In the news - 20 January

The pandemic:

On 19 January the government announced in the House of Commons that many of the legal restrictions relating to the coronavirus pandemic are to be removed later in January but guidance will continue in place.  See the Prime Minister's statement - Covid-19 Update - Hansard - UK Parliament

BBC News 19 January - Face mask rules and Covid passes to end in England

There are grounds to believe that the Omicron variant may

have passed its peak but the infection rate  remains high and removal of legal requirements could yet prove to be premature - The Guardian 19 January - Removal of Covid rules in UK risks premature signal of victory

According to Government data  108,069 new infections were reported on 19 January and 1752 admissions to hospital. Deaths within 28 days of a positive test stood at 359 on 19 January and 1865 over the period 12 to 19 January.  The total number of deaths within 28 days of a positive test stands at 152,872.

Coronavirus (COVID-19) - Office for National Statistics (ons.gov.uk)

The BBC:

On Sunday 16 January there was an announcement that the Licence fee would be abolished from 2027 and its funding frozen for the next 2 years - The Guardian 16 January - Johnson accused of targeting BBC to save his permiership.

The matter was debated in the House of Commons on Monday 17 January - BBC Funding - Hansard - UK Parliament with the Speaker insisting (not for the first time) that policy announcements be made in the House before they are announced in the media.

This raises serious questions about the future of not only BBC funding but maybe the future shape of the whole BBC organisation as well as the future of events which operate under the aegis of the BBC such as the prestigious annual BBC Promenade Concerts..

The BBC operates under a Royal Charter - Charter and Agreement - About the BBC. The present Charter started on 1 January 2017 and lasts until 31 December 2027. The charter incorporates the BBC and defines the BBC's mission and how it is to be governed.

The Charter is formally approved by the Privy Council but usually after parliamentary scrutiny. See the interesting article by Robert Hazell on the Constitution Blog - The Privy Council and renewal of the BBC Charter | The Constitution Unit Blog

Sentencing powers of the Magistrates' Courts:

Magistrates' Courts are to be able to sentence offenders to up to 12 months imprisonment for a single imprisonable either-way offence - UK Government 18 January . 

The Magistrates' Association has welcomed the announcement - Magistrates' sentencing powers set to increase from six to 12 months (magistrates-association.org.uk). 

In 2016, the Justice Committee supported an extension of Magistrates' powers - Justice Select Committee backs 12 months sentencing powers (magistrates-association.org.uk) and see Justice Committee 2016 report - The role of the magistracy (parliament.uk)

Nonetheless, the proposal has not been entirely welcomed by some. Speaking on Radio 4's Today programme, Kirsty Brimelow QC (Vice Chair of the Criminal Bar Association) said that the prospect of being jailed for longer by a magistrate could see defendants elect to have their case heard by a crown court.  “The issue with a backlog, which was there before the pandemic, is not about sentencing powers – that’s really rearranging the deck chairs. It is about lack of investment in the criminal justice system… it needs money into the system, and it needs barristers who are actually going to prosecute and defend in these cases. And what we’re seeing is a huge attrition of barristers leaving the profession." 

Brimelow is correct in her complaint about the under-funding of criminal justice and the Crown Court backlog of cases was considerable before the pandemic.

Another serious concern is legal aid for representation in Magistrates' Courts. Both an interests of justice test and a means test apply. Assuming that the interests of justice test will be met for a trial of an either-way imprisonable offence, the means test will still exclude a significant number of defendants from legal aid for representation. There appears to be a failure by Ministers to recognise that competent legal representation can reduce the time taken by proceedings.

An Independent Review of Criminal Legal Aid reported in November 2021 - Independent Review of Criminal Legal Aid - GOV.UK (www.gov.uk). A government response is expected by the end of March 2022. Recommendation 11 of the report states - "(1) The existing Magistrates’ Court scheme should be retained, but remuneration increased in line with the general uplift in remuneration recommended above, (2) There should be a system of higher and lower standard fees for appeals and committals for sentence from the Magistrates’ Court to the Crown Court, (3) Committals for sentence should not be remunerated at less than the equivalent remuneration for a guilty plea in the Crown Court" 

and the report then stated - (4) I suggest for consideration (but I cannot formally recommend) that legal aid for a defendant committed for sentence to the Crown Court should depend on the Crown Court eligibility criteria rather than on the Magistrates’ Court criteria for eligibility."

Those recommendations appear to go nowhere near recommending adequate representation for trials in the Magistrates' Court. 

Jail and pregnant women:

Rona Epstein of the Coventry Law School  - The Guardian 18 January - How many more babies must die before England stops jailing pregnant women.  Epstein argues that, "whenever a pregnant woman is in court, a protocol should be activated to alert the court to issues concerning the need to protect pregnant women, mothers and their children." Further, "The starting point must be that no pregnant woman should be in custody. If custody is decided upon, the reasons must be stated and justified in open court."

Police, Crime, Sentencing and Courts Bill:

At a late stage in the parliamentary process, the government chose to introduce a considerable number of amendments to the Police, Crime, Sentencing and Courts Bill - Law and Lawyers: Limiting freedom to protest - late-in-the-day government amendments to Police, Crime, Sentencing and Courts Bill.

