Friday 29 November 2013

Weekend reading ~ a "conference" of speeches

3rd December - Updated with further links

Whether or not there is a collective noun for "speeches" - (perhaps a "conference" of speeches?) - there have been many in recent days. 

Lord Judge - former Lord Chief Justice - Bar Council Annual Law Reform Lecture 21st November - The evidence of child victims: the next stage

Speeches by Supreme Court Justices:

Tuesday 26 November 2013

Scotland ~ Independence White Paper

Sgurr na Banachdich, Skye - 3166 ft
On 18th September 2014 (the 700th anniversary of the Battle of Bannockburn - see post of 26th January 2012), a referendum will be held in Scotland to enable the Scottish electorate to decide whether to proceed to an independent Scotland.  If there is a YES vote then the aim is to create an independent Scotland from 24th March 2016 (BBC - Proposed date for Scottish independence named).  24th March 1603 was the date of the Union of the separate Crowns of England and Scotland.

The Union of England and Scotland dates from 1st May 1707 - see  Act of Union with Scotland 1706 and the Act of Union with England Act 1707 ). Those Acts stated: 'That the Two Kingdoms of Scotland and England shall upon the first day of May next ensuing the date hereof and forever after be United into One Kingdom by the Name of Great Britain And ...'   Independence would bring to an end this historic Union which has withstood the fierce furnaces of major events for over 300 years.

The Scottish government  has put forward the case for independence in a White Paper - Scotland's Future (670 pages).  here is some of the media reaction to the White Paper:  BBC; The Scotsman; The Telegraph; Daily Mail

Monday 25 November 2013

HS2 ~ Hybrid Bill published

There is already an Act of Parliament relating to the proposed High Speed 2 rail project -High Speed Rail (Preparation) Act 2013.   It is an Act to make provision authorising expenditure in preparation for a high speed railway transport network.

A Bill, in two parts, has now been presented to Parliament - see Department of Transport.   The Bill may be read via the website of Parliament - High Speed Rail (London - West Midlands) Bill 

Bill (as introduced) - The Bill has 65 sections and 31 very detailed Schedules.

The Department of Transport said:

Friday 22 November 2013

Northern Viewpoint ~ Scotland and the corroboration rule

Note - in  2015 the Scottish government deferred reform of the corroboration rule - BBC News 21 April 2015

One of the fascinations of the British Isles has to be the diversity of its legal systems.

Scotland has its own Parliament (operating under devolved powers) created by the Scotland Act 1998.  There are Scottish Ministers.  There is a Scottish Judiciary, system of courts and legal profession.  Scots Law developed separately to the law of England and Wales and it has its own principles and procedures.

When the Scotland Act 1998 was enacted, what was known as 'devolution jurisdiction' was given to the Judicial Committee of the Privy Council.  This jurisdiction was transferred to the Supreme Court of the UK following the creation of that court by the Constitutional Reform Act 2005.  A 'devolution' case decided by the Supreme Court in 2010 seemed to send seismic shock waves through the Scottish legal system - Cadder v Her Majesty's Advocate [2010] UKSC 43 - [Press summary].

The question

Thursday 21 November 2013

Home Secretary's 'certificate' did not terminate judicial review

R (Ignaoua) v Secretary of State for the Home Department [2013] EWCA Civ 1498 (Lord Dyson MR, Richards and Sullivan LJJ) is a most important decision relating to judicial review.   

    Lord Justice Richards (delivering the court's unanimous judgment) said - (links to legislation added):

  1. The appellant is the subject of a direction by the Secretary of State of the Home Department excluding him from the United Kingdom on the ground that his presence here would not be conducive to the public good for reasons of national security. He was informed of that direction in July 2010 (a decision to maintain the exclusion was made in March 2011). There was no right of appeal. In October 2010 he brought proceedings against the Secretary of State for judicial review of the direction. Those proceedings were held up by problems arising out of the Secretary of State's reliance on closed evidence. There were still outstanding issues of disclosure when, on 16 July 2013, the Secretary of State certified the direction under section 2C of the Special Immigration Appeals Commission Act 1997 ("the 1997 Act"), as inserted by section 15 of the Justice and Security Act 2013 ("the 2013 Act"), which came into force on 25 June 2013.

