House of Commons debate on Syria ~ A glance at some of the legal background

The House of Commons debate on Syria may be seen via the Parliament website.   The debate was notable in that the House of Commons voted against a government motion (HERE) which contained the possibility of a strong humanitarian response from the international community including, if necessary, military action that is legal, proportionate and focused on saving lives by preventing and deterring further use of Syria’s chemical weapons.  The debate concluded with this exchange:

Edward Miliband: On a point of order, Mr Speaker. There having been no motion passed by this House tonight, will the Prime Minister confirm to the House that, given the will of the House that has been expressed tonight, he will not use the royal prerogative to order the UK to be part of military action before there has been another vote in the House of Commons?
Mr Speaker: That is of course not a matter for the Chair, but the Prime Minister has heard the right hon. Gentleman’s point of order, and he is welcome to respond.
The Prime Minister: Further to that point of order, Mr Speaker. I can give that assurance. Let me say that the House has not voted for either motion tonight. I strongly believe in the need for a tough response to the use of chemical weapons, but I also believe in respecting the will of this House of Commons. It is very clear tonight that, while the House has not passed a motion, the British Parliament, reflecting the views of the British people, does not want to see British military action. I get that, and the Government will act accordingly.
Mr Speaker: I am grateful to the Prime Minister for that response.

Solicitor General loses in contempt proceedings

The Solicitor General (Oliver Heald) brought proceedings in the High Court to have a mother, Jennifer Marie Jones, committed to prison for contempt of court.  The President of the Family Division (Munby LJ) dismissed the application saying ' 'The Solicitor General has failed to prove his case.  The application is dismissed.'   Read the judgment.  

The Law Officers have standing (locus) to bring proceedings even where the alleged contempt is civil and relates to an order obtained by a private individual (para 14 of the judgment).

Jones would have been unrepresented but for solicitors and a barrister (Christopher Hames) acting for her pro bono.   On this, Munby LJ said (42 and 43):

Public funding

Roundup ~ Friday 23rd August

This week, the The Guardian and the David Miranda story have dominated the legal news.  What else is there?  Here are just some of the bits and pieces I have come across.

The court service and the judges:

University College London has a Constitution Unit which has published an interesting article relating to the future of the court service.  The article raises some questions which the judiciary need to be considering as the future of the court service is decided in the coming months - What's next for the court service?  The struggle between the judiciary and the executive.

On 26th March 2013, a low key written ministerial statement appeared before the House of Commons from the Justice Secretary, Chris Grayling, declaring that he had asked staff to ‘explore proposals for the reform of the resourcing and administration of our courts and tribunals.’ Lodged between announcements that student loans were to be sold off and the reprivatisation of the East Coast mainline, it wasn’t until two months later when The Times splashed that one of the proposals was the full privatisation of Her Majesty’s Courts and Tribunal Service (HMCTS) that it attracted any attention.

Miranda 5 ~ Hearing in the High Court

Update 23rd August 2013 - Judgment

Updated at 1700 BST on 22nd August

This morning, the High Court heard an application on behalf of David Miranda for an interim injunction.  The case was before Lord Justice Beatson and Mr Justice Kenneth Parker. The Letter before Action (LBA) - published by The Guardian - gave an indication as to the nature of the injunction being sought.

The LBA asked that the Secretary of State and the Commissioner of Police of the Metropolis undertake that there will be no inspection, copying, disclosure, transfer, distribution or interference, in any way, with our client's data which was seized pursuant to Schedule 7, pending determination of our client's claim.

Realising that

Miranda 4 ~ Legal action ~ Updated 21st August

Updated post - with more information about the legal action being taken by Mr Miranda

Matrix Chambers have announced that they have been instructed to act for David Miranda in a legal action - Matrix Chambers news.   The brief announcement states:

Matthew Ryder QC and Edward Craven have been instructed by Kate Goold and Gwendolen Morgan of Bindmans to act for David Miranda in relation to his recent detention under Schedule 7 of the Terrorism Act 2000. David Miranda was held at London’s Heathrow airport  for nine hours on Sunday morning while passing through Heathrow on a stopover. David Miranda is the partner of Glenn Greenwald, the Guardian journalist who interviewed Edward Snowdon, the former US spy agency contractor who has been granted asylum by Russia. 

