Monday 30 June 2014

As June fades into July ... A short roundup ...

As June fades into July, a little food for thought ...

Halsbury's Law Exchange has published an item by Lord Phillips (a former Lord Chief Justice and President of the Supreme Court) on Prisoner Voting - Should Prisoners have the right to vote?

Justice - Resources on the Criminal Justice and Courts Bill which will make important changes to the law including access to judicial review.  See details of the Bill on the Parliament website.
 The British like to believe they are free, but after Snowden, Miranda and the “war on terror”, how true can this be? Are most of us free while those who seek change discover a tenuous grip on freedom?'  See
London School of Economics - The State of Freedom in Britain

UK Human Rights Blog - 'Do not resuscitate' and the Right to Die - the Human Rights Roundup - Celia Rooney 30th June.

Marilyn Stowe blog -  The unravelling of the Family Justice System by John Bolch.

Saturday 28 June 2014

That pesky EU "Presidency" ... what is it?

The European Union (EU) is based on the various European Treaties agreed by the 28 member States.  The EU is now has legal personality so far as international law is concerned but it is NOT a State.  Contrary to what the media sometimes lead us to believe, there is not a President of the European Union.  (Whether "federalists" would like there to be is another matter).  It is perhaps unfortunate that the words "President" or "Presidency" appear quite frequently because the words are used in at least five contexts relating to the various EU Institutions.

Friday 27 June 2014

The court MAY issue a declaration of incompatibility

On 3rd September 1953, the European Convention on Human Rights came into force with the United Kingdom among the first signatories.  For the next 47 years, the Convention operated almost entirely externally to the domestic legal systems within the UK.  Many a litigant trailed to the European Court of Human Rights (E Ct HR) at Strasbourg during those years and a considerable number obtained a judgment that the UK was in breach of the Convention.  In 1998, the Human Rights Act (HRA 98) was enacted by Parliament as part of an idea of "Bringing Rights Home."  Convention rights were to be a floor and not a ceiling for human rights protection in the UK.  The Act actually came into force on 1st October 2000. 

The HRA98 does a few apparently straightforward things. 

Wednesday 25 June 2014

We underrate juries .... at our peril !

Saunders J
This morning, Mr Justice Saunders was faced with an application to discharge the jury in the "phone-hacking" trial.  On Tuesday 24th June, the jury returned certain guilty verdicts against Mr Andy Coulson but there were other charges yet to be decided by the jury.  Defendant Miss Rebekah Brooks was acquitted on all the charges against her.  BBC News 24th June.

The Prime Minister - who had employed Mr Coulson at No 10 Downing Street - chose to make a statement about it being a misjudgment to have employed Mr Coulson.  It was therefore no surprise that Mr Coulson's counsel sought the discharge of the jury.  However, Saunders J decided not to do so for reasons stated here:

Ruling on application to discharge the jury in Coulson, Goodman and others.

Later, as events turned out,

Assisting Suicide: the cases of Nicklinson, Lamb and Martin

Mr Nicklinson
Updates: This post will be updated with further materials and comments as they become available ... as they undoubtedly will !

The Supreme Court has handed down judgment in the assisting suicide cases of Nicklinson, Lamb and 'Martin' (a name used for the purpose of the case).  Essentially the court has held that amendment of the Suicide Act 1961 section 2 is a matter for Parliament and no declaration of incompatibility (Human Rights Act 1998 section 4) was issued.  However, the possibility of such a declaration in the future was not ruled out.   Furthermore, the court allowed an appeal by the Director of Public Prosecutions and upheld the legality of the DPP's 2010 prosecutorial guidance.  The guidance was issued following the House of Lords decision in Purdy 2009.

R (on the application of Nicklinson and another) (AP) (Appellants) v Ministry of Justice (Respondent) and R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant)
View the court giving judgment via YOUTUBE
It is now to be hoped that Parliament takes the opportunity to address this matter in the light of the court's judgment.

Previous post 1st August 2013

Phone-hacking trial - charges, verdicts, links to media articles, Leveson and beyond


What were the actual charges in the "Phone-Hacking" trial?  Here they are as published by the Crown Prosecution Service.  The charges arose from two Police investigations referred to as Operations Elveden and Weeting.

CPS - Charging announcement in relation to Operation Elveden
Crown Prosecution Service - Operation Weeting - CPS Charging Decisions


Are summarised at The Independent Phone hacking trial: the verdicts in full and at  Press Gazette

Media links:

Tuesday 24 June 2014

Protesters arrested ...

Please view the video with this article in a Sheffield newspaper THE STAR - Video - Police arrest protest pensioners  

It appears that there was a protest relating to cuts to rail travel passes.  Such passes are (or have been) very beneficial to many elderly people.

It is not fully possible to properly determine just from the video whether the force used by the Police was "reasonable" (as is required by the Criminal Law Act 1967 section 3 / Police and Criminal Evidence Act 1984 section 117) but it certainly has the appearance of being very heavy-handed on the part of the Police.  See - CPS on Reasonable Force

The powers of arrest of a constable are in section 24 of the Police and Criminal Evidence Act 1984 (as amended by the Serious Organised Crime and Police Act 2005).  

Where an individual is aggrieved, a civil action against the Police may be possible though this is a diffcult legal area of law and practice.  Legal aid may sometimes be available though the rules are particularly complex - see Changes to civil legal aid - Practical guidance for the Bar.  An alternative is the use of Police Complaints machinery

Monday 23 June 2014

Midsummer Roundup

Midsummer Day (21st June) and the Summer Solstice are now behind us and, this year, we have enjoyed a fine spell of weather.  Unfortunately, England's football team did not figure in the World Cup.  A disappointing outcome but, as someone remarked on Twitter, there's always Wimbledon or the Test Matches.   Meanwhile, there is much of interest in the legal world.  Here are a few items:

Assisted Suicide:

On Wednesday 25th June, the Supreme Court will hand down judgments in:

R (on the application of Nicklinson and another) (AP) (Appellants) v Ministry of Justice (Respondent)
R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant)
R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant)

The hand-down will be streamed on Supreme Court Live and will then be made available on the Supreme Court's YouTube channel.   For an Earlier post on these matter see - December 2013 - Assisted Suicide: Appeals to the Supreme Court of the UK.

Youth Justice:

A Parliamentarian's Inquiry into the Operation and Effectiveness of the Youth Courts - chaired by Lord Carlile of Berriew QC - is stating that the Youth Justice System is failing children - Marilyn Stowe Blog 22nd June 2014.  The report argues that all lawyers should receive specialist training for this work - Law Society Gazette 19th June. The full report is here - 85 pages pdf.

Wednesday 18 June 2014

Impeachment - if it is not obsolete then it should be !

Impeachment of Warren Hastings
Addendum: 27th June - Chilcot Report into 2003 Iraq invasion hit by further delay

Not for the first time, there has been a call for the Impeachment of former Prime Minister Tony Blair who, it is alleged, misled Parliament in the run up to the UK's involvement in military action in Iraq in 2003.  Today, the Father of the House of Commons (Sir Peter Tapsell MP) raised the matter during Prime Minister's Questions - see BBC News 18th June.  His call appears to have been swept aside by the Prime Minister who simply stated that it was important to see the results of the Iraq Inquiry under the Chairmanship of Sir John Chilcot.

There were earlier calls for Blair's impeachment, notably in 2004 (Guardian 26th August 2004) and in 2006 (Craig Murray blog).  The latest call appears to have stemmed from an article by Simon Heffer in the Daily Mail 17th June - Impeach Tony Blair: ..... writes Simon Heffer and see The Guardian 18th June 2014.

What is Impeachment?

At least in theory, Impeachment remains a possibility.  For an explanation of Impeachment see the Parliamentary Standard Note dated 16th November 2011.  The note begins by stating:

Tuesday 17 June 2014

Magna Carta - is she still alive?

City of London copy of Magna Carta
Updated 18th June with additional links

Magna Carta is among the most famous documents in the world.  It was on 15th June 1215, at Runnymede near Windsor, that King John reluctantly acceded to certain demands made by various powerful Barons.  The matter did not end there because King John reneged on the agreement and, after John's death, there were various versions of the charter.  In a speech to the Magna Carta Trust, Lord Neuberger (now President of the Supreme Court of the UK)  looked at some of the subsequent history and I need not repeat it here.

Much of the Charter was concerned with aspects of medieval law and, in particular, matters of importance to the powerful - (see charter text).  Most of the charter was repealed in Victorian times.  Today, on the statute book, are the three remaining Articles in the version of the charter dated 1297.  Article I is concerned

Thursday 12 June 2014

Not quite a totally secret trial ... Ministerial Certificate not quite a trump card !

Previous post 10th June - A TOTALLY secret trial ?

The Court of Appeal (Criminal Division), having taken time to consider the case, has given its DECISION  - HERE (pdf 7 pages). JUDGMENTS are to follow at a later date and there is to be an OPEN judgment, a PRIVATE judgment and an EX PARTE judgment [12].

The Court of Appeal stressed that it did not merely "review" the decision of Nicol J but had made an independent decision based on the material before it.  The material included certificates from the Home Secretary and Foreign Secretary together with supporting schedules of material [10].

The CORE of the trial could be held

Wednesday 11 June 2014

Youth Justice - Venue for Trial

In England and Wales, criminal trials of children (aged 10 to 13) and young offenders (14 to 17 inclusive) normally take place in a Youth Court.  Such courts are a specialist subset of magistrates' courts and the judiciary will be either Justices of the Peace duly authorised under the Courts Act 2003 or a District Judge (Magistrates' Courts).  Youth Courts are not open to the general public.  Occasionally, either a child or young person will stand trial in the Crown Court with all the greater formality (judge and jury etc).  The law relating to when a trial in the Crown Court is appropriate has been considered by way of judicial review on a number of occasions, notably in R ( H, A and O) v Southampton Youth Court [2004] EWHC 2912 (Admin) - (see, in particular, paras 33-35).   Trial venue can be a difficult decision and the law is, to say the least, complex.  The general aim of the system is to avoid Crown Court trial but, in some instances the law requires it in relation to very serious offending.   The CPS website has a summary of the various provisions - see Youth Offenders.


