Tuesday 30 December 2014

Debbie Purdy - RIP

The death of Debbie Purdy (1963-2014) has been anounced. Her wikipedia entry is here.

The very last judgment of the House of Lords was in R (Purdy) v Director of Public Prosecutions [2009] UKHL 45; [2009] EWCA Civ 92.  In October 2009, The Supreme Court replaced the Appellate Committee of the House of Lords as the highest court in the United Kingdom.

In Mrs Purdy's case,

Monday 29 December 2014

Riding to Hounds ~ the Hunting Act 2004

The various Hunts came out on Boxing Day - BBC 26th December.  Twitter came alive with comments that, if they have a majority after the 2015 general election, the Conservative Party would, at some stage, allow a free vote on whether the Hunting Act 2004 should be repealed.

The Act does not prevent hunting other that of wild animals with dogs and even that is lawful if carried out in accordance with the conditions of an exemption.  Section 1 makes it an offence for a person to hunt a wild mammal with a dog unless the hunting is exempt. 

Wednesday 24 December 2014

Christmas 2014

Best Wishes  for Christmas 2014 and New Year 2015

Enjoy the Festive Season - think of those less fortunate and, if you can, help them.  In the restless world of the law, there will be much more to write about in the coming days and months.   This blog will continue to follow at least some of the many stories and 2015 promises to be a most interesting year given the forthcoming general election which may bring about some new directions in government legal policy.  Here, I touch on four areas: Access to Justice; the European Convention on Human Rights; Devolution; and the EU.  

Will the EU accede to the European Convention on Human Rights?

There has been a Treaty obligation requiring the European Union (EU) to accede to the European Convention on Human Rights (E Conv HR) - Treaty on European Union Art 6(2)

On 18th December, the Court of Justice of the European Union (CJEU) ruled that the draft agreement on the accession of the European Union to the European Convention on Human Rights (ECHR) was not compatible with EU law.

See the Court's Opinion 2/13 and the associated Press release.

Tuesday 23 December 2014

Strasbourg decides FOR the UK government

The Criminal Justice Act 2003 Part 11 Chapter 2 (CJA) enacted major changes to the law relating to the admissibility in criminal trials of hearsay evidence.  The changes were based on Law Commission proposals though Parliament did not completely follow the Commission's scheme.  Since they came into force, the CJA provisions have been the subject of extensive case law.  In an article in The Guardian 17th December, Joshua Rozenberg looked at certain cases where the CJA provisions were examined at the European Court of Human Rights - ECHR cases won by UK government show flexibility of the human rights system

With the General election looming in 2015, voters would do well to ask candidates what they or their party plan to do about human rights protection.  I will leave it to a later post to look more closely at just what the various parties are proposing.

Tuesday 16 December 2014

The truth, the whole truth and nothing but the truth

The Torturer has long been regarded as the enemy of mankind (Hostis humani generis).  Those who authorise the use of torture or who, when in an official capacity, condone it or turn a blind eye to it should also be condemned - see, for example, Prosecutor v Furundzija

The US Senate "Torture" report:

The US Senate Select Committee on Intelligence has released an important summary of a report covering the period September 2001 to January 2009 - Committee Study of the Central Intelligence Agency's Detention and Interrogation Program .  The document contains the Executive Summary, Findings and Conclusions of a much larger report that remains classified though declassification may be considered later.  In the Foreword to the document, the Chairman of the Committee (Senator Dianne Feinstein) stated - " .... it is my personal conclusion that, under any common meaning of the term, CIA detainees were tortured ....".  She goes on to add, " ... conditions of confinement and unauthorised interrogation and conditioning techniques were cruel, inhuman and degrading ..."   See the comments of 9th December by Senator Feinstein on her website.

Criticism and and concerns:

Friday 12 December 2014

R v Teret ~ "Historical" sexual offending

The Judiciary website has published the sentencing remarks of Mr Justice Baker in the case of R v Teret.

"Disc jockey" Ray Teret was well-known in the North West of England during the 1960s and 1970s.   He has been sentenced to a total of 25 years imprisonment.  He will serve half of that in custody and then be released on licence.  He is subject to the notification requirements of the Sexual Offences Act 2003 section 80.  He was convicted of 11 counts of indecent assault and the applicable maximum sentence for each of those offences was 2 years.  Baker J imposed sentences of 18 months imprisonment on each of five of the counts and 12 months imprisonment on each of six counts.  Teret was also convicted of seven counts of rape and he received 25 years imprisonment on each count.  ALL of the sentences will run concurrently - thereby making 25 years in total. 

