The Eyjafjallajokull glacier: volcanic activity in Iceland

Volcanaic activity in Iceland has resulted in a decision to "ground" most flights in/over U.K. airspace.  The activity is associated with the Eyjafjallajokull glacier.  The rights of many airline passengers affected by this could depend on the rather convoluted EU Regulation 261/2004.  EU Regulations are binding in the domestic law of EU Member States and do not require specific national legislation to implement them.  Further information is available via Europa and CAA.  What could happen to an aircraft caught by volcanic ash was demonstrated in 1982 by the Galunggung incident which did not end in disaster since it became possible (at a late stage) to regain some engine power.  See also KLM Flight 867 (Tokyo to Anchorage).

Restorative Justice ???

The Labour Party manifesto promises a "Restorative Justice Act" but, unfortunately, does not provide us with any detailed proposals.

Where ‘traditional justice’ is about punishing offenders for committing offences against the state, restorative justice is about offenders making amends directly to the people or organisations they have harmed.  The emphasis is therefore on repairing harm caused by crime.  It is claimed that restorative justice:

• gives victims a greater voice in the criminal justice system
• allows victims to receive an explanation and more meaningful reparation from offenders
• makes offenders accountable by allowing them to take responsibility for their actions
• builds community confidence that offenders are making amends for their wrong doing.

Is this an idea worth pursuing?  Here is the Home Office viewpoint.  See also Restorative Justice.  Some people will probably dismiss this out of hand as yet another criminal justice gimmick which amounts to going soft on criminals.  However, before doing so, it is worth noting that RJ is succesfully used in many countries.  As an example, see how well developed RJ is in New Zealand and also see Restorative Justice Online.

Referenda: is there a sudden conversion to them?

"Hold a referendum" is a frequently heard cry.  In the United Kingdom there has only ever been one national referendum.  It was held in 1975 to assess whether U.K. membership of what was then the European Economic Community (or "Common Market") had public support.  In the event, 67% (of a 65% turnout) supported membership.

No referendum was held prior to accession to the original Treaties of Rome.  The Conservative government (with Edward Heath as Prime Minister) signed up to the Treaties and the U.K. acceded to the Treaties by the European Communities Act 1972 which came into legal force on 1st January 1973.

The Labour Manifesto in 2005 promised the public a referendum on what was then referred to as the "European Constitution" but no referendum was ever held since the government argued that the Lisbon Treaty was not the same document at all.  Lisbon was presented by Lord Mandelson as a mere "tidying up exercise".  A more risible and patronising argument you would travel far to find.  Perhaps this shows that British politicians will only play lip-service to the idea of holding referenda.

The 2010 election manifestos of the 3 main parties are now available.  Each refers to holding referendums in a number of policy areas.

Labour: Alternative Voting to the Commons; Open-list PR for a reformed House of Lords; Regional Mayors (with London-style powers); Law-making powers for the Welsh Assembly.  Labour say that they would not join the "Euro" without a referendum.  They promise an "All Party Commission" to consider a written constitution but do not mention a referendum.  [Always presuming that other Parties would participate in such a commission].

Conservative: Local referenda on local issues (if 5% of local population "sign up"); a referendum on greater powers for the Welsh Assembly; amend the European Communities Act 1972 so that referenda would be required prior to any further transfer of powers to the EU.  (They say they will never enter the "euro" and would seek to prevent any future government doing so without a referendum).

Liberal Democrats: Say they remain committed to an "in/out" referendum the next time a British government signs up for fundamental change in the relationship between the UK and ther EU.  [Quite a few "weasel words" there].   In principle they believe in joining the Euro but promise a referendum.  However, the conditions are not yet right for entry.  [Will they ever be?].  The LibDems wish to see a written constitution to be prepared by a "Citizen's Convention" and to be approved by a referendum.

North of the Border, the Scottish Nationalists are still consulting about the holding of a referendum on further deovolution of powers to the Scottish Parliament.  See Draft Referendum (Scotland) Bill.  They say that this will be an "advisory referendum" which appears to mean that it will not have legislative effect but would send a message to politicians both in Edinburgh and London.

Referenda appear to be a good means of assessing public opinion on important issues.  They would widen democratic participation.  Of course, it is perhaps inevitable that politicians will seek to control the topics they will permit a referendum on.  Would they have ever dared to hold one on the death penalty? (Note: the death penalty is now unlawful in Europe so the question cannot arise today but could have done in the past).  Would they ever dare hold one on whether to be in or out of the EU?  A further problem is that a referendum really requires the question to be straightforward even if the issue is not.  Consider what the situation might be if a draft written constitution were presented - e.g. "Do you approve the constitution attached to this Ballot paper in its entirety?  Yes or No."  The problem would be that people would like parts of the proposal and dislike others.  How then do they determine vote?  Presumably, if you feel strongly enough against one aspect then you would have to vote against the entirety.