Wednesday 20 November 2013

Henriques J

This excellent article about Mr Justice Henriques (who retired in late October) requires no further comment - Justice has been done and been seen to be done - Blackpool Gazette

Judiciary - Retirements - Sir Richard Henriques

Cockler Gangmaster gets 14 years - BBC 28th March 2006

Met Police guilty over De Menezes shooting  - The Guardian 1st November 2007

R v Irfan Naseer - terrorist plot - The Independent 26th April 2013 

Tuesday 19 November 2013

Does the EU Charter of Fundamental Rights apply in UK or not - the Lisbon "opt out" (so called)

The British government are openly talking about the possibility of the UK withdrawing from the European Convention on Human Rights (the convention) which is a limited menu of fundamental rights.  The convention system comes under the aegis of the Council of Europe and it is designed to underpin human rights by requiring governments to protect such rights.  The Council of Europe (with 47 member states) is to be distinguished from the European Union (EU) (with 28 member states).  The judicial body of the Council of Europe is the European Court of Human Rights (E Ct HR) based at Strasbourg.  The distinct judicial body for the EU is the Court of Justice of the EU based at Luxembourg.  

The EU is itself on a road toward becoming a signatory to the convention - Council of Europe.  It is argued by the Council of Europe that the EU's accession will strengthen the protection of human rights in Europe, by submitting the EU’s legal system to independent external control. It will also close gaps in legal protection by giving European citizens the same protection vis-à-vis acts of the EU as they presently enjoy from member states.  The Court of Justice of the EU (CJEU) has also recognised and applied human rights when making decisions in particular cases - see, for example, the article by Elizabeth F. Defeis "Human Rights and the European Court of Justice" (2007) 31 Fordham International Law 5.

A further

Monday 18 November 2013

Legal aid ~ Special General Meeting of the Law Society

There is to be a Special General Meeting of the Law Society.  The meeting will be held on Tuesday 17 December 2013, at 10.30 am.

Here is the motion:

'That the meeting has no confidence in the ability of Nicholas Fluck, President of the Law Society of England and Wales, and Desmond Hudson, Chief Executive of the Law Society of England and Wales, to properly and effectively represent those members of the Society who undertake publicly funded legal aid work in negotiations with the Lord Chancellor as to the future and extent of criminal legal aid in England and Wales on the grounds that they purported to enter into an agreement with the Lord Chancellor without a mandate from those members of the Society who practise publicly funded criminal law and in circumstances where the purported agreement was to the detriment of and against the will of those members and to the maintenance of a sustainable legal aid service to those subject to criminal proceedings.'

The Law Society's stance on criminal legal aid has been set out on their website.

The Law Society Gazette 5th September - This is best deal possible - reaction to amended legal aid plan

The Virtual Lawyer (Steve Cornforth Blog) - Divided we fall

The Lincoln's Inn 'Legal Aid Rally'

Nigel Lithman QC is the present Chairman of the Criminal Bar Association.  In his 'Monday Message' he reports about a Rally at Lincoln's Inn last Saturday.  The meeting was attended by barristers from all over the country.  They are united in opposition to the government's plans for legal aid as revealed in two consultations - (discussed previously on this blog - First consultation 4th June and Second consultation 1st November).  Lithman makes the point that the Ministry of Justice is not listening to the many voices raised in opposition to their savage proposals (e.g. the first consultation received around 16000 responses) and he goes on to set out the resolutions agreed by the meeting.