Specific details about the legal grounds on

Miranda 3 ~ Amendments to the law are already coming

The use of the Terrorism Act 2000 Schedule 7 in relation to David Miranda has caused a considerable furore.  Previous posts here and here.

A Bill is already going through Parliament to amend Schedule 7.  It is the Anti-social Behaviour, Crime and Policing bill, which has completed its committee stage in the House of Commons.  This will cut the overall maximum period to six hours and introduce other safeguards.  Explanatory Notes to the Bill are available.

The Bill was preceded by a consultation paper

The consultation:

The Home Office consultation put forward questions relating to the following areas:

Miranda 2 ~ The Code of Practice

David Miranda's detention (Previous Post) for 9 hours under Schedule 7 of the Terrorism Act 2000 prompted a huge outcry over 'gross misuse' of terror laws - The Guardian 19th August.   This post takes a look at the Examining Officers Code of Practice and also some amendments to the law which are already under consideration by Parliament.

So far, there appears to have been no official statement from the authorities about the circumstances leading to Miranda's detention though The Guardian notes that:

The Metropolitan police said Miranda had been lawfully detained under the Terrorism Act and later released. "Holding and properly using intelligence gained from such stops is a key part of fighting crime, pursuing offenders and protecting the public," it said in a statement.

Jack of Kent has set out a strong argument that the detention may have been unlawful.  At this stage, it is not actually possible to say in the absence of knowledge about the reasons behind the decision to detain Miranda and the actual interview to which he was subjected.

Schedule 7 does not require

Detention of David Miranda - is this a disturbing use of State power?

BBC 19th August - David Miranda detention: MP asks for explanation and see Cameron proves Greenwald right.

A new week opens with a disturbing story about the use of Schedule 7 of the Terrorism Act.  The Guardian - Glenn Greenwald: detaining my partner was a failed attempt at intimidation - tells the story of how David Miranda was detained for 9 hours at Heathrow Airport without access to either a lawyer or others.   This post takes a brief look at the Schedule 7 power to question.

It is as well to begin with the Terrorism Act 2000 s.1 where the word 'terrorism' is defined for the purposes of law in the UK.   In this Act “terrorism” means the use or threat of action where -

(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.

Driving ~ Fixed Penalties

On 16th August, careless driving (Road Traffic Act 1988 s.3) became an offence for which a fixed penalty notice can be issued - Government announcement.   The fixed penalty for careless driving is now £100 with 3 points on the driver’s licence. The most serious examples will continue to go through court, where offenders may face higher penalties.  The police will also be able to offer educational training as an alternative to endorsement.

Section 3 states:

Careless, and inconsiderate, driving:  If a person drives a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, he is guilty of an offence.

The burial of King Richard III - a judicial review

Update 2nd December - Law Society Gazette - The remains of Richard III spark a modern day legal fight

Mr Justice Haddon-Cave has granted permission for a judicial review of the decision to re-inter the remains of King Richard III at Leicester - R (Plantagenet Alliance Ltd) v Secretary of State for Justice and others

Please see my previous post Richard III.  Haddon-Cave J ended his judgment as follows:

Final comments and recommendation  39.  It is ironic that the Wars of the Roses appear to be returning whence they started, the Temple. Legend has it that John Beaufort and Richard Plantagenet picked the symbolic red and white roses in Inner and Middle Temple gardens (c.f. Henry VI,Part 1, Act 2). 40. I would, however, urge the parties to avoid embarking on the (legal) Wars of the Roses Part 2. In my view, it would be unseemly, undignified and unedifying to have a legal tussle over these royal remains. This would not be appropriate, or in the country’s interests. The discovery of Richard III’s remains engages interests beyond those of the immediate parties, and touches on Sovereign, State and Church. 41. For these reasons, I would strongly recommend that parties immediately consider referring the fundamental question - as to where and how Richard III is reburied -to an independent advisory panel made up of suitable experts and Privy Councillors, who can consult and receive representations from all interested parties and make suitable recommendations with reasonable speed. A further post on this at Law and Religion UK  Wars of the Roses

Thursday roundup

Updated

Joint Enterprise:

In December 2012, the Director of Public Prosecutions issued new guidance relating to charging decisions where a case involves 'joint enterprise.'  The Defence Brief blog takes a look at this thorny topic.   Also see The Guardian 5th March 2013.

