A Monday morning roundup ....

Most of the country enjoyed a lovely Spring weekend: sunny and warm.  Of course, in party pooping fashion, the usual threat of drought was mentioned and hosepipe bans etc.   The F.A. Cup Semi-Final is looming and will, on one report, costs millions in security.  (I think my ticket might have been "nicked" so will watch it on TV).  Then there is Easter - always a welcome break for many - and then the Royal Wedding which, no doubt, will cost someone somewhere even more millions (here and here).

An Independent Commission on Banking has just issued its interim report and some of the early reaction to it is reported in The Guardian (Monday 11th April). On Sunday 10th, The Guardian asked - "If the banks forsake London, where

Our legal heritage - No.2 - The formative period

Runnymede Memorial

 Overview 1066-1272

It is no exaggeration to describe the turbulent period from Hastings (1066) to the end of the reign of Henry III (1272) as a formative period for English law, the courts and the system of government.  Of the eight Kings of this period, especially notable in a legal context were the reigns of Henry II (1154-1189), John (1199-1216) and Henry III when the beginnings of Parliament can be seen.  Early forms of "legislation" appeared albeit very different in style to modern legislation - for example the Constitutions of Clarendon 1164 and the Assizes of Clarendon (1166) and Northampton (1176).  The period also saw the first textbooks or "treatises" on English Law.  The King's courts of justice began to emerge from within the King's Council (or Curia Regis) and Judges begin to preside over cases.   People were summoned to give a decision about factual issues and from this process trial by jury developed and proved to be a popular alternative to older forms of trial such as the ordeal.  The earliest signs of a legal profession can also be detected.  Throughout this period there was endless political difficulty between the Kings and the powerful landowners including what became perhaps the most powerful landowner of all - the Church.  These early Kings laid claim to and administered extensive tracts of land including much of what is now France.

Fountains Abbey, Yorkshire

Henry II (1154-1189)

Henry II established the foundations of central power.  He exercised control over a vast land area (including much of France) and was indefatigable in his travels around his domains.

Originally, every man had his "peace" and it was a crime for another to break that peace.  Naturally, the King's Peace was the greatest of all.  Henry built upon this concept of the "Peace" which dated back to  Anglo-Saxon times and it was extended so that eventually it covered the entire country and any crime could be viewed as a breach of the King's Peace and therefore triable in the King's Courts.  The notion of the "Peace" survives to this day in matters such as arrest for breach of the peace and the power of Magistrates to Bind Over a person to Keep the Peace. 

Litigants were attracted into the King's courts because

The Judges respond to government criminal justice proposals

Crown Court at Liverpool

Two responses to the government's green paper "Breaking the Cycle" have been published - see Judiciary website.  One is from Lord Justice Thomas (Vice-President of the Queen's Bench Division and Deputy Head of Criminal Justice) and Lord Justice Goldring (Senior Presiding Judge of England and Wales).  The other is from the Council of Circuit Judges.

These responses are well worth reading completely.  The Circuit Judges wish to see a much simpler sentencing framework in a single Sentencing Act which might even have a fixed period of time (e.g. one Parliament) during which it cannot be amended.  An interesting idea here but will it find favour with hyperactive politicians?  The concept of "payment by results" (e.g. to providers of rehabilitation programmes) makes them "uneasy" and

Her Majesty's Courts and Tribunals Service and Tribunal Structure

On 1st April, an important change came about with the merger of  Her Majesty's Courts Service (HMCS) (formed in 2005) and the Tribunal Service (formed 2006).  The new body, an executive agency of the Ministry of Justice, is "Her Majesty's Courts and Tribunal Service."  Mr Jonathan Djanogly MP (Parliamentary Under-Secretary of State, Ministry of Justice) informed Parliament that the agency is "responsible for the administration of the criminal, civil and family courts and tribunals in England and Wales and non-devolved tribunals in Scotland and Northern Ireland."  The service has a Chief Executive and a Board and operates within a Framework Agreement arrived at between the Lord Chancellor Rt Hon Kenneth Clarke QC MP), the Lord Chief Justice (Lord Judge) and the Senior President of Tribunals (Lord Justice Carnwath).

In 2010 the government issued a Consultation about the Unified Court and Tribunals Service - (see Platform for the Future).  This consultation was aimed at seeking views about the benefits which a unified service might bring.  The headline merger decision had already been taken.  The response to the consultation was issued on 1st April.

The whole Tribunal structure has

Judges critical of Clarke's proposals for sentencing reform

It is reported that the judges are critical of aspects of the sentencing proposals which have been put forward by Kenneth Clarke QC MP (the Secretary of State for Justice) in the green paper  "Breaking the Cycle" - looked at on this blog last December.  The green paper (para 216) suggested the possibility of a 50% reduction for an early guilty plea as a means of getting the guilty to plead and save the costs of a trial.  The judges argue that reducing sentences by more than one-third would fail to recognise the seriousness of the offences and may lead some into making false admissions.

The consultation period on "Breaking the Cycle ..." has ended with the government receiving some 1200 responses.   The Ministry of Justice reaction to the consultation is awaited.

Court Martial adjourned ... the law on bias ... conscientious objection

The Court Martial - (see Armed Forces Act 2006 s.154) - sitting at Portsmouth has adjourned until 14th April whilst Judge Advocate McGrigor considers representations relating to apparent bias made to him by counsel - see Portsmouth News.  The case concerns a Royal Navy Medical Assistant Michael Lyons who has claimed conscientious objection to carrying out rifle training prior to deployment to Afghanistan.  Lyons' counsel has argued that there could be an appearance of bias as opposed to actual bias because, in 2004 the judge advocate had acted as prosecutor for the Royal Air Force in the trial of a Muslim air reservist who absented himself from duty in Iraq.

The Court Martial comprises

Mob rule - is it all that far away?

One of the fundamental principles of English Law is the presumption of innocence.  We do not declare a person guilty of any crime - however heinous the crime - until guilt is proved by admissible evidence adduced before a properly constituted court which, for serious offences, normally requires a jury trial.  What then were certain individuals thinking about in Swindon this week?  See BBC Report 28th March - "Sian O'Callaghan's accused remanded in custody."

Christopher Halliwell has been charged with the murder of Sian O'Callaghan.  On 28th March, he appeared before magistrates sitting at Swindon and was duly "sent" for trial under the provisions of the Crime and Disorder Act 1998 s.51.  Such hearings are now a mere formality.  No bail application may be made to magistrates in a murder case.  On 30th March he appeared before the Crown Court but no application for bail was made.  He will next appear in the Crown Court on 8th April but this hearing will be via a video link.

Naturally enough, emotions can run