The issues raised are immensely serious ones for the future of a fair system of criminal justice in England and Wales.  One of the most serious effects of the government proposals is that the junior bar will cease to be financially viable for the vast majority of junior barristers.  Already, the point may now have been reached where a career at the criminal bar is out of the question for many talented young people of modest means.  This will impact on the diversity of the legal profession and, in the longer term, on the quality of legal representation available to accused persons and, of course, on the eventual quality of the judiciary.

Please read the 'Monday Message' fully.   The resolutions are also set out here. They include this:

Thursday 14 November 2013

View from Strasbourg ~ Paul Mahoney

At the European Court of Human Rights, each member State of the Council of Europe has a judge from that State.  Paul Mahoney is the judge from the UK.  In the Law Society Gazette he has set out some of his views - Law Society Gazette 11th November - The UK’s judge at the European Court of Human Rights explains how it ‘insures’ nations against ‘backsliding into totalitarian government’

'The Strasbourg court is no longer like some satellite in outer space,’ the UK’s judge at the European Court of Human Rights, Paul Mahoney, tells the Gazette. Its rulings have become ‘almost the common law of Europe’, he says, as the 47 member states of the Council of Europe (CoE) integrate them into their national laws.

That is a bold statement

Wednesday 13 November 2013

Justices of the Peace

The office of Justice of the Peace is one of the oldest known to our law.   I wrote about the justices in June 2011 as part of a series of posts about our legal system.  Today, a considerable number of the justices are members of the Magistrates' Association and its recently elected chairman has suggested that there be a debate about allowing some former offenders to become magistrates - Law Society Gazette 11th November - Let ex-offenders sit as magistrates.  The article is worth reading since the suggestion is more nuanced than the headline would suggest.  Nevertheless, I disagree with any weakening of existing policy in this area.  (Existing policy does not necessarily exclude those with minor convictions).  It has to be paramount that the bench maintains not only legal authority but also moral authority to sit in judgment on the actions of fellow citizens.

In 1307 and 1308 Keepers of the Peace

Newspapers, spooks, a naked man, a PCSO, undercover cops, sex in prisons.

Here is a roundup from my surveillance of legal stories.

The Daily Mail on the naughty step:

Back in October some law bloggers took issue with the Daily Mail's article - 'Human Right to make a killing'.  Please see my post of 8th October - Human Rights attacked again - the thorny issue of just satisfaction.  No less a body than the Council of Europe considered it necessary to also take issue - Court concern at seriously misleading UK news articles.  The Daily Mail has now admitted that the article was misleading.  Not a front page admission of course but an admission nevertheless though the damage to human rights and respect for the European Court of Human Rights has been done as was, I suspect, intended.  Adam Wagner (UK Human Rights blog) comments on the Daily Mail's correction.    The Mail's pathetic correction is here.   It is so brief that I may as well quote it in full:

Monday 11 November 2013

Murder in Helmand


The Court-Martial has found Marine 'A' guilty of murder of an already wounded Taliban fighter-  see The Independent 8th November.   Two other Marines were acquitted.  The Court Martial has jurisdiction over the case by virtue of the Armed Forces Act 2006 section 42.   Upon a conviction for murder, English law requires that a sentence of life imprisonment be imposed.  The term to be served before 'A' may be considered for release remains to be set by the Judge (His Honour Judge Jeff  Blackett who is also the Judge Advocate General).  In setting the term, the judge is able to consider any aggravating and mitigating features*.  Following the conviction, the Service Prosecuting Authority (SPA) issued a statement:

Thursday 7 November 2013

Parliament ~ Prisoner Voting ~ Evidence from Secretary-General of the Council of Europe and the Attorney-General

On Wednesday (6th November) a Joint Committee of both Houses of Parliament resumed its work considering the draft Prisoner Voting (Eligibility) Bill.   The Bill contains 3 options but also notes that there 'will no doubt be other possible options.'  The options put forward are: a ban for prisoners sentenced to 4 years or more; a ban for prisoners sentenced to more than 6 months or a ban for all convicted prisoners.  The third option is, of course, the status quo and cannot be compatible with the European Convention on Human Rights Protocol 1 Article 3 in the light of the Strasbourg case law (e.g. Hirst No 2) and note the Supreme Court's recent decision in Chester and McGeogh.  In our domestic law, it is open to Parliament to legislate contrary to the European Convention but doing so in this matter will place the UK in breach of its international obligations. 