Magistrates:

Magistrates have been in the news with the Ministry of Justice looking at Reforming the role of Magistrates  (Youtube).  The Law Society Gazette (14th August) Government to propose new custodial powers for Magistrates  states that the government is talking with Magistrates about why some offenders committed to Crown Court for sentence receive a sentence not exceeding 6 months imprisonment (i.e. within the powers of the Magistrates' Court).  The Gazette article also mentions an idea of allowing victims to appeal to the Magistrates' Court if they feel that an offender should have been prosecuted rather than cautioned.  A formal consultation about the future role of Magistrates is expected later this year.  A further article on this is at Solicitors Journal. and see speech by Damian Green MP (MInister of State for Policing and Criminal Justice) to Magistrates 14th August.

Will magistrates' courts be given a greater maximum sentence?  Green said that the idea has an attractive logic but there might be added pressure on the prison population.  Government is keeping this matter under review and will retain the legislation which is in place to implement it.

On Monday 12th August, the Law Society Gazette published Doubts over MoJ's savings target.  This indicates that cuts will have to deepen by £700m annually over the next two consecutive years, for the MoJ to meet its spending objective.  This follows speculation that the MoJ will announce 80 further court closures in order to meet spending targets.  The closures are expected to be mainly magistrates' courts and would add to the 142 courts that have been culled since 2010.

Human Rights:

Will the Human Rights Act 1998 be safe

Should imprisonment be abolished for pure property offences?

Professor Andrew Ashworth is the Vinerian Professor of English Law at Oxford University. In a pamphlet published by the Howard League for Penal Reform, Professor Ashworth expresses the view that imprisonment should be reserved for those who commit crimes of a violent, sexual or threatening nature - BBC 14th August and Howard League Press Release 14th August.    The press release notes:

Professor Andrew Ashworth, the Vinerian Professor of English Law at Oxford University, said:
 
“We should be reserving our most severe form of punishment for our most serious types of offending. Should someone be sent to prison and deprived of their liberty for an offence that involves no violence, no threats and no sexual assault? Instead, the priority should be to deal with such offences in the community, giving precedence to compensation or reparation for the victim and, where the offence is sufficiently serious, imposing a community sentence.”

Frances Crook, Chief Executive of the Howard League for Penal Reform, said:

Civil Aviation Safety in the UK

The Daily Mail 12th August published an item concerning the Irish airline Ryanair - Ryanair pilots 'bullied into silence over safety...'   I have no idea whether the allegations in the article are true, partially true or false.  Given that any allegations concerning operational safety must be taken very seriously, Ryanair may well have to defend its position.   Ryanair is based in the Republic of Ireland.  The airline's website sets out the names of the Directors and, it should be noted, that the airline has an Air Safety Committee chaired by a Director who was formerly Chief Pilot of Aer Lingus.  The airline's Chief Executive Officer is Michael O'Leary.  Mr Leary is also a Director. 

Regulation of Civil Aviation:

On an international scale, the International Civil Aviation Organisation (ICAO) was set up in 1944 to set down standards and recommended practices for civil aviation.  ICAO is a specialised agency of the United Nations and promotes the safe and orderly development of international civil aviation throughout the world. It sets standards and regulations

Justice and Security Act 2013 ~ on-going judicial review stopped

High Court excluded

R (Ignaoua) v Home Secretary is a case raising an interesting point about the impact of the Justice and Security Act 2013 section 15 on judicial review in the High Court - Judgment of Cranston J.

Section 15 applies to non-European Economic Area (EEA) nationals who the Home Secretary seeks to exclude from the UK on grounds relating to the public good.  If the Home Secretary does not wish information on which the exclusion decision is based to be made public then a certificate may be issued.  Once this is issued, the affected person may apply to the Special Immigrations Appeal Commission (SIAC) to set aside the direction for exclusion.  In deciding such cases, SIAC must apply the principles which would be applied in judicial review proceedings.  If the Commission decides that the direction should be set aside, it may make any such order, or give any such relief, as may be made or given in judicial review proceedings.  A number of High Court judges sit in the Commission.


