Saturday 31 January 2015

The tort of negligence ~ a few thoughts on the elusive duty of care

In the 13th edition of Salmond on Torts (1961) - (at page 428) - it was said:

" When ... a court holds that the defendant was under a duty of care, the court is stating as a conclusion of law what is really a conclusion of policy as to responsibility for conduct involving unreasonable risk ..."

and later

" ... there is always a large element of judicial policy and social expediency involved in the determination of the duty problem ..."

Although this statement is some 54 years old,

Thursday 29 January 2015

A brief look at Michael v Chief Constable of South Wales Police and the IPCC Report

On Wednesday 28th January, the Supreme Court handed down judgment in Michael and others v Chief Constable of South Wales Police and another [2015] UKSC 2 (Judgments).  The facts of the matter arose over 5 years ago in the early hours of 5th August 2009.  The Court of Appeal decided the case in 2012 - (Judgments). 

This post looks at the basic facts, notes the Supreme Court's judgment and looks at the very critical IPCC report published in 2010.  Some Additional Materials are at the end of the post.

Basic Facts:

At 0229 hrs, Joanna Michael used her mobile phone to call 999.  The signal was received by Gwent Police. Miss Michael informed the Police call-handler that her former partner, Cyron Williams, had come to the house, had found her with someone else, had bit her ear really hard and taken the other person away in his car, saying he would return to hit her.   Later on in the phone call, which lasted just over three minutes, she is recorded as saying that Williams said he was going to return to kill her. 

Lord Neuberger on the (civil) Trial Judge's role today

Lord Neuberger - President of the Supreme Court of the UK - has delivered an interesting speech in Manchester - Some thoughts on the post-LASPO civil judge's role before and during trial

Lord Neuberger emphasised the importance in the common law system of the trial judge and said that, when it comes to case and trial management, as much as possible should be left to the trial judge, whose authority and confidence should be reinforced, no undermined or second guessed, by appellate courts [para 5]. 

" ... the Court of Appeal should be very reluctant in principle to interfere with a trial judge’s procedural ruling, and should only vary or reverse it, when the decision is plainly outside the wide range of reasonable choices which is normally open to a judge in such circumstances. And the

Wednesday 28 January 2015

A shabby deal !

The UK - Saudi Arabia deal:

The Ministry of Justice and its Secretary of State are at the top of a pyramid which includes the National Offender Management Service (NOMS) and, within NOMS, is a somewhat little known entity: Just Solutions International.  JSi maintains a separate website - HERE

In a 2014 Mid-Year Report to Parliament, the Ministry of Justice said that:

"The Secretary of State visited Riyadh in September 2014 to sign a Memorandum of Understanding on Judicial Cooperation, to build upon the existing bilateral justice relationship, promote UK legal services in Saudi Arabia and raise awareness of the upcoming Global Law Summit. He also met UK lawyers with offices in Riyadh. Discussions were also held on judicial cooperation, King Abdullah’s reform programme, and human rights issues."  The report offered no further detail.

The Mid-Year Report also noted that:

Saturday 24 January 2015

Supreme Court ~ Definitive Maps

 Updated 19th March 2015:

England has some 140,000 miles of footpaths and many are a delight to walkers.  The various classifications of public rights of way are well described on the website of the Institute of Public Rights of Way and Access Management

"Definitive Maps" are kept by local authorities in England and Wales (Wildlife and Countryside Act 1981 section 53) and the map is conclusive evidence as to certain matters (section 56).   If there is dispute as to whether a route over the ground is a public right of way then the first port of call should be this map.   The Act contains a process for modifying the maps and an application has to be accompanied by a map drawn to a scale of not less than 1:25,000 (the "map requirement").

The Trail Riders Fellowship are seeking

Friday 23 January 2015

5 years old

Expanded 25th January:

The 5th birthday of this blog was a few days ago.  Hopefully, it will plod on for some time to come looking at legal stories of interest.

