Flooding ~ funding for defences ~ legal responsibility

Widespread flooding has left thousands of people devastated, their homes wrecked and struggling local businesses ruined with the north of England most affected - see Winter 2015 Floods: government response.  Severe flooding has occurred over several recent years - previous post - In the Firing Line - the Environment Agency (10th February 2014)

On 2nd December 2014, the coalition government announced a 6 year flood defence programme which will cost £2.3 bn.  Whilst this figure remains in place (see Autumn Statement) it is also reported that the Department for the Environment, Food and Rural Affairs (DEFRA) is to take a 15% cut in its budget over the next years - The Express 14th December.

The government has

A Happy Christmas

24th December:

On this Christmas Eve may I wish all readers a Truly Happy Christmas.  The Christmas message is a one of hope in what can be a very dark world.  May that message shine through like a candle in the darkness during the days and year to come.

Silent Night - King's College, Cambridge

25th December:

Christmas Broadcast by H.M. The Queen - Light will overcome darkness

LIBOR banker's appeal dismissed

On 3 August 2015, after a trial lasting 47 days at Southwark Crown Court before Cooke J and a jury, Tom Hayes ("the appellant") was convicted on eight counts of conspiracy to defraud in relation to the manipulation of the Japanese Yen London Interbank Offered Rate ("Yen LIBOR").

On 3 August 2015, he was sentenced to a total of 14 years imprisonment.

The Court of Appeal (Criminal Division) has dismissed Mr Hayes' appeal against conviction.  His sentence was reduced from 14 years to 11.  Read the judgment of the Court of Appeal.

The prosecution case was that,

Death of Lord Janner

The death of Lord Janner of Braunstone has been reported - The Guardian 19th December.

The proceedings against him were covered in previous posts -18th April; 29th June; 13th August and 7th December.

In April, a decision not to prosecute Janner for 22 alleged serious sexual offences was taken by the Director of Public Prosecutions (DPP) and this decision was based on clear medical evidence as to Janner's dementia.  In June, following a review, this decision was reversed.  The reversal of the decision followed a "Victims Right to Review" process instigated by six of the complainants and conducted by David Perry QC.   Janner's case was sent to the Crown Court and, on 7th December, Mr Justice Openshaw ruled that Janner was unfit to plead - read the decision dated 7th December 2015.

Arrested and refused to give names and addresses ~ Police Reform Act 2002 section 50 ~ charges discontinued.

On 9th November I blogged about three individuals who had been charged with failing to provide their names and addresses to the Police - Law and Lawyers - Arrested and refused to give names - DailyMail complains that they got unconditional bail.

The Police Reform Act 2002 section 50 created a NON-imprisonable summary offence.  It is triable only in the Magistrates' Court and carries a maximum penalty of a fine of £1000 (Level 3).

The three were granted unconditional bail and a trial date set for next year.  It is now reported that the Crown Prosecution Service (CPS) has discontinued proceedings against them due to "evidential grounds" - see Daily Mail 19th December.   No further detail is offered.

Section 50 (taking into account amendments) states:

A brief note on the Strathclyde Review ~ a major constitutional change is proposed

A wolf in sheep's clothing

The Tax Credits row (earlier post) between the House of Lords led to the Prime Minister setting up a review, under the Chairmanship of Lord Strathclyde, to consider the powers of the House of Lords in relation to statutory instruments.  The government had claimed that cuts to tax credits were crucial to its plans for public finances but the cuts were abandoned in the Autumn Statement.

See the Strathclyde review

In October, the House of Lords voted on the Tax Credits (Income Thresholds and Determination of Rates)(Amendment) Regulations 2015.  The Lords did not approve the legislation  but neither did they agree on a so-called "Fatal Motion" to kill it off.  Their votes imposed delay.  As far as legal rights are concerned, the Lords acted within their powers but it is claimed that a constitutional convention giving primacy to the House of Commons in financial matters was breached.

