Tuesday 28 February 2017

Trial Jury discharged ~ Judge completed the case

Mr Justice Goss
In the Crown Court at Leeds, Mr Justice Goss found it necessary to discharge the jury in the trial of Sabir Hussain, Raja Hussain and Shahrear Islam Miah.   The defendants were charged with manslaughter arising from a staged collision on the roads which caused the death of Betty Laird (aged 88).  The collision was staged for the purposes of making fraudulent claims against insurers.

The jury was discharged because it came to light that there had been a concerted attempt to tamper with the jury.  In such a situation the trial judge has a power to discharge the jury and continue with the trial - Criminal Justice Act 2003 section 46.  The judge has to be satisfied that jury tampering has occurred and that to continue with the trial would be fair to the defendant(s).

Friday 24 February 2017

Advertisements for very senior judicial posts

There was a time when there were no advertisements for judicial posts.  Appointments were made by the Lord Chancellor following a secretive process. 

The Constitutional Reform Act 2005 has made a sea change in practice and now an advertisement for the vital role of Lord Chief Justice has appeared - Judicial Appointments Commission.  Interestingly, the advert states - "Notifications of intent to apply are invited from candidates who are able to serve for at least 4 years before retirement."  This 4 years requirement will certainly rule out one or two who might have been possible candidates.    In law there is no upper or lower age limit for candidates apart from the statutory retirement age of 70.  Nevertheless, the advert states - "Given the need to deliver significant Court reforms and to steer the judiciary through our exit from the EU, the successful candidate is expected to be able to serve for at least 4 years."

Wednesday 22 February 2017

Civil Partnership ~ the future?

Updated November 2019

The Court of Appeal has upheld the ban on heterosexual civil partnerships.

" ... Rebecca Steinfeld and Charles Keidan, are a young couple in a committed long-term relationship. They wish to formalise their relationship, but they have deep-rooted and genuine ideological objections to marriage based upon what they consider to be its historically patriarchal nature. They consider that the status of civil partnership would reflect their values and give due recognition to the equal nature of their relationship. Ms Steinfeld and Mr Keidan in good faith consider that marriage does not reflect the way in which they understand their commitment to each other or wish their relationship to be seen. Ms Steinfeld states in her witness statement that it is very important to them to have a civil partnership as the legal framework within which to raise their child as a CP would give their child a stable environment in which to grow up. They want their child to see the relationship as one of total equality reflecting the equal independent contribution which both parties make. They also desire the financial benefits of marriage and civil partnership, for example the rights of inheritance and relief from inheritance tax on death.  This would protect their child in the case of their premature death.  Moreover, they want their relationship to have the public recognition that registration as a civil partnership would bring."

Those were the words of Lady Justice Arden in the Court of Appeal (Civil Division) in Steinfeld and Keidan v Secretary of State for Education [2017] EWCA Civ 81 (Arden, Beatson and Briggs LJJ).

Tuesday 21 February 2017

House of Lords ~ EU (Notification of Withdrawal) Bill

On Monday 20th February the House of Lords commenced a two day second reading of the European Union (Notification of Withdrawal) Bill.  Proceedings may be seen via Parliament's website.  One notable matter was that the Prime Minister attended the debate and sat on the steps to the Throne.  Has that ever happened before?  It has attracted considerable comment and some criticism.  It appears that Privy Councillors have this right and that Mrs May attended in that capacity.  One lives and learns the quirks of our rather ancient constitution - see here!  One of the others sat there is Rt. Hon David Lidington MP - Leader of the House of Commons and Leader of the Council.  I don't know who the others are.

Update 22nd February:

Saturday 18 February 2017

Thursday 16 February 2017

Protecting Official Data (1)

The Law Commission, acting at the request of the Cabinet Office, has issued a detailed report on the Official Secrets Acts and has put forward provisional proposals for reforms. – Official Secrets Acts reviewed to meet the challenges of the 21st Century.    The report (Protection of Official Data) is available via the Commission’s website together with a summary and the Commission is consulting on the report.  The consultation period ends on 3rd April 2017.

The report has already met with considerable comment – for example -  International Business Times (Jason Murdock 2nd February), BBC News 2nd February,  The Guardian 13th February  (Shami Chakrabarti) and  Liberty 13th February.   Possibly in an attempt to distance itself from the proposals, the government commented that the proposals arose from a request by the previous government – The Guardian 13th February (Owen Bowcott and Rowena Mason) where it is reported that a No. 10 source said: “This is a consultation by an independent body instigated by a previous prime minister.” “It will never be our policy to restrict the freedom of investigative journalism or public service whistleblowing.”