Criminal Proceedings:

A report by Sir Brian Leveson - (President of the Queen's Bench Division) - has now been published.  It is entitled Review of Efficiency in Criminal Proceedings: Final Report.  It is a lengthy report (140 pages) touching on many aspects of criminal proceedings. A summary of his recommendations is at page 96.

Interestingly, at para 13 of the report, Sir Brian notes that - "Between 1989 and 2009, Parliament approved over 100 Criminal Justice Bills and more than 4000 criminal offences were added to the statute book.

Thursday 22 January 2015

"To the manor born" ~ Manorial Rights ~ an interesting report

English land law has always been a very convoluted subject.  Although it has undergone reforms, it retains considerable complexity.  It is often dreaded by students and can present tricky problems for practitioners.  One problem that can appear from time-to-time relates to so-called "manorial rights."  This is the subject of an interesting report from the House of Commons Justice Committee - and see also The Guardian 22nd January 2015

"Lordships of Manors", "Manorial Land" and "Manorial Rights" are akin to ghosts from a bygone era of English legal history.  However, they can be very troublesome spirits as pointed out by Judith Bray (Senior Law Lecturer University of Buckingham) who wrote:

Tuesday 20 January 2015

A (disturbing) thought on the Counter-Terrorism Prevent Duty

The immediately preceding post looked at the Prevent Duty within the Counter-Terrorism and Security Bill which is now racing through Parliament with minimal opposition.  The Institute of Race Relations has published an article examining the Bill - Farewell Magna Carta: The Counter-terrorism and Security Bill.

An acquaintance recently drew my attention to an homework question set for a 13 year old.  The topic was

"The holocaust was caused by religion, discuss."

At the time I recall thinking that it was an interesting question relating to relatively recent history. 

Monday 19 January 2015

Counter-terrorism and security bill ~ Prevent Duty

The Counter-Terrorism and Security Bill (previous post) is proceeding apace along its fast track Parliamentary process.  Rushed legislation is rarely considered as thoroughly as it ought to be and is often problematic when it comes to implementation. 

In the area of trying to prevent terrorism, the government has the CONTEST strategy - summarised here.  Para 1.12 of the document states that counter-terrorism strategy is organised around 4 workstreams referred to as Pursue; Prevent; Protect; Prepare.  Prevent seeks to stop people becoming terrorists or supporting terrorism.  Prevent is addressed further on this government website.

The Counter-Terrorism and Security Bill

Speaking to witnesses in court ~ CPS Consultation

The Crown Prosecution Service (CPS) has announced a consultation on draft guidance for dealing with witnesses in court - Consultation on Draft CPS Guidance on Speaking to Witnesses at Court

The CPS website notes that the Crown Prosecution Service is committed to giving an excellent service to all victims and witnesses who attend court as part of its overall commitment to support victims and witnesses effectively throughout their time in the criminal justice system.  The draft guidance gives prosecutors clarity on what is expected of them in supporting victims and witnesses at court.  You can also download the consultation document - Draft CPS Guidance on Speaking to Witnesses at Court from this site.  Comments may be submitted by 16th March 2015.

See also

Child Contact Centres ~ a vital need

National Association of Child Contact Centres - Awareness Campaign

The Children Act 1989 (CA89) came fully into force in October 1991 and it remains, albeit with subsequent changes, the principal statutory framework for dealing in the Family Court with cases involving children.  The court is empowered to make various orders such as a Child Arrangements Order under section 8 of the CA89 when the court will specify arrangements concerning with whom a child is to live, spend time or otherwise have contact.  Following the breakdown of the relationship between a child's parents, there is normally a need to enable contact between the child and the parent who is no longer in the family home.  It is here where the network of Contact Centres plays such a vital role.

A contact centre provides

Monday 12 January 2015

Something is rotten in the State .... !

