Early December collection ... Are juries under threat; Parliament; Assisted Dying; Victims and a naughty Santa Claus

As an interesting but snowbound week draws to a close, here is further news of legal interest.  (Painting "Winter Breakfast" by Joseph Farquharson 1846-1935).

An article by Rachel Rothwell published in The Law Society Gazette argues that trial by jury is under threat from none other than the judges - "Is trial by jury under pressure from judges?"  This follows a speech by Lord Justice Moses to the effect that trial judges should give the jury a list of questions leading them to a verdict.  Moses LJ has the view that too many expensive appeals are based on the judge's direction to the jury.  The full speech by Moses LJ may be read at "Annual Law Reform Lecture - Inner Temple Hall - 23rd November 2010."

Whilst it may not be very "sexy", the important Budget Responsibility and National Audit Bill is before Parliament.  Readers may recall that, on 17th May 2010, the coalition government set up an Office for Budget Responsibility (OBR).  This Bill will place the office on a statutory basis and define its role.  It will be led by a 3 person Budget Responsibility Committee appointed by the Chancellor of the Exchequer with the consent of the Treasury Select Committee.  The Bill goes on to modernise the National Audit Office's "governance."  The post of Comptroller and Auditor-General will continue but holders of the office will be limited to 10 years.

Joshua Rozenberg, writing in The Guardian, looked at the House of Lords debate on the Parliamentary Voting System and Constituencies Bill - see here for the article.   According to the Daily Mail (4th December) the government will introduce a House of Lords reform Bill in the New Year.  The Bill will replace the present House of Lords by a House of some 300 "senators" elected by proportional representation.  This may be some time coming since it seems that the Bill will be discussed by a Joint Committee of the two present Houses before it enters the legislative process proper.  Meanwhile, the creation of further peerages continues - BBC 19th November bringing the membership of the Lords to around 750.

A "Commission on Assisted Dying" has been formed under the leadership of former Lord Chancellor Falconer.  He was the last of the "old style" Lords Chancellor and was, by virtue of the post, Head of the Judiciary; presided over the House of Lords and also a Government Minister.  He opted not to exercise his right to preside over the House of Lords Appellate Committee (now replaced by the Supreme Court of the UK).  The post was reformed by the Constitutional Reform Act 2005.   Details of the Commission may be read on the Solicitors Journal website.  This commission is not a government appointed investigation.  It operates under the aegis of the "think tank" organisation Demos.  However, there seems little doubt that any report it produces might be very influential in eventually amending the law.  See the Commission's website which invites interested persons to give evidence.  The final case decided by the House of Lords was R (Purdy) v DPP [2009] UKHL 45 when their Lordships directed the DPP to draw up a policy relating to prosecutions under the Suicide Act 1961 s2(1).

Frequently, the victims of violent crime or the families of victims seem to be given little consideration by the authorities.  A thought-provoking item appeared in the Daily Mail 3rd December about Frances Lawrence, widow of Philip Lawrence who was murdered in 1995 by Learco Chindamo.  Just how much information (if any) should surviving relatives be given about killers who have been released?

Finally, for some light relief see BabyBarista which continues "a worm's eye view of the English Bar" in fine style and a video of a certain Santa Claus behaving badly may be seen at CharonQC but it is strictly adults only and for viewing after the "watershed."  You have been warned !

(1) Mr Woolas remains excluded from Parliament: (2) Mr David Chaytor - former MP - pleads guilty

Former MP and Minister Mr. Philip J Woolas remains excluded from Parliament after the Administrative Court gave judgment in a judicial review of the Parliamentary Election Court's earlier decision.  The court's judgment surveys the history of jurisdiction in this area; emphasizes the point that the court has a limited role (given to it by Parliament) in ruling on election petitions and decides (for the first time) that a Parliamentary Election Court is susceptible to judicial review.  This case is a "must read" for students of our constitution - R (Woolas) v The Parliamentary Election Court and others [2010] EWHC 3169 (Admin).  One of the findings of fact (against Mr Woolas) made by the election court was set aside.

It is reported that Mr David Chaytor, the former MP charged with false accounting in relation to parliamentary expenses has now entered a guilty plea - Telegraph 3rd December 2011.  He will be sentenced in January.

Addendum 3rd December 2010:  For an interesting perspective on the Woolas case see Head of Legal blog - "Woolas loses - by a worrying whisker."

Speech by Coleridge J - "Let's hear it for the child ...."

In late November, Mr Justice Coleridge addressed the Association of Lawyers for Children at their 21st Annual Conference.  His speech may be read here and Coleridge J stated that he was expressing his own views though he added that some other judges agreed with him.  It is not the first time that Coleridge J has been outspoken about the effects of family breakdown - see BBC 5th April 2008.   He expressed views about maintaining the authority of the family courts; about "suspended residence orders" which he "invented" and which have since received Court of Appeal approval; and about the need to enforce court orders which he illustrated by talking about contact disputes between parents.

On the enforcement of contact orders see Re L-W (children) [2010] EWCA Civ 1253 - judgment of Munby LJ.   The final words of Sedley LJ are pertinent - "The law does its best in the absence of other means, and modern legislation has done what it can to make the law's own means practical and fair; but the law is not omnicompetent, perhaps most of all when, equipped only with its received or inherent powers, it is called on to intervene in the subtle and unpredictable business of child care and human relations."

Family Justice Review - see Ministry of Justice

Elected Police Commissioners. Is this a good move?

The previous post on this blog took an early overview of the Police Reform and Social Responsibility Bill presented to Parliament on 1st December.  Existing Police Authorities will be abolished and there will be elected Police and Crime Commissioners.  There will also be Police and Crime Panels which will be set up by local authorities.

One may wonder why all of this is seen as so essential at a time when Police Forces have stopped recruiting new officers and are enforcing the retirement of the most experienced officers.  (As an example see BBC report regarding Greater Manchester Police).  The government claims that it will improve the democratic accountability of the Police given that the Commissioners will be elected and the Panels will comprise elected local councillors.  (Police Authorities are mainly Councillors anyway).  According to the Home Office it will put the public at the heart of the fight against crime.

The system proposed by the Bill will hardly be less bureaucratic and its implementation will be very costly.  The Police and Crime Panels will be made up of local councillors but, because local authority and police area boundaries overlap, each Police and Crime Commissioner will be subject to a cumbersome structure of scrutiny by a panel made up of councillors from each of the local authorities involved with the police area.

During October 2010, the Commons Home Affairs Committee heard evidence about the proposals and issued their report "Policing: Police and Crime Commissioners."  A Press Release issued on behalf of the committee indicates briefly some of their concerns - here - including recognition of the point that one of the more likely sources of applicants for Commissioner posts will be from senior Police Officers.  The committee suggests that such officers should have a "cooling off period" of 4 years before being eligible for election.  If that were not the case, an ex-Chief Constable might be elected commissioner and then have to sit in judgment on some of his own previous decisions.

The Association of Police Authorities is, perhaps inevitably, opposing the proposals.  Nevertheless, their measured response is worthy of considerable respect and may be seen via their website - Assoc. of Police Authorities.  They also refer to an independent financial analysis of the proposals which clearly involve huge costs - see here on their website.
 
It has also been reported (The Times 2nd December) that several former Metropolitan Police Commissioners are in opposition to the plans.  Lord Stevens has said - "...... big cuts (are) coming to police resources.  Is this really the time to be doing this?"  Lord Imbert does not think it right that one person alone can hire or fire a chief constable" since Police chiefs could be put under pressure to take decisions that suited a Commissioner from a particular political party.  Lord Condon said that he would test the legislation in the House of Lords to ensure that it did not threaten the character of British policing.  "The whole basis of policing is the independence of the office of constable.  Whether it is the PC on the beat or the chief constable, no politician can tell him to use his powers in a particular way.  That historical legacy, a covenant with the public that those awesome powers will be used independently of politics, is uniquely British and must be preserved."

A further interesting interview may be viewed via Youtube in which Bill Bratton (a former Police Commissioner in both New York and Los Angeles) is interviewed along with Cllr. Rob Garnham (Chair of the Association of Police Authorities).  Mr Bratton has also been interviewed by the Home Affairs Committee - here.

The Association of Chief Police Officers states that how the Police are subjected to democratic oversight is a matter for Parliament but they raised practical points with the government during the consultation - see here.  Beyond that they reserved further comment.

This Bill seems to be a change which will achieve not very much but will entail excessive election and transition costs and it is being introduced at a time when, according to the government itself, we are in a desperate financial climate.  Sensible?  Probably not.  As ever, constructive comments are welcome.

Police Reform and Social Responsibility Bill - Brief first look

In July 2010 the Home Secretary issued a consultation "Policing in the 21st century: Reconnecting Policing and People" - Home Office website.  A Police Reform and Social Responsibility Bill has now been introduced into Parliament.  The full Bill may be read here and Explanatory notes here.  The Bill divides into 5 parts with 16 Schedules.  Part 1 deals with Police reform.  It will abolish Police Authorities (excluding City of London) and replace them with directly elected Police and Crime Commissioners for each police force outside London, and the Mayor’s Office for Policing and Crime for the Metropolitan Police.

Police and Crime Commissioners will be responsible for holding the chief constable of their police force to account for the full range of their responsibilities. The chief constable will retain responsibility for the direction and control of the police force. Part 1 also contains provisions for establishing Police and Crime Panels for each police area. The role of the Police and Crime Panel will be to advise and scrutinise the work of the Police and Crime Commissioner.

It is a very moot point whether this reform is necessary and whether reform of the Police Authorities might have been more appropriate.  According to their consultation, the government sees the Police as "disconnected from the public they serve."  As for cost, The Guardian 1st December suggests that it will cost £130 m in the first year to set up the new Police and Crime Commissioners. After that, there will be the on-going costs of periodic elections not to mention the staff they are likely to require.  The Guardian quotes Home secretary Theresa May as saying that the Commissioners will cost no more than the Police Authorities.

Part 2 amends the Licensing Act 2003. Licensing authorities, the Police and Local Authorities will have responsibility for controlling noise nuisance and "communities" will have a greater say in licensing decisions.

Part 3 is aimed at creating a new legal regime for controlling Parliament Square, London and the surrounding area.  Sections 132 - 138 of the Serious Organised Crime and Police Act 2005 will be repealed.  The effect of that will be that Public Order Act 1986 s.14 will then apply.  The Bill will require considerable scrutiny here.  It is not unknown for a more restrictive regime to be brought in under the guise of reform.  [See Brian Haw's website]. 

Part 4 deals with the question of issuing arrest warrants on the application of a private prosecutor in relation to certain offences.  The actual offences are listed in Clause 151 which will, once enacted, insert sections into the Magistrates' Courts Act 1980.  This matter arose when certain Palestinians sought a warrant for the arrest of former Israeli Foreign Minister Tzipi Livni - see BBC 15th December 2009.  The consent of the DPP will be required before a warrant can be issued.

Part 4 also contains some provisions relating to the Misuse of Drugs Act 1971 and also powers of seizure under certain local government byelaws.

Part 5 deals with matters such as commencement.  The Act will mainly extend to England and Wales only though some provisions will also extend to Northern Ireland and Scotland.

Media comment:  The Telegraph 1st December "Police Commissioners could get their own political advisers" .... "Parliament Square to be cleared for Royal wedding" .... "Top prosecutor to approve arrest of foreign officials" 

Roscoe Lecture 2010 - Lord Justice Leveson speaks of Criminal Justice in the 21st century

Lord Justice Leveson delivered the 2010 Roscoe lecture in Liverpool on 29th November.  His speech - entitled "Criminal Justice in the 21st Century" - may be read here.  He considers a number of important issues which will need to be addressed.

Parliamentary Privilege and the expenses claims - Supreme Court judgment

The Supreme Court has issued judgment in the Parliamentary "Expenses Claims" case - see here.  A press summary is available - here.  For the earlier Law and Lawyers posts on this see here.  The Supreme Court has clarified that it is for the courts to determine what is a "proceeding in Parliament" when interpreting Article IX of the Bill of Rights.  Nevertheless, the court would pay careful regard to views expressed in Parliament.

Contrary to some views expressed in the media, the men were never claiming that they were somehow "above the law."  Rather, they argued that a special aspect of the law offered them a defence in to a criminal charge.  Neverthless, it is a pity that Parliament has not taken opportunities to reform the law in this area and that such costly proceedings have occurred.  In 1999, Parliament 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.

A separate line of argument that the claims were within Parliament's "exclusive jurisdiction" was also rejected.