The Royal Prerogative: the "honours" system

The United Kingdom is noted for having a complex honours system the workings of which are somewhat mysterious and secretive.

In December 2011, the Financial Services Authority published its lengthy (452 page) report into the Failure of the Royal Bank of Scotland.    Sir Fred Goodwin was Chief Executive of the bank from 2001 to January 2009 - see his Wikipedia entry.   For several years, the bank grew massively in size due to acquisitions and enjoyed soaring profits.  Not surprisingly, Goodwin was feted by many politicians during these "successful" years and he was honoured by the award of a knighthood "for services to banking" - London Gazette 12th June 2004.  Now there are calls for him to be "stripped of his knighthood" - The Guardian "Sir Fred could lose knighthood says Cameron" and The Telegraph "Nick Clegg: I understand outrage over Fred Goodwin's knighthood" and BBC 20th January - "Miliband: Fred Goodwin should lose knighthood."   What is the legal basis for the  "honours" system?  How are they awarded and how are they removed?  General information about the honours system is available via the Directgov website.  See also Royalty UK - Honours.

The Honours system rests on the Royal Prerogative

Scotland's Constitutional Future: an influential Scottish voice

Lord Wallace of Tankerness QC

I do not myself regard politics and law as, in any way, in conflict because politics in our country should be carried on under the rule of law - Lord Wallace of Tankerness QC

 A few days ago, Law and Lawyers ventured the tentative view that Scotland could not lawfully hold any form of referendum relating to independence unless the UK Parliament has granted specific authority for it - "Scotland: We need to talk."   The argument is not repeated here but it is interesting that Lord Pannick QC expressed a firmer view in an article in the Times on Thursday 19th January.  Unfortunately, due to the "pay wall", I cannot link to the article but he wrote that a referendum was a reserved matter and therefore not within the legislative competence of the Scottish Parliament.  Put simply, any form of referendum would "relate to" the reserved matter of "the Union of the Kingdoms of Scotland and England."   A further article to the same effect appeared in The Scotsman 20th January - "Iain Jamieson: Alex Salmond lacks legal strength."

Section 29(3) of the Scotland Act 1998  states

Joint Enterprise

On 19 October 2011, the House of Commons Justice Committee. announced an inquiry into the aspect of secondary liability in a criminal venture commonly known as joint enterprise. The inquiry was prompted by dissatisfaction with the operation of the doctrine amongst campaigning groups. Concerns were expressed both by groups representing victims and groups representing those who believe they have been convicted following a miscarriage of justice.

The Committee has now issued its report - "Joint Enterprise" - 11th report of Session 2010-12.  The Preface to the report states - "Having examined the law in this area, and heard from witnesses who have recent experience of the operation of the doctrine, both as the victims of crime and as defendants’representatives, we have concluded that joint enterprise should be enshrined in statute to ensure clarity for all involved in the criminal justice system. While we recognise that there are particular problems with the operation of the joint enterprise doctrine and murder, we feel strongly that reform in this area should not have to wait for a wider review of the law on homicide."

In response to the report, the Director of Public Prosecutions issued a statement indicating that the CPS will now produce guidance on the approach it will take to cases of joint enterprise, including guidance on the proper threshold at which association potentially becomes evidence of criminality.

The Guardian 18th January carried an article - "When should one gang member take responsibility for the actions of the others?"   The article states that

Homicide: A major Court of Appeal judgment

Lord Judge LCJ

"We have proceeded on the assumption that legislation is not enacted with the intent or purpose that the criminal justice system should operate so as to create injustice" - per Lord Judge.

The Court of Appeal Criminal Division (Lord Judge, Henriques and Gloster JJ) has handed down judgment in R v Clinton, Parker and Evans [2012] EWCA Crim 2.   This is a judgment which should be required reading by all legislators as well as lawyers and students. 

The three cases are unconnected factually but each raised the question of interpretation of provisions in the Coroners and Justice Act 2009 Part 2 Chapter 1 (CAJA) relating to the partial defence to murder of what is now known as "loss of control."   That this change to the law is formidably difficult will be seen from the court's judgment.

