Saturday 31 May 2014

House of Lords Reform Act 2014

Legislative activity continues apace with 24 "Public General" Acts so far this year and some 1340 Statutory Instruments.  There are numerous bills before Parliament, some of which will eventually emerge as law.

One new Act, of which little seems to have been said, is the House of Lords Reform Act 2014.  It is a short Act of a mere 7 sections and NO schedules.  Introduced into Parliament by Mr Dan Byles MP, It is an example of a private member's bill becoming law.  In the Lords, the Bill was sponsored by Lord Steel of Aikwood.  The Bill received both government and opposition support.

Section 1 - Resignation  - provides that

European Court of Human Rights - two decisions of interest

                               : Whole Lifers :

A recent decision of the Second section of the European Court of Human Rights has re-iterated the court's jurisprudence with regard to "whole life" tariffs - Mr László Magyar v Hungary .  The relevant principles to be applied were set out by the Grand Chamber in Vinter and others v United Kingdom 2013 - discussed on this blog 9th July 2013.

To date, the British government does not appear to have taken any action as a result of the Vinter case.  The most logical and, I submit proper, response would been to have put in place an independent mechanism for review of the need for on-going detention on penological grounds of those prisoners ordered to serve 'whole life' terms.  The matter has been

Friday 30 May 2014

Justice Armageddon ~ the dire state of access to justice after 4 years of the coalition government

In recent weeks a considerable number of blogs have expressed huge concern at the damage being done to access to justice by the various "justice" policies of the coalition government.  Whilst it is hardly surprising that the government has sought ways to reduce expenditure, the cuts to legal aid have been brutal with whole areas of law removed entirely from the scope of legal aid.  This gives rise to the serious thought that the cuts are based on a deliberate ideology to remove or limit access to justice for the general population and to bring about restrictions to the availability of judicial review which is one of the key ways to test the legality of decision-making by those with executive power such as Ministers. 

Recently, this blog looked at the impasse

Friday 23 May 2014

A short news roundup

Richard III - The final resting place for the mortal remains of King Richard III may now be settled as a result of a decision by the Queen's Bench Divisional Court - R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662.   Previous posts on this are at Richard III and The Burial of King Richard III.  It is worth noting that he was the last of the Plantagenet line which ran some 331 years from 1154 (Henry II) to 1485 (death of Richard III at Bosworth Field).  This was a remarkable period in the early development of English law and its courts.

For a detailed and interesting post by David Hart QC, see UK Human Rights Blog - Richard III: Fairness and Public Interest Litigation

New Sentencing Guidelines - The Sentencing Council has issued new sentencing guidelines for fraud, bribery and money laundering.  The guideline is issued in accordance with section 120 of the Coroners and Justice Act 2009 and applies to all offenders aged 18 and older and to organisations who are sentenced on or after 1 October 2014.

Wednesday 21 May 2014

Some reflections on the Op Cotton appeal

A shot across the bows?
'It has now become about the desire for control and the flailing avoidance of political embarrassment by any and all means necessary' - Jenny McCartney, The Telegraph 21st May.

Nigel Lithman QC (Chairman of the Criminal Bar Association - CBA) has given a response to the ruling of the Court of Appeal (Criminal Division) in the Operation Cotton appeal - (see previous post).   

Whilst members of the independent criminal bar are free to accept briefs for Very High Cost Cases (VHCC), they have chosen not to do so due to the 30% cut in fees imposed by the Ministry of Justice.  (Actually down by around 44% since 2007).  Mr Lithman makes it clear that the CBA has not sought to dissuade barristers from accepting VHCC briefs should they choose to do so.

In his statement, Mr Lithman refers to the agreement of late March 2014 which I have set out below.   The agreement was accepted

Tuesday 20 May 2014

The Operation Cotton appeal ~ R v Crawley

Updated with Judgment:

On Wedensday 21st May, the Court of Appeal (Criminal Division) will hand down judgment in R v Crawley and others.  The appeal concerns a "terminating ruling" issued by His Honour Judge Leonard QC.  The learned judge ruled that this serious fraud trial should be "stayed" because it had not been possible to obtain suitable legal representation for the defendants and also that no such representation was likely in a reasonable timescale.  The background to the matter is, of course, the imposition by the Ministry of Justice of a 30% reduction in the fees payable to counsel in Very High Cost Cases (VHCC).