At election time, we see something of a conversion to the idea of holding referenda but will they happen?  I wonder why I am not holding my breath?

The Manifestos:   Labour ......   Conservative .....   Liberal Democrat

MPs to get legal aid.

It has been announced that the M.P.s charged in relation to their expenses claim will receive legal aid to pay for their defence - see Daily Mail 13th April.  Law and Lawyers has posted on this case before - see here.  Certain media headlines stated that M.P.s who claim to be "above the law" receive legal aid.  That is incorrect since the Bill of Rights and Parliamentary Privilege are part of the law.

The cuts in legal aid for criminal cases brought in by the Labour Government are severe.  Legal Representation in Magistrates' Courts is only provided if the defendant passes a means test AND the case passes the interests of justice test.  The introduction of means testing in Magistrates' Courts took place in October 2006 and was a reversal of government policy which has resulted in many having to appear before magistrates unrepresented.  In the first half of 2010, means testing is being introduced into the Crown Court.   Strictly speaking there is only ONE Crown Court for England and Wales though it sits in different locations but means testing is being introduced according to a "roll out" plan which may be seen at Legal Services Commission.  It will not apply to London until 28th June.  That is convenient for these MPs who are being tried by the Crown Court sitting at Southwark.  This method of introducing means testing appears to be particularly unfair.

Formal Powers of the Crown: New Acts of Parliament: General Election

Tuesday 6th April: Gordon Brown went to Buckingham Palace and asked H.M. The Queen to Dissolve  parliament.  She duly obliged.  A number of Bills were then passed into law as part of the so-called "wash up".  Each of those Bills quickly passed through any remaining stages in parliament and "Royal Assent" was formally given.  In practice, constitutional convention dictates that the Queen does not refuse a request to dissolve parliament or to give royal assent to a bill.

Some important legislation was passed as part of the "wash up" including:

Constitutional Reform and Governance Act 2010
Crime and Security Act 2010
Children Schools and Families Act 2010 - but see The Independent for what has been (controversially) left out of this Act
Bribery Act 2010
Digital Economy Act 2010 - see here
Flood and Water Management Act 2010- see also Pitt review
Energy Act 2010
Equality Act 2010

Some of these Acts are likely to have lasting repercussions and the "wash up" process has, in some instances, absolutely minimised parliamentary scrutiny of the legislation.  It will not be surprising if some of this new law  turns out to be very problematical.  The Acts make some important constitutional changes; deal with the controversial issue of retention of DNA profiles; aim to improve the U.K.'s "resilience" to flooding (which caused millions of pounds of damage in 2007); and the Digital Economy Act has been particularly attacked as handing the government the power to block internet sites that are "likely to be used for or in connection with an activity that infringes copyright."  See Out-Law.Com - "The legislative farce of the Digital Economy Bill".  A further problem is that important provisions relating to Personal, Social, Health and Economic (PSHE) Education were included in the Children, Schools and Families Bill but were dropped to enable the remainder of the Act to pass.  The proposals, which were controversial in some quarters, would have covered a considerable range of matters such as (a) alcohol, tobacco and other drugs; (b) emotional health and well-being; (c) sex and relationships; (d) nutrition and physical activity; (e) personal finance; (f) individual safety; (g) careers, business and economics.

The general election campaign is now getting into full flow and Political Party Manifestos will be published over the next week.  Interestingly, only one incumbent political party in the last 30 years has lost an election - (John Major in 1997).  The Labour Party enjoys a statistical advantage since voting for the House of Commons is based on "seats".  There is a view that the outcome of the election might be a "hung parliament" - that is a House of Commons in which no party has an outright majority of seats.  If that arises, there may be some difficult steps to be taken in the formation of the next government.  In those processes the Queen has a role.  Hopefully, she would seek to exercise her powers so as to reflect as well as possible the voting of the people.  Perhaps to allow for "negotiations" between the parties, the new Parliament will not meet until 20th May.

Baby P - just what is going on?

