Friday 31 May 2013

Whole life term imposed for murderer of April Jones

Crown Court - Mold
Mark Bridger (47), is to serve a 'whole life term' for the murder of April Jones - The Guardian 30th May 2013.  April disappeared in October 2012 and her body has not been found - BBC 31st May.   It was revealed during the trial that fragments of bone consistent with a juvenile human skull were found among ashes in a woodburner, along with April's blood near to a number of knives, including one which was badly burned.

The sentencing remarks of  Griffith Williams J are available via the Judiciary website.  The judge described Bridger as a 'pathological and glib liar' - a 'paedophile who harboured sexual and morbid fantasies about young girls'.  Bridger's laptop stored images of 'foul pornography of the gross sexual abuse of young children.'

Factors for determining the minimum term are

Thursday 30 May 2013

Police Arrest and Police Bail - should there be a time limit?


Neil Wallis, writing in The Guardian 28th May, points out that it is not unusual for individuals to be on police bail for months before they are either charged or the investigation is discontinued.  Wallis says that some 3000 families are currently affected by this.   Such bail may well be on restrictive conditions  In fact, this situation has existed for some time and this post looks at police powers of arrest and the power of the police to issue bail.  The Law Society is calling for a 28 day limit on police bail after which the police would have to justify further restrictions to a court - Law Society 29th May

Powers of arrest:

The previous post considered arrest by citizens.  It is unsurprising that Police powers are much wider in scope.

Police powers

Wednesday 29 May 2013

Citizen's Arrest - a limited power

On Tuesday 28th May, The Independent reported that 'the creator of a far right extremist group' had 'promised to ‘arrest’ Islamist cleric Anjem Choudary by 6pm tomorrow if the Met police do not.'

Who is Anjem Choudary and just what is a 'citizen's arrest?'

Soldier Lee Rigby was brutally killed in Woolwich on 22nd May.   Certain individuals are under arrest and consequently the case should not be discussed further.  Anjem Choudary, described as a 'Radical Islamist preacher' appeared on BBC Television and said he was shocked by the murder but did not condemn it.  Choudary maintained a line that the killing was linked to British and U.S. foreign policy.  Feelings were running high in the aftermath of the killing and the BBC came in for some vociferous criticism for allowing Choudary to state his views on TV - see, for example,The Guardian.   Some politicians demanded that the Police act against Choudary perhaps for 'stirring up' hatred on religious grounds - The Sun 26th May.

In English law, arrest is

Privatisation of the courts?

One of the key prerogatives of the Crown is the right to dispense justice.  We have the Royal Courts of Justice in the Strand.  Our judges and magistrates sit under the Royal Arms signifying that they dispense justice according to law on behalf of the Crown.  In Magna Carta it was asserted that - 'We will sell to no man, we will not deny or defer to any man either Justice or Right.'  Little else of that great feudal charter remains but those famous words - a part of the birthright of the British citizen - have resonated down the centuries and, I hope, still remain a fundamental element in the compact between the people and those who govern.  Increasingly, in these modern times with huge economic challenges, it seems that the desire for commercialism is pushing aside such old constitutional principles. 

The previous post 'Money, money, money ...' referred to a report in

Tuesday 28 May 2013

Money, money, money ... just where is justice heading?

Chris Grayling MP - Sec. of State for Justice
The famous group ABBA sang "Money money money" and money seems to be all that HM Government is concerned with rather than trying to make sensible attempts to bear down on costs without destroying services in the process .   People might well be forgiven for thinking that the Ministry of Justice 'Knows the price of everything and the value of nothing.'

Since 1st April, civil legal aid has been slashed under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.  Many areas of great importance were removed altogether from the scope of legal aid.  The full impact of these cuts on access to justice for individuals and families remains to be evaluated.