On 13th May, the Court of Appeal decided to reserve its judgment.  The appeal is by the Financial Conduct Authority against Judge Leonard's ruling.  The defendants are the respondents in the appeal.  The Ministry of Justice / Lord Chancellor was permitted to intervene in the case. 

The ruling of the judge is available via the Judiciary website - HERE.  Readers may find the skeleton arguments in the appeal of interest: the Financial Conduct Authority; the Defendants; and the Ministry of Justice

An appeal against a terminating ruling is possible under the Criminal Justice Act 2003 section 58 .  The Court of Appeal may confirm, reverse or vary any ruling - section 61.  The Criminal Justice Act 2003 section 67 provides that the Court of Appeal may not reverse a ruling unless it is satisfied that either (a) the learned judge was wrong in law or (b) that the judge's ruling involved an error of law or principle or (c) that his ruling was unreasonable (i.e. a ruling no reasonable judge could have reached on the material before him). 

The decision:

The Court of Appeal held that the stay was to be overturned and that the trial process should therefore continue.  The court's judgment (HERE) was made available on the internet very soon after its delivery in court.  Sir Brain Leveson may be seen delivering the judgment HERE.  The following are the concluding paragraphs:

2011 Disorder ~ payment for damage

Back in 2011, this blog covered the extensive disorder that took place in several cities in England.  One of the posts at the time was concerned with the question of payment for losses incurred by, for example, damage to or destruction of property - see Who will pay? We all will ! The Riot (Damages) Act 1886.

The Court of Appeal (Civil Division) Lord Dyson MR, Moore-Bick and Lewison LJJ has now handed down judgment in Mitsui Sumitomo Insurance Co (Europe) Ltd v Mayor's Office for Policing and Crime [2014] EWCA Civ 682.  The outcome of this appeal is that the Mayor of London's Office is liable to pay those compensation claims made under the 1886 Act in relation to Sony's warehouse.  As a matter of interpretation of the 1886 Act, the Court of Appeal has also held that the Mayor's Office is liable for consequential losses such as loss of profit and loss of rent.  The decision of the Court of Appeal is covered by The Guardian 20th May 2014 

Following the disorder,

Monday 19 May 2014

Mr Gonzalez and Google

Important as it can be, this blog does not often report on matters to do with the European Union (EU).  The Court of Justice of the EU has just struck a blow for individual rights to privacy and data protection but this also presents a considerable challenge to online freedom of expression and information.

The various institutions of the EU operate under the terms of the Treaty on the Functioning of the EU (or TFEU) - see the consolidated versions of the treaties. 

So far as the Court of Justice of the EU (CJEU) is concerned, TFEU Article 19 states:

1.   The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.
Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.
2.   The Court of Justice shall consist of one judge from each Member State. It shall be assisted by Advocates-General.
The General Court shall include at least one judge per Member State.
The Judges and the Advocates-General of the Court of Justice and the Judges of the General Court shall be chosen from persons whose independence is beyond doubt and who satisfy the conditions set out in Articles 253 and 254 of the Treaty on the Functioning of the European Union. They shall be appointed by common accord of the governments of the Member States for six years. Retiring Judges and Advocates-General may be reappointed.
3.   The Court of Justice of the European Union shall, in accordance with the Treaties:
a) rule on actions brought by a Member State, an institution or a natural or legal person;
b) give preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions;
c) rule in other cases provided for in the Treaties.

In a case brought by Mario Costeja Gonzalez

Monday 12 May 2014

Brief roundup on denial of justice; the Jeffrey Review and the Criminal Justice and Courts Bill

Updated x 4: (1) Some tweets relating to the appeal in R v Crawley and (2) some additional links to articles from other commentators; (3) Brief report on hearing 13th May; (4) Skeleton arguments

Sir Anthony Hooper is a retired Lord Justice of Appeal.  Writing in the Law Society Gazette- Time to heed legal aid call (12th May) he comments that - 'The criminal justice system, which during my career at the bar enabled legally aided defendants to have much the same quality of representation as the prosecution and privately represented defendants, is now all but destroyed.'    Sir Anthony's article is set against the background of the 'terminating ruling' by His Honour Judge Leonard QC in R v Crawley and others to the effect that the lack of legal representation for the accused individuals would amount to an abuse of process of the court if the cases were to proceed further.  Please see the earlier post on Judge Leonard's ruling.  The prosecution are seeking to appeal Judge Leonard's ruling and the matter will be heard on Tuesday 13th May.  An appeal against a terminating ruling is possible under the Criminal Justice Act 2003 section 58 and the powers of the Court of Appeal relating to such appeals are in the Criminal Justice Act 2003 section 67.   It will be noted that, for the Court of Appeal to overturn the trial judge's ruling, there has to be a finding that either (a) the trial judge was wrong in law; or (b) that the ruling involved an error of law or principle or (c) that the ruling was unreasonable (i.e. a ruling no reasonable judge could have reached on the material before him). .  The extent to which reporting restrictions under the Criminal Justice Act 2003 s.71 will be applied remains to be seen.  Basically, restrictions apply unless the court rules otherwise.

