HAPPY NEW YEAR 2018

: Wishing you a Very Happy New Year 2018 :

Ernest Tomlinson - Prelude on Old Lang Syne

Geoffrey Nobes - Prelude on Lavenham - International Staff Band of the Salvation Army

Irving Berlin - Holiday Inn - Let's Start the New Year Right

Brexit - end of year view

The Snowman

On 24th January the Supreme Court of the UK handed down its judgment in the Miller and Dos Santos litigation - post 24th January.  By a majority of 8 to3 the court held that an Act of Parliament was required to authorise the giving of notice under Article 50.   The Act was duly passed - European Union (Notification of Withdrawal) Act 2017 and the Prime Minister sent the notice to the EU on 29th March 2017 triggering the Article 50 two year period - post 29th March.

 The last weekend of 2017 is now here and, unsurprisingly, Brexit continues to dominate much of the news.  Whilst one might reasonably have expected

Laura Plummer ~ a devastating outcome

Laura Plummer (aged 33) was arrested in Egypt for importing 290 tablets of the drug Tramadol.  She said that the painkilling drug was for her Egyptian husband whom she said suffers back problems.  Plummer has now been sentenced to 3 years imprisonment - see The Telegraph 26th December - where it is reported - 'Standing before the judge in court on Christmas Day, Ms Plummer was asked: “You are accused of smuggling and possessing Tramadol to Egypt?”  Misunderstanding the question, she replied “yes” and the judge then instructed the session clerk to record that she had confessed.'

It is of interest to see what sort of sentence would be imposed in the courts of England and Wales for a similar importation.

Christmas 2017

Best wishes to all readers for a truly Happy Christmas and New Year 2018.

"So remember while December Brings the only Christmas day, in the year let there be Christmas in the things you do and say."

Racially aggravated assault ~ Raheem Sterling's attacker

 Raheem Sterling is a midfield professional footballer with Manchester City.  He suffered an unprovoked attack by Karl Anderson (29) who pleaded guilty to racially aggravated common assault.  Anderson has a criminal record containing 25 convictions for 37 offences, including football-related violence.  He was sentenced at Manchester and Salford Magistrates' Court to 16 weeks imprisonment and ordered to pay compensation of £100 plus the required surcharge of £115.

This BBC Report says that Anderson kicked Sterling four times during the assault and also used racist language as well as telling Sterling he wanted his mother and child to die.  The Guardian 20th December offers rather more detail including information about the racial abuse.  Then there is the The Manchester Evening News report indicating that Sterling suffered bruising to his leg.

My immediate reaction to the sentence was that Anderson "got off lightly."  I thought I would check that view out.

Damian Green ~ Ministerial Code bites

Mr Damian Green was appointed First Secretary of State and Minister for the Cabinet Office on 11 June 2017.  He has now left the government and The Telegraph (20th December) has published an exchange of letters between the Prime Minister and Mr Green.

As reported by The Guardian 1st December 2017  Mr Green was investigated by the Cabinet Secretary about an accusation of  inappropriate behaviour towards a young Conservative activist, Kate Maltby.

R v Liam Allan: the crucial question of disclosure

"In criminal cases, the State has the Police, an agency for the discovery of evidence, superior to anything which even the wealthiest defendant could employ" - Lord Devlin (1976)

Liam Allan, a criminology student at Greenwich University, was charged with six counts of rape and six of sexual assault.  During the trial, the contents came to light of mobile telephone messages sent by the complainant including messages asking Mr Allan for sex.  This material had been held electronically by the Police.  The outcome was that prosecuting counsel (Mr Jerry Hayes) offered no evidence against Mr Allan and the case against him ended. 

Brexit ~ Guidelines for Withdrawal negotiations Phase 2

Today (15th December) the European Council agreed that "sufficient progress" has been made on citizens' rights. Ireland and the financial settlement to permit negotiations to proceed to Phase 2.  The Council has issued its guidelines for this next phase:

European Council 15th December 2017 - Guidelines for Brexit negotiations - (or directly to the 4 page pdf - HERE).

