Thursday 31 July 2014

Litvinenko - a public inquiry to be held under the Inquries Act 2005

On 22nd July, the Home Secretary decided that there should be an inquiry under the Inquiries Act 2005 into the death, in 2006, of Alexander Litvinenko - (BBC News 22nd July).  As a result, the inquest first established in 2006 has been suspended under the power in the Coroners and Justice Act 2009 Schedule 1 para 3.    The Home Secretary had resisted holding an Inquiry but Mr Litvinenko's widow brought a successful judicial review of the Home Secretary's decision - (read the judgment). 

Mr Justice Owen was sitting in the capacity as HM Assistant Coroner for Inner London North and was conducting the inquest.  He has now become the Inquiry Chairman.  Interestingly, Owen J retired from the High Court on 19th July.

Tuesday 29 July 2014

Roundup of News and Comment ....

Updated 30th July ...

Over recent days a considerable number of legal "stories" have appeared.  Here are a few - Enjoy ....!

1.  Efficiency review

The Judiciary has announced details of a Review of Efficiency in Criminal Proceedings which is to be led by Sir Brian Leveson (President of the Queen's Bench Division of the High Court).

2.  Criminal Practice Directions will be revised from October 2014

3.  The Guardian newspaper (and its associated website) cover many aspects of law.

a)  Judges have been warned that the government is trying to obtain impunity over torture. 

Thursday 24 July 2014

Moohan and another v Lord Advocate - Supreme Court of the UK - Serving Prisoners and the Independence Referendum

18th September 2014 is the date set for the referendum on Scottish Independence.  The referendum is being held by virtue of the Scottish Independence Referendum Act 2013 and those entitled to vote are detailed in the Scottish Independence Referendum (Franchise) Act 2013 - section 2 of which states:

A person is entitled to vote in an independence referendum if, on the date on which the poll at the referendum is held, the person is -

(a) aged 16 or over,

(b) registered in either -

Sharon Shoesmith - Reported compensation

"Accountability" is not synonymous with "Heads must roll" - per Maurice Kay LJ in R (Shoesmith) v Ofsted and others [2011] RECA Civ 642 at para 66.

In December 2008, Sharon Shoesmith was dismissed as Director of Children's Services for Haringey Council.  This followed the tragic death of "Baby P" on 3rd August 2007 for which his mother (Tracey Connelly) and two males (Steven Barker and Jason Owen) were found criminally liable under the Domestic Violence, Crime and Victims Act 2004 section 5.  (Note: section 5 has been subsequently amended with effect from 2nd July 2012 but the original enactment applied at the time). 

Shoesmith claimed compensation for unfair dismissal and was eventually successful in the Court of Appeal.  The judgment is here and see Law and Lawyers 30th May 2011 for discussion. 

An article published by The Telegraph on 23rd July 2014 indicates

Monday 21 July 2014

A written constitution for the United Kingdom? Have your say ...

Writing in the Law Society Gazette 21st July 2014, Joshua Rozenberg takes a look at a report by the Political and Constitutional Reform Committee of the House of Commons.

This is a lengthy report of 423 pages - A New Magna Carta?  Second Report of Session 2014-15 (3rd July 2014).

Much of the report is informed by the work of Robert Blackburn - Professor of Constitutional Law, King's College London.  As Joshua Rozenberg's article states -  'Blackburn [offers] us three illustrative blueprints. The first, which he describes as a constitutional code, would be no more than a handbook, with no statutory authority. The second, consolidating legislation, would bring together existing statutes and codify constitutional conventions. Only the third would be a true constitutional document, governing the way the country is run.'

Major consultation by Parliament on "A New Magna Carta" - 10th July 2014.   See also Competition to write a preamble for modern written constitution

Earlier posts on Written Constitution - 3rd February 2010 and 19th April 2010

Sunday 20 July 2014

Some recent decisions in the Family Court

Since the creation (on 22nd April - see post of 24th April) of the new Family Court for England and Wales, cases are being reported by Bailii under the headings of-
The following three reported decisions illustrate all too well the complex and difficult decisions required in this area of legal practice.   The decisions do not raise any new points of law but they are of interest because they illustrate well the anxious consideration given to the detail of the case by the judges involved.