Legal aid in criminal cases - already curtailed to a considerable extent in recent years - is now under attack and

Sunday 26 May 2013

The aftermath of the Iraq War - the continuing story

On 23rd November 2011 this blog looked at The unfolding aftermath of the Iraq War and considered the decision of the Court of Appeal (Civil Division) in R (Ali Zaki Mousa) v Secretary of State for Defence [2011] EWCA Civ 1334 where the court (Maurice Kay, Sullivan and Pitchford LJJ) held that an investigatory process into allegations of ill-treatment committed by British armed forces personnel did not meet the requirements of Article 3 of the European Convention on Human Rights as interpreted and applied by the European Court of Human Rights.  The investigatory process had been set up by the Secretary of State for Defence and involved an Iraq Historic Allegations Team (IHAT) reporting to the Iraq Historic Allegations Panel (IHAP).

The Administrative Court has now handed down judgment in R (Ali Zaka Mousa) v Secretary of State for Defence [2013] EWHC 1412 (Admin) - Sir John Thomas President of the Queen's Bench Division and Silber J.  It is a

Saturday 25 May 2013

Tweeters beware ~ a defamatory tweet ~ Lord McAlpine v Sally Bercow

Former Conservative Party Chairman Lord McAlpine of West Green brought a libel action against Mrs Sally Bercow - wife of the Speaker of the House of Commons.

On 2nd November 2012, BBC Newsnight carried a story relating to child abuse at Bryn Estyn care home in the 1970s and 80s.  A person perpetrating that abuse was described as a 'leading Conservative from the time.'    Sally Bercow tweeted - "Why is Lord McAlpine trending? *Innocent face*" 

As a preliminary issue, Tugendhat J had to rule whether this 'tweet' was capable of bearing a defamatory meaning.  His ruling is is at Lord McAlpine of West Green v Sally Bercow [2013] EWHC 1342 (QB).   It was necessary to assess the 'tweet' as it might have been understood at the time it was written as opposed to how it might look with the benefit of hindsight.

Tugendhat J said -

Friday 24 May 2013

Air Accident Investigation Branch Reports - admissibility in evidence at civil proceedings

In civil aviation, few reports are more respected than those of the Department of Transport's Air Accident Investigation Branch (AAIB).  The AAIB undoubtedly seeks to ensure that its investigations are as thorough as possible and that any recommendations are aimed at accident prevention and improved safety.  See the AAIB website where reports are available.

It is definitely NOT the role of the AAIB to apportion blame or liability.  This point became firmly established in the UK as a result of a 1958 accident to a British European Airways (BEA) Viscount aircraft near Prestwick Airport (Scotland) - Accident near Prestwick

Following this accident, concerns arose about the process of investigation and the Cairns Committee was set up - (News report of 2nd March 1961).   Cairns was clear that the purpose of accident investigation should be to expose defects in structure, equipment or operating systems and procedures rather than the apportionment of blame.  The Cairns Committee was reflecting the position already established, for civil aviation, by the Chicago Convention Annex 13 - (see para 3.1 of Accident and Incident Investigation).

Having said this, are the reports of the AAIB admissible in evidence in civil proceedings in the courts? 

Sunday 19 May 2013

The real 'scumbag criminal' is still free ~ A matter at democracy's heart

Update 28th May - this post was kindly reproduced by Legal Business - here

Updated 21st May with some further links

'Injustice anywhere is a threat to justice everywhere' - Martin Luther King - Letter from a Birmingham Jail - 16th April 1963

Having already successfully stripped legal aid from so many areas of civil work, the government is now bearing down on criminal legal aid.  'Price Competitive Tendering' (or PCT) is one of the latest 'in phrases' but what, in practice, does it amount to?

Stripped to its essentials, it means that anyone charged with an offence and who requires legal aid - (that is, most people) - will be allocated a defence lawyer working for one of a small number of large 'defence factory' commercial providers.  This lawyer will earn money by case turnover and so will not want to spend too much time on your case and the temptation to advise clients to plead guilty and 'get it over with' will be there.

