Lord Bingham of Cornhill KG

"Where law ends, tyranny begins" - John Locke 1690.

I would not presume to even attempt to write an obituary of Lord Bingham who died on 11th September.  In any event, to my mind, many distinguished writers have already done that with eloquence and they have amply expressed their admiration for a man who stood up for the rule of law and for what that means for everyone.  see, for example, The Guardian .   Apart from his judgments in court, Lord Bingham gave many excellent speeches.

In 2006, he spoke of The Rule of Law at Cambridge University and set out his views of what the rule of law entailed - see here.  The Rule of Law depended on "an unspoken but fundamental bargain between the individual and the state, the governed and the governor, by which both sacrifice a measure of freedom and power which they would otherwise enjoy".  Bingham analysed this into 8 sub-rules:

• The law has to be accessible - intelligible, clear and predictable
• Legal rights and liabilities should ordinarily be resolved by law and not discretion
• The law should apply equally to all except to the extent that objective differences justify otherwise
• The law must afford adequate protection of fundamental human rights
• There must be means to resolve, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties are unable to resolve
• Ministers and public officers at all levels must exercise their powers reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers
• Adjudicative procedures should be fair
• The state must comply with its obligations under international law.

Of course, it is debatable whether English law meets all of those criteria.  Nevertheless, Bingham's development of those sub-rules was a tour de force to which he returned, after his retirement as a judge, in his book "The Rule of Law" which should be required reading for all.

In 2008, he delivered the Grotius Lecture to the British Institute of International and Comparative Law and devoted much of it to a devastating analysis of the legal basis used by the British government to justify the Iraq War - see Telegraph.  Perhaps unsurprisingly, Jack Straw and Lord Goldsmith expressed their disagreement.

In March 2009, Lord Bingham addressed the Convention on Liberty - here.   He spoke of liberty and addressed threats to it arising from advances in technology and the serious concerns about security in the modern world.

In 2008, Bingham gave a judgment in R (Bancoult) v Foreign Secretary [2008] UKHL 61.  The case concerned the Chagos Islanders and their treatment at the hands of Britain.  His judgment is a model of clarity.  Article 9 of the British Indian Ocean Territory (Constitution) Order 2004 denied anyone a right of abode in the islands,  Bingham, dissenting, held this to be unlawful.  First, there was no prerogative power to make an Order in Council containing article 9.  However, if that was wrong, the article was (a) irrational (made for no good reason) and (b) was made in clear breach of a clear representation by the Secretary of State.

Perhaps Bingham's grand theme was that of rights and liberty.  " .... we are not, as we are sometimes seen, mere custodians of a body of arid prescriptive rules but are, with others, the guardians of an all but sacred flame  which animates and enlightens the society in which we live ...."

The UK Supreme Court blog has an eloquent tribute to Lord Bingham - here and see here what is said on behalf of the Justices of the Supreme Court.

Burglary: undue leniency and policing cuts

The latest sentencing statistics available are for 2008 and may be accessed on the Ministry of Justice website - here.  

The Telegraph 11th September said - "Revealed: not a single burglar gets maximum jail sentence".    The maximum sentence for burglary of a dwelling is 14 years and for other premises is 10 years - see here.


Where the offender is guilty of a third domestic burglary, then there may be a minimum sentence of 3 years but this can be quite readily avoided since the Powers of Criminal Courts (Sentencing) Act 2000 s.111 gives the judge a considerable discretion based on particular circumstances relating to the the offence or to the offender - see here.  It appears that, in 2008, there were 611 offenders in this category.  Only 145 of them received in excess of 3 years. 

The Court of Appeal recently set out new sentencing guidance in R v Saw [2009] EWCA Crim 1  Obviously, any effect of this judgment could not be reflected in the 2008 figures.  The Lord Chief Justice said - "The starting point must always - we emphasise, always - be that burglary of a home is a serious criminal offence,  The principle which must be grasped is that when we speak of dwelling house burglary, we are considering not only an offence against property, which it is, but also, and often more alarmingly and distressingly, an offence againts the person".  