The Strathclyde Review was conducted by hereditary peer Thomas Galloway Dunlop du Roy de Blicquy Galbraith (2nd Baron Strathclyde) along with Jacqy Sharpe (former Clerk of Legislation in the House of Commons and Commons Clerk to the Joint Committee on Conventions in 2006), Sir Stephen Laws (former First Parliamentary Counsel) and Sir Michael Pownall (former Clerk of the Parliaments),

The review offers three options

Stop and Search ~ CJPOA 1994 section 60

Updated 17th December

On Thursday 17th December, the Supreme Court will hand down judgment in R (Roberts) v Commissioner of Police of the Metropolis and another

The issue in the case is - Do stop and search powers under s.60 of the Criminal Justice and Public Order Act 1994 contain sufficient safeguards for the powers to be "in accordance with the law" for the purposes of arts.5 and 8 ECHR?

The appellant, a 38 year old black woman, was stopped by a bus inspector for failing to pay for her journey, and subsequently stopped and searched in the street by a police constable. Her bag was also searched. This took place in an area where a s.60 authorisation was in force (allowing for stop and search without any grounds for suspicion on the part of individual police officers).

As the Court of Appeal (Civil Division) noted

Conflicts with Strasbourg

Russia - Constitutional Court

The Secretary General of the Council of Europe (Mr Thorbjørn Jagland) has issued a statement regarding the stance recently adopted by Russia toward the European Convention on Human Rights.

"Regarding Russia’s new legislation on the Constitutional Court’s competence to examine possible conflicts between judgments of the European Court of Human Rights  (E Ct HR) and the Russian Constitution, the Secretary General of the Council of Europe, Thorbjørn Jagland, recalls that according to Article 46 of the European Convention on Human Rights all member states of the Council of Europe undertake to abide by the final judgments of the Strasbourg Court (to which they are a Party).

The Secretary General said -  “it will be up to the Constitutional Court of Russia to ensure respect for the Convention if it is called upon to act under the new provisions. The Council of Europe will only be able to assess Russia’s compliance with its obligations when and if a specific case arises. The compatibility of Strasbourg judgments with the national constitutions has been examined in some other member States.  So far, countries have always been able to find a solution in line with the Convention. This should also be possible in Russia."

A Bill signed into law by the Russian President (Vladimir Putin)

Judgment in the Wang Yam case ~ Right of individual petition to Strasbourg

The Supreme Court unanimously dismissed Wang Yam's appeal - see previous post.

A Press summary of the decision has been published as well as the court's judgment delivered by Lord Mance.

The Supreme Court noted that Article 38 of the convention enabled the E Ct HR to  request the UK government to furnish additional information.  Lord Mance said (para 33) - " ... in deciding whether to order that material withheld by governmental authorities from an alleged victim should be disclosed to it, the European Court of Human Rights will consider the independence and thoroughness of the domestic procedure for reviewing the authorities' decision. It will consider in that light whether any and if so what further disclosure should be made. It will by no means necessarily conclude that any further disclosure was required."

May the right of petition to Strasbourg actually be hindered? The Wang Yam case.

The United Kingdom is bound in international law by the European Convention on Human Rights (ECHR).   The road from the UK to the European Court of Human Rights (E Ct HR) opens once Arts. 34 and 35 apply:

Art 34 - The court may receive applications from any person, nongovernmental organisation or group of individuals claiming to be a victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.  The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.  (My  emphasis).

Art 35 - The court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.

A look at the cases of the Shrewsbury Pickets

The Trade Union and Labour Relations (Consolidation) Act 1992 is the principal legislative statement of current Trade Union law.  The 1992 Act not only consolidated many earlier Acts but also made a number of significant changes to the law.  The history of the law prior to this Act was complex and is well described in books such as Smith and Wood's Employment Law.  The "power balance" between Unions and Employers has proved to be exceptionally difficult to find both politically and legally.  The struggle between the Labour Movement and the government was epitomised by the Industrial Relations Act 1971, later replaced by the Trades Union and Labour Relations Act 1974.  The ebb and flow of Trade Union law continues with the latest Trade Union Bill which has passed the House of Commons and is now before the House of Lords - BBC 15th September 2015.