Here are the key points:

The EU (Withdrawal) Bill amendment ~ don't get too excited

In what has been portrayed as a serious defeat for the government, the House of Commons voted 309 to 305 to amend Clause 9 of the European Union (Withdrawal) Bill.  See, for example, Sky News 14th December and BBC News 14th December.  The defeat may be embarrassing for Ministers but it is not likely to be too serious a setback.

As originally drafted, Clause 9(1) stated:

The Joint UK EU Report (4) - Euratom and Other points

On Friday 8th December, there was acceptance by the EU that "sufficient progress" had been made to allow talks to proceed further - Joint report from the negotiators of the EU and the UK government on progress during phase 1 of negotiations under Article 50 TEU on the UK's orderly withdrawal from the EU.  This post is the fourth and final post taking an overview of the Joint Report.

Agreement or understanding was reached on some other points as set out in paras 87 to 95.

The Joint UK-EU Report (3) - The money !

On Friday 8th December, there was acceptance by the EU that "sufficient progress" had been made to allow talks to proceed further - Joint report from the negotiators of the EU and the UK government on progress during phase 1 of negotiations under Article 50 TEU on the UK's orderly withdrawal from the EU.  This post looks at the Report in relation to the Financial Settlement.  It is covered in some detail in paras. 57 to 86 but a great deal remains to be worked out as negotiations proceed.

A methodology, with four parts, has been agreed for the financial settlement. 

The Joint UK-EU Report (2) - Ireland and Northern Ireland

On Friday 8th December, there was acceptance by the EU that "sufficient progress" had been made to allow talks to proceed further - Joint report from the negotiators of the EU and the UK government on progress during phase 1 of negotiations under Article 50 TEU on the UK's orderly withdrawal from the EU.  This post looks at the Report in relation to Ireland and Northern Ireland.

Background:

It was obvious even before the 2016 Referendum that the island of Ireland would present particular difficulties with Brexit which will result in a land border between a European Union Member State (the Republic of Ireland) and part of the United Kingdom (Northern Ireland).  Very few people ever truly wanted a "hard border" between the two along with all the necessary customs checks.

In her Lancaster House Speech (January 2017), Theresa May stated the wish to retain the "Common Travel Area":

The Joint UK-EU Report (1) - Those vital Citizens' Rights

On Friday 8th December, after what had clearly been difficult negotiations, there was acceptance by the EU that "sufficient progress" had been made to allow talks to proceed further - Joint report from the negotiators of the EU and the UK government on progress during phase 1 of negotiations under Article 50 TEU on the UK's orderly withdrawal from the EU.

The EU Commission does not have the final say on whether negotiations can proceed further.  That decision will be taken at the European Council meeting on 14th/15th December though it is generally thought that the Council will endorse the Joint Report.

• European Council (Art.50), 15 December 2017
• Statement by President Donald Tusk on the draft guidelines for the second phase of the Brexit negotiations (press release, 08/12/2017)
• Brexit (background information) 

This post looks at (A) the nature of the Joint Report; (B) Transition and (C) the Citizens' rights part of the Joint Report.

A REPORT and not a Withdrawal Agreement:

EU Negotiations ~ more information

As covered in the immediately preceding post, the European Commission has given its view that "sufficient progress" has been made in Phase 1 of the Brexit negotiations.  The agreement came following an intense few days of negotiations.  See Joint Report.

See also statement 8th December by Michel Barnier

The following material is also of importance:

Prime Minister's commitments to Northern Ireland

Example case studies: EU citizens' rights in the UK

Status of EU citizens in the UK: what you need to know

Statement 8th December by Donald Tusk (European Council President) on Draft Guidelines for Phase 2

"Sufficient progress" achieved with EU

Breakfast in Brussels

Updated 9th December - reaction in the media

It was announced this morning that the European Commission is of the opinion that "sufficient progress" has been over Citizens' rights, Northern Ireland and the financial settlement to permit talks to move forward.