Those who argue for more lenient sentencing often make the point that it is "being caught" which is the principal deterrent.  Against that, it could be argued that the chances of being caught are likely to reduced if, due to financial pressures for cuts in services, there are fewer front-line Police Officers.  Does this not make it even more important that those convicted of burglary face very tough sentencing?  See BBC 10th September and  London Evening Standard 10th September and Manchester Evening News 11th September.

The law of murder: implementation of further reform

For acts or omissions on or after 4th October 2010, there will be changes to the law of murder: see Coroners and Justice Act 2009 Part 2 Chapter 1.  The reforms relate to the partial defences to murder of diminished responsibility and provocation.  If successfully pleaded, these defences reduce the conviction to one of manslaughter.  There is also a reform to the law of Infanticide. The new law is well summarised by Anthony Edwards writing in the Law Society Gazette.

Diminished responsibility:

The new law of diminished responsibility refers to "abnormality of mental functioning" which has to arise from a "recognised medical condition".  This change allows for a wider spectrum of mental illness and enables the law to keep pace with developments in medical science.  The abnormality of mental functioning must have "substantially impaired" the defendant's ability to do "one or more" of three "things" which are:

• to understand the nature of his conduct; 

• to form a rational judgment; 

• to exercise self-control.  

Finally, the abnormality of mental functioning must provide an explanation for the defendant's acts or omissions in doing or being a party to the killing.  An abnormality of mental functioning will provide such an explanation if it causes, or is a significant contributory factor in causing, the defendant to carry out that conduct.  It will be for the defendant to establish this defence to the civil standard: balance of probabilities.

Loss of control:

The next reform is arguably more problematic.  The common law partial defence of provocation will be abolished and replaced by a new partial defence of "loss of control".

If the defendant's acts or omissions in doing or being a party to the killing resulted from the defendant's "loss of self control" then the defence may be available.  The loss of self control has to arise from a "qualifying trigger" AND a person of the defendant's sex and age, with a normal degree of tolerance and self-restraint and in "the circumstances of the defendant", might have reacted in the same or in a similar way to the defendant.  It will not matter whether or not the loss of control was sudden.  This latter point may be of help to those who final break after a lengthy period of abuse - often referred to as "slow burn" - see, as an example, the case of Kiranjit Ahluwalia.

The reference to "the circumstances of the defendant" is stated to be a reference to all of his circumstances other than those whose only relevance to his conduct is that they bear on his general capacity for tolerance or self-restraint.  This is not entirely clear and it will be interesting to see how the courts apply it.  (The explanatory notes may assist).

Where a defendant acted out of a "considered desire for revenge" then this defence will not be available.


Qualifying triggers:

The new law of "qualifying triggers" is complex.  A qualifying trigger may be the defendant's fear of "serious violence" from the victim against the defendant or another "identified person".  A further qualifying trigger is where the defendant's loss of self control was attributable to things done or said (or both) which constituted circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged.   There may be a combination of both triggers.  There are a number of limitations .  Fear of serious violence is to be disregarded to the extent that it was caused by a thing which the defendant incited to be done or said for the purpose of providing an excuse to use violence.  Further, a sense of being seriously wronged by a thing done or said is not justifiable if the defendant incited the thing to be done or said for the purpose of providing an excuse to use violence.  Finally, the fact that a thing done or said constituted sexual infidelity is to be disregarded.

Burden of proof for loss of self control:

The defence must raise "loss of control" by evidence.  Whether they have achieved this is a question for the trial judge.  If they have succeeded then the Crown must prove to the criminal standard that the defence is not made out. The statute indicates that it is a matter of law and for the judge to decide whether the defendant has sufficiently raised the issue.

These changes are far from easy to both interpret and apply.  Appellate decisions will doubtless result.


In some quarters, the reform of provocation law has been seen as driven by a political feminist agenda -see "An unjust, feminist view of murder" - Sunday Times 30th July 2008.

Three tiers of homicide - a further possible change?

It seems likely that further changes to the law of homicide will arise if, as seems likely, the government adopts the "three tier structure" put forward by the Law Commission.  The Guardian 8th September 2010 reported that the Director of Public Prosecutions is supporting such a change.  Homicide would then comprise first and second degree murder and manslaughter.  A degree of caution ought to be adopted here since the categories may prove, in practice, to be problematic and a degree of "under-charging" is a possibility - (as already occurs with the various degrees of assault).

It is disappointing that the new government has not opted for a thorough overhaul of the law of homicide.  Piecemeal reform is adding complexity to an already over complex situation.

Addendum - 9th September:  See "Murder by misnomers" - The Guardian - Afua Hirsch.
"Pressure grows for reform of murder law" - Ian Dunt in Politics.co.uk 8th September.

Addendum - 14th September:  "Calls for murder law reform may be ignored" - UK Human Rights Blog

Addendum - 20th September:  "Killing by Degrees" - interesting article on the need for fundamental reform, a need which has existed for many years.  Despite the massive amount of criminal justice legislation since the 1960s, the law of murder remains as defined by common law.

Addendum - 25th October:  "Homicide Reform under the CAJA 2009" - Rudi Fortson QC - Seminar held 16th October by the Criminal Bar Association of England and Wales.  This is a very detailed look at the reforms but ought to be read by all practitioners.

Update Addendum 17th January 2012:  The Court of Appeal Criminal Division - R v Clinton, Parker and Evans [2012] EWCA Crim 2 - Lord Judge CJ, Henriques and Gloster JJ.  The first appellate decision on the newly defined law of loss of control.

A welcome to a new website and a long needed idea ...

Halsbury's Law Exchange is a new and very welcome website which seeks to communicate to the government ideas on legal reform.  It will promote debate through papers, reports, events and media pieces.  The website includes a BLOG (Openminds), an OPINION FORUM and YOUR IDEAS may also be submitted.  The site is independent of government.

It is a fact that many hundreds of ideas have been submitted to the YOUR FREEDOM website which was set up by the coalition government but it is not yet possible to point to any resulting change to the law.  As a general rule, the public usually has law imposed on it and Halsbury's Law Exchange is a good step towards better public engagement in the legal process.

Another blog, dealing with family law matters, is Pinktape - an attractive site which is well worth a look.

Police Sergeant jailed for 6 months

Police Sergeant Mark Andrews of the Wiltshire Police has been jailed for 6 months for assault occasioning actual bodily harm to Pamela Somerville.  See The Guardian 7th September.  It appears that an appeal is likely.

Following the conviction of Andrews, a statement was issued by Wiltshire Police which may be read here. It is good to know that the Wiltshire Police "respect the decision of the court"!

Law and Lawyers looked at the exacting professional standards expected of the Police here.  Further blogging on this story may be read at David Allen Green's blog.

The Wiltshire Police sutody suites were inspected by HM Inspectorate of Prisons and HM Inspectorate of Constabulary in 2009 and their report is here.   Hopefully, they will continue to check on progress regarding implementation of the considerable number of recommendations which they made.  Also, I wonder whether other Forces will read the report and check to see how they measure up against the same recommendations?

Addendum:  Police Sergeant Andrews has been granted bail pending appeal against both conviction and sentence - see Guardian 13th September.

Is "Justice" in safe hands?

"Justice" is under serious threat.  Here is some of the evidence:

1). A massive cull of family law solicitors has been announced by the Legal Services Commission.  An article by family lawyer Marilyn Stowe describes the situation as a "bloody beheading" - see Solicitors Journal "Law will tear us apart" - 16th August 2010.  The cuts are savage.  To quote from the article - "Lawyers and their clients - the most vulnerable and the neediest clients - are on the receiving end of savage cuts and a mutilated service.  I can't help but reflect that the bankers who brought about this recession are reporting fat profits once more, but that desperate families in need can no longer have the access to justice to which they are entitled.  It leads one to wonder, in despair: does justice have any value at all?

A judicial review of the Legal Services Commission's decision-making has been brought by the Law Society and this will be heard on 21st September with judgment expected on 24th September - see Law Society 3rd September 2010.

Whilst this process of denial of justice to ordinary people continues apace, it seems that the Supreme Court is getting ready for a NINE judge hearing about a pre-nuptial agreement signed in Germany.  Does this matter really require a NINE member court?  The case is Radmacher v Granatino and the Court of Appeal judgment may be seen here.   Then there was the "cheat's charter" judgment in Tchenguiz v Imerman [2010] EWCA Civ 908.  The case concerned the confidentiality of information relating to the assets of divorcing couples.  Paragraph 88 of the judgment, with the notion of spouses having separate studies, makes one wonder just which planet some of the judges live on.  As ever, it is nice to know that justice, like the Ritz Hotel, is open to everyone.

2). The previous Labour government started the hatchet job on magistrates' courts and the axe has been taken up with relish by Kenneth Clarke.  The vast majority of criminal cases are dealt with by the magistrates' courts and access to such courts is essential.  The closures will mean that many victims and witnesses will have to travel further to get their cases heard.  The extended travel distances will inevitably result in more people failing to turn up on the day especially if, as seems likely, the usual attention is paid to wintry conditions on the roads.  The axeing of "local justice" will also have the effect of disengaging from the legal system those active citizens who care about things and who have been willing to give their time to serve as magistrates.

3). Legal aid in magistrates' courts is now at a minimal level since defendants have to pass both a means test AND an interests of justice test.  There are many cases in which the interests of justice test is met but the defendant's means exceed the very modest legal aid ceiling.  The result is more defendants trying to represent themselves and, in doing so, the appear to be coming to rely on dubious sources of law - see "Tricks and cheats are the price of culling legal aid" (Guardian 5th September 2010).

Legal aid in the Crown Court is also means tested under a scheme of the Labour government which the new coalition allowed to continue.  The Legal Services Commission is asking for comment about the implementation of this scheme.

4). Prison does not work is the other Kenneth Clarke mantra.  Of course, he was referring to short term prison sentences which it is claimed do little or nothing to rehabilitate offenders though society is given a short break from their activities.  Short term prison sentences are expensive.  The alternative is "community sentencing" but the various programmes have to be properly funded and resourced with experienced trained personnel.  There are serious concerns about both of those aspects- see the article by Ian Blair in the Guardian 6th September "So, prison's a party, is it?"   We seem to be in some danger of a worst of all worlds scenario: moving away from using imprisonment whilst not having an effective alternative.

The blue touchpaper: reflections on science and law.

For me, the story of the week was the debate triggered by Professor Stephen Hawking about "M-theory" and the creation of the universe.  Many of the world's leading religions became very defensive when challenged by his view that it was "not necessary to invoke God to light the blue touch paper and set the universe going" - ("The Grand Design" - Stephen Hawking and Leonard Mlodinov - Bantam Press 2010).  See Telegraph 3rd September - "Religious leaders dismiss 'God not needed' comments".  Hawking considers that the universe could have been created because there is a law of gravity which would cause the universe to create itself.  This is a fascinating debate and the views of Hawking are, as ever, both elegant and superbly expressed.

It is interesting to consider how physical science and law differ.  Science strives for strict explanation or proof.  The law does not usually have that luxury.  Based on the information available, a legal decision maker forms an opinion.  That may be an opinion that person A is guilty of some offence or that B and C are bound by a contract or that D acted in a negligent manner causing damage to E etc.  The "information available" (i.e. the evidence) may come from a multitude of sources though it is often from witnesses who observed some event.  The judges have set down various standards of proof for criminal and civil matters.  In criminal cases, guilt must be proved beyond a reasonable doubt.  In civil cases, proof on a balance of probabilities will suffice.  Those standards have been explained in a number of appellate decisions and, in the application of the standards, opinion may properly differ. The result is that law, unlike strict science, is more akin to a complex form of art which exists for the general good order of society in which it is necessary to be able to resolve disputes in a reasonable manner.

Whilst there is an important overlap between science and questions of proof in law - (e.g. as in the use of forensic evidence) - it seems that science has to pursue rigorous proof because its fundamental purpose is to seek to explain why things are.  The law exists for more practical purposes and this requires that, from time to time, there will be errors and proper processes must be in place to rectify, as far as possible, those errors.  However, the law cannot have the luxury of existing in pure theory but must exist with a degree of imperfection though this should never lead to complacency.

As ever, the reflections of readers are more than welcome ....