Mark Duggan case ~ no judicial review of College of Policing guidelines

On the evening of 4th August 2011, at Ferry Lane (Tottenham, London), the Police intercepted and stopped a taxi (or minicab) carrying Mr Mark Duggan.  Mr Duggan got out of the vehicle.  Two shots were fired at Mr Duggan by one of two Police Officers confronting him.  The officer who fired was referred to as V53.  The other officer was W42.  Mr Duggan died as a result.  A handgun was found at the other side of a fence which was alongside the pavement where the Police had shot Mr Duggan.

Serious disorder followed this event, not only in London but in many other cities and towns.  The disorder was covered extensively on this blog and elsewhere.   The Police claimed that officer V53 had acted in self-defence in the honest belief that Mr Duggan was holding a gun at the time.

Mrs Duggan (mother of Mark Duggan) sought Judicial Review

Lord Janner ~ unfit to plead or stand trial

The Judiciary has published the decision of Mr Justice Openshaw regarding whether Lord Greville Janner is fit to plead - read the decision dated 7th December 2015.  The learned judge took the opportunity to restate the test for fitness to plead or stand trial set out in R v Pritchard (1836) 7 Carrington and Payne 303 where Alderson B said:

‘There are three points to be enquired into:- first, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings in the trial so as to make a proper defence – to know that he might challenge any of you [the jury] to whom he may object – and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation.”

Alderson B was stating the law for a jury.  In modern law, the decision as to fitness is taken by the trial judge and not a jury.

Openshaw J's modern formulation of the test is:

Understanding UN Security Council Resolutions

United Nations Security Council Resolutions (UNSCR) are most important at an international level and yet they can be difficult to interpret.  They are not treaties.  Understanding of the proceedings at the Council prior to the resolution is essential to reach a proper interpretation.  Furthermore, they are are not subjected to the sort of detailed examination that accompanies the enactment of national legislation.  Pressures of time and politics are also in play.  For an expert view of how interpretation should be approached see:

Michael C. Wood - Max Planck Yearbook of United Nations Law 1998 - Interpretation of Security Council Resolutions

and for a video presentation see - Michael C. Wood on the Interpretation of UN Security Council Resolutions

Criminal Courts Charge disappears on Christmas Eve ..... government reviewing financial orders

UPDATE 29th January 2016 - Report of Joint Committee on Statutory Instruments raising question over how the charge was removed

Details of the Criminal Courts Charge are in this post of 30th July 2015.   In a speech to the Magistrates' Association, Michael Gove (Secretary of State for Justice and Lord Chancellor) announced that he had laid in Parliament an amending statutory instrument so that - from the 24th of December - the criminal courts charge will no longer be imposed.

The Criminal Justice and Courts Act 2015 section 54 introduced the Criminal Courts Charge.  Section 54 came into force on 13th April 2015 and, on the same date, the Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015 came into force.  It was Paragraph 3 of those regulations which dealt with the amount that had to be ordered and the actual amounts were set out in a Schedule.

Amendment regulations

Human rights proposals delayed ~ Lord Chancellor at the House of Lords Constitutional Committee

The Secretary of State for Justice and Lord Chancellor has given evidence to the House of Lords Constitution Committee and the filmed session is available for viewing.

Questions ranged over several important issues including the Lord Chancellor's Oath;  the dual role of Secretary of State and Lord Chancellor; Constitutional Reform; the Ministerial Code; Prisoner Voting and Reform of the Courts and Tribunal Service.

The most interesting aspect of the session was that Mr Gove said that there will be a Consultation Paper relating to Human Rights Reform and this will now appear in "the New Year" (no specific date offered).  The paper would contain a series of "open ended questions" and would seek as broad a consensus for reform as possible.

Syria ~ a vote in the House of Commons?

The voting:  

The government won its motion - 397 to 223

How they voted - The Guardian 3rd December


In the near future there may be a vote in the House of Commons on the question of whether to extend bombing to Islamic State targets in Syria.  The government has set out its case for doing this - (discussed in the previous post).  Political opposition to the extension of bombing is intense with most of the opposing views being focused on its effectiveness and the risks it entails - see, for example, some of the Other Links below and the interview of the Leader of the Opposition on the Andrew Marr programme (Sunday 29th November).  In the interview, Mr Corbyn spoke of the dangers of a bombing campaign and he questioned the government's claim that some 70,000 troops would be available to engage ISIL on the ground in Syria.  He wanted to see action to cut off supplies to ISIL of arms, oil and money. (Note: UNSCR 2249 refers to the financing of terrorism - see previous post).  The Prime Minister made it clear that any motion brought to the House would explicitly recognise that military action is not the whole answer - (PM statement 26th November).