Wednesday 16 July 2014

The proposed Privacy and Civil Liberties Board - more on DRIP - the Reviewer's review

NOTE 17th July:  DRIP received Royal Assent today and is now the Date Retention and Investigatory Powers Act 2014.   For a blogpost which is scathing about how this was rammed through Parliament see Paul Bernal - DRIP: Parliament in disrepute.   The Act is (mostly) in force from today - (Note: section 1(6) - concerned with disclosure of data - requires a commencement order).  It is also worth noting that section 1(3) gives the Secretary of State power to issue regulations making further provision about retention of relevant data.  As things stand at the moment, sections 1 to 7 will repeal on 31st December 2016 (the "sunset" provision).  The government claims that the Act is compatible with Convention rights.  Time will tell ! 

Read the Data retention and Investigatory Powers Act 2014

1) The PCLB - An element of the package announced by the government along with the Data Retention and Investigatory Powers Bill (DRIP) was that there is to be a Privacy and Civil Liberties Board (PCLB) along the US model.  In a tweet today, Mr David Anderson QC (Independent Reviewer of Terrorism Legislation) drew attention to the proposed remit of the PCLB and suggested that 'the devil may be in the detail.'  At first sight, the remit appears to be a rather narrow one - essentially focussing on powers relating to terrorism policy and a specific list of Acts. 

It appears that Legislation to put the Independent Privacy and Civil Liberties Board into place will be brought forward in this session of Parliament.  The PCLB is to replace the Independent Reviewer legislation.

101 Uses for an Independent Reviewer

2) The Data Retention and Investigatory Powers Bill -

Law Officers of the Crown

Prime Minister David Cameron has reorganised his government.  "Reshuffle" is the more usual word but this is hardly a "reshuffle" - more like a cull.  New faces, including a considerable number of women, have been appointed to Ministerial Office.  Shakespeare's play Henry VI Part II contained the line - 'The first thing we do, let's kill all the lawyers.'  Well, they may not have been killed but the reorganisation will have certainly made them less influential within government.

Both of the Law Officers of the Crown have been replaced - (for their roles, see Attorney General's Office website).   Attorney-General Dominic Grieve has been replaced by Jeremy Wright.  Solicitor General Oliver Heald is replaced by Robert Buckland.  Interestingly, Mr Buckland is (or has been) Chair of the Conservative Human Rights Commission.

There can be little doubt that Mr Grieve was highly regarded as a lawyer and as a fearless Attorney-General.  A very good analysis of Mr Grieve's performance as Attorney-General is at Head of Legal Blog - Dominic Grieve as Attorney-General: 2010-14.   Grieve was called to the Bar in 1980

Monday 14 July 2014

DRIP ~ a torrent of mass surveillance seems more likely!

Update 15th July - DRIP has also produced a torrent of comment !  In an addendum, I have added some further links.

Last week, the Home Secretary announced that, with all party agreement, the Data Retention and Investigatory Powers Bill - (DRIP for short) - would be introduced into Parliament.  Much of that is covered in the previous post of 10th July. Since then, criticism has mounted in relation to the late introduction of the Bill prior to the summer recess.  Further criticism is that the Bill is far from being just a limited Bill to close what may have been a legal gap left by the decision of the Court of Justice of the EU to invalidate the Data Retention Directive 2006/24/EC.   The UK's 2009 Regulations, implementing the directive into domestic law, could well have been at risk via judicial review even though the Home Secretary asserted in the House of Commons that the government believed they remained valid.  Critics point to the Bill being a considerable extension of State power.  Here are links to the draft Bill, to the provisional regulations to be made under the Bill and to the explanatory notes.

The draft Data Retention and Investigatory Powers Bill  - Draft Regulations -Explanatory Notes - 15 pages 

A very good analysis of the Bill has been made available at Cyberlegal blog - Dissecting DRIP: the emergency Data Retention and Investigatory Powers Bill..