In Ignaoua's case, a certificate was issued

Criminal law ~ The Law Commission on Insanity and Automatism

Included in recent publications by the Law Commission are: (a) Discussion paper on Insanity and Automatism published 23 July 2013 and (b) Unfitness to Plead consultation responses published 10 April 2013.

a) Insanity and Automatism:

In July 2012, the Law Commission published a Scoping Paper to find out how the criminal defences of insanity and automatism operate in practice.  The responses to that paper have informed the Discussion Paper which is now published.  The Discussion Paper contributes to the continuing debate on whether the law has the right test to distinguish between those who should be held criminally responsible for what they have done, and those who should not..  More information

R v Neil Wilson (Sentencing for Sexual Offending) ~ Approval of Trial Judges

On Monday 5th August, Neil Wilson (age 41) was sentenced by the Crown Court sitting at Snaresbrook.  It is reported that Wilson admitted two counts of making extreme pornographic images and one count of sexual activity with a child - Sky News 7th August 2013   When sentencing Wilson to 8 months imprisonment suspended, it seems that the judge (HHJ Peters QC) referred to the young female victim (age 13) as 'predatory.'   Unfortunately, this is a case where sentencing remarks are not available and so only the media reports are available.  The barrister representing the Crown Prosecution Service (Robert Colover) is reported to have said to the court - "The girl is predatory in all her actions and she is sexually experienced."  On what basis (if any) the judge chose to use the same word 'predatory' is unclear.  Sentencing has to be based on facts either admitted by the defendant or proved to the tribunal of fact (i.e. the jury).  Sometimes, in guilty plea cases, there is an agreed factual basis for the plea and sentencing may then be based on that agreement - see Attorney General's Office - 'The acceptance of pleas and the prosecutor's role in the sentencing process.'

Complaints

Forced marriage ~ Enforcement of Protection Orders

May a Police Force apply for a person to be committed to prison for contempt of court for breach of a Forced Marriage Protection Order (FMPO) when the police were not the applicants who obtained the order?  The answer is NO according to Holman J in a case revealing (or illustrating) a serious weakness in the scheme of the forced marriage protection provisions inserted as Part 4A into the Family Law Act 1996 by the Forced Marriage (Civil Protection) Act 2007 and which came into force in November 2008.  Bedfordshire Police v RU and FHS [2013] EWHC 2350 (Fam). 

Holman J's judgment ended by saying that the facts and circumstances of this case reveal or illustrate a grave weakness in the existing forced marriage protection order machinery as enacted in Part 4A. Forced marriages are a scourge, which degrade the victim and can create untold human misery. It is vital

Early notes on a notable Court of Appeal decision ~ Suicide Act 1961 ~ Assisting Suicide

On 31st July the Court of Appeal (Civil Division) gave its judgment in three cases all concerning the offence of Assisting Suicide - Suicide Act 1961 s.2 as amended by the Coroners and Justice Act 2009.  The three cases raised various points which were addressed by the court in a single judgment.  The court comprised Lord Judge CJ; Lord Dyson MR and Elias LJ.  This was Lord Judge's final judgment in his capacity as Lord Chief Justice.  R (Nicklinson and Lamb) v Ministry of Justice [2013] EWCA Civ 96.

In short, the decision was that (1) a defence of necessity cannot be fashioned at common law as a means of protecting a person who assists in the suicide of another; (2) the legal prohibition against assisting was not a disproportionate interference with Article 8 rights but (3) the Director of Public Prosecution's policy relating to prosecutions under section 2 required some amendment to provide greater clarity as to when certain individuals might be prosecuted.  That would enable individuals to have greater foreseeability of the consequences of assisting.  Point 3 will be of particular importance to the medical profession.  Lord Judge dissented on point 3 - ' ...we cannot keep ordering and re-ordering the DPP to issue fresh guidelines to cover each new situation... [para 179]