Parliamentary Privilege and the expenses claims

In the post Money, Money, Money (below) the possibility of using parliamentary privilege as a defence to charges under the Theft Act 1968 s.17 was mentioned.  [The CPS had referred to that possibility in their press release].  The concern is that Article IX of the Bill of Rights 1689 might afford a defence - "That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament."  

Interesting observations about this possibility have been posted on the following excellent blogs:

Administratively Constitutional Law, or What is Parliament's Privilege
where it is argued (persuasively) that Parliamentary privilege would not protect those who have been charged.
and

More on Parliamentary Privilege.
where the views in 1998 of the Crown Prosecution Service are referred to.   Those views were to the effect that Article IX could act as a serious impediment to the effective prosecution of corruption and that the phrase "proceedings in Parliament" was "far from clear."

In 1999, Parliament itself published "Parliamentary Privilege - First Report."  This contains a detailed discussion of Article IX of the Bill of Rights 1689.  The report also made a number of recommendations which do not seem to have been actioned.  They included a call for Parliament to clarify the scope of the prohibition in Article IX and that the term "proceeding in Parliament" should be defined as was the case, since 1987, in Australia.

Be that as it may, Chapter 1 paragraph 12 of the 1999 report states in connection with Article IX - " .... Proceedings are broadly interpreted to mean what is said or done in the formal proceedings of either House or the committees of either House, together with conversations, letters and other documentation directly connected with those proceedings."

Surely, if that statement accurately reflects the law then there would be no defence to a criminal action based on a false expenses claim.  The purpose of Article IX must clearly be to enable members to conduct the key business of Parliament openly and candidly without fear of prosecution or civil action.  Broadly, the key business of Parliament is the enactment of legislation and the process of monitoring the executive and holding it to account.  The dropping of a piece of litter within the Palace of Westminster could hardly be a proceeding in Parliament and neither could be an evening's discussion in one of the bars about the merits of various brands of Scotch Whisky.  However, an MP questioning a witness before a Select Committee would clearly be a proceeding in Parliament and so would the raising of serious concerns in a debate in the Chamber.

It is perhaps a pity that Parliament did not act on the recommendations in the 1999 report but a common sense view of the matter ought to prevail.

Terrorist Assets: that which was legally void will be made valid

The Terrorist Asset-Freezing (Temporary Provisions) Bill is being rushed through Parliament.  It is discussed very well on the "Of Interest to Some Lawyers" blog.  The purpose of the Bill is to reverse the Supreme Court's decision in Her Majesty' Treasury v Ahmed [2010] UKSC 1 which was discussed on this blog 28th January (below).

This is an interesting legal situation - indeed it is rather a mess.  The legislation was declared void which means that it was void ab initio and therefore of no legal effect.  The purpose of the Bill is to render that lawful which was unlawful but there will not be retrospective criminal liability.  The Act will remain in force until the end of 2010 by which time, no doubt, further legislation will have been enacted.

The whole process casts some light on the little understood Privy Council which legislates by means of Orders in Council.  They are frequently used in Foreign Affairs and they receive very little parliamentary time.  In 2009, the Privy Council met 11 times with, typically, only a handful of Privy Councillors in attendance.  There was a considerable amount of law-making much of which is important though one cannot be so sure that everything is important - e.g. Orders approving the promotion of certain members of the Royal Family to the higher ranks of the Royal Navy (October 2009)!  Surely, there ought to be a requirement that any Order in Council be approved by Parliament within a stated time period.

This 2005 document describes the Privy Council as - "... an ancient and dignified instrument of government, which has its origins in the earliest days of the monarchy."  It might also be said that it has the appearance of a body which lacks democratic legitimacy in its law-making powers.

Addendum 10th February - Here is the Terrorist Asset-Freezing Act 2010.

Money, money, money ....

Money, money, money ….. a lot of stories are linked to it. Here are the lyrics to the well-known ABBA song. They seem to fit some of the news items currently in the media.

The Crown Prosecution Service has announced that 3 MPs and a Peer will be prosecuted under the Theft Act 1968 section 17 (“False Accounting”). The alleged offences relate to claims for expenses. The accused men are claiming that the Bill of Rights 1689 will protect them - Independent 6th February. Bill of Rights Article 9 - "That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament."

Next there is British Aerospace Systems. It would appear that the criminal investigations by the Serious Fraud Office are being halted under a “settlement” by which British Aerospace pay, in total, some £285 million. How this works is described in a Press release on the SFO website. This has been a lengthy and difficult matter. In December 2006 the Attorney-General stopped the SFO investigating allegations of corrupt dealings with Saudi Arabia - the "al Yamamah" deal.