In 2013, a vote took place on a rather different Syrian question - Chemical Weapons - see previous post.   In that post, I wrote:

Extending British military action to Syria ~ the government's case

The government has presented its case for extending British military action to Syria in its effort, along with other nations, to deal with the threat to international security posed by Islamic State (ISIL).  Let's recall that the United Nations Security Council recently referred to this threat as a global and unprecedented threat to international peace and security.  The Security Council unanimously passed Resolution 2249 (2015) - previous post and Read the Resolution.

Foreign Affairs Committee Second Report of Session 2015-16 on the Extension of offensive British military operations to Syria published 29th October 2015.  The report contains discussion as to the legality of the proposed action (at page 11).  The evidence given to the committee by Professor Marc Weller and Mr Dominic Grieve QC MP are both referred to.  Their evidence was given in early October and early September respectively - a considerable time before the attacks in Paris (13th November).

A moral but not legal victory in the Supreme Court

It is a truism that law and morality do not always march hand in hand.

On 11-12 December 1948, at Batang Kali (in Selangor Province, Malaya), 23 unarmed civilians were killed by British troops.  At the time, Malaya was a British Colony.  The British government adopted the stance that the men had been killed "trying to escape" and this has been consistently maintained despite evidence emerging over the years that it was far from the truth.  The British government also refused to instigate an official inquiry into the matter.  This refusal became the subject of a judicial review that began in the Queen's Bench Division (judgment), proceeded to the Court of Appeal (Civil Division) (judgment) and then to the Supreme Court of the UK.  The judicial review is confined to the legality of the decision not to instigate an inquiry.

In the most simple terms,

European Court of Human Rights ~ Article 6 ~ Ibrahim, Mohammed, Omar, Abdurahman v United Kingdom

The European Court of Human Rights Grand Chamber is hearing the cases of Ibrahim, Mohammed, Omar, Abdurahman v United Kingdom.  The four were convicted of offences in connection with bombs (which failed to explode) on the London Underground on 21st July 2005.   In the Court of Appeal (Criminal Division) in 2008 the President of the Queen's Bench Division described the offences as "merciless and extreme" and added that the sentences  were rightly severe and extreme. Beyond doubt, they were utterly justified.

The following is taken from the court's explanation of the cases.

The applicants in the first three applications, Muktar Said Ibrahim, Ramzi Mohammed and Yassin Omar, are Somali nationals who were born in 1978, 1981, and 1981 respectively. The applicant in the fourth application, Ismail Abdurahman, is a British national who was born in Somalia in 1982.

On 7 July 2005 suicide bombers detonated their bombs on the London transport system, killing 52 people and injuring many more. Two weeks later, on 21 July 2005 four bombs were detonated on the London transport system but failed to explode. The perpetrators fled the scene but were later arrested.

A global and unprecedented threat to international peace and security - UNSCR 2249 (2015)

Updated 26th November:

Islamic State" (IS) claimed responsibility for the attacks in Paris on Friday 13th November - Reuters 14th November.   At the time, the President of France described the attacks as "an act of war."

The United Nations Security Council has now adopted UN Security Council Resolution (UNSCR) 2249 (2015) - Read the Resolution.  The resolution calls upon (but does not mandate) those Member States with the capacity to do so to take

Criminal Courts Charge - Justice Committee Report

The House of Commons Justice Committee has expressed grave misgivings about whether the Criminal Courts Charge is compatible with the principles of justice - READ THE REPORT.  The levels of the charge are criticised as grossly disproportionate to the means of many of the offenders to which the charge is applicable as well as to the gravity of many of the offences for which it is imposed.  The charge is also thought to be creating perverse incentives affecting defendant and sentencer behaviour.

The committee would not mourn early abolition of the charge and calls for legislation to either remove it or, if the government is not so minded, to reduce the levels of the charge.  If it is not either abolished or reduced then the committee calls for legislation to permit discretion for sentencers (a) as to whether to impose the charge and (b) if it is imposed, the level of the charge.