Even the most cursory

Thursday 10 July 2014

Data Retention ~ Background / Materials

8 x Updates - latest TODAY:

The detection, prevention and investigation of serious crime and national security are matters of enormous concern to government.  Legislation requiring retention by service providers of matters such as telephone communications information (but not content of calls) has been considered necessary.  Such data retention clearly impinges on the privacy of individuals.  Following the 2004 Madrid Bombings, the European Union introduced new rules relating to data retention.  The rules were in the Data Retention Directive 2006/24/EC.

In April 2014, the Court of Justice of the EU (CJEU) ruled that the directive was unlawful because it was held that there was a disproportionate interference with the right to respect for private life and with the right to the protection of personal data, enshrined in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union respectively.  The Court's judgment is here

Any new EU Directive would have to comply with ten requirements - see the Open Rights Group Briefing to MPs on Data Retention Legislation.

The 2006 Directive was implemented

Wednesday 9 July 2014

Joint Enterprise (3) - Concerns are widespread

The problematic aspect of criminal law commonly referred to as "Joint Enterprise" has been in the news recently as a result of a televised drama by Jimmy McGovern - COMMON.

Please look at the previous posts on this topic - 4th April 2014 - Joint Enterprise (1) - Setting the scene and 25th April 2014 - Joint Enterprise (2) - Involvement in Crime.

Joint enterprise (parasitic accessory liability) cases:

The form of criminal liability with which we are concerned here arises where X and Y engage in Crime A (e.g. robbery at a garage) and where X commits offence B (murder of the cashier).  Under what circumstances would Y be also liable for that murder.

The kernel of the law, as it currently stands, is that Y may find himself liable where he foresees the possibility that X may commit offence B. The law appears to be:

1. X and Y jointly embark on the commission of crime A

2. Y foresees that, in the course of the joint commission of crime A, X might commit crime B (with the requisite mens rea for that offence).

3. X commits crime B

4. The commission of crime B occurs as an incident of the joint activity and not in a manner fundamentally different from the possibility forseen by Y.

All of these elements are examined in considerable detail in the textbooks and 1 to 4 are necessarily very brief statements.  Further authorities deal with withdrawal from joint enterprise which, to be effective, must be timely and unequivocal.

On Youtube, Professor Graham Virgo (Cambridge University) offers an explanation of Joint Enterprise law - (28 minutes).

Other materials:

Some background to Joint Enterprise may be read at The Guardian 1st April 2014  and at BBC 7th July 2014

A post on The Justice Gap blog - Journalism can be the driving force in injustice is also of interest. See also Justice Gap - John Robbins - Joint Enterprise: confusing juries and courts.

See also Maeve McClenaghan and others - Our Kingdom 1st April 2014 - Serious concerns emerge over joint enterprise laws.   The article notes that joint enterprise provides a 'rough, ready, powerful solution' to crime committed by gangs but it is frequently a most unjust solution in particular cases.

Justice Committee:

Joint enterprise has concerned some politicians.  The Justice Committee reported in early 2012 and the committee is now following up on their earlier report.  The 2012 report made six important recommendations including No. 4 -

'The lack of clarity over the common law doctrine on joint enterprise is unacceptable for such an important aspect of the criminal law. We therefore recommend that it be enshrined in legislation. We do not make this recommendation lightly. We fully appreciate the pressures on the parliamentary timetable but the evidence we have heard on joint enterprise has convinced us that legislative reform is required.'

In a response to the 2012 report, Kenneth Clarke (the Secretary of State for Justice and Lord Chancellor) dismissed the possibility of legislative reform in this Parliament by saying - "I am keen to avoid consulting on measures that could weaken the law in this area or undermine the Government's efforts to tackle crimes committed by gangs."

(Update) - In late 2014, the Justice Committee issued a follow up report to their 2012 report and called upon the Law Commission to review the law.

Friday 4 July 2014

Sentencing - the Phone Hackers - Rolf Harris

It has been quite a day for sentencing.  Sentences have been handed down in relation to very different forms of offending.

First came the sentencing of five offenders convicted in relation to phone hacking - see the Sentencing Remarks of Mr Justice Saunders.   The heaviest sentence imposed was on Andy Coulson (pictured) who received 18 months imprisonment.  Earlier blogpost - 25th June - We underrate juries at our peril.  Other sentences passed were Mr Miskiw and Mr Thurlbeck - 6 months each (with 53 days 'qualifying curfew' counting toward the sentence).  Mr Weatherup 4 months imprisonment suspended for 12 months with a requirement to complete 200 hours unpaid work.  Mr Mulcaire - 6 months imprisonment suspended for 12 months with a requirement to complete 200 hours unpaid work.  [On qualifying curfew see here].