See the European Commission Press Release

For the detail - Joint report from the negotiators of the EU and the UK government on progress during phase 1 of negotiations under Article 50 TEU on the UK's orderly withdrawal from the EU

The Commission's Press Release states:

Brexit ~ David Davis at Exiting EU Committee // Lords report on what if no deal.

One year ago today, the House of Commons held a debate entitled "The Government's Plan for Brexit."    The debate ended with a House of Commons Resolution -

Resolutions of House of Commons:

"That this House recognises that leaving the EU is the defining issue facing the UK; notes the resolution on parliamentary scrutiny of the UK leaving the EU agreed by the House on 12 October 2016; recognises that it is Parliament’s responsibility to properly scrutinise the Government while respecting the decision of the British people to leave the European Union; confirms that there should be no disclosure of material that could be reasonably judged to damage the UK in any negotiations to depart from the European Union after Article 50 has been triggered; and calls on the Prime Minister to commit to publishing the Government’s plan for leaving the EU before Article 50 is invoked, consistently with the principles agreed without division by this House on 12 October; recognises that this House should respect the wishes of the United Kingdom as expressed in the referendum on 23 June; and further calls on the Government to invoke Article 50 by 31 March 2017."

Monday 4th December - Brexit chaos

Updated

Monday 4th December looked like a day of chaos with the UK-EU Brexit negotiations.  The UK Prime Minister (Theresa May) was in Brussels for a meeting with the European Commission President (Mr Jean-Claude Juncker) and she hoped for an agreement which would avoid a "hard border" between Northern Ireland and the Republic of Ireland.   As the day progressed, news began to emerge that a formula had been found by which the UK would maintain "regulatory convergence" between Northern Ireland and the Republic and thus avoid the hard border that would be unacceptable to Dublin.  (The precise nature of this convergence was not spelled out).

An obvious problem

Mr Damian Green's Office Computer

Updated 20.50 hrs - Statement by HM Inspector of Constabulary

The Rt. Hon. Damian Green MP is First Secretary of State and Minister for the Cabinet Office in the present UK government.  His Wikipedia entry records - "Green entered Parliament in the 1997 election by winning the seat of Ashford in Kent.  He served in several shadow ministerial positions, including Transport Secretary and Immigration Minister.  Green came to national prominence in November 2008 after being arrested and having his parliamentary office raided by police, although no case was brought.  He was the Minister of State for Police and Criminal Justice until 14 July 2014. He was appointed as Secretary of State for Work and Pensions by Prime Minister Theresa May in July 2016. Following the June 2017 general election, he was appointed First Secretary of State and Minister for the Cabinet Office.

The Guardian 1st December 2017 reports

Financial settlement with EU - a note

December is with us and Brexit continues to dominate the headlines.  Here is a brief note on the vexed question of the financial settlement over which the EU and UK negotiators have been locking horns.

As far as I can see, the only publicly available details of any Financial Settlement arising on Brexit are those published by the EU earlier this year (12th June) - European Commission Position Paper which this blog took a brief look at HERE.

"The British have never wanted to turn the Union into a military power."

Two recent speeches by Michel Barnier (EU Chief Brexit Negotiator) are of interest: one is a speech is on the Future of the EU and the other on Security and Defence. This post is an overview of the speeches.

20th November:

First, on 20th November, Mr Barnier spoke to the Centre for European Reform (CER) on the Future of the EU which, as things stand, will not include the UK after 29th March 2019.  Mr Barnier made some key points in this speech:

Making a valid will - possibility of changes to the law ?

On 28th November, an interesting thread appeared on Twitter concerning WILLS.  The "tweeter" was barrister Barbara Rich (@BarbaraRich_law) who practices in the field of trusts, inheritance and the Court of Protection.

