Shaken Baby Syndrome

The Court of Appeal (Criminal Division) has given judgment in three appeals involving the death of a baby - see Henderson, Butler, Oyediran v R [2010] EWCA Crim 1269. These are very difficult and emotional cases in which a jury often has to weigh conflicting expert medical evidence.  Whilst the jury remains the fact-finding body, the jurors will receive direction from the judge.  According to the court, there are two necessary elements in the jury direction: [1] not to overlook a realistic possibility of there being an unknown cause and [2] how to handle conflicting medical evidence.  See paragraphs 217 and 218 of the judgment.

A Changing Legal World

In December 2004, Sir David Clementi completed his review of the provision of legal services.  The eventual outcome was the  Legal Services Act 2007 some of which has already been implemented with more to come later in 2010 and in 2011.  The aim of the Act is to liberalise and regulate the market for legal services and to encourage competition between law providers.

 Three fundamental reforms are built into the Act:

1. Legal Disciplinary Practices - see Law Society and Law Gazette (Bar sanctions LDPs)
2. The creation of a Legal Services Board (to oversee regulation of all branches of the legal profession) and an Office for Legal Complaints (operating an Ombudsman Scheme).
3. Alternative Business Structures (ABS) and their licensing. ABS will enable different professionals to join together in the provision of services.  External ownership of legal businesses (e.g. by flotation on the stock exchange etc) will be possible.  See also Legal Week 23rd February 2010 - "LSB greenlights ABS for 2011 launch"

On top of all these changes, the Solicitors Regulation Authority (SRA) is looking at changing the method of regulation to one which focusses on "outcomes" as opposed to mere compliance with rules - see SRA.

The changes are far-reaching and complex and the above is, of necessity, a mere outline.   Criticisms exist - e.g. is there really a need for so many regulatory bodies?  Potentially, there are considerable benefits for both lawyers and the public.  External investment in law businesses will become possible and enable expansion to be funded.  The public should benefit as a result of competition for services.  At least, that is the theory.  The views of readers on this would be most welcome.

Police Sergeant Smellie: the IPCC reports

The Independent Police Complaints Commission (IPCC) report into complaints against Police Sergeant Smellie at the G20 protests has been published - see here.   Earlier this year, Sergeant Smellie was acquitted by a District Judge (Magistrates' Courts) - see Easter Miscellany.  The lady who was struck by Smellie did not give evidence at his trial.  Has justice been achieved here?  According to law it has.  Further report on BBC.

Judges and Inquiries

From time-to-time the use of Judges to chair inquiries has been criticised but their use has continued.  Writing in The Times (17th June - "The high price to be paid if judges examine our historical events") Lord Pannick QC points out that Ministers choose judges because they are skilled in making findings on complex factual issues.  Also, their impartiality makes it more likely that their conclusions will command widespread support.  However, Pannick argues that there may be a high price to pay if ministers ask judges to investigate "controversial historical events" - the obvious example being Bloody Sunday.  The involvement of the judiciary in such cases risks damaging judicial impartiality and undermining confidence in the judiciary by all sections of the community.  He further argues that politically sensitive disputes are not readily amenable to resolution by a judicial process.  Pannick concludes that "Government should be very slow to ask a judge to conduct such an inquiry in the future".

The views of Lord Pannick always merit respect.  However, is he right?  I am not so sure, if only because the use of judges is probably unavoidable.  Since the outcome of an inquiry can have serious legal consequences for individuals it is only natural that they seek to be legally represented and representation is often by Queens Counsel.  The Saville Inquiry itself may yet tilt the balance in favour of prosecutions.  It is difficult to see how a non-judge chairman could handle an inquiry if such an array of lawyers were to be involved.  A further point is that, at several stages in the Saville Inquiry, there were legal submissions (e.g. relating to anonymity for soldiers giving evidence (Saville was overruled on judicial review); standard of proof to be applied etc.).  Those require the attention of a judge.


A number of other Inquiries are on-going in Northern Ireland: Robert Hamill Inquiry; Billy Wright Inquiry.  Both are chaired by retired judges but have "lay" members and both have been proceeding since 2004.  A planned inquiry into the death of Belfast based human rights lawyer Mr Patrick Finucane did not proceed because the family objected to it being held under the Inquiries Act 2005, a view very much supported by Amnesty.  [Their trenchant criticism of the 2005 Act is important reading for any serious student of the law].