Friday 9 May 2014

Knives - bladed articles - sentencing

Updated 10th May

In April, schoolteacher Mrs Ann Maguire was stabbed at her school in Leeds.  She died and a knife was recovered.  A 15 year old boy pupil at the school was arrested - BBC News 29th April 2014.   Subsequently, the boy was charged with murder and was remanded into youth detention by Leeds Youth Court - The Guardian 1st May 2014

Inevitably, this case has resulted in calls for tougher sentencing for those found to be unlawfully in possession of knives - see here - though Nick Clegg (Deputy Prime Minister) is reported to be unsympathetic to  the idea of a minimum sentence of imprisonment for those convicted of a second offence of possession - The Guardian 8th May.

Present day sentencing law

Thursday 8 May 2014

Prosecutions - just when are they in the Public Interest

In reaching a decision to prosecute, the Crown Prosecution Service (CPS) has a Full Code Test  involving an evidential stage and a public interest stage.  The evidential stage requires that there be sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge.  In every case where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest.

The evidential stage is clearly one which an experienced criminal lawyer should be well able to assess since it turns on factors such as the admissibility of evidence and the overall strength of the admissible evidence.  The public interest stage involves consideration of a range of matters some of which may well not be entirely legal questions.  This post looks at the public interest test with a view to considering what may be taken into account.  A short digression is useful to look at the recent arrest, in Northern Ireland, of Mr Gerry Adams.

An article by Joshua Rozenberg

Sunday 4 May 2014

Detention by British Forces in Afghanistan

Armed Forces of the United Kingdom have operated in Afghanistan since 2001.  They do so under the umbrella of the International Security Assistance Force (ISAF).  It is a very lengthy and controversial commitment which has cost many British lives.

Serdar Mohammed (SM) was detained in Afghanistan by British Forces for questioning.  The question arose as to the legality of his detention - BBC News 2nd May 2014   The case is Serdar Mohammed v Ministry of Defence and also Qasim, Nazim and Abdullah v Secretary of State for Defence.  The judgment of Mr Justice Leggatt is available via Bailii - [2014] EWHC 1369 (QB)

It is a lengthy judgment of 424 paragraphs but Leggatt J helpfully set out his conclusions in paragraphs 1 to 6 which are reproduced here:

Friday 2 May 2014

Sentencing ~ (1) Maxwell Clifford - (2) Constance Briscoe

Maxwell Clifford has been sentenced to a total of 8 years imprisonment having been found guilty of eight counts of indecent assault which were committed between 30 and 37 years ago. The sentencing remarks of His Honour Judge Leonard QC are available via the Judiciary website - HERE (pdf 9 pages).


Constance Briscoe has been sentenced to 16 moths imprisonment on 3 counts of perverting the course of justice - The sentencing remarks of Mr Justice Jeremy Baker are available via the Judiciary website - HERE (pdf 2 pages).

Thursday 1 May 2014

Serious fraud indictment stayed in R v Crawley and others

In the Crown Court at Southwark, His Honour Judge Leonard QC has ordered the indictment in a serious fraud trial to be stayed.  The ruling of the judge is available via the Judiciary website - HERE.

In January, the judge had ordered preparations for the trial to go ahead without counsel but he did say that he would consider 'an abuse argument if that becomes necessary, ....'

The background to this matter is that the Ministry of Justice - in its efforts to cut the justice bill - made severe cuts (30%) to remuneration paid to counsel in so-called Very High Cost Cases (VHCC).  These are lengthy and complex cases usually involving voluminous documentation and requiring considerable time to prepare.  It was not possible to find suitable counsel to represent the defendants in this case because those with the ability and experience to handle these cases are not prepared to work at the reduced rates.

More on this may be read at ITV News - Fraud trial halted in legal aid row  

The application