The message is clear enough.  Abolish this unjust charge.

Previous post explaining the charge

"Shoot to Kill" ~ those who seek to kill can certainly expect lethal force in return

Joshua Rozenberg writing in The Guardian 18th November says that - "The law makes it clear that shooting to kill has to be justified......"  Mr Rozenberg's article comes in the wake of comments relating to "shoot to kill" made by the Leader of the Opposition (Rt. Hon. Jeremy Corbyn MP) - see BBC 17th November

As Rozenberg (rightly) states, shooting with intent to kill can certainly be an option available to the Police or Security Forces if faced with a situation in which a criminal is threatening human life.  Whether actually killing someone is lawful will depend on all the circumstances including information given to the Police Officer or soldier who actually fires the gun.

In June, The European Court of Human Rights heard the case of Da Silva. 

Schengen

Schengen

The European Union (EU) has 28 member states.  The Treaty on European Union (TEU) requires freedom of movement for workers to be secured within the Union - Art. 45.  Limitations on that freedom are permissible on grounds of public policy, public security or public health.

The Schengen Agreement is aimed at removal of border controls but, following the refugee crisis of 2015 and the attacks in Paris on 13th November 2015, this agreement is coming under severe pressure.  There are 26 countries in Schengen.  22 are EU members and four non-EU. Those four are: Iceland and Norway (since 2001), Switzerland (since 2008) and Liechtenstein (since 2011).

The UK and Republic of Ireland opted out of Schengen.

Governmental emergency powers ~ a very brief look

On Friday 13th November, three teams of terrorists laid siege to Paris, killing 129 people in a spree of shootings and explosions across six locations. The attackers were all outfitted with suicide vests and armed with Kalashnikovs.  "Islamic State" (IS) claimed responsibility for the attacks - Reuters 14th November.   The President of France described the attacks as "an act of war."  This has been followed by the French authorities hunting for suspects - NBC News 16th November - Paris attacks. - with the French Interior Minister (Bernard Cazeneuve) saying -  "The response of France will be total. Those who attack France, we will catch them and we will be unrelenting with them ... Terrorists will never destroy the Republic, because the Republic will destroy them."

An act of war - but what response?

The attacks in Paris

Reported killing of Mohammed Emwazi (Jihadi John)

The Prime Minister (Rt. Hon. David Cameron MP) reported that a United States of America "drone" attack may well have killed the terrorist Mohammed Emwazi - the Islamic State "executioner" known as Jihadi John - Number 10 Prime Minister's Statement.  British involvement is crystal clear from the statement in which Mr Cameron said - "... We have been working, with the United States, literally around the clock to track him down ... this was a combined effort ... and the contribution of both our countries was essential."

The Leader of the Opposition (Rt. Hon. Jeremy Corbyn MP) acknowledged that Emwazi had been held to account for his "callous and brutal crimes" but added that capturing the terrorist and holding him to account in court would have been a better way of revenging his actions, which have included the beheading of British nationals in Islamic State controlled parts of Syria and Iraq - The Independent 13th November 2015

The former Attorney-General

The Belhaj and Rahmatullah cases ~ UK Supreme Court

Serious questions continue to remain unanswered regarding allegations that the UK government (or government agencies or government servants) were complicit in either the torture or ill-treatment of certain detainees during the global war on terror.  For example, see the House of Lords Committee on Human Rights 23rd report of Session 2008-9. 

From 9th November to 12th November, a seven judge Supreme Court (Lord Neuberger, Lady Hale, Lords Mance, Clarke, Wilson, Sumption and Hughes) is hearing appeals in two conjoined cases: Yunus Rahmatullah and Abdul-Hakim Belhaj and his wife Fatima Boudchar.  The UK government is strenuously resisting the claims.

At this stage, the argument concerns preliminary issues in the litigation about whether the appellants can be held liable as a matter of law.  If the court so holds then it will become a matter for the trial judges to determine the facts and whether there is actual liability.  The preliminary issues concern legal concepts of Act of State (both by the Crown and by Foreign States) and State Immunity. This post seeks to offer an overview of the litigation which has already produced several lengthy judgments containing in depth analysis of the legal concepts in issue.  Links to the judgments and some other materials are provided.