English Law is strict about the formalities normally required for an individual to make a valid will and these are set out in the Wills Act 1837 section 9.   In particular, the will is only valid if it is in writing, and signed by the testator, or by some other person in his presence and by his direction.  It must appear that the testator intended by his signature to give effect to the will and the signature has to have been made or acknowledged by the testator in the presence of two or more witnesses present at the same time.  Each witness must attest and sign the will.

The insistence

Brexit material and Parliament ~ Contempt?

There is some talk that the Secretary of State for Exiting the EU (Mr David Davis MP) might be in contempt of Parliament for failing to comply with the Humble Address of 1st November.

The Address stated: "That an humble Address be presented to Her Majesty, That she will be graciously pleased to give directions that the list of sectors analysed under the instruction of Her Majesty's Ministers, and referred to in the Answer of 26 June 2017 to Question 239, be laid before this House and that the impact assessments arising from those analyses be provided to the Committee on Exiting the European Union." (My emphasis).

Investigatory Powers Tribunal - Judicial Review excluded

The Investigatory Powers Tribunal (IPT) was created by the Regulation of Investigatory Powers Act 2000 Part IV - (RIPA).  The Tribunals' website states that it - " ... investigates and determines complaints which allege that public authorities or law enforcement agencies have unlawfully used covert techniques and infringed our right to privacy, as well as claims against the security and intelligence agencies for conduct which breaches a wider range of our human rights."  The law enforcement agencies referred to include the Security Services.  The Tribunal has helpfully provided links to the relevant legislation and Codes of Practice - HERE.

Misleading reporting - R v Douglas Addison

The BBC reported on the case of R v Douglas Addison heard at the Crown Court in Exeter - BBC News 21st November.  The report states:

"A husband has been found guilty of murdering his 88-year-old wife who was suffering with dementia.  Douglas Addison, 89, attacked Mary Addison with his walking stick and smothered her at their retirement bungalow in St Merryn, Cornwall, in February.  The former police officer, who also has dementia, was unable to cope with looking after his wife of 67 years.  He has been detained in a mental health facility.  Addison could not attend Exeter Crown Court or enter a plea due to his condition."

Mr Addison is NOT guilty of murder. 

International Court of Justice - UK loses seat

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations - UN Charter Chapter XIV.  The court operates according to its Statute and Judges serve for 9 year terms.  They may be re-elected by the United Nations. 

Judge Christopher Greenwood was elected to the court in November 2008 and was willing to be re-elected.  However, it became clear that he was not securing sufficient support within the UN General Assembly and his candidacy was withdrawn - The Guardian 20th November  and  BBC 21st November - How UK lost ICJ place to India

The result

The "sealed" will of HRH The Duke of Windsor

Royal Wills have been in the legal news this week - In the matter of HRH The Duke of Windsor (deceased) [2017] EWHC 2887 (Fam) - or via Bailii.   First of all, some background.  

Sealing of wills:

The Senior Courts Act 1981 section 124 requires wills under the control of the High Court in the Principal Registry or any district probate registry to be deposited and preserved and, subject to the control of the High Court and to probate rules, to be open to inspection.  The Non-contentious Probate Rules 1987 Rule 58 (NCPR) provides that an original will shall not be open to inspection if, in the opinion of a registrar, such inspection would be undesirable or otherwise inappropriate.  The words in blue are not amplified in the Rules so the question is raised as to when it may be undesirable or inappropriate to permit inspection. Where inspection is considered to be "undesirable or inappropriate" the will is "sealed" and will only be available for inspection if the High Court permits.

As we know from many recent events,

Dishonesty in Criminal Cases

Vicky Patterson worked as a cleaner for Simply Holidays, a company which owned property including two caravans at Beach Holiday Park, Kessingland, in Suffolk.  She was charged with two offences of theft of money paid to the company.  One offence was dated 4th March 2016 and the second dated 27th February 2017.  In both cases the amount in question was £140.  Magistrates at Great Yarmouth heard a submission of "no case to answer" and agreed that there was not a case to answer. The question for the High Court was whether the Magistrates were correct and it was held that they were not - CPS v Vicky Patterson [2017] EWHC 2820 (Admin) - Sir Brian Leveson P and Mrs Justice McGowan.

Grenfell Tower Inquiry - update

The Grenfell Tower Inquiry has published an update via the Inquiry website - HERE.  The update provides information about the progress of the Inquiry, community engagement activity, Core Participants, appointment of assessors to the Inquiry, Inquiry phases, evidence from resident, a procedural hearing to take place on 11 and 12 December 2017 and the venue in which the Inquiry intends to conduct its work

Three Assessors have been appointed - see the announcement and details of the appointees.  Assessors are appointed in accordance with the Inquiries Act 2005 section 11.  They are not part of the "Inquiry Panel" which is the Chairman alone (Sir Martin Moore-Bick).  The role of assessors includes:  taking part in Inquiry proceedings as requested by the Chairman;  providing suggested lines of questioning for witnesses to Counsel to the Inquiry; and providing assistance and advice on any other matter relevant to the Inquiry within their area of expertise.  Assessors do not give evidence to the Inquiry, nor are they asked questions or cross-examined at the Inquiry. 

Brexit Round 6 and promise of a EU (Withdrawal and Notification) Bill

The moment the 2 year period was triggered

Round 6 of the Brexit negotiations were held in Brussels on 9th and 10th November and concluded without any major breakthrough on either Citizens' rights, Northern Ireland or the Financial settlement.  The EU seeks agreement on those matters before it will discuss matters such as the future trading relationship.  The EU negotiators (Mr Michel Barnier et al) are bound by the Guidelines set by the European Council - (see post 1st May 2017).


End of round statements:

David Davis (Secretary of State for Exiting the EU)

Michel Barnier - Chief Negotiator

The "European Union Newsroom" is a useful site for information about Brexit

Statement to Parliament 13th November:


On 13th November, Mr Davis made a statement to the House of Commons - see Hansard 13th November.   See also Dept. for Exiting the EU announcement.  In his statement Mr Davis said:

Setting Brexit Day in stone? An unwise move. (Addendum 15th November)

Article 50 of the Treaty on European Union (TEU) and the European Union (Withdrawal) Bill are both in the news again as serious doubts are developing about the economic wisdom of Brexit.

Article 50 Notice:

Lord Kerr of Kinlochard, who was Britain’s permanent representative at the EU before becoming ambassador to the US,  drafted Article 50 TEU and has always been of the view that a notification under Article 50(2) may be unilaterally revoked by the State which gave the notice.  This point could easily have been dealt with when the Article was being drafted but, unfortunately, it was not.  Lord Kerr is now calling upon the government to publish any legal advice it has received from the Law Officers on this point - The Independent 10th November 2017.

The government

Brexit: The non-existent impact assessments demanded by the Humble Address

On 1st November the House of Commons voted to present this Humble Address to HM The Queen:

"That an humble Address be presented to Her Majesty, That she will be graciously pleased to give directions that the list of sectors analysed under the instruction of Her Majesty's Ministers, and referred to in the Answer of 26 June 2017 to Question 239, be laid before this House and that the impact assessments arising from those analyses be provided to the Committee on Exiting the European Union." [My emphasis].

The address was the outcome of the 1st November debate entitled Exiting the EU: Sectoral Impact Assessments.  Here is the Hansard record of the debate.  The phrase "impact assessments" is used throughout the debate by many members.  Nevertheless,

Voting for Prisoners - latest in the long-running saga

The Lord Chancellor and Secretary of State for Justice (David Lidington MP) was appointed after the June General Election (post 12th June).  One of the long-standing issues he inherited was that of whether prisoners (or some prisoners) should be allowed to vote.  The present ban is in the Representation of the People Act 1983 section 3 (as amended):

"A convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any parliamentary or local government election."