Does this matter

Saturday 18 May 2013

Domestic Law and the European Convention on Human Rights - No. 4

This is the fourth post in a short series aimed at showing how the European Convention on Human Rights (E Conv HR) and the Human Rights Act 1998 (HRA) have made significant and beneficial changes to our domestic law.  The earlier posts in the series are Part 1, Part 2 and Part 3.

The Convention has had a profound impact upon the way in which those with mental health problems are treated and cared for.  The British Institute of Human Rights (BIHR) has just published an excellent document - Mental Health Advocacy and Human Rights: Your Guide.   Aimed at both advocates and people who use services, this handy guide explains how the Human Rights Act can be used in mental health settings to secure better treatment and care for people. It draws on real life stories of how laws and legal cases can be used in everyday advocacy practice, providing helpful flow-charts, worked through examples and top tips. Here is a direct link to the document (pdf - 24 pages).

Sanchita Hosali, Deputy Director of the British Institute of Human Rights said:

Thursday 16 May 2013

Whole Life Orders for murder

In 2012, the Home Secretary (Theresa May) was heckled at the Police Federation Conference in Bournemouth because of her stance on Police Pay and Conditions.  This year she returned to the lion's den with a message that, subject to consultation with the sentencing council, the sentencing starting point for those who murder a police officer will be a whole life term (without parole) and that the law would be altered to that end - The Independent 15th May.  Against a background of the murders of two Police Officers at Hattersley (Greater Manchester) in 2012, this will have been a welcome message to many.

The present sentencing framework:

The sentencing basis is now to be found in the Criminal Justice Act 2003 Schedule 21.  Under s269 of the Act, the Lord Chancellor may by Order amend Schedule 21 following consultation with the Sentencing Council.  Under section 330(5), the Lord Chancellor's Order must be approved by resolution of each House of Parliament.

The power to amend Schedule 21 has been used previously - see Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term ) Order 2010.

The clear aim of the Schedule, as presently drafted, is

Wednesday 15 May 2013

At Westminster, Henry VIII is alive and kicking !

Today it is reported that the 'Eurozone' continues to be in recession - (The Guardian 15th May).  Yesterday, a DRAFT European Union (Referendum) Bill  was published on behalf of the Conservative Party - BBC 14th May.

The Bill provides for a referendum on EU membership to be held on any date up to 31st December 2017.  The referendum would be triggered by an Order made by the Secretary of State though there is a requirement for the Order to be 'laid before, and approved by a resolution of, each House of Parliament.'

Clause 3(3) enables the Order to modify or amend 'this Act or another enactment.'  Henry VIII is alive and kicking - (see views of Lord Judge CJ - Henry VIII clauses).  Clause 3 reads:

Tuesday 14 May 2013

Domestic Law and the European Convention on Human Rights - Part 3

In this short series of posts I have so far looked at the list, produced by Parliament, of Human Rights cases since 1975  (post here + list here) and at the vitally important Article 2 (Right to Life) of the European Convention on Human Rights.  The impact of the European Convention on Human Rights (E Conv HR) on our domestic law has been considerable.  This post looks at another area where there has been significant impact.

A major impact has been to require States to protect the  Convention Rights of ALL individuals and not just powerful majorities.  Article 1 states clearly:

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention

There are no categories of individuals who are to be denied Convention rights no matter who they are or what they have done or may have done.

The illustrative case of Bellinger v Bellinger [2003] UKHL 21 was concerned with the rights of transsexuals.  In an 'over-simplified and question-begging form' the issue was whether a person could change the sex with which he or she was born?  More specifically, was Mrs Elizabeth Bellinger, validly married to Mr Michael Bellinger since, of course, marriage was confined to persons of opposite sex.

The leading speech was that of Lord Nicholls of Birkenhead which is a masterful analysis of the development of the law relating to transsexualism and marriage.  His Lordship noted

Monday 13 May 2013

Questions of human mortality

The BBC 13th May Right to Die cases at Court of Appeal
reports that the Court of Appeal is about to hear the cases of Mr Paul Lamb and a man referred to only as Martin. 

According to the BBC report, Paul Lamb, from Leeds, was paralysed from the neck down in a car accident and wants a doctor to help him to die.  The 58-year-old, who has effectively taken up the case begun by the late Tony Nicklinson, is seeking a ruling that would give doctors a defence to a murder charge.

Mr Lamb argues that a doctor who killed him would have a defence of 'necessity' to a criminal charge because it was 'necessary' for the doctor to stop intolerable suffering.  Mr Lamb is therefore seeking a declaration from the court that such a defence might be available.

The other man, known only as Martin, is seeking a change to the prosecution of assisted suicide.

In August last year, the High Court turned down challenges to the law in England and Wales, saying it was for Parliament to make such decisions - Judgment and post of 6th September 2012.

A "necessity" to

Friday 10 May 2013

Abu Qatada may leave UK voluntarily if .....

The long running Abu Qatada deportation issue may be drawing to an end.  Over around 8 years, the government has spent enormous amounts of public money on the various legal challenges to his deportation to Jordan.  (See Jack of Kent Resource page for a catalogue of the steps taken).    Recently, a new treaty was signed between the UK and Jordan though this remains to be ratified by both countries - (Law and Lawyers 24th April).  At a hearing before the Special Immigration Appeals Commission (SIAC), Abu Qatada's counsel Edward Fitzgerald QC has indicated that Abu Qatada will return voluntarily to Jordan provided that the new treaty is ratified - BBC News 10th May.

A voluntary return to Jordan will have the result that the courts will not, at least in the Abu Qatada case, have to pronounce on whether the treaty meets any objections, under the European Convention on Human Rights, to deportation.  Therefore,

Wednesday 8 May 2013

The Queen's Speech 8th May 2013 and the State Opening of Parliament

In a 92 page pdf document  the government has published details of the Queen's Speech 2013.  The document sets out not only the speech itself but contains background details to the various Bills and policies referred to in the speech.  The document merits a full reading by those seeking greater detail about what is planned.

A much shorter overview is at The Guardian 8th May - The Queen's Speech: the key points explained.

An Offender Rehabilitation Bill will extend statutory supervision after release at all those sentenced to short custodial sentences.  This Bill will also give 'Probation Providers' greater flexibility to develop new interventions with a view to reducing re-offending.  The Anti-Social Behaviour Bill will amend the existing law relating to anti-social behaviour with some 19 powers being condensed to 6; make forced marriage a criminal offence; amend the Dangerous Dogs legislation and take further action on illegal firearms. The law on extradition will be amended as recommendations of Sir Scott Baker's review are implemented.   A DRAFT Consumer Rights Bill is to be introduced and this will allow parliamentary examination of how the law might be altered to modernise and improve consumer rights.  This is an area where there is a great deal of existing legislation and clarification is welcome.  In response to the Hargreaves Review, an Intellectual Property Bill will reform the intellectual property framework for designs.  The Unified Patents Court will be implemented.

An excellent analysis of the Bills is at - Queen's Speech 2013: All the Bills in full.

The State Opening used to be held in October but,

Tuesday 7 May 2013

Domestic law and the European Convention on Human Rights - Part 2

The previous post of 5th May looked at a list prepared for the House of Commons of human rights cases involving the UK since 1975 and explained the basic scheme of the Human Rights Act 1998 (the HRA) - Human Rights cases since 1975.   Decisions of the European Court of Human Rights (the E Ct HR) and the enactment of the Human Rights Act 1998 (the HRA) have enabled significant and beneficial changes to our domestic law. Some examples follow.

THE most important human right is of course the right to life itself (ECHR Article 2). 

