Saturday 27 April 2013

Hillsborough ~ new inquests and new problems

In December 2012, the original inquest verdicts into the deaths at Hillsborough in April 1989 were quashed by the High Court and fresh inquests were ordered - Law and Lawyers 20th December 2012. and see - Her Majesty' 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 QC (Chief Coroner).

In addition to fresh inquests, a new Police investigation was ordered under Durham Chief Constable Jon Stoddart.  This investigation is to work closely with the Independent Police Complaints Commission (IPCC).

Following on from the quashing of the original verdicts, Lord Justice Goldring was appointed as Assistant Deputy Coroner to conduct the new inquests - Judiciary 13th February 2013.

A preliminary hearing

Thursday 25 April 2013

Court of Protection ~ an overview

Update 4th May:  Committal for Contempt of Court - Practice Direction of 3rd May

The Court of Protection has been mentioned a few times on this blog - for example, here  and here.

The court is in the news again because it has come to light that Wanda Maddocks was committed to prison for contempt of the court - Daily Mail 25th April - where it is said that, when judgment against her was handed down, she was not present in court and not represented by a lawyer.  It is also said that sentencing was not made public for six months.

In this post, I do not intend to comment on the Mail's article.  I am grateful to the Small Places blog for bringing my attention to the judgment - actually published last autumn - Stoke City Council v Maddocks [2012] EWHC B31 (COP).  Let's look at a few facts about the court.

1.  Parliament established the court by enacting Part 2 of the Mental Capacity Act 2005.  It came into existence from 1st October 2007 and replaced earlier arrangements often confusingly referred to as court of protection proceedings.

Wednesday 24 April 2013

Abu Qatada ~ New Treaty with Jordan ~ but will it result in his deportation?

Earlier this week, the Court of Appeal refused the government permission to appeal against a decision of the Special Immigration Appeals Commission in the Abu Qatada case - BBC News 23rd April.  The government will be asking the Supreme Court to grant permission to appeal.

Today, the Home Secretary - Theresa May - informed Parliament of a new treaty between the United Kingdom and Jordan which, she claims, will enable the deportation to Jordan of Abu Qatada - Parliament and  BBC 24th April

It will remain a matter for the courts to determine whether the treaty actually answers the objections to his deportation.

Treaty on Mutual Legal Assistance in Criminal Matters between the UK and Jordan

The government will be hoping that Article 27.4 provides the solution:

The dismantling of legal aid

Please read the following and take some action to try to preserve the rights of those accused by the State:

Criminal Solicitor - The price of everything and the value of nothing

The [Justice Gap] - Appalling Vistas where Francis FitzGibbon QC looks at government policy on  legal aid

David Allen Green in The New Statesman - How the Ministry of Justice's proposal for the tendering of criminal legal aid is misconceived and illiberal.

I never thought that I would see the day when a democratically elected British government was seeking to do this.  Please do not think this will affect only others.  Anyone of us could, one day, require a good lawyer to represent us.

Please sign this petition and get on to your MP.

The consultation paper is at - Ministry of Justice

Tuesday 23 April 2013

Legal Curiosities: Fact or Fable?

The Law Commission has published Legal Curiosities: Fact or Fable?

From time-to-time there are Statute Law (Repeals) Acts intended to tidy out dead wood from the massive so-called 'statute book.'  (See the 2013 Act).  A few candidates for the next such Act appear in the document. 

It is illegal to:

Enter Parliament wearing a suit of armour; to be drunk on licensed premises; to carry a plank along a pavement; to be drunk in charge of a horse and to fire a cannon within 300 yards of a dwelling house.   It is definitely illegal to kill a Scotsman in York whether within or outside the city walls and regardless of the day of the week !! 

It is legal to:

Die in Parliament (and some have); eat mince pies on Christmas Day; put a stamp upside down on a letter. 

A fascinating insight into some of the things which have been considered unlawful during our lengthy legal history and to some of the myths which are mentioned occasionally !

In English Law, once a statute is enacted it will always remain in force until repealed and this is so irrespective of whether the statute is actually enforced.  There is no rule of desuetude.  

There are still Dragons to fight ~ St. George's Day roundup.

Here is a roundup of some of the many legal matters both in the press and on the blogs at the moment:

1. Jon Robins, writing for Legal Voice, offers a report on the day of action by barristers practising on the Northern Circuit.  "An all-day protest by close to 400 barristers in the North West over what was called ‘a wholesale restructuring of the criminal courts’ caused disruption yesterday. It was reported that of the 241 cases originally listed, 15 trials and 42 other matters were adjourned."  A report on the Northern Circuit meeting is at Crime and Justice 22nd April.