In relation to Clinton, the trial judge - as permitted by CAJA s. 54(6) - had refused to allow his defence of loss of control to be put to the jury.  Clinton's case also involved the redefined diminished responsibility defence - now defined in CAJA s. 52 (inserting a new section 2 into the Homicide Act 1957)..  He was granted a retrial.  The appeals of Parker and Evans related to loss of control and their "loss of control" defence had been allowed to go to the jury.  Their appeals against conviction were dismissed.

The changes to the partial defences available on a murder charge were looked at by Law and Lawyer 8th September 2010   just prior to them coming into force on 4th October 2010.  The changes to the law are (a) a redefined defence of diminished responsibility (section 52) and (b) the replacement of the old provocation defence with a new defence of "loss of control" - sections 54 and 55.    In that post, it was said that - "The new law of "qualifying triggers" is complex."  That statement is amply borne out by the Court of Appeal's judgment.

The opening paragraphs of the court's judgment deal with the background to the law and are worth setting out in full.  [My emphasis]

"The difficulties

A trio of European Court of Human Rights decisions

Today, 17th January, the European Court of Human Rights (ECtHR) was scheduled to deliver some 35 judgments.  The reader will perhaps be particularly interested in the following three judgments which are all judgments of Section IV of the Court sitting as a Chamber.  (Sections explained).

Vinter and Others v. the United Kingdom - (Judgment of 4th Section)

The applicants, Douglas Gary Vinter, Jeremy Neville Bamber and Peter Howard Moore, are currently serving mandatory sentences of life imprisonment for murder.  When convicted the applicants were given whole life orders, meaning they cannot be released other than at the discretion of the Secretary of State on compassionate grounds.  They argued that their whole life orders amounted to a breach by the UK of the prohibition of inhuman or degrading treatment (Art 3).  They also relied on Article 5(4) (right to have lawfulness of detention decided speedily by a court), Article 6 (right to a fair hearing), and Article 7 (no punishment without law).

The E Ct HR held unanimously that Art 3 was not violated.

Vinter was convicted

Vicarious Liability for Intentional Tort

Royal Courts of Justice, London

In what circumstances should a person (D) be liable in tort for the intentional tort (e.g. an assault) committed by another person (T)?  In other words, when may D be vicariously liable in tort for the deliberate act of T?   May a diocesan bishop be held vicariously liable for the torts of a priest of his diocese?  The latter question arose in the JGE case.

The JGE case:

In November 2011, MacDuff J handed down his eminently clear and concise judgment on a preliminary point in the case of JGE v (1) The English Province of Our Lady of Charity (2) The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2011] EWHC 2871 (QB) 1. 

For the purposes of this litigation, the Trustees stood in the place of the Bishop of Portsmouth.  The issue was whether the diocesan bishop could be held vicariously liable for the torts (civil wrongs) of a Priest (Father Baldwin - now deceased) of his diocese.  It is alleged that, in the early 1970s, Father Baldwin had sexually abused the claimant (JGE) who is a lady now aged 46.  Thus, the case raised, not for the first time, the tricky question of vicarious liability for an intentional tort.  This is one aspect of the wider subject of Vicarious Liability in Tort. 

It is important to note

Mid-January News

Law and Lawyers blog is two years old - hence the birthday card.  It has been an interesting period and 2012 promises to be a challenging year.  The very first post on this blog hoped that, from time to time, the blog would throw at least a little light on the laws which govern us and the lawyers who implement those laws.  That continues to be the aim of the blog.

Extradition:

Extradition is in the news again.  The USA is seeking the extradition of Sheffield student Richard O'Dwyer and a judge, sitting at Westminster Magistrates' Court, has ruled that there is no bar to his extradition - see Daily Mail 14th January.  The US authorities allege that Mr O'Dwyer listed on a website places from where pirated films and TV programmes could be downloaded.  See the judgment of District Judge Purdy.  With respect to the learned judge, it is not entirely clear whether Mr O'Dwyer's conduct would constitute an offence in England though it may do so.  "Dual criminality" is a requirement for extradition.

This case - like that of Gary McKinnon - brings into focus the Extradition Act 2003.  Turkey has charged Sarah, Duchess of York with offences