The Guardian 4th July - Andy Coulson jailed for 18 months for conspiracy to hack phones

Secondly, the entertainer Rolf Harris was sentenced on 12 counts of indecent assault committed in the period 1969 to 1986.  He received a total of 5 years 9 months imprisonment which, at the age of 84, will inevitably prove to be a very significant part of his remaining lifetime.  See the Sentencing Remarks of Mr Justice Sweeney.  A reading of the sentencing remarks will reveal that the offending was serious and almost certainly more serious than some media reports of the trial suggested.  Four charges relating to downloading child pornography will not proceed to a trial - see Court News UK.  The earlier blogpost - Rolf Harris - looked at the general sentencing framework for this type of offending.  Harris will be subjected to Notification Requirements under the Sexual Offences Act 2003 Part 2 and is to be considered with respect to the Safeguarding Vulnerable Groups Act 2006.  Sweeney J did not award compensation since the issues were too complex and the information before him insufficient for him to be able to properly do so.

The Attorney-General was asked to consider a reference of the sentence to the Court of Appeal on the basis of undue leniency - The Guardian 4th July.  The sentencing remarks contain the detail of the maximum sentences possible.  Counts 10 to 12 carried a maximum of 10 years.  The focus of any argument about leniency may be in relation to those offences.  In reaching the sentence, the judge took careful account of the Totality Principle and, on that basis, the judge reduced a number of the sentences which would otherwise have been passed.
Update note 31st July - The Attorney General decided not to refer the Harris sentence to the Court of Appeal - AG Office announcement 30th July

Sweeney J also said that Harris had been stripped of his honours.  This is an almost inevitable outcome of conviction  for a serious offence - see Forfeiture of Honours.   Harris was appointed an Officer of the Order of Australia in 2012 (BBC 12th June 2012).  He was appointed MBE in 1968, OBE 1977 and CBE 2006.

Thursday 3 July 2014

Lord Chancellor - a heap of anomalies - Part 2

The ancient role of Lord Chancellor - (full title is Lord High Chancellor of Great Britain ) - was the subject of a blogpost of 8th June - Lord Chancellor - a heap of anomalies.  It has now been announced that House of Lords Constitution Committee is to hold an inquiry into the office of Lord Chancellor.   The Committee is calling for evidence and the call for evidence asks 10 questions.  These include - (Q10) - the fundamental question as to whether there should be a Lord Chancellor.

Written evidence must be submitted by 29th August 2014 and the committee hopes to report in the autumn.  In making a submission, the committee asks for the focus to be on the office and that personal comments relating to individual Lords Chancellor are avoided.

The present day Lord Chancellorship is a rump of its former glory. 

Tuesday 1 July 2014

Rolf Harris ... historic sexual offences

The famous celebrity Rolf Harris - now aged 84 - has been convicted in the Crown Court at Southwark (Mr Justice Sweeney and a jury) of 12 counts of indecent assault committed in the period 1968 to 1986 - see BBC News 30th June 2014 - Rolf Harris: the charges against him.   Mr Harris is to be sentenced on Friday 4th July and The Telegraph has already proclaimed that he could die in jail.   Sweeney J is reported to have said: '“In reality given the conviction on all 12 counts it is inevitable that the type of sentence that is uppermost in the court’s mind is a custodial sentence and he must understand that.”

Sentencing of Mr Harris will raise similar consideration to those in the Stuart Hall case - previous post of 19th June 2013.  It will be recalled that Mr Hall - now aged 84 - was convicted of 14 counts of indecent assault committed in the period 1967 to 1985/6.  Following the Attorney-General's undue leniency application to the Court of Appeal, Mr Hall's sentence was increased to 30 months imprisonment.  Mr Hall later faced 19 further charges but was convicted on two of them - see the sentencing remarks of Turner J dated 23rd May 2014.  For those, he was sentenced to an additional 30 months imprisonment. 

The sentencing