Friday 26 February 2016

A few items of interest

A few items of interest:

Watch the Lord Chief Justice giving evidence to the Justice Committee on 23rd February about his 2015 annual report.

For an excellent and hard-hitting view of what the Lord Chief Justice had to say see Marilyn Stowe - Lord Chief Justice and the Future of Law

The 2016 Annual Report by the Senior President of Tribunals is also available.

Offences against the person:

The Law Commission has published recommendations relating to Offences against the person with a view to modernisation of the law.

Joint enterprise:

Following the Supreme Court decision in R v Jogee, there has been an incredible amount of comment.  London Review of Books by Francis Fitzgibbon QC on Joint Enterprise is well worth reading. Francis Fitzgibbon acted for one of the Interveners in the Jogee case - Just for Kids Law

Reports on the Savile and Hall Investigations:

The BBC Trust has published in full the report by Dame Janet Smith DBE of her inquiry into the BBC’s culture and practices during the Jimmy Savile and Stuart Hall years.

The Review was established in October 2012 to conduct an impartial, thorough and independent review of the culture and practices of the BBC during the years that Jimmy Savile worked there.  A further investigation, into the conduct of Stuart Hall, was undertaken by Dame Linda Dobbs DBE, and is published as part of the report.

Cohabitation: Parliamentary Briefing:

Tuesday 23 February 2016

The Jogee case ~ more thoughts

Update 16th September 2016:  

Following retrial, Jogee was convicted of manslaughter and sentenced to 12 years imprisonment.
Updated 24th February

Just a little bit more about the Supreme Court's important decision in - R v Jogee [2016] UKSC 8

The term Joint Enterprise:

The Supreme Court said (at para 77) that "joint enterprise" is not a "legal term of art."  The court noted:

"As the Court of Appeal observed in R v A [2011] QB 841, para 9, it is used in practice in a variety of situations to include both principals and accessories. As applied to the rule in Chan Wing-Siu, it unfortunately occasions some public misunderstanding. It is understood (erroneously) by some to be a form of guilt by association or of guilt by simple presence without more. It is important to emphasise that guilt of crime by mere association has no proper part in the common law."

Will the decision lead to numerous convictions being overturned on appeal?

Saturday 20 February 2016

BREXIT ~ referendum ~ a few points

23rd June 2016 has been announced by the Prime Minister as the date when the British people will answer this question which will appear in the ballot papers:-

“Should the United Kingdom remain a member of the European Union or leave the European Union?”

The voter will have the choice:"Remain a member of the European Union" OR "Leave the European Union”. 

This question, which is set out in section 1 of the European Union Referendum Act 2015, is possibly the biggest question ever put to the whole of the United Kingdom population in a referendum.  (The Scotland independence referendum in 2014 was of massive importance.  Voting was confined to the electorate in Scotland).  The Prime Minister has said that - " ... whatever your decision, I will do my best to deliver it."  In this post, I seek (briefly) to highlight just a few points.

Thursday 18 February 2016

Jogee and Ruddock ~ Judgments of the UKSC and JCPC ~ the correct rule

Links to articles will be added at the end of this post ....

Judgments have been handed down by the Supreme Court of the UK in R v Jogee and the Judicial Committee of the Privy Council in Ruddock v The Queen.

R v Jogee (Appellant) and Press summary (PDF)

Ruddock (Appellant) v The Queen (Respondent) (Jamaica) 
and Press summary (PDF)

Youtube - see the court handing down judgment

Bailii - Jogee and Ruddock [2016] UKSC 8

Where we were:

The cases were concerned with a form of accessory liability referred to by criminal lawyers as Parasitic Accessorial (or accessory) Liability.  Broadly speaking, where D1 and D2 embarked together on Crime A but D1 also committed Crime B, D2 could also be liable for Crime B where he continued in the enterprise to commit Crime A having foreseen a possibility that D1 would commit Crime B.  As Felicity Gerry QC (counsel for Jogee) put it, the law had become a "dog's breakfast" with the outcome that some convictions (especially for murder) were seen by many as unjust. The Supreme Court was asked to restate the law in a way that would prevent "over-criminalisation."  This previous post has further background information.

The Judgment:

When reading the judgments it is vital to note carefully the quite narrow aspect of criminal liability addressed by these important appeals and also to note the court's statements as to what their judgment does NOT do.  (Lord Neuberger referred to the question raised by these appeals as "narrow but important").

Friday 12 February 2016

Jogee and Ruddock ~ cases at the UKSC and JCPC

Over 3 days in late October 2015 the Supreme Court of the UK (UKSC) heard the very important criminal law case of Jogee.  At the same time, the same judges heard the Judicial Committee of the Privy Council (JCPC) case from Jamaica - Ruddock.  Judgment is to be handed down in both cases on 18th February.   This post is a summary of the issues  and makes no attempt to predict the outcome of either case.

The court's decision in Jogee is likely to determine the position in English law for a considerable time and a very clear statement of the law is required. The Ruddock decision will affect the law in Jamaica and possibly well beyond that jurisdiction.

The principal question: 

Court closures announced ~ Problem solving courts

Stockport Magistrates' Court (escaped)!
The latest round of court closures has been announced - Written Statement of 11th February 2016.  The Ministry of Justice full response to the closure consultation is also available as well as Responses relating to each Region.  The full response comments that " ... we are moving towards a justice system that must be accessible through online services as well as traditional court buildings."   "Access to justice cannot be defined solely by proximity to a court or tribunal building."

The BBC published the list on Thursday 11th February and 86 will be closed out of the 91 closures proposed in the consultation document issued in October 2015 (previous post).  Ten of the closures are to be in Wales.   Of the 86 closures, 64 will close as proposed in the consultation.  A further 22 will take place but with changes to the original proposals - (see the Regional responses for details).