2. Cuts to legal aid will be hugely damaging to access to justice and the ability of non-wealthy individuals to enforce their rights.   Barrister Russell Fraser, writing in the New Statesman, argues that one consequence of government policy could be that our Police, lawyers and jails will be run by G4S.  Naturally, that begs the question - "Who runs G4S" - because, if Russell Fraser is proved right, they will be very powerful and yet rather unknown individuals.

3. If you read nothing else on legal aid, read The [Justice Gap] - Appalling Vistas where Francis FitzGibbon QC looks at government policy on  legal aid David Allen Green in The New Statesman - How the Ministry of Justice's proposal for the tendering of criminal legal aid is misconceived and illiberal.

Monday 22 April 2013

When contact in sport becomes criminal

This morning, the major talking point in the Barclay's Premier League is the incident between Luis Suárez and Branislav Ivanovic at the Liverpool v Chelsea match at Anfield on 21st April - Telegraph 22nd April - where it is reported that Luis Suárez held an opponent and then bit him.  Suarez tweeted an apology for what he described as “inexcusable behaviour”.

Clearly, Liverpool Football Club will be entitled to discipline Suarez and so will the Football Association and here is a player with a problematic disciplinary record.  Leaving such action aside, what does the criminal law say about what might appear to be an assault by one player on another?  The principal modern case is R v Barnes [2004] EWCA Crim 3246 - Lord Woolf CJ, Cresswell and Simon JJ.

The prosecution of Mr Barnes was

Sunday 21 April 2013

Outspoken jurors ~ A most unhappy Bar as government presses changes

*** Update 1: Manchester's court system faces disruption - Manchester Evening News 22nd April

*** Update 2: Criminal legal aid cuts prompt protest by northern lawyers - The Guardian 22nd April

*** Update 3: Letter from Neil Hawes QC to Sir Alan Beith (Chair of the Justice Committee) in response to government consultation paper CP14/2013 Transforming legal aid: delivering a more credible and efficient system.

Another juror is in trouble for commenting on FACEBOOK.  As the excellent  David Banks Media Law blog  puts it:  He may be regretting being quite so frank in allegedly saying he “wanted to fuck up a paedophile.”  Another juror was discharged after stating that he felt incapable of trying a man fairly because the man supported an opposing football team.  As David Banks points out: ".... there is an ugly side to people’s nature and .... now they are committing it to the Internet.  And is this what we want? I think yes, I would rather know what a juror thought about me, so he could be discharged, than him keep it a secret and find me guilty."

A few weeks ago, this blog argued that there is a serious question of whether the independent criminal bar will survive a

Wednesday 17 April 2013

A glance at an interesting day in the Court of Appeal (Criminal Division)

On 16th April, the Court of Appeal (Criminal Division) handed down judgment in:

Morris v R [2013] EWCA Crim 436 (16 April 2013) - Leveson LJ, Mitting and Males JJ - an appeal against conviction for dangerous driving was quashed for error of law in the judge's direction to the jury.  The case is particularly interesting because of the defence put forward - use of reasonable force in the lawful arrest of offenders - Criminal Law Act 1967 s.3(1); Police and Criminal Evidence Act 1984 s24A and Criminal Justice and Immigration Act 2008 s.76.   The case illustrates all too well the difficulies in the law relating to arrest by citizens of others.  It is worth noting here the considerable lengths which the trial judge went to when directing the jury on the law which is, regrettably, far from straightforward.

Tuesday 16 April 2013

Human rights - a short update

Council of Europe Report:

The 6th Annual Report of the Council of Europe's Committee of Ministers has been published.  It deals with Supervision of the execution of judgments and decisions of the European Court of Human Rights. 

Foreign and Commonwealth Office Report:

The FCO has published the 2012 Human Rights and Democracy report.   This is a wide-ranging report looking at human rights issues around the world.

For an update on allegations that the UK was complicit in torture see Watching the Law

European Court of Human Rights:

The 4th Section of the court has given judgment in Aswat v United Kingdom.  

Monday 15 April 2013

Ceremonial Funerals ~ Public Order

The ceremonial funeral of Baroness Thatcher is to take place in London on Wednesday 17th April - see No. 10 Downing Street.  The armed forces have held a rehearsal and Police activity is being managed - Metropolitan Police statement  and  Operation True Blue.

Plans for ceremonial funerals are certainly not made on the spur of the moment.  The idea of a ceremonial funeral for Lady Thatcher originated from Prime Minister Gordon Brown and arguments against holding such an event were put forward - for example, by Peter Oborne writing in  The Telegraph December 2011.   It did not need any great foresight to see that this funeral would be highly controversial and that public order problems were likely.

This funeral will have been meticulously planned (with the Police involved in the planning).  However, what does public order law say about processions?