Baby-P died of his injuries on 3rd August 2007.  This appalling case dominated the headlines in late 2008 - see e.g. The Independent 18th November 2008.  The media spotlight fell particularly on Haringey Social Services and on Sharon Shoesmith who headed the department.  She was dismissed and is now challenging that dismissal in the courts - see Telegraph 7th October 2009.  It appears that OFSTED reports were amended - allegedly under pressure from Children's Minister (or his officials) - to remove criticism of the NHS and the Police and to concentrate solely or mainly on the failings of social services.  The Times 2nd April carries the story and in a further article sets out how the criticism of the NHS and the Police was removed.

It is often convenient to blame social services in these appalling cases and it is clear enough that there were serious failings in relation to Baby-P.    As those experienced with "child care" cases know all too well, local authority social services departments usually have high caseloads.  Money is tight and they frequently have a limited number of experienced social workers.  Also, social services are not the only agency which can be involved.  For instance, the Police and medical personnel are often involved with problem families.

What is needed here is a thorough and honest assessment of the roles played by everyone in this tragedy including the Department for Children, Schools and Families and its Minister (Mr. Ed Balls).  The memory of a little child who died of shocking injuries deserves no less.  The impression of scapegoating now exists and must be properly allayed.

Those directly responsible for Baby-Ps neglect and injuries are now serving imprisonment - BBC.  

Addendum 3rd April:  The Guardian reported that, according to an e-mail revealed in court, Police were aware that Jason Owens (one of those convicted) was living with Baby-P's mother.  Also, Ed Balls (Children's Minister) denied any involvement in the preparation of the report which he used as the reason to dismiss Shoesmith - see here.

An Easter Miscellany

This week saw a 66 year old shopkeeper fined and "tagged" by Trafford Magistrates' Court.  She pleaded guilty to two offences under the Animal Welfare Act 2006 - sections 4 and 11 - see Daily Mail - and the commentator Richard Littlejohn asserts that we are drowning in "regulations and jobsworths" and that the wrong people are being appointed as magistrates - see here.  (I disagree with the latter remark).  Magistrates use sentencing guidelines and the guidance for the section 4 offence may be seen at page 22 of this document. 

A rather more serious case was that of Police Sergeant Smellie who stood trial for assaulting a woman at the G20 protests in 2009.  The case was heard by a District Judge (Magistrates' Court) and he was acquitted on the basis of "self defence".  The Guardian carried an article by George Monbiot containing some trenchant criticism of this verdict.  It is to be noted that the female victim did not give evidence at the hearing.  "Self-defence", as is often pointed out, is not strictly a "defence" but it offers a justification for the defendant's conduct.  The defendant has to establish a basis that he acted in "self-defence" and it is then for the prosecution to show, beyond a reasonable doubt, that he did not act in self-defence.  The "perceptions" of the defendant at the time of the incident are also very relevant since he is judged according to the circumstances which he believed existed: R v Gladstone Williams 1984.  The amount of force used must have been "reasonable" in the circumstances.  That, in broad terms, is the law.  Having said this, I have some sympathy with the view of George Monbiot that Police Officers should not be tried by single judges.  There is an essential need for the public to see that the trial process is fair to all parties and for them to have confidence in it.  Monbiot argues that a jury should be used but juries are only used in the Crown Court.  As the law stands, the choice of court depends on the offence charged and, if the offence is "either-way", on the seriousness of the offence.  One possible alternative to a judge sitting alone might have been a judge sitting with two experienced lay magistrates (JPs) - a format which was successfully used here.

The various blogs have been busy this week. Jack of Kent has the interesting libel case of BCA v Singh [2010] EWCA Civ 350 which is concerned with "honest belief" and "fair comment".  Jack's blog has shown particular interest in this case - have a look.  The case has very important implications which are discussed here.   


Head of Legal has argued that now is not the time to go for a written constitution.  Of Interest to some lawyers has followed the machinations (involving Jack Straw) over the appointment of the Head of the High Court's Family Division and, in the end, Sir Nicholas Wall has been appointed.  The Magistrates' Blog has picked up on the appointment of a Victim's Commissioner and also on Allen v United Kingdom where the European Court of Human Rights has ruled that a defendant's rights under Article 5 were breached when a judge refused her request to attend a hearing about her bail.  There is a very outspoken opinion by Judge Bonello.   Charon QC - a most interesting and entertaining blog - has launched an excellent new publication- Insite Law Newswire - 1st Edition.

Easter now beckons and the garden needs tidying.  Have a good one and let's hope the weather picks up.

Addendum 1st May 2010:  The lady "tagged" for the "goldfish" offence has had her appeal against sentence heard.  The sentence was changed, very sensibly, to a conditional discharge.   See Manchester Evening News.