Another on-going inquiry is The Baha Mousa Inquiry which is currently sitting in London under the chairmanship of a retired Lord Justice of Appeal - Sir William Gage.  This concerns Baha Mousa who died in Basra whilst under the control of British Armed Forces.  In Al-Skeini [2007] UKHL 26 it was held that the Human Rights Act 1998 applied to such detainees.  One of the beneficial aspects of the Human Rights Act 1998 has been to dispel a considerable amount of the secrecy which used to surround all activities of the military. Without the Act it seems likely that the death of Mousa would have been swept under the carpet.

Prior to the general election there was much talk of sweeping away the HRA 1998 but, now they are faced with the realities of government, there appears to be less talk along those lines.  The Act should be defended and any changes only made with the greatest of care.  The Act is the major legal achievement of the Labour years and has acted as very civilising influence on English law.

Link to General Information about Public Inquiries.

Note: Regret that a link to Lord Pannick's article in The Times cannot be provided as The Times is now behind a "pay-wall".

Vetting and Barring Scheme to be "remodelled"

The government has stopped the requirement for registration with the Vetting and Barring Scheme.  They plan to review and remodel the scheme which they see as bureaucratic and disproportionate.  It is argued that the scheme has advesely affected the numbers of people coming forward to those voluntary organisations working with children or providing activities for them.  See Home Office for full details.  It is important to note that most of the child protection arrangements remain in place and are not affected by this decision - see the earlier Home Office link.

The Saville (Bloody Sunday) Report is issued

The Bloody Sunday Inquiry has issued its report and has found the 14 people who died that day to be innocent victims.   David Cameron's speech in Parliament may be viewed via BBC.  Mr Cameron stated Saville's principal findings and offered a clear apology to the families for what had happened.

Here are links:


Full Report - 10 volumes

The three Tribunal members opted to allow the report to speak for itself.

Addendum 16th June: - The Principal Conclusions document has 9 Chapters.  Chapters 6 to 9 offer a detailed account of  much of the history of Northern Ireland from the Government of Ireland Act 1920 to the weeks just prior to 30th January 1972.  The Chapters are replete with hyperlinks to more detailed references and these Chapters merit a full reading in order to obtain a fuller understanding of the situation which came about in Northern Ireland. 

Chapters 1 and 2 essentially set out the background to the Inquiry.  The events of the day and responsibility for the deaths are addressed in Chapters 3-5.   The findings speak for themselves.  What the future holds now remains to be seen.  There are some voices calling for prosecutions of some of the soldiers.  There are other voices fearing that the concentration by the report on the one event will lead to a kind of "hierarchy of victims" most of which will not have had their deaths investigated as thoroughly - (but see Historical Enquiries Team).  It is to be hoped that this report will go some way to assisting the process of reconciliation which is so necessary if Northern Ireland is to prosper in the future.

Addendum 16th June: - The UK Human Rights Blog has taken an interesting look at "Bloody Sunday, Human Rights and the duty to investigate deaths".   Of course, Article 2 of the European Convention on Human Rights existed at the time of Bloody Sunday but what is now different is the clear obligation on States, which is implicit in Article 2, to carry out a thorough investigation.  This is sometimes referred to as the "procedural aspect" of Article 2.  The duty to investigate was set out by the European Court of Human Rights in McCann v U.K. (1996) 21 EHRR 97 and was clearly incorporated in English law by the House of Lords in R (Amin) Home Secretary [2003] UKHL 51.

Coroners have to investigate "how, when and where the deceased came by his death".  The House of Lords has ruled that the word "how" includes "by what means" AND "in what circumstances" - R (Middleton) v West Somerset Coroner [2004] UKHL 10.
  
These developments provide a good example of how, over recent years, Human Rights law has improved the situation within the U.K.

Bloody Sunday Inquiry - Standard of Proof

Central to the Bloody Sunday Inquiry is the question whether the shooting of civilians by soldiers was justified.

In 2004, the Inquiry was asked to make a ruling as to the standard of proof which would be applied.  The ruling may be read here.

An inquiry is a fact-finding exercise and does not determine criminal or civil liability.  In making its findings, the Saville Inquiry was not persuaded to apply the criminal standard of proof (or any enhanced civil standard of proof - see note below).  It was decided, very much in line with the approach taken by other inquiries such as Shipman, that reasoned conclusions on the evidence would be stated together with the degree of confidence or certainty with which a conclusion had been reached.

Note: In recent years there has been controversy over the standard of proof applicable to civil cases.  This was not put to rest until 2008 with the cases of Re Doherty [2008] UKHL33 and Re B (Children) [2008] UKHL 35.  There is the one civil standard (balance of probabilities) which is to be applied with some flexibility according to the seriousness of the allegations.  The ruling of the Saville Inquiry (above) avoided this debate.