Head of Legal Blog - Post by John Cooper QC - Global Law Summit - By going there we are tacitly accepting what Grayling is doing

The Global Law Summit 2015 is heading for London.  The importance of London as a centre of legal excellence cannot be denied though other locations keen to have the business of commercial disputes are developing such as Singapore.  This stellar event - with several high profile speakers - seeks to exploit the fact  that 2015 is the 800th anniversary of the signing of Magna Carta by King John.  This document is generally seen as one of the foundation stones of the rule of law.  It effectively asserts that those who rule must comply with the law.  The Charter contains the famous statement - "We will sell to no man, we will not deny or defer to any man either Justice or Right."  Before looking a little closer at the Law Summit, we should remind ourselves of some of the reality of the government's justice policies seen from the worm's-eye viewpoint of the citizen as opposed to the immensely wealthy world of international commercial business.

Judicial review at bay -

Counter terrorism and Security Bill - Joint Committee on Human Rights

Updated 13th January

The Joint Committee on Human Rights has issued its report on the Counter Terrorism and Security Bill and has called for better safeguards in a number of areas.  The Committee's Conclusions and Recommendations are HERE.

There are indications that if a Conservative government is

Saturday 10 January 2015

Counter-terrorism law

Just a reminder that the Counter-Terrorism and Security Bill is racing along its fast-track through Parliament.  The Bill (as introduced) is considered in this earlier post.  Please also see this post by Angela Patrick on the UK Human Rights Blog.

The Bill has now cleared the House of Commons and the second reading in the House of Lords is on 13th January.  A Joint Committee on Human Rights report about the Bill is due to be released on 12th January.  A JUSTICE briefing on the Bill is available, here.

EU leaders to discuss terrorism at February Summit 

Independent Reviewer of Terrorism Legislation

Thursday 8 January 2015

Charlie Hebdo - Freedom of Expression

The murders of 7th January 2015 in Paris are profoundly shocking - BBC New Europe "Charlie Hebdo: Gun attack on French magazine kills 12."  Charlie Hebdo is a French satirical newspaper noted for satire and irreverence on many topics including all forms of religion.  In particular, it has published cartoons lampooning aspects of how certain Muslims behave though Islam is by no means the only religion to have been singled out by the magazine.  As The Telegraph 7th January wrote - the magazine has paid a terrible price for freedom of speech. 

Freedom of Expression is a right recognised to be of fundamental importance in democratic society.  The right for individuals and the media to be allowed to express forthright and critical opinion must be protected.  The right appears in many international and national documents:

Tuesday 6 January 2015

Lack of legal aid for a father in the family court ...

Re K and H (Children: unrepresented father: cross-examination of child [2015] EWFC 1 is an important family court decision.  His Honour Judge Bellamy (sitting as a Deputy High Court Judge) has held that Her Majesty's Courts and Tribunals Service (HMCTS) must pay for a father's legal representation given that the father is alleged to have sexually abused his daughter referred to as Y.  There is a need in the case to establish - as a question of fact -whether the allegations against the father are proved.  In order to do that Y must give evidence and be cross-examined and it is in relation to the cross-examination that the father requires legal representation.  It should be noted that the father does not actually seek to cross-examine Y himself but has sought and been denied legal representation to do so.  This judgment merits careful reading in full.

Saturday 3 January 2015

Happy New Year 2015

Here's wishing all readers a very Happy New Year 2015.  As 2014 petered out I could not help but think that the year saw the continuation of the relentless attack by the elected government on access to justice for the average citizen. The severe cuts to legal aid brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 Part 1 came fully into force from 1st April 2013 but the cuts really began to be felt in 2014 with many courts having to deal with numerous litigants-in-person who, quite understandably, have little or no knowledge of law or the processes of the court.  "The State" is, of course, always adequately represented. 

The government also sought - and continues to seek - restrictions on judicial review which is a last resort but absolutely vital method of ensuring that government and other public bodies operate in a lawful manner.  On these topics please see The Justice Gap 1st January - Democracy, Legal Aid and the Election.   As for the future, the nation's relationship with the European Convention on Human Rights is also under threat at least from the Conservative Party.  Here is my view of the Conservative proposals with links to many other views.

A while ago,