The Law Society

Thursday 11 February 2016

The Public Interest ~ who should decide?

In democratic societies there is a public interest in being to able to know what our elected representatives are doing even though officials might prefer to keep things to themselves.  Also, there are undeniably some matters where a clear public interest in non-disclosure to the general public exists - e.g. if disclosure would run a serious risk of danger to lives. The difficulty lies in drawing a line between these interests.  Should the "public interest" line be decided by a Minister or by a Judge?

On 8th February, the Attorney-General (Mr Jeremy Wright QC MP) delivered a speech at University College London (UCL) on his role as "guardian of the public interest"   The Attorney looked at various aspects of his role and then said: 

"A question I want to raise today is

Tuesday 9 February 2016

Prison reform

Here is the Prime Minister's speech on Prison Reform and the reaction to it of the Howard League for Penal Reform.

The Prison Reform Trust has published this interesting and useful briefing on Prison Facts: Summer 2015

The detail of how the Prime Minister's headline policy speech will translate into actual practice remains to be seen.  For now, it worth noting what the Howard League has said:  "Prison reform, however, is the tip of the iceberg. Improved education and increased autonomy for governors will not work if there are people crammed into filthy institutions with no staff to open the cell doors. We need action now to tackle sentence inflation and the profligate use of prison. Then the Prime Minister's vision can become a reality."

Further reaction to the speech may be seen at The Guardian - "It won't work without sentencing reform" and at the Centre for Crime and Justice response to the speech.

Previous post - Imprisonment in England and Wales (August 2015)

Offenders who are not imprisoned

Monday 8 February 2016

A Constitutional Court for the UK? A recipe for complication, for cost and for unnecessary duplication (Lord Neuberger)

Lord Neuberger - President UKSC
In December 2015 the Secretary of State for Justice and Lord Chancellor - Michael Gove MP -  attended the House of Lords Constitution Committee - previous post.   His evidence was mainly concerned with the government's idea of a British Bill of Rights and repeal of the Human Rights Act 1998 and those plans have yet to see light of day.  (For a look at the current state of play on this issue see Rightsinfo - What's going on with the British Bill of Rights?)

Mr Gove indicated that one reason for the delay to publication of government plans for human rights protection is due to the Prime Minister asking whether the Bill of Rights might be used to create a constitutional court for the UK and, if so, might the Supreme Court of the UK be given that role. The rationale

Friday 5 February 2016

Julian Assange ~ Arbitrary Detention ~ the UN Working Group decision

Julian Assange (see his Wikipedia entry) has been in the Ecuadorean Embassy in London since June 2012 - previous post 16th August 2012.  He entered the embassy following the 30th May 2012 decision of the Supreme Court.  He was granted political asylum by Ecuador.  The United Kingdom does not recognise that form of asylum - (please see Asylum - some notes).  Mr Assange was "wanted" on a European Arrest Warrant issued by Sweden and it seems that he is very concerned that, if the warrant is executed, he will be sent to Sweden and then onwards to the United States.  Assange has not received any guarantee from Sweden that he would not be sent to the USA and it is arguable that his fear of persecution is well-founded in the light of the USA's treatment of certain others including Bradley Manning who received 35 years imprisonment in connection with Wikileaks.  [Further difficult questions may arise IF Assange were to be extradited to Sweden and the USA were then to request his extradition.  These are not considered further here].

The United Nations High Commissioner for Human Rights has a Working Group on Arbitrary Detention.  The working group was established by resolution of the Commission - see this Fact Sheet.  It has five members (details here) and its mandate currently runs until September 2016.  4 of the 5 members took part in this decision.

The group has been examining Mr Assange's situation and has concluded that he has been arbitrarily detained  - Read the decision.  The Foreign and Commonwealth Office has announced that it will formally challenge the decision - Press Release 5th February.

Wednesday 3 February 2016

The Magistrates' Courts ~ some reflections on a snowy morning

A post on the Of Interest to Lawyers blog looks at the proposals by Lord Justice Briggs for reform of the civil courts - All change please! All change. (Those proposals are currently out for consultation until the end of February 2016 - previous post).   The learned writer's post is scathing and it includes this: "Went to a Mags Court last week - sweet Jesus - now that is a system on its absolute knees - absolute chaos all round."

It is in either the Magistrates' Courts or the County Court where the public is most likely to encounter the legal system. 

Tuesday 2 February 2016

Human Rights ~ EU renegotiation

Human Rights:

Parliament's European Union Justice Sub-Committee has heard evidence from Michael Gove (Secretary of State for Justice and Lord Chancellor) and Dominic Raab (Parliamentary Under-Secretary of State Ministry of Justice). The session may be seen via Parliament's website (2nd February 2016).

The session did not reveal much detail about the government's plans for human rights and, after this length of time, any plans ought to be quite advanced.

Mr Gove said

Monday 1 February 2016

UK Supreme Court ~ more Iraq / Afghanistan litigation

Updated 17th January 2017 - The Supreme Court's judgment (Majority 7 to 2) and Press summary

The Al-Waheed appeal was dismissed and the Serdar Mohammed appeal allowed in part.


Over the four days 1st to 4th February 2016, a bench of nine Justices of the Supreme Court heard two cases arising out of British military involvement in Iraq and Afghanistan.  The cases are:

Abd Ali Hameed Al-Waheed v Ministry of Defence (UKSC 2014/0219)


Serdar Mohammed, Yunus Rahmatullah and others v Ministry of Defence (UKSC 2015/0218)

(The recorded proceedings may be viewed via those links).

The conflicts in Iraq and Afghanistan have proved to be productive of a considerable volume of litigation and this has given rise to considerable political concern within government and elsewhere - please see previous posts of 26th January 2016 and 6th January 2016.