Thursday 11 April 2013

Baroness Thatcher of Kesteven

Although law and politics have an overlap, the main aim of this blog is to look at the law as either enacted through Parliament or expounded by the judges through their judgments in decided cases.  Occasionally, it seems appropriate to depart to some extent from that norm.  The death of former Prime Minister Margaret Thatcher seems to me to be such a time.  I did not admire every policy adopted by the 'Iron Lady' and her government's implementation of policy could be uncaring and even brutal.  Nevertheless, I had admiration for her conviction and courage.  In this post my aim is merely to touch upon a few of the issues which arose in her time in office and which had long-lasting influence on the law.

Thatcher became Prime Minister in May 1979 and served until November 1990.  She was preceded by James Callaghan (Labour) who, on 28th March 1979, lost a vote of confidence in the House of Commons - (see Wikipedia - Callaghan Vote).  A general election was called and was won by the Conservative Party under Margaret Thatcher.  Interestingly, Callaghan lost the vote of confidence by just one vote which, at the time, I thought surprising given the Winter of Discontent 1978-79.

European Union accession to the European Convention on Human Rights

Article 6(2) of the Treaty on European Union states that the Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.  Art 6(3) of the Treaty states that fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.

At present, Art 6(3) operates to make the rights in the E Conv HR general principles of EU law.   This is reflective of what occurred through the influence of the European Court of Justice - now the Court of Justice of the EU (CJEU).  A useful analysis of how the court has embraced human rights may be read at  Human Rights and the European Court of Justice - Elizabeth Defeis, Fordham Journal of International Law 2007 Vol 31 Article 2.

Art 6(2) will take matters further by making the EU itself a signatory to the E Conv HR.  

Wednesday 10 April 2013

Legal aid - death by a thousand cuts

The present government was always unlikely to be satisfied with their already severe cuts to civil legal aid enacted by the Legal Aid, Sentencing and Punishment of  Offenders Act 2012 (LASPO).   The Solicitor's Journal takes a look at the latest Ministry of Justice moves on legal aid - Civil legal aid faces further big cuts.  The further 'big cuts' amount to something in the region of £220m each year.

The Ministry claims that it is Making legal aid fairer fairer for taxpayers and is addressing a number of 'abuses' in the system.   The full consultation paper is at Ministry of Justice - Transforming legal aid: Delivering a more credible and efficient system.

The key features in the consultation are:

A High number of care applications for children ~ Universal Credit ~ Working Together

The number of care applications for children continues to be high.  Local Government Lawyer highlights the numbers: 998 in February 2013; 925 in March and 11,055 in a 12 month period. The article does not look at the reasons for this.  No doubt, the current economic climate is playing a part and support for families in difficulty is becoming thin on the ground as reductions to local authority budgets bite ever deeper.   In many families where children are considered to be at risk of 'significant harm' (Children Act 1989 s31) there are adults with drink or drug dependency and with lack of basic skills such as budgeting income.  The system of benefits is being reformed and, in Greater Manchester, we are seeing the beginnings of 'Universal Credit' - (Dept. of Work and Pensions).  I wonder what impact this will have on children?  Will the receipt of a single payment be just that bit too tempting for some parents?

There is

Monday 8 April 2013

Monday items

(1) A post by Simon McKay - On Summary Military Justice - is well worth reading.  The military justice system continues to be a problematic area and McKay explains why.  See also post on Sgt. Nightingale's case.

(2) Governmental activity to drive down legal aid is set to continue as Grayling sets sights on prisoners' legal aid - Law Society Gazette 4th April.

(3) There is until 12th April to comment on the consultation about implementation of Part1 of the Coroners and Justice Act 2009 - Ministry of Justice consultations.   The consultation paper seeks views on proposed coroner investigation regulations, inquest rules, fee and allowance regulations, coroner areas, and statutory guidance for bereaved people.  Previous recent posts relating to Coroners - here.

(4) Some interesting brief sentencing remarks

Saturday 6 April 2013

R v Philpott, Philpott and Mosley ~ Sentencing remarks of Mrs Justice Thirlwall

The manslaughter of 6 children as a result of a deliberately set fire must rank high in the catalogue of heinous crimes.  The sentencing remarks of Mrs Justice Thirlwall in the case of Philpott, Philpott and Mosley are available. The children ranged in age from 5 to 13 and they died as a direct result of a fire set by the three defendants.  Thirlwall J noted that, of the 3 defendants, Michael Philpott was the 'driving force behind this shockingly dangerous enterprise.'

Michael Philpott was sentenced to life imprisonment and must serve a minimum of 15 years before parole may be considered.  There is no guarantee that he will be released after the 15 years.  Life sentences are explained here and also see Ministry of Justice Life sentenced prisoners

Mairead Philpott (mother of the children) and Paul Mosley (family friend) were each sentenced to 17 years imprisonment and must serve half before release on licence.

Forget the political side show about the benefits Philpott received.  Thirlwall J got to the heart of his true character and the appalling deed he committed.  In the judge's words, Philpott is a 'disturbingly dangerous man' with 'no moral compass.'

The judge