Monday 6 May 2013

Regulation of the media ~ Alternative draft for a Royal Charter

In a post of 25th March the plans for media regulation were considered.  At the time it looked as though the proposed Royal Charter would be approved by the Privy Council on 15th May.  It is now reported that this will be delayed whilst an alternative draft Royal Charter is considered.  The alternative document has been drawn up by News International, Telegraph Media Group, Associated Newspapers, Trinity Mirror and Express Newspapers  - see The Guardian Draft alternative royal charter on press regulation.

A key concern is that the original draft charter placed amendment fully in the hands of politicians and therefore was seen as eroding media independence.  

Art. 9.2 of the original reads:

Sunday 5 May 2013

Domestic law and the European Convention on Human Rights - Part 1

The relationship between domestic law in the United Kingdom and the European Convention on Human Rights (the Convention) is illustrated by a useful list of cases made available by Parliament this week. - Human Rights cases since 1975.  The list commences with Golder v UK (Prisoner's correspondence) back in 1975 and ends with the Animal Defenders International case in April this year.

The list is divided into two parts - (1) cases up to the end of 2000 and (2) cases from 2001 to 2013.  Part 1 takes us back to the time before the Human Rights Act 1998 (HRA) which came into force on 1st October 2000.   Interestingly, Part 1 (covering 26 years) lists 130 cases.  Part 2 (covering just over 12 years) lists 272 cases.

The idea underlying the HRA was  to 'bring rights home' by making 'Convention rights' enforceable in our domestic courts and to reduce the need for cases to go to the European Court of Human Rights (E Ct HR) at Strasbourg.

Friday 3 May 2013

Naming of suspects ~ a topical debate

Should arrested persons (suspects) be named by the Police?  Public knowledge of who is under investigation can sometimes assist either the police or the suspect.  Witnesses may come forward or individuals may provide useful information to the police. However, the automatic naming of those under investigation - especially in cases of very serious criminality or where the offence is of a type attracting particular condemnation in the community - could cause irreparable damage to reputation where, for example, the arrest turns out to be unfoundedAt the heart of the matter are the rights to a fair trial (Article 6);  respect for private and family life (Article 8) and freedom of expression (Article 10).

Thursday 2 May 2013

A Thursday miscellany

The veteran broadcaster Mr Stuart Hall (pictured) has pleaded guilty to counts of indecent assault committed in the period 1967-85.  A count of rape will 'lie on the file' and not be tried since (a) the complainant does not wish it to proceed given the guilty pleas entered and (b) the Crown Prosecution Service do not consider it in the public interest to require her to give evidence - CPS announcement and  BBC 2nd May 2013.  Mr Hall will be sentenced on 17th June.

Historic sexual abuse:

Barrister Felicity Gerry writes on the subject of historic sex abuse cases on her blog - Justice for historic sexual abuse.  Gerry highlights some of the difficulties inherent in criminal prosecutions and goes on to look at the possibility of civil actions against institutions which employed abusers.  Earlier posts - Jimmy Savile (4/10/12) and Vicarious Liability in Tort (21/11/12).

Parliamentary Papers of interest:

A couple of Parliamentary papers are of interest.  One paper looks at Human Rights cases since 1975.  The other deals with the continuing issue of voting rights for serving prisoners.

Wednesday 1 May 2013

Children and Car Seat Belts

At the outset of reading this, please jot down the height (in centimetres) and the weight (in kilograms) of each of your young children or grandchildren.  If you use either child seats or booster seats in your car then answer honestly these questions: "Did you read thoroughly the instructions supplied when you bought the seat?"  "Did you definitely comply with the instructions the last time your child was in the car?"

There are many types of child car seats designed for children of certain age ranges, weights and heights:  rearward facing baby seats; forward facing child seats; booster seats and cushions.  Reading the manufacturer's instructions is essential and, for safety reasons, so is compliance with them.

The Court of Appeal (Civil Division) - Arden, Elias and Black LJJ has just given judgment in Louise Emma Williams v The Estate of Dayne Joshua Williams [2013] EWCA Civ 455.