We also see that the Bar Council is considering a judicial review of two consultations on Advocates Graduated Fees and Very High Cost Cases (VHCCs) which are being conducted by the Ministry of Justice (MoJ) and the Legal Services Commission (LSC) respectively. The Bar Council refer to the 9th Report (HC 322), the Public Accounts Committee which heavily criticised the MoJ and the LSC for the confusion and uncertainty about their respective roles in relation to legal aid, the absence of a clear strategic direction and poor management of legal aid changes at the Commission and the LSC’s lack of understanding of the legal services market. Maybe it is Parliament itself which ought to be bringing the responsible Ministers to heel?

Finally, we have all heard of the (now former) England Football team captain, John Terry. The idea of using a so-called “super injunction” to prevent publicity of his extra-marital affair came to an end before Mr Justice Tugendhat in Terry v Persons Unknown [2010] 119 (QB). No doubt we will hear more of this matter because it certainly sells newspapers!

If the need for all this money continues, we will need some more quantitative easing!

Addendum 7th February - In 1998-99, the meaning of "proceedings in Parliament" was considered by a Joint Committee on Parliamentary Privilege.   Report. 

Is this the way to do it?

It looks like this lady would have been better off if she had not offended at all - see Manchester Evening News.

I also liked the one about the burglar who left a mobile phone at the burgled property.  As Bystander points out, he is now in "the Scrubs."

There are occasions when one wonders if the Police have lost all sense of proportion as appears to be the case with the use of the Police aircraft to catch an offending motorist - again see Manchester Evening News. Why not use a military style drone instead? See Daily Mail 23rd January.

Then we have the story of Cherie Blair QC who, so it is said, suspended a man's 6 month prison sentence for 2 years because he was "devout."  His crime?  Well, he broke a man's jaw.  Technically speaking it looks like there were 2 assaults: one in a queue and one afterwards.  I suspect that there would have been mitigation including the fact that the offender had "no previous."  See The Times which reports - perhaps with a certain soupçon of schadenfreude, that Cherie is to face an investigation.

Finally, we see a certain amount of bizarre behind-the-scenes behaviour in connection with the appointment of the 12th Justice of the Supreme Court.  The Times has covered this story and see Of Interest to Some Lawyers and Charon QC.  This is an interesting story with the serious angle to it that the "powers that be" are far from getting this appointments process right.

Do we need a written constitution?

A written constitution seems to be an idea which is not going away. Gordon Brown raised it again yesterday (2nd February) in a speech to the IPPR.

Is this just an idea based on the simplistic notion that because almost everyone else has one then so must we? Will it actually increase the powers of the government and reduce the freedoms of the citizen or will the reverse of that apply? I am not persuaded that we need one. Even if we have one, what should be in it and what should be left out? If we get one, how would it be amended? Who tells us what it means? The USA has one but it hardly stopped the President opening Guantanamo Bay.

I would not entirely rule one out but I need a lot more persuasion of the need for it. Here is another person's view – Of Interest to Some Lawyers – blog.

Addendum 30th March:  The views of barrister Carl Gardner may be seen at Head of Legal.

Legal Aid shambles: Chilcot: European Arrest Warrants

With thanks to Wikicrimeline.

Attention is drawn to the Public Accounts Committee report about the shambles which is the Procurement of Legal Aid in England and Wales. The report is scathing.

The Legal Services Commission— spends £2.1 billion a year on buying civil and criminal legal aid, mainly from solicitors and barristers, and a further £125 million on administration.

…. the Ministry of Justice spends over £2 million a year itself on legal aid policy matters and on overseeing the Commission.

They also found that in 2008-9 some £25 million was overpaid to solicitors and that some barristers (notably QCs) can earn up to £1 million a year from publicly funded legal aid cases.

A lot of wasted money there. It could have been better spent on … well …. maybe legal aid for those who need it.

The Chilcot Iraq Inquiry continues. A lot of people see it as some form of court set up to allocate blame. That was never the intention and it is not a court and is not a statutory inquiry. There have been calls for a skilled cross-examiner who would act as “counsel to the inquiry.” That’s all very well but the whole thing would have become more legalistic with everyone who appeared being represented by a lawyer. Probably many of the things which people have felt able to say would not have been said for fear of any possible legal consequences. Overall, Chilcot has done a good job.