Royal Wedding 2011 ~ Arrests held to be lawful

Almost 6 years after the events, the Supreme Court gave judgment in the case of Hicks and others v Commissioner of Police for the Metropolis  [2017] UKSC 9.   The case arose as a result of arrests made on the day of the Royal Wedding on 29th April 2011.  The arrests were based on prevention of public disorder.

The Supreme Court was concerned with Article 5 of the European Convention on Human Rights (ECHR).  Article 5 specifies the situations in which an individual may be deprived of liberty - see Article 5(1) and also note Article 5(3).  In particular, Article 5(1)(c) states:

"the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;"

For the purposes of the European Convention, a breach of the peace is considered to be an "offence" even though it is not classified as an offence under English law.

Tuesday 14 February 2017

The future of Combat Immunity

On 1st December 2016, the Ministry of Defence commenced a consultation which runs until 23rd February 2017 - "Better Combat Compensation" -  "The MOD plans to introduce a new compensation scheme for injured armed forces personnel and families of those killed in combat. Compensation would be paid at levels which a court would award, and are often substantially greater than the current Armed Forces Compensation Scheme.  Our proposals would mean many more individuals and families would benefit from these larger awards, and unnecessary legal costs, delay and stress associated with litigation could be avoided. At the same time, the government intends to legislate to clarify the scope of the common law principle of Combat Immunity."

See the Consultation Document (13 pages pdf).  The government considers that it already has powers, under the Armed Forces (Pensions and Compensation Scheme) Act 2004, to set up the scheme and it said that the new scheme will work in parallel with the existing Armed Forces Compensation Scheme.  The way in which combat immunity will be defined is discussed in Section 2 of the Consultation Document.  The proposals would prevent courts from adjudicating on allegations that injury or death in the course of combat were the result of negligence.  Cases not arising from combat (as defined) will remain open to legal action in the courts.

The proposed scheme appears to be closely based on this article by Dr Jonathan Morgan (Cambridge University) - Military negligence: Reforming Tort Liability after Smith v Ministry of Defence.

Saturday 11 February 2017

Iraq - the story continues

The aftermath of the UK's involvement in Iraq continues to unfold.

The Solicitors Disciplinary Tribunal decided that Mr Shiner, from the now defunct firm Public Interest Lawyers (PIL), was to be struck off the roll of solicitors - BBC News 2nd February 2017 - Iraq Lawyer Phil Shiner struck off over misconduct.   The BBC article reports that 12 charges of misconduct were proved against Mr Shiner and that in five of the proved charges he was found to have acted dishonestly, including agreeing to pay "sweeteners" to a fixer - named only as "Z" in tribunal papers to persuade him to change his evidence to the £31m Al-Sweady Inquiry.

Thursday 9 February 2017

European Union (Notification of Withdrawal) Bill in the Lords

The European Union (Notification of Withdrawal) Bill proceedings in the Commons may have highlighted points of concern that could come back to haunt at a later date but the Bill passed without amendment through the Commons and received First Reading in the Lords on 8th February.   Second reading of the Bill will take place over 20th and 21st February.  See Parliament - EU (Notification of Withdrawal) Bill.

Already, there have been political noises that the Lords had best not take a stand against the Bill if it values its future!  The actual stance to be taken in the Lords remains to be seen but it can be noted that, by the so-called Salisbury Convention, the Lords will not vote down a Bill that seeks to enact a manifesto pledge on which a government was elected.

Thursday 2 February 2017

Brexit - the White Paper

Update - Addendum 4th February

The day AFTER the conclusion of the Second Reading of the European Union (Notification of Withdrawal) Bill, the government published the White Paper - The United Kingdom's Exit from and Partnership with the European Union.   There are 12 key areas - Express - Brexit paper reveals UK plan:

●      Providing certainty and clarity where we can as we approach the negotiations.
●      Taking control of our own laws and statute book.
●      Strengthening the Union by securing a deal that works for the whole of the UK.
●      Maintaining the Common Travel Area and protecting our strong historic ties with Ireland.
●      Controlling immigration from the EU.
●      Securing the rights for EU citizens already living in the UK and the rights of UK nationals living in the EU.
●      Protecting and enhancing existing workers’ rights.
●      Ensuring free trade with European markets whilst forging a new strategic partnership with the EU.
●      Forging ambitious free trade agreements with other countries across the world.
●      Ensuring the United Kingdom remains the best place for science and innovation.
●      Cooperating in the fight against crime and terrorism.
●      And, finally, delivering a smooth, orderly exit from the EU.

Addendum 4th February: