer analytical comment.

The court's Press release and Judgment (including some partly dissenting opinions) are available.

The Convention rights:

ARTICLE 9

Queen's or Prince's Consents

The Cabinet Office has published Guidance from the Office of the Parliamentary Counsel and one particular guidance document relates to the Queen or Prince's Consent (the guidance).    This guidance sets out some of the issues that arise when considering whether 'Queen’s or Prince’s consent' should be signified to a bill and contains information about the signification of consent.

The Queen’s consent needs to be considered in the case of -

• provisions affecting the prerogative, and

• provisions affecting the hereditary revenues, the Duchy of Lancaster or the Duchy of Cornwall, and personal property or personal interests of the Crown.

Queen's or Prince's consent is not to be confused with Royal Assent. 

Magistrates' Courts ~ Sharing the Burden

In November 2012, a new protocol relating to division of judicial labour in the Magistrates' Courts was published.  One of the key aims of the protocol is to ensure optimal use of both Magistrates and District Judges (Magistrates' Courts).  The protocol was produced by a Working Group which included Lord Justice Gross (then Deputy Senior Presiding Judge - from 1st January 2013 he is the Senior Presiding Judge) and the Magistrates' Association.

According to the Working Group, a further purpose was said to be to eliminate or minimise friction between Magistrates and DJ(MC) so that the focus is on the administration of justice.  That such friction has existed or still exists is evidenced by this statement as well as by various posts on blogs such as The Magistrates' Blog - for example, post of 10th January 2013 Crystal Ball Time. where 'Bystander T' states - ' ... some magistrates feel uneasy with the expansion in the numbers of DJ(MC)s believing that the mini-jury of three magistrates is a more democratic route to a finding of guilt or a passing of sentence.'

The protocol is clearly not intended to be a rigid framework since it states that undue rigidity is to be avoided so that the system is adaptable to particular needs whether of locality or caseload. 

R v Ashley Gill-Webb - Bottle thrown during Olympics - Usain Bolt

Updated 4th February - with Sentencing remarks

The London Olympic Games 5th August 2012.  Eight men, including Usain Bolt, are about to run the race of their lives - the men's 100m final.  A bottle is thrown from the crowd of spectators on to the track and, in the event, lands behind the runners who are approaching the starting blocks.  The man who threw the bottle was Ashley Gill-Webb.  Here is one newspaper's report of the event.

The judiciary website has published the judgment (dated 11th January 2013) of District Judge Ashworth in which Ashley Gill-Webb was found guilty of offences under the Public Order Act 1986 section 4A and section 5.  The two alternative offences arose from the same incident.

The sentencing remarks deal clearly with the issue in the case, namely Gill-Webb's mental state at the time.  Gill-Webb accepted that his behaviour was abusive and disorderly in that he shouted comments at Usain Bolt and threw a bottle on to the track causing harassment alarm and distress to spectators nearby.  The sole question for the judge to decide was Gill-Webb's mental state.  This was not an entirely straightforward matter.

Hillsborough - Fresh Inquests - the question of Article 2 compliance

On 19th December 2012, the Administrative Court granted a 'fresh inquest' application made by the Attorney-General under the Coroners Act 1988 section 13 - see HM Attorney General v HM Coroner for South Yorkshire (West) and HM Coroner for West Yorkshire (West)  [2012] EWHC 3783 Admin - Lord Judge LCJ; Burnett LJ and HHJ Peter Thornton (Chief Coroner).  Lord Judge said (para 30):

'All the inquisitions will be quashed. There will be new inquests in each and every case. The legislation relating to venue is, as we have said in argument, problematic. The inquests will be remitted to another coroner for the same administrative area as the original inquests: in relation to the 95 victims the South Yorkshire (East) area at Doncaster; and in relation to the inquest into Anthony Bland, to the West Yorkshire (West) Coroner at Bradford.'

Royal concerns over the Succession to the Crown Bill

In 2011, it was announced that agreement had been reached with those countries where HM The Queen is Head of State that the law would be amended so that succession to the Crown will not depend on gender.  The announcement followed the Commonwealth Heads of Government Meeting held in Australia.