Arrested and refused to give names. Daily Mail complains that they got unconditional bail.

The Daily Mail (7th November) carried an article about three "rioters" who were arrested and who refused to give their names to the Police.  According to the article, they had their fingerprints, DNA and photographs taken and spent  48 hours in custody.  They finally got to the Magistrates' Court only for the Bench to let them go on unconditional bail.   Read the article.  Let us take a look at the relevant law.

A basic principle of English law is that a person is to be considered innocent until proven guilty.  This "Golden Thread" applies no matter what the charge and it is for the prosecution to prove guilt. 

The three "rioters" were charged with failing to give a name and address when required to do so - Police Reform Act 2002 section 50.  It is triable only in the Magistrates' Court and carries a maximum penalty of a fine of £1000 (Level 3).  The offence is a NON-imprisonable summary offence. This has implications regarding entitlement to bail.

Draft Investigatory Powers Bill (2) - Some of the early reaction

The Draft Investigatory Powers Bill has attracted a considerable amount of initial reaction.  For details of the Bill and links to the various reports that have influenced the Bill's content see Draft Investigatory Powers Bill (1).

The Homes Secretary (Rt. Hon. Theresa May MP) in her statement to the House of Commons said that powers under the Telecommunications Act 1984 section 94 (Directions in the interests of national security etc) had been used to obtain bulk data.  This fact was actually revealed in the Intelligence and Security Committee Report of March 2015 - Privacy and Security: A modern and transparent legal framework.  The Committee accepted that this use of the power was acceptable BUT said that the arrangements lacked clarity and transparency and "must be reformed" - (Page 100).  The former Deputy Prime Minister (Nick Clegg MP) has indicated that only a "tiny handful" of Ministers knew of the power being used - The Guardian 5th November.

The Royal United Services Institute

Draft Investigatory Powers Bill (1) - The Bill and Background reports

Updated 7th November:

The Government has published a much heralded draft bill on the operation and regulation of the investigatory powers used by the police and the intelligence and security agencies.

• GOV.UK: Draft Investigatory Powers Bill (external site)
• GOV.UK: Home Secretary on publication of the Anderson Report (external site)
• The Report of the Investigatory Powers Review: written statement 11 June 2015

See also the various Factsheets issued by the government.

The Bill is a large document (9 Parts and 9 Schedules) and requires some detailed consideration.  The first link provided above goes to a document that is 299 pages long.  No doubt, in the weeks to come, there will be volumes of comments.  Meanwhile, here is some of the background material.

Intelligence and Security Committee Report of Privacy and Security - March 2015:

This Report includes, for the first time in a single document,

The Crown Court ... Structured Mayhem ??? Criminal Justice Alliance report

Structured Mayhem is the description used by the Criminal Justice Alliance in a Briefing published - Structured Mayhem: Personal Experiences of the Crown Court.   The following is the Introduction to the report ....

The Crime Survey for England and Wales confirms that two thirds of people have confidence in the fairness of the criminal justice system.  Just under half have confidence in its effectiveness. The Ministry of Justice recently noted, with modest satisfaction, that these figures had very marginally increased. However, these metrics also mean that millions of people still don’t have confidence in something so central to a healthy state. 

The Crown Prosecution Servicerecently published its own survey, finding that half of all victims and more than a third of witnesses feel unsupported while giving evidence. This should be a grave cause for wider concern too.

Reforming the criminal law - Law Commission report on Offences against the Person

The Law Commission has recommended modernisation of the law on violence - Law Commission Offences against the person: Modernising the law on violence

New rules are needed to tackle violent offences and make better use of court time, according to the Law Commission.

In a scoping report issued today the Law Commission is recommending reforms that would:

• replace the outdated Offences Against the Person Act 1861 with modern, clear and logical legislation
• create a new offence of “aggravated assault”, to bridge the gap between common assault and the much more serious actual bodily harm (ABH), and
• extend the offence of threats to kill to include threats to cause serious injury and threats to rape.

As well as significantly cutting court costs

Voting - Individual Registration - Secondary legislation

The right to vote in elections is a foundation stone of democracy.  The right to vote depends on the registration system and this is undergoing a major change and, over the next few years, a number of crucial elections are scheduled - see Electoral Commission.

The Electoral Registration and Administration Act 2013 (ERA) introduces individual registration for voting in elections.  This has been (rightly) described by the government as the biggest change to voter registration in a generation - Government News 3rd July 2014.

In July 2015,

1st November ~ Round up - Legal aid - Judicial review - Investigatory Powers

November is here.  The change from summer to autumn has taken place without very heavy rain or strong wind and so the autumn colours have been magnificent.  Not so splendid is the existing state of our justice system and there are serious concerns about government plans for legislation to address Investigatory Powers and Extremism.

As the Marilyn Stowe blog states, cuts to legal aid are leaving people stressed and powerless.  It is claimed that the cuts in the family law area are jeopardising the rule of law and are hurting the most vulnerable people disproportionately.

Catching up ..... !

Supreme Court UK LIbrary

A little bit of catching up ........

a) From 27th to 29th October, the Supreme Court heard the joint enterprise case of R v Jogee.  The proceedings may be viewed via the Supreme Court website.  Previous post.   The joint enterprise doctrine* (an aspect of accessorial criminal liability) is particularly problematic and it was claimed in court that the law took a wrong turning with the decision in Chan Wing-Siu v The Queen [1984] UKPC 27.  The present state of the law was described by Felicity Gerry QC (counsel for Jogee) as "a dog's breakfast."  Miss Gerry invited the court to re-express the law in terms of requiring knowledge of the essential elements of the offence committed by the principal (or the type of offence) together with acts that demonstrate an intent to assist or encourage that offence (or type of offence). 

b) On 4th November, the Supreme Court will hand down judgment in the £85 parking overstay charge case of Parking Eye Ltd v Beavis.  Previous post.

c) Former Attorney-General Dominic Grieve QC has said that the Prime Minister should not have changed the Ministerial Code - The Guardian 28th October.  Previous post.

d) The prime minister’s policy of ordering

English Votes for English Laws (EVEL) - more constitutional tinkering

Tucked away at the bottom right corner of page 49 of the Conservative election manifesto was a pledge to introduce "English votes for English laws" (EVEL).   On 22nd October, the Standing Orders of the House of Commons were amended to give effect to this.  The amendment to standing orders was approved by 312 to 270.

The very convoluted amendments may be read via Parliament's website.  In basic terms, the Speaker will certify whether a Bill (or a clause or a schedule) relates to either (a) England only or (b) to England and Wales.   If the Speaker certifies that it does, then a new stage in the legislative process will apply.  After Report Stage and before third reading, the Bill will have to be approved by a Grand Committee made up of MPs representing (as the case may be) either (a) English constituencies or (b) English and Welsh constituencies.  Thus, the Grand Committee will have a veto over the Bill.  The new process is helpfully shown in this diagram - (click on it for enlargement):

As the articles listed below show, this change is highly controversial in some quarters.

The role of the Speaker

Tax Credits row

Update 17th December - Lords veto powers 'to be curtailed'



The Tax Credits Act 2002 section 66 is clear enough. It states:

'No regulations to which this subsection applies may be made unless a draft of the instrument containing them (whether or not together with other provisions) has been laid before, and approved by a resolution of, each House of Parliament.'

The Tax Credits (Income Thresholds and Determination of Rates)(Amendment) Regulations 2015 were duly laid in draft before both Houses of Parliament and were voted through the House of Commons - (see here).  (Note that the government opted to try to introduce this change by way of regulations and not by way of a government bill).

This is what happened when the matter came to the House of Lords:

An amendment to the motion declining to approve the regulations went to a vote with 99 for and 310 against, so the amendment was rejected. 

An amendment to the motion, seeking to delay consideration of the regulations until a report has been produced addressing the Institute for Fiscal Studies' analysis of the regulations and their impact, went to a vote. Members voted 307 for and 277 against, so the amendment was agreed.

Peers also voted on an amendment to the motion seeking to delay consideration of the regulations until consultation and a report to Parliament on the provision of full transactional protection for a minimum of three years for all low-income families and individuals currently receiving tax credits before 5 April 2016 has been completed, such transitional protection to be renewable after three years with parliamentary approval. Members voted 289 for and 272 against, so the amendment was agreed.