The sentencing may seem severe

Thursday 11 December 2014

Supreme Court ~ taking into account Strasbourg decision but not bound

The Supreme Court judgment in R (Haney, Kaiyam and Massey) v Secretary of State for Justice and R (Robinson) v Governor of HMP Whatton and Secretary of State for Justice [2014] UKSC 66 concerns individuals who had been sentenced to Imprisonment for Public Protection (IPP) under the regime imposed by the Criminal Justice Act 2003 s.225 (in force 4th April 2005) but now abolished by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 s.123.   IPP applied to those convicted before 3rd December 2012.

Supreme Court judgment and associated press release.

IPP caused serious problems for the Prison Service and the Parole Board - see Oxford Human Rights Hub - James, Wells and Lee v UK.  The House of Lords

"Drink / drive" ~ lower limits apply in Scotland

From 5th December, the alcohol limit for driving in Scotland has been reduced - see Scottish Government - Lower Drink Drive limits and also Scottish Government - New Drink drive limit.  It appears that prosecutions are likely to be brought even in marginal cases where the reading is just above the limit - Why the new Scottish Drink Drive Limits are even tougher than you think.

The relevant Scottish legislation is the Road Traffic Act 1988 (Prescribed Limit)(Scotland) Regulations 2014 and the new limits are:

a) 22 microgrammes of alcohol in 100 millilitres of breath ... 35;
b) 50 milligrammes of alcohol in 100 millilitres of blood ... 80
c) 67 milligrammes of alcohol in 100 millilitres of urine ... 107

The figures in red show the corresponding limits for England, Wales and Northern Ireland. 

Monday 8 December 2014

Was this entirely right? A mother's dilemma.

There will not be too much public sympathy for Yusuf Sarwar and Mohammed Ahmed who were recently sentenced to a custodial term of 12 years 8 months for Preparation of Terrorist acts - Terrorism Act 2006 section 5.  Under this extended sentence (Criminal Justice Act 2003 section 226A*) there is a custodial term and, thereafter, an extension period during which time the offender is on licence.  The extension period here is 5 years.  One aspect of an extended sentence is that the the court must 'consider that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences.'

I have not been able to find publication of the sentencing remarks of His Honour Judge Topolski QC who sentenced the men at the Crown Court sitting at Woolwich.  It is a pity that sentencing remarks are not readily available and that we are in the position of having to rely on media reports.  Clearly, from the fact of an extended sentence, prime concerns of Judge Topolski would have been deterrence and prevention of further offending.  The whole purpose of the extension period is to give further protection to the public from serious harm occasioned by the commission by the defendant of further 'specified' offences.

Here are three reports offering details of the case:  The Guardian 5th December 2014;   BBC 7th December;   Birmingham Mail 9th July 2014.

Tuesday 2 December 2014

Judicial Review at Bay ~ Criminal Justice and Courts Bill ~ Ping Pong

Update:  On Tuesday 9th December, the House of Lords will consider whether to back down in the 'ping pong' over the judicial review proposals.

Update 10th December:  The House of Lords "ping pong" took place on 9th December and the House remained firmly opposed to the government's plans to make access to judicial review more difficult.  The debate may be read here.  See also Law Society Gazette - Grayling admits misleading Parliament as JR reforms defeated again where it is noted that the matter will return to the House of Commons in the New Year.

Update 21st January 2015:  Ping pong in the Lords 21st January and also Parliament Criminal Justice and Courts Bill 22nd January 2015

Judicial review has been described by Liberty as - “a crucial tool which allows ordinary people to challenge decisions by the authorities—either because they’re unlawful, irrational, or made in the wrong way.”  This crucial tool has come under attack from the government.  In this post, I look at the House of Commons debate on 1st December when House of Lords amendments to the Criminal Justice and Courts Bill were considered.

At times, the process referred to a "ping pong" (or "consideration of amendments") can be rather like a showdown in a western movie.  Parliament's description of "Ping Pong" states that - "When a bill has passed through third reading in both Houses it is returned to the first House (where it started) for any amendments made by the second House to be considered."  A bill may go back and forth between each House until both Houses reach agreement on the exact wording of the bill.

"Ping pong" is the present stage