See the Succession to the Crown Bill which had its 1st reading in the House of Commons on 13th December 2012.  As Bills go, this is a short one: a mere five clauses and one schedule.  The Bill, as introduced in December 2012, may be read here. 

Clause 1 - will remove the ancient rule of  male primogeniture and make succession to the Crown no longer dependent on gender.  Clause 2 - removes the bar on succession to the Crown  as a result of marriage to a Roman Catholic.  Clause 3 - requires the Sovereign to consent to a marriage by a person who, at the time of the marriage, is one of the 6 next in line of succession to the Crown.  The Bill does NOT seek to alter the rule that the Sovereign must be in communion with the Church of England and therefore the government argues that the proposed changes to the rules of succession do not affect the role of the monarch as Supreme Governor of the Church of England.

It appears that

Information Rights ~ Secrecy ~ an interesting case in the pipeline

The expansion of secrecy in the courts:

The Joint Committee on Human Rights 16th report refers to there being 21 areas where special advocates could be used.   Para 58 of the 16th report stated:

"The Government replied that it was difficult to provide a comprehensive list of all the contexts in which closed material (as it prefers to call secret evidence) and special advocates are used, because in addition to the contexts in which the use of special advocates is provided for by legislation, the courts have an inherent jurisdiction to request that the relevant law officer consider appointing special advocates if they should become necessary in a particular case where there is no such express provision.  However, the Government provided a list of 21 different contexts in which it was "aware" that special advocates have been or may be used. In subsequent written answers to questions asked by our Chair, the Solicitor General confirmed that special advocates had been used in 14 of the 21 contexts identified in the Government's response to our inquiry.  However, in a further written answer she declined to say in how many cases in each of these contexts special advocates were used, on the basis that this information is not recorded centrally and could only be obtained at disproportionate cost."

This extract

Crown Prosecution Service ~ Guidance material

A look at two sets of guidance issued by the Crown Prosecution Service (CPS): (1) Joint Enterprise and (2) Communications via social media.

(1) Joint Enterprise

Just before Christmas 2012, the CPS issued important guidance on how charging decisions will be made following offences involving two or more participants in what is known as "joint enterprise."

Joint enterprise guidance 20th December 2012


Keir Starmer QC said: "This is a controversial and complicated area of the criminal law, so I want the public to understand how we take decisions to charge in these cases. This guidance for prosecutors explains the case law and sets out the key tests that we must apply to each case. What this guidance cannot do is change the law, which is a matter for Parliament and the courts.

UK Human Rights Blog - 2012 - Year in Review

The UK Human Rights Blog has the following posts looking back at the "biggest human rights stories" of 2012:

Part 1

Part 2

Part 3

Part 4

An article "In Defence of Rights" by Philippe Sands QC and Helena Kennedy QC has been published in the London Review of Books [Vol. 35 No. 1 - 3rd January 2013].  Sands and Kennedy were members of the Commission on a British Bill of Rights which reported in December 2012.

A look back on 2012 ~ a blockbuster of a year

What a year!  For any observer of the legal system, 2012 was a blockbuster with numerous stories and an immense amount of comment.  2012 was also the year of the immensely successful Queen's Diamond Jubilee and the Olympics and Paralympics held in London.  These superb events managed to lighten the mood within the country which is beset by seemingly intransigent economic woes.  November 2012 marked the mid-point of the present Parliament which is locked into place for 5 years by the, to my mind ill-considered, Fixed Terms Parliaments Act 2011.  On the legal front, here are just are some of the stories which, for me at least, stood out.

Back In January, the Scottish Independence Referendum 2014 was beginning to attract attention south of the border: Scotland: We need to talk.   Premiership Footballer John Terry said that he would "prove his innocence" at his trial and my comments on burden and standard of proof in criminal cases attracted a lot of views.  One of the purposes of blogging is to try to explain and it is amazing just how much misunderstanding there is about even basic aspects of the legal system.

February