Joint enterprise in criminal law ~ Jogee and Ruddock cases

UPDATE:  Judgment in Jogee and Ruddock cases will be handed down on Thursday 18th February.  See UK Supreme Court and Judicial Committee of the Privy Council.

Original post:

Today the UK Supreme Court and Judicial Committee of the Privy Council (Lord Neuberger, Lady Hale, Lord Hughes, Lord Toulson, Lord Thomas) begin to hear the cases of Jogee and Ruddock - previous post 14th October 2015

A useful video by the Committee for the Reform of Joint Enterprise explains the problems with the use of joint enterprise to secure convictions - Joint enterprise: the case for reform

Convictions under this concept are often for murder but joint enterprise applies generally throughout criminal law.  Where an individual is convicted of murder the mandatory life sentence will apply.

The Independent 24th October has drawn attention to legally inaccurate letters being sent to some individuals warning them of the possibility of conviction under joint enterprise - Police send letters warning people could be sent to prison 'for being present when a serious crime is committed

The proceedings in the UK Supreme Court may be viewed via the Supreme Court website

Concern over amended Ministerial Code

Updated 6th November 2015:

In a new Ministerial Code three vital Ministerial duties appear to have been removed - Ministerial Code October 2015.

They are the duties to uphold:

1.  International law

2.  Treaty obligations

3.  The Administration of Justice.

What remains is a duty to comply with the law and to protect the integrity of public life.

It may be that compliance with the law is to be taken to include international law and treaty obligations but the matter is no longer as clear as it was.  Protecting the integrity of public life might include the administration of justice but that is also far from clear.

It is important to note that whatever "duties" the Ministerial Code imposes, they are not necessarily legal duties enforceable in British courts.  The Code is essentially a political code setting out principles to be adhered to by the government.  

International Law binds the State (i.e. the UK).  Treaty obligations

A case of begging ~ Criminal Court Charge ~ Speech by Lady Hale

Steffan Rowland Thomas - aged 19 - was seen by a PCSO sitting in the doorway of an empty shop in Swansea.  He was asking passers-by for money.  The matter came before Swansea Magistrates' Court where Thomas entered a guilty plea.  The court imposed a conditional discharge for 12 months but also imposed the Criminal Courts Charge (£150), a "victims surcharge" (£15) but declined to impose prosecution costs given Thomas' absence of means.  Read the report in the South Wales Evening Post. 

He was represented in court and, no doubt, his guilty plea was entered after appropriate advice. It was said that Thomas had no fixed address and had acted out of desperation.  Upon arrest, Thomas had said that he did not know that what he did was an offence.  It is reported that Thomas now lives with his grandfather.  

Poor doors and Rich doors - an interesting case!

Update: Lisa Mckenzie was acquitted and see The Guardian 21st October - Class war protester cleared of criminal damage at 'poor door' demonstration.

Yesterday, via Twitter, I came across a post on the "Now That's What I call History" blog of Dr Lucy Robinson - Persons Unknown.  The blog highlights the forthcoming appearance, at Stratford Magistrates' Court, of Lisa Mckenzie.  Dr Robinson wrote:

Lisa Mckenzie, whose book Getting By, is compulsory reading on our first year History course and whose methodology has inspired much of my recent work, has been summoned to Stratford Magistrates Court to defend herself against three charges relating to the Poor Door Protests in April 2015.  She was arrested on 1 account of criminal damage and later charged with 2 counts of public order offences.  Since then the Crown has been unable to gather evidence directly linking her to these offences.  They have instead shifted to a charge of ‘Joint Enterprise with Persons Unknown’.  In Lisa’s words ‘this means that I can be charged and held responsible for any actions that persons unknown have engaged in…The Police plan to issue me with a Criminal behaviour order on conviction which will limit my freedom of speech and movement for 5 years.’

Human Rights Explained

Excellent - please take a look ........................

Human Rights explained in one beautiful two minute animation

see also this article by Phillipe Sands QC

Meanwhile, I am sure that many readers will find this amendment to the Ministerial Code disturbing