The late amendments were mainly concerned with placing restrictions on freedom to protest.

The government has been defeated on a number of those amendments - BBC News - Lords defeats for government's protest clamp-down plans

See the Lords debate and voting - Police, Crime, Sentencing and Courts Bill - Hansard - UK Parliament

The government's next steps are awaited.

Highway Code:

The Highway Code has been with us since the 1930s. Most drivers read the latest edition before their driving theory test and probably never look at it again ! (The theory test has been a feature since July 1996), Nevertheless, the Code is amended from time-to-time and the latest amendment will come into effect on 27 January 2022. 

The change follows a review of the Code  which resulted in recommendations to revise the Code. In early December, the planned changes were presented to Parliament. 

A list of the extensive changes to the Code is available HERE and Birchall Blackburn Law has published a useful article - What are the new Highway code rules?

Breaches of the Code can be relied upon in evidence in both criminal and civil proceedings - Road Traffic Act 1988 section 38(7).

Foreign Interference:

The Security Services issued an alert to Parliament stating that an individual - Christine Ching Kui Lee - had been knowingly engaged in political interference on behalf of the Chinese Communist Party. 

The Home Secretary made a statement in the House of Commons and a debate followed - Foreign Interference: Intelligence and Security - Hansard - UK Parliament.

The Minister said - "We will introduce new legislation to provide the security services and law enforcement agencies with the tools that they need to disrupt the full range of state threats."

Covid restrictions in Wales:

The UK Human Rights blog has drawn attention to a significant difference between coronavirus legislation in Wales and England - see

Police powers under Welsh COVID Regulations - UK Human Rights Blog

It is well-known that the 4 parts of the United Kingdom have made their own legislation but, in Wales, the Regulations contained a Police power of entry which, in some circumstances, permitted entry to homes to investigate breaches of the Covid regulations. No such powers were included in the English regulations.

Tort - claims by secondary victims:

Students wrestling with the law of tort will now have to consider - Paul & Ors v The Royal Wolverhampton NHS Trust [2022] EWCA Civ 12 (13 January 2022) where the Court of Appeal heard appeals in three cases.  

The court considered the circumstances in which a defendant to a clinical negligence claim can be held liable for psychiatric injury (or what used to be called nervous shock) caused to a close relative of the primary victim of that negligence. 

The basic facts in each of the cases were that the defendant was alleged to have failed to diagnose the primary victim's life-threatening condition. Some time after that negligent omission, the primary victim suffered a traumatic death. In two of the cases (Paul and Polmear), the shocking death occurred in the presence of the close relatives, causing them psychiatric injury. In the case of Purchase, the close relative came upon the primary victim immediately after her death, again causing her (the mother in that case) psychiatric injury. The question in each case was whether the necessary legal proximity existed between the defendant and the close relative (often referred to as the secondary victim).

The Court of Appeal was bound by House of Lords authority but was prepared to grant permission for an appeal to the UK Supreme Court.

Further articles of interest:

Judicial Power Project - Unlicensed law reformer? Lady Hale and the law of surrogacy.  Here is particularly critical look at Lady Hale's judgment in  Whittington Hospital NHS Trust v XX [2020] UKSC 14.  See also Whittington Hospital NHS Trust (Appellant) v XX (Respondent) - The Supreme Court.

This was a majority decision (Lady Hale, Lords Reed and Wilson) with Lords Reed and Carnwath dissenting.

Policy Exchange - The Attorney General and the Law / Politics Divide

Policy Exchange - an article by Professor John Finnis - "The unconstitutionality of the Supreme Court's prorogation judgment. 

Finnis sees the judgment - sometimes referred to as Miller 2 as - "a historic mistake, not a victory for fundamental principle. The next Parliament should exercise its authentic law-making sovereignty to reverse the Judgment’s misuse of judicial power."

The Dissolution and Calling of Parliament Bill seeks to do just that. The Bill seeks to revive prerogative powers to dissolve Parliament and to call a new Parliament. Also, the Bill will make the revived powers non-justiciable.

Prerogative powers technically are exercisable by the Crown but, in practice, are exercised on the advice of Ministers. The new Bill will thus enable the executive to close down Parliament and thereby remove the principal body capable of holding Ministers to account. There could be no challenge to that in the courts. Further, the courts will be prevented by statute from considering the limits or extent of the revived powers - (Clause 3c of the Bill). That goes beyond the position applicable to prerogative powers generally where it has been long recognised that the courts have the right to determine the extent of such powers - (Case of Proclamations 1610) - "the King hath no prerogative, but that which the law of the land allows him).

Law and Lawyers: Recent articles: Dissolution of Parliament ~ Judicial Review ~ Constitutional failings (obiterj.blogspot.com)

Blackmail:

Given the statement by William Wragg MP that some MPs may have been subjected to "blackmail" by government whips it is worth just noting the legal definition of that offence. The definition is in section 21 of the Theft Act 1968 and see Theft Act Offences | The Crown Prosecution Service (cps.gov.uk)

20 January 2022