So far

"Fat Rascal" - a Registered Trade Mark

199 Steps Whitby

FAT RASCALS have been made in North Yorkshire and other places for many decades.  They may not be the ideal food for those seeking to maintain a trim figure but they are a delight to have in a pleasant cafe along with coffee or tea.  The website Foods of England informs us that the name "Fat Rascals" has been in use at least since the 1855 "Glossary of Yorkshire Words and Phrases Collected in Whitby and the Neighbourhood."  The BBC offers us a recipe and says here that they may have been made since Elizabethan times.

"An Humble Address" to Her Majesty - 1st November 2017

On Wednesday 1st November, the House of Commons debated Exiting the EU: Sectoral Impact Assessments.  The Opposition Motion was worded in archaic terms:

"That an humble Address be presented to Her Majesty, That she will be graciously pleased to give directions that the list of sectors analysed under the instruction of Her Majesty's Ministers, and referred to in the Answer of 26 June 2017 to Question 239, be laid before this House and that the impact assessments arising from those analyses be provided to the Committee on Exiting the European Union."

Roundup at Halloween 2017

Various stories at Halloween ... items in the news and on the blogs .....

Et Seq. is the blog of the Harvard Law School Library and they have offered this post about Halloween and the Law.  It's a great collection of links to other material including The Devil and Homer Simpson, the Salem Witch Trials and a discussion of whether the law in England requires sellers of houses to reveal the presence of ghosts!

There has been some speculation that the government may be about to move in the direction of allowing at least some prisoners to vote in elections - The Independent 29th October.  At the time of writing, nothing appears about it on the Ministry of Justice website.  The present ban is in the Representation of the People Act 1983 section 3.  Note also section 3A relating to offenders detained in mental hospitals.  See The Guardian 29th October.

The Academic Freedom of our Universities

Academic Freedom - "Without such freedom there would have been no Shakespeare, no Goethe, no Newton, no Faraday, no Pasteur, and no Lister" - Albert Einstein - Royal Albert Hall 5th October 1933.

Mr Chris Heaton-Harris is Member of Parliament for Daventry.  In June 2017 he was appointed to the post of Vice-Chamberlain of Her Majesty's Household and he describes his duties in that role on his website as well as stating very clearly his position regarding Brexit:

"The EU Referendum still divides public opinion, with feelings on both sides of the argument still running high. However, the majority of people acknowledge that the public gave their opinion in a free and fair referendum and that the outcome should be upheld. Theresa May has been clear that “Brexit means Brexit”, and there is no doubt that we are going to make a success of it. There must be no attempts to remain inside the EU, no attempts to re-join it through the back door and no second referendum. Given both the high turnout of the referendum and our 2015 election manifesto to “respect the outcome” of it, in my mind the Government has a crystal clear mandate to implement the result of the referendum and reflect the will of the British people."

Dishonesty ~ Important Supreme Court judgment

Updated 28th October ...

The Supreme Court has given unanimous judgment in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 - Lord Neuberger, Lady Hale, Lord Kerr, Lord Hughes, Lord Thomas.  (Youtube 25/10/17).  On appeal from the Court of Appeal (Civil Division) judgment - Neutral Citation [2016] EWCA Civ 1093.


When Gambling at Crockfords on 20th and 21st August 2012 Mr Ivey won in the region of £7.7m but the casino refused to pay because the game had been compromised due to a practice known as "edge sorting."  Mr Ivey openly admitted to using the practice at the time though he did not consider that what he did amounted to cheating.  The High Court (Mitting J) disagreed with Mr Ivey and held that he had cheated.  This decision was upheld by a majority in the Court of Appeal and, given that the contract for betting contained an implied term that neither party would cheat, Crockfords did not have to pay.