Tuesday 10 June 2014

A TOTALLY secret trial?

Update 11th June: The Court of Appeal is expected to hand down its decision in the AB / CD case on 12th June.  Fuller judgment to follow later.

'Open Justice is not a mere procedural rule.  It is a fundamental common law principle' - Bank Mellat v HM Treasury No. 1 [2013] UKSC at para. 102 where the judgment of Lord Dyson in Al Rawi v Security Service [2012] 1 AC 531 is cited.

AB and CD are men who are to stand trial for certain "terrorism" offences.  Initially there was a ban on even reporting that the trial was due to take place.  Happily, that aspect of the case was overturned as a result of media action.  It seems that an order of Mr Justice Nicol that the ENTIRE trial may be held in secret remains in place though the order is under appeal.

English Common Law came to recognise the importance of hearings in OPEN COURT.  In Attorney-General v  Leveller Magazine [1979] AC 440, Lord Diplock stated that open justice 'provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains public confidence in the administration of justice.'  Nevertheless, Lord Diplock noted that the rule is subject to exceptions.  There may be departures from the rule 'where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation ...'  His Lordship continued: 'Apart from statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of the proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes to be necessary in order to serve the ends of justice.'

As far as I know, those words of 35 years ago

Sunday 8 June 2014

The Lord Chancellor - a heap of anomalies

Once upon a time, the Lord Chancellorship - (full title - Lord High Chancellor of Great Britain) - was the prize position sought by able lawyer / politicians. Nothing so modern as "separation of powers" existed in this peculiarly British role: a product of centuries of evolution rather than rational thought.  The Lord Chancellor was Head of the Judiciary of England and Wales; presided over the Appellate Committee of the House of Lords; acted as speaker of the House of Lords and was a member of the executive.  Judge; Legislator; Minister all rolled into one.   It is interesting that, perhaps up to the 1990s, such "multi-tasking" appeared to work well due, it seems, to various "protocols" and "understandings"within government as to how the role should operate in practice.  Also, in recent times, the office was held by some very notable individuals such as Lords Hailsham, Elwyn-Jones and Mackay.   A good overview of the Lord Chancellorship is available on Wikipedia together with a list of holders of the office.

The fact that

Wednesday 4 June 2014

Human Rights and the Labour Party

The Human Rights Act 1998 section 2 places on courts a requirement to "take into account" decisions of the European Court of Human Rights.  Lord Bingham in Ullah v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, said: “The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”  This is the so-called "mirror principle" and I have argued that, on the whole, it makes good sense - (for example post of 3rd December 2013). 

In an article published by The Telegraph, Mr Sadiq Khan (Shadow Justice Secretary) indicates the Labour Party's support for the European Convention on Human Rights and the Human Rights Act.  However, Mr Khan goes on to suggest that a future Labour government would issue "guidance" to the judiciary about how they should apply section 2 of the Human Rights Act.  Mr Khan, significantly, does not rule out legislation but would clearly prefer the proposed guidance to work.

Whilst Mr Khan's article is refreshing in its support for human rights, the idea of guidance on interpretation is both constitutionally objectionable and unnecessary.  Objectionable because the judiciary apply the law as they find it and not as directed by the executive.  The "separation of powers" demands no less.  It is unnecessary because the judiciary has already recognised that the mirror principle is not absolute - (see Thoughts on Chester and McGeogh).  In any event, it is always open to Parliament to legislate and this includes amending the Human Rights Act 1998.

For articles on Mr Khan's proposals see Mark Elliott in Public Law for Everyone 3rd June 2014; Carl Gardner (Head of Legal blog) 4th June - Sadiq Khan: let me guide you where I think you're going ; Adam Wagner UK Human Rights Blog 5th June.  There is also an interesting further viewpoint from the London School of Economics.

Tuesday 3 June 2014

Rehabilitation Reform: A gamble with public safety or a useful reform?

The provision of probation services is undergoing a major change.  From 1st June 2014, the 35 existing Probation Trusts were replaced by 21 Community Rehabilitation Companies (CRC) and a National Probation Service (NPS).  All of this has taken place under the Ministry of Justice Transforming Rehabilitation (TR) programme.   At the moment, the CRC are publicly owned but it will come as no surprise to most readers to learn that they are to be privatised.  The privatisation is to take place this side of the 2014 General Election causing the Shadow Justice Secretary (Mr Sadiq Khan) to express the concern that, if lengthy contracts for the provision of rehabilitation services are created, the hands of any future government may be tied and further reform prevented - see The Guardian 30th May 2014 Chris Grayling's probation privatisation is a reckless gamble with public safety

It is not unknown