Tuesday, 10 September 2013

Tuesday Roundup

Black Holes
Here is my roundup of legal news at a time when the political world is circling toward an 'event horizon' in relation to Syria.*  The future of legal aid, judicial review and the legal profession are other topics which seem to be getting close to some other 'event horizon' as the government's far-reaching proposals are out for consultation.  Let's begin though with some recent decisions in the family law area.

Family Law:

The President of the Family Division (Sir James Munby) delivered a robust judgment in Re J (A Child) where a local authority sought a wide ranging reporting restriction on child care proceedings relating to child J (born April 2013).  The child's father had posted material on the internet including a photograph of a social worker.  A feature of the postings was the use by the father of language which on occasions was abusive, insulting, threatening and, indeed, highly offensive. Munby LJ referred to 'automatic restraints' on the publication of information relating to proceedings under the Children Act 1989.  However, there is a pressing need for more transparency in the family justice system.  A robust view
had to be taken of what is rightly allowed to pass a s criticism.  The outcome was that Munby LJ granted a contra mundum injunction (i.e. against the whole world) which would last until J was 18 but only for the purpose of restraining publication of the child's name.  This would enable any public debate about family justice to continue.  There is much more in this case and, for practitioners, it is essential reading.

Readers may also be interested in the following links provided by Family Law Week:
The Family Lore blog has good material on this important area of law including the recent Supreme Court decision in In the matter of A (Children)  where the issue was whether the wardship jurisdiction (or inherent jurisdiction) of the Family Division of the High Court can ever be exercised in respect of an infant child who has never been physically present in England and Wales.  The court held that there was inherent jurisdiction to make the orders in this case on the basis of the child’s British nationality. The case was however remitted to the judge to consider whether, as a matter of urgency, it is appropriate to exercise this exceptional jurisdiction.  A press summary of the judgment is available here, and the full judgment here.

Two further decisions, this time in the Court of Appeal (Civil Division), are:
The Inforrm blog takes a look at new DRAFT rules about greater transparency in the family courts. Proposed new guidance [pdf] recommends that decisions of the family courts should always be published, unless there are compelling reasons against publication. Sir James Munby, President of the Family Division of the High Court, has issued the proposed guidance to facilitate the “need for greater transparency” in the family courts.

The President's View No. 6 has also been issued - see Family Law Bar Association.

Attorney General on the role of the prosecutor:

Dominic Grieve has made an interesting speech in Moscow on the role of the prosecutor - HERE.  Grieve was addressing the 18th Annual Conference and General Meeting of the International Association of Prosecutors and he emphasised the prosecutor's role in ensuring that trials are fair, politically neutral and that human rights are defended.

The Judiciary:

Parliament is looking at the constitutional role of the judiciary - see Political and Constitutional Reform Committee - To complement the Committee’s ongoing work on Mapping the path to codifying—or not codifying—the UK’s constitution, the Committee is to undertake an inquiry to explore how the role of the judiciary would change were the UK to move towards a codified constitution, and the challenges that this changed role would present.

Is it time for the Judges themselves to be subject to assessment?  This question is put by Lord Carlile QC.  Litigation Futures  The time has arrived to create a “small” inspectorate – led by a High Court judge – that will evaluate judges’ courtroom performance, Lord Carlile QC has argued.


Juries:

It was recently announced that age 75 is to be the maximum age for jury service.  Needless to say, this raised eyebrows given that judges - usually with years of legal experience - have to retire at age 70.

The Shadow of the Noose blog puts the case for jury trial.   The Lawyer looks juries and the internet -  Juries are tangled in the web  and asks - is it realistic, in the digital media age, to expect juries to remain oblivious to how a case is being discussed in the wider world? Has the time come for juries to be sealed off, US-style?   Clearly this is a serious debate but perhaps a rather more trusting approach may have to become necessary unless we expect our jurors to be selected from those who pay little to not interest in what is going on in the world around them?

Scotland:

Just to pop north of the border, here is an interesting piece on Scottish Children's Hearings

European Arrest Warrant:

Alternative Law Journal considers whether the European Arrest Warrant system is sleepwalking into dangerous territory.   Is the EAW a failure from a human rights perspective?

Wills:

The thorny (and expensive) subject of contesting a will is discussed in Youblawg - 4 valid reasons to contest a will.

The case of Feltham v Bouskell 2013 is of importance to practitioners.   The case is discussed more fully in the Law Society Gazette 9th September

Legal services and regulation:

The legal profession and its diverse branches has a highly complex regulatory system.   For a view that there should be a single regulator see Law Society Gazette - Tear up the Legal Services Act and start again.

Consultations on Legal Aid and Judicial Review:

Numerous contributions to the debate about the government's legal aid and judicial review proposals have been appearing.

The views of a City of Bradford solicitor are that firms will have to close.   Ray Singh, a partner with Bradford-based firm Pether-bridge Bassra, said plans by Justice Secretary Chris Grayling to slash solicitor’s fees by 17½ per cent would turn Bradford into a “desert” for criminal legal aid.

Public Law for everyone has an excellent analysis of the judicial review proposals.  Mark Elliott wrote: The tone of the consultation paper is predictable: judicial review is once again castigated as an obstacle to economic growth and a tool that is cynically exploited to place expense and delay in the way of progress. Of course, the present system is not perfect. It is, however, hard to avoid the conclusion that those who are driving the policy agenda within government in this area are instinctively opposed to judicial review.

The Lawyer argues that Training: Criminal Justice  states that legal aid changes could have a serious impact on junior barristers.  I think that there is no doubt that it will have a devastating result on the junior criminal bar and that will have serious long term consequences for criminal justice and the future of the judiciary.  The government's proposals seem to have little to no regard for anything beyond the immediate need to slash the legal aid budget.

In an article entitled Judicial activism, Francis Fitzgibbon QC looks at Judicial Review. 

Eurorights - Chris Grayling and Judicial Review - An odd thought or two
No one would say that the judges should usurp the proper functions of elected politicians, but the borders between their ‘territories’ are not clearly marked. The troubling unspoken premise is that a court decision in a case like this can, somehow, avoid being ‘political’. - See more at: http://www.lrb.co.uk/blog/2013/09/06/francisf/judicial-activism/#sthash.aGeLFGcu.dpuf
No one would say that the judges should usurp the proper functions of elected politicians, but the borders between their ‘territories’ are not clearly marked. The troubling unspoken premise is that a court decision in a case like this can, somehow, avoid being ‘political’. - See more at: http://www.lrb.co.uk/blog/2013/09/06/francisf/judicial-activism/#sthash.EjCObJvr.dpuf
No one would say that the judges should usurp the proper functions of elected politicians, but the borders between their ‘territories’ are not clearly marked. The troubling unspoken premise is that a court decision in a case like this can, somehow, avoid being ‘political’. - See more at: http://www.lrb.co.uk/blog/2013/09/06/francisf/judicial-activism/#sthash.EjCObJvr.dpuf

Criminal Defence Barrister - Chapter 4: Number One gets serious  here is a great piece - assisted by James Bond - The Criminal Bar awoke to find itself strapped at the wrists and ankles to a black plinth in the centre of a vast empty room. Its legs were splayed open. It was helpless and, to be honest, a little nervous as to its immediate future.

Virtual Lawyer (Steve Cornforth) Judicial Review - Public Protection or Left Wing Propoganda?

Save UK Justice - The blogs a great collection of links to the numerous comments about 'Transforming legal aid' on the blogs

Forensic Science:

Crimeline - Robbing Peter to pay Paul - looks at the problems of the defence in obtaining access to forensic science. 

Civil legal aid:
Since the demise of the FSS the position has shifted and power is split between the buyers of services (primarily the police) and the private providers. One matter of grave concern at the moment is in relation to accessing forensic material. - See more at: http://www.crimeline.info/news/robbing-peter-to-profit-paul#sthash.7lP1yAHs.dpuf

Law Society Gazette - looks at Disturbing reduction in take up of civil legal aid - The Legal Action Group (LAG) has called on the government to increase the profile of civil legal aid services, accusing it of presiding over a ‘secret’ legal service after figures show a huge shortfall in take-up this year.
The charity has also called for an urgent review of the exceptional funding mechanism, claiming that it is failing to provide a ‘human rights safety net’ as intended.

Quality assurance for advocates:

As much as the government seems to dislike judicial review, it is to be judicially reviewed on the legality of the Quality Assurance Scheme for Advocates (QASA) - Solicitors Journal 9th September. 
The Criminal Bar Association has launched a judicial review against the quality assurance scheme for advocates (QASA).  Announcing the move, the CBA's chairman, Nigel Lithman QC, said: "As the Criminal Bar all wear the badge that says 'No to QASA' on their lapels or in their hearts, this is an inevitable step, albeit of course success is not guaranteed."


Slavery:

In 1833, Parliament abolished slavery - Act of 1833.  The Act was interesting in that a sum of £20m was applied to compensation of former slave owners.   This was hardly a recognition that slavery was an abomination.  In modern terms: against the idea of human rights.  The Independent 24th February 2013 had an interesting article as to where the money went.

* Wednesday 11th September 2013 - Military action against Syria receded to some extent - at least for the time - The Guardian Obama veers to diplomatic path ... 

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