The European Arrest Warrant – This was discussed on this blog back in early January. Mr Mann has brought a challenge in the European Court of Human Rights but that court is now awaiting the outcome of a hearing before the UK Supreme Court. Even David Blunkett, who introduced the EAW, says that he did not foresee overuse of the powers. Really! Here is The Independent’s take on the story.

The right to bail: Is it disappearing or being whittled down?

A fundamental element of English criminal law and practice is that the accused is to be considered “innocent until proven guilty” before a court of law. The “presumption of innocence” is the foundation of the now very heavily amended Bail Act 1976. The Act begins with the defendant having a right to unconditional bail but bail may be refused in situations provided for in the Act – e.g. that there are substantial grounds to believe that the defendant would commit further offences.

From 1st February 2010 some further amendments to the Bail Act 1976 have come into force. This commencement order has activated sections 114 and 115 of the Coroners and Justice Act 2009.

Defendant is accused or convicted of an imprisonable offence: When considering whether to grant bail, a court has to consider a number of factors and section 114 has added new factors:

“if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would commit an offence while on bail, the risk that the defendant may do so by engaging in conduct that would, or would be likely to, cause physical or mental injury to any person other than the defendant,”

Defendant is charged with murder: Here, section 114 states:

“the defendant may not be granted bail unless the court is of the opinion that there is no significant risk of the defendant committing, while on bail, an offence that would, or would be likely to, cause physical or mental injury to any person other than the defendant.”

Section 115 – “A person charged with murder may not be granted bail except by order of a judge of the Crown Court.” This will apply whether the defendant is charged just with murder or with murder together with other offences.

Hence, the right of the magistrates’ court to grant bail in a murder case has gone. It would appear that where a defendant has a criminal record involving an offence or offences of violence then it will now be far more difficult for him to get bail and, after all, one of the best pointers to a person’s future conduct is their record and the record may be one of the few items of definite information available to the court making the bail decision.

These changes to the law are the government’s reaction to (a) the Weddell case and (b) the case of Peart. It is also worth noting the Swellings case.

Weddell was accused of the murder of his wife. He was bailed by a Crown Court Judge and went on to kill his mother-in-law and then himself.

Peart's was convicted of manslaughter on the basis of diminished responsibility. At the time that he killed Mr Whelan he was on bail, granted by the Crown Court, for burglary.

Swellings appeared before Warrington Magistrates Court charged with assault on a girl. At first bail was refused but later, having pleaded NOT guilty, he was bailed. The case went to the Crown Court where, some months later, Swellings pleaded guilty and was bailed pending sentence. During the evening of the same day, Swellings assaulted a man. A couple of days later, he was re-bailed in absence over assault on girl by Warrington Crown Court but was remanded in custody by Runcorn magistrates for the assault on the man. A further week later, on 10th August 2007, Swellings pleaded guilty at Warrington Magistrates’ Court to the assault on the man but was granted bail pending sentence. The same evening he, with two others, murdered Mr Garry Newlove.

The government’s reaction to these cases has been seen in some quarters as an over-reaction. The existing law was considered to be adequate. The Ministry of Justice consulted over their ideas to amend the law and 30 responses were received including several influential bodies such as Liberty and the Criminal Bar Association.

Liberty said:

"However, as we explain below we do not agree that there is any need for significant change to the current law. It remains unlikely that any person facing a murder charge would be granted bail. The two tragic high profile cases described in the consultation do not by themselves lead to a conclusion that the entire basis for bail determination needs to be overhauled."

See also the Criminal Bar Association Response

Apart from the political need to be seen to be always “tweaking” the criminal law, has this achieved any lessening of a risk that unforeseen will occur?

It is also somewhat difficult to see the rationale for removing the jurisdiction of magistrates to grant bail in a murder case where the bail application is made at the first (and normally only) appearance before the magistrates. However, once the case has been "sent" to the Crown Court then it seems proper that breaches of bail should be determined by the Crown Court and not by magistrates. Grants of bail by magistrates in murder cases were very rare and, even if granted, the right existed for the prosecution to appeal the decision to the Crown Court.

This change could be the portent of further changes to prevent magistrates giving bail in any case which is triable only by the Crown Court. After all, it will now appear to be illogical to continue to allow the magistrates the right to take a bail decision in a case where the defendant is charged not with murder but with, say, attempted murder or conspiracy to murder?

When charged with an an indictable only offence, the defendant makes a brief appearance before the Magistrates who are commanded to “send the case forthwith” to the Crown Court: Crime and Disorder Act 1998 s51. If they cannot even consider bail, as is now the situation in a murder case, then what remaining point is there in this brief appearance before the magistrates? Take them to a Judge and be done with it.