The committee took

Tuesday 5 November 2013

Northern Viewpoint ~ Tuesday round up

Legal aid:

The recent legal aid (2nd) consultation (Transforming legal aid: next steps) has ended and the response from the Ministry of Justice is awaited.  Some of the contributions to the consultation are collated on my earlier post

Maura McGowan QC addressed the Annual Bar Conference last Saturday - Still much to fight for and it's worth the fight.  The Bar must ‘jealously guard and preserve’ its values of ‘integrity, excellence and independence’ said Maura McGowan QC to a packed Annual Bar Conference on Saturday.   Delivering a defiant keynote speech, the Chairman of the Bar Council criticised the ‘contemptuous disregard’ with which the publicly-funded Bar is held by the Lord Chancellor

Whilst relieved that the Ministry of Justice (MoJ) has abandoned its plans to introduce Price Competitive Tendering (PCT) into criminal legal aid, McGowan warned the conference: ‘But the MoJ cannot go on pretending that there will be no damage to the public good by the cuts it has, and continues, to make. Nor that the profession will survive these cuts undamaged.’

See also Halsbury's Law Exchange - Defence Lawyers condemn planned cuts to criminal legal aid 

Sunday 3 November 2013

Home Affairs Committee threatens use of contempt powers

Some matters seem to go for an interminable time.  Some might say, for far too long.  Such a case is now referred to as Plebgate - The Guardian 3rd November.  On 23rd October, the House of Commons Home Affairs Committee heard evidence from three Police Officers and has now issued a very critical report which threatens the possibility of using the power of Parliament to hold individuals in contempt.  The report is at Leadership and standards in the Police: follow up - (10th report, Session 2013-14).  The report begins:

'On the evening of Wednesday 19 September 2012, the Government Chief Whip, Rt Hon Andrew Mitchell MP, was involved in a brief altercation with a police officer as he left Downing Street on his bicycle. What exactly was said during the incident is contested and is the subject of a Metropolitan Police investigation, Operation Alice, along with various events that happened in its immediate aftermath. We make no comment on the events of 19 September and the following days. This Report concerns a meeting which took place on 12 October 2012, in Mr Mitchell’s constituency office in Sutton Coldfield with three representatives of his local Police Federations: Inspector Ken MacKaill of West Mercia Police Federation, Detective Sergeant Stuart Hinton of Warwickshire Police Federation, and Sergeant Chris Jones of West Midlands Police Federation.'

Friday 1 November 2013

The (second) legal aid consultation ~ some responses

Earlier post - 5th September 2013 - Transforming legal aid ~ a new consultation ~ the fight for fairness is not over.

Following on from the first consultation (here), the Ministry of Justice consulted on modified proposals which may be read HERE.  The consultation closes today - 1st November.

Here are some of the responses:

The Bar Council

Law Society

Treasury Counsel at the Central Criminal Court

Young Legal Aid Lawyers

Northern Circuit of the Bar 

Inner Temple 

Bingham Centre response 

Ian Unsworth QC (Northern Circuit) - (posted via Twitter) -  'I regret to say from the outset that I fear that this is not a genuine consultation. There is evidence to support that. The fact and content of Next Steps is highly suggestive that the Ministry has simply ignored the thousands of responses to the original Consultation Document.'

A View from the North 

Garden Court North Chambers

Matthew Scott - Barrister Blogger 

Public Law Project

Mark George QC - via Criminal Bar Association - (posted via Twitter)

Mr George's submission is very strongly argued: