Judicial Review: "Keep out of politics" ... but can the judges do so?

HM The Queen at the Supreme Court

Mr. Jonathan Sumption QC was sworn in as a Supreme Court Justice on 11th January - the start of the Hilary Law Term.   His appointment is notable in that he is the first judge since Lord Radcliffe to be appointed directly from the Bar to the highest court.  (Lord Radcliffe - 1899 to 1977 - was appointed to the House of Lords in 1949).  Lord Sumption (as he is now styled) sat for the first time on 12th January - in the shipping case of Petroleo Brasileiro S.A. (Respondent) v E.N.E. Kos 1 Limited (Appellant) - (see UK Supreme Court blog for details and see Court of Appeal judgment)    

The Times (12th January) carried details of an interview given by Lord Sumption - "Keep out of politics, top judge warns his peers" - (Subscription required).   The Times reports Lord Sumption as saying - "It is one thing for judges to review whether a government policy was being lawfully applied and another to review the policy itself."  In November 2011, Mr Sumption (as he then was) delivered

Scotland: we need to talk ....

Scotland's Grand Scenery

Updated x 2

Prime Minister David Cameron said on the Andrew Marr Show that the government would be setting out the legal position regarding a referendum on Scottish Independence.  Cameron said that the uncertainty was damaging to the economy and added that the present situation was unfair on the Scottish people who did not know when the question would be asked, what the question would be and who would ask it.  The Scottish people were owed something which was "fair, legal and decisive."  Cameron also said that he believed in the United Kingdom and it would be "desperately sad" if Scotland left.

Further questions could be asked, such as what would be the actual nature of "independence."  Would it be a complete and entire separation or would, for example, Scottish finances continue, in some way or other, to remain linked to the remainder of the UK?  What would be Scotland's relationship (if any) to the Crown.  What would be the defence situation?  What would Scotland's status be with regard to the European Union given that it is the United Kingdom which currently has the membership.  All these, and many other questions, are difficult political and practical questions and, in the present harsh economic times, it is tempting to wish that the questions would go away but, in reality, they will not simply disappear and must be answered.

What then of the legality?

Do we need the Obscene Publications Acts?

R v Penguin Books 1961

Updated

‘The Obscene Publications Act equally protects the less innocent from further corruption, the addict from feeding or increasing his corruption’ - per Lord Wilberforce in DPP v Whyte [1972] AC 849

The Obscene Publications Act 1959 s.1 commences by defining the test of obscenity:

For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

"Article” means any description of article containing or embodying matter to be read or looked at or both, any sound record, and any film or other record of a picture or pictures.

The 1959 Act s.2  (as amended by the Obscene Publications Act 1964) states:

Hate Crime

A look at racial murder, hate crime and the criminal offences available.

Institute of Race Relations - data on "racial" murder:

Stephen Lawrence was murdered on 22nd April 1993.  Since then, according to the Institute of Race Relations (IRR), there have been 96 murders involving a known or suspected racial element- See Institute of Race Relations.  The victims were overwhelmingly young men under the age of 30 and four deaths were of white British citizens with the others from "Black Minority Ethnic" (BME) communities or migrant workers.

Importantly, the IRR notes that the identification of racially motivated murders and attacks must depend on an objective evaluation of the whole context in which the murder or attack takes place and not just on the skin colour or ethnicity of the alleged perpetrator(s) or victim.  In particular, the IRR would regard a murder or attack as racially motivated if the evidence indicates that someone of a different ethnicity, in the same place and similar circumstances, would not have been attacked in the same way. Subject to the above, a formal legal finding or allegation of racial motivation would be taken as prima facie (but not definitive) evidence that a murder or attack was racially motivated.

Understandably, the Stephen Lawrence murder trial has attracted immense publicity and the figure of 96 murders since 1993 is very worrying.  Few of the other murders have attracted anything like the same degree of publicity and attention.

Before considering "hate crime" further, it is

Justice and Security Green paper - Human Rights Conference - Law of Contract online

Justice and Security Green Paper:

The government's Green Paper "Justice and Security" has been open for consultation since October 2011.  The consultation closes on 6th January 2012.  The proposals relate to civil proceedings and inquests and the following posts examined the proposals in greater detail:

Justice and Security Green Paper - Part 1 - The government's case for closed material procedure (CMP)
Justice and Security Green Paper - Part 2 - The proposals
Justice and Security Green Paper - Part 3 - Oversight of Security Services

The UK Human Rights Blog has a post entitled "Extension of secret hearings would be 'fundamentally unfair', say Special Advocates."   57 barristers (including 19 Queen's Counsel) have raised objection to the government's proposals for closed material procedure and greater use of special advocates.

Human Rights:

The conference held at Wilton Park in November 2011 has issued a report which may be downloaded here.   The conference was referred to in "Access to Justice - Human Rights - chuck 'em all in the melting pot."  The Conference occurred in the early days of the United Kingdom's Chairmanship of the Council of Europe.

Law of Contract:

This highly important legal topic is brilliantly covered in CharonQC's "Law of Contract online book and recorded lectures."  A definite must for students and perhaps many a practitioner !!  Also, CharonQC has added excellent material on Sale of Goods. 

The Stephen Lawrence murder: convictions; double jeopardy and sentencing

ADDENDUM - 5th January - The Attorney-General is considering whether to refer the Dobson and Norris sentences to the Court of Appeal - The Guardian 5th January.   See Criminal Justice Act 1988 s.36.    A reference may be made if the sentence is considered by the Attorney to be "unduly lenient" and therefore the Court of Appeal will only intervene if the sentence was significantly less than that which should have been imposed.  The Court of Appeal must give leave for the reference to be made.  It is instructive to see the minimum terms set by the Lord Chief Justice for young offenders in some of the older cases.


On 1st February, it was announced that the Attorney-General would not be referring these sentences to the Court of Appeal - see The Guardian 1st February


UPDATED 4th January - Post-sentence

It was on 22nd April 1993 that Stephen Lawrence was attacked and killed.  The BBC has produced an excellent "time line" of this tragic case.  Today, at a trial held at The Old Bailey (Treacy J and a jury), two men - Gary Dobson and David Norris) - were convicted of the murder of Stephen - Telegraph 3rd January.

From the outset, Gary Dobson and David Norris were implicated in the murder along with certain other suspects.  However, a prosecution against two (Neil Acourt and Luke Knight) was discontinued in July 1993.  In 1994, a private prosecution was mounted against Gary Dobson, Luke Knight and Neil Acourt but formal acquittals were entered in 1996 when Curtis J ruled certain identification evidence to be inadmissible.

The Macpherson Report:

In July 1997 an inquiry under the Chairmanship of Sir William Macpherson was announced and reported in February 1999.  The report extends to 47 Chapters and Appendices and was condemnatory of policing. 

Double jeopardy:

Historically, the common law

A look back at 2011

A Very Happy 2012 to all readers.

The last 12 months brought numerous legal events and, doubtless, 2012 will do the same.  During 2011, it was sometimes difficult to choose which events to focus on but some of the stories were compelling.

January 2011 - "Policing" figured highly, particularly with the use of undercover Police Officers such as PC Mark Kennedy - see Climate Change Protesters sentenced ... use of undercover Police Officer revealed (where it was noted that a second trial, due to commence in early January, had been suddenly "dropped" ... Climate Change No. 3 ... where we looked at just some of the serious questions raised by the use of undercover officers ... Climate Change No. 4 ... where the Policing Minister (Nick Herbert MP) announced that the role of ACPO was to change.  These matters raised serious questions about policing in a modern democracy and also about the the criminal justice system.  We do not (yet) have really satisfactory answers.

February 2011 - The government's much vaunted