News and Views: A selection

A Northern Viewpoint

Updated 24th February ... and 1st March 2012

Without doubt, recent weeks have produced some fascinating legal material and law-related stories.  Here are some of them.

Habeas Corpus - The Court of Appeal has discharged the Secretary of State from any further obligation in relation to the writ of habeas corpus issued in the Rahmatullah case - see judgment and earlier post.   The Americans would not agree to transferring Rahmatullah and the Court of Appeal decided that there was nothing more it could do.  Was issuing the writ a pointless gesture?  The court said: - "That does not mean that the issue of the writ of habeas corpus was a pointless exercise in this case: it performed its minimum function of requiring the UK Government to account for its responsibility for the applicant's detention, and to attempt to get him released. This case is an illustration of (i) the court performing perhaps its most vital role, namely to ensure that the executive complies, as far as it can, with its legal duties to individuals, in particular when they are detained, and (ii) the limits of the powers of the court, as a domestic tribunal, in that its reach cannot go beyond its jurisdiction, and that jurisdiction does not extend to the US military authorities in Afghanistan."

"The US has broken its promise over Yunus Rahmatullah" - Clive Stafford Smith - The Guardian 23rd February and see Reprieve 23rd February.

The Leveson Inquiry - In the wake of the "phone-hacking" scandal, the Leveson Inquiry was set up under the Inquiries Act 2005 to look at the role of the press and the police.  Module 1 of the Inquiry was concerned with the culture, practices and ethics of the media.   Module 2 is due to commence on 27th February and will look at the relationships between the press and police and the extent to which that has operated in the public interest.  

Over the years, the media has shone light on many situations which were in the public interest (as opposed to being merely of interest to the public).  William Howard Russell reported on the Crimean War and informed the public of the heroism of the men, the errors of the military command, the shortages of clothing and equipment and the ravages of disease - see Victoria Cross History.  More recent examples

Murder, Terrorism - two important cases

Lord Justice Hughes

Law of diminished responsibility:

The law of murder has been recently reformed by the Coroners and Justice Act 2009 Part 2 Chapter 1.  The new provisions gave rise to the Court of Appeal judgment in R v Clinton, Parker and Evans [2012] EWCA Crim 2 relating to the new defence of "loss of control" which has replaced the earlier defence of "provocation."  This case is discussed further here.  A further partial defence is that of diminished responsibility which first entered English law via the Homicide Act 1957.  This defence has been amended by the Coroners and Justice Act s.52.  If a partial defence is successfully pleaded then the result is that the defendant will be convicted of manslaughter and not murder.

In R v Dowds [2012] EWCA Crim 281, the Court of Appeal (Hughes LJ, Simon and Lang JJ) was faced with the question whether acute voluntary

Speeding - Prescribed and Approved Measurement Devices

Road traffic offending continues to produce some interesting judicial decisions.  On 3rd February, the High Court gave judgment in Brotherston and others v Director of Public Prosecutions [2012] EWHC 136 (Admin).    Four drivers had been convicted of speeding - an offence under the Road Traffic Regulation Act 1984 - (sections 84 and 89).  Before the High Court, all four drivers argued that the supposed authorisations relating to the use of certain speed measuring devices for evidential purposes was unlawful.

The devices challenged were the LTI 20.20 TS/M Speedscope; the LTI 20.20 Ultralyte 100.  Both of those are mobile speed cameras.  The operator points the device at the rear of the vehicle which he thinks is speeding and pulls the trigger. This activates a laser beam enabling measurement of the vehicle's speed.  Also challenged was the Gatsometer 24 - a speed camera which operates on radar principles.

Parliament "prescribed" the use

Achieving Best Evidence - Transcripts

Crown Court - Snaresbrook

In a criminal trial, certain witnesses may be allowed to have their evidence-in-chief presented in video recorded form.  When this is done, it may take the form of recordings of interviews prepared in accordance with "Achieving Best Evidence" (ABE) guidance.  There will also be a written transcript of such interviews.  Should the jury be shown such a transcript?

The recent case of R v Aamir Sardar [2012] EWCA Crim 134 has reminded criminal lawyers of principles relating to transcripts laid down by the Court of Appeal in R v Popescu [2010] EWCA Crim 1230 - which, itself, brought together decisions of earlier cases.

In Aamir Sardar's case, there was a failure by both prosecution and defence counsel and also the Recorder to follow the principles set out in Popescu as to (a) the circumstances in which transcripts of an ABE interview should be shown to the jury and (b) the warnings to be given to the jury if the transcript is shown.

The principles set out in Popescu may be summarised as:

Quality Assurance for Advocates: Snakes and Ladders

In 2006, Lord Carter issued his report- "Legal Aid - A market-based approach to reform."   One of Carter's recommendations concerned "Quality Assurance" of advocacy.    At para. 27 he said - "It is essential that clients have confidence in their legal service and that the professional quality of that service is assured."  He further recommended that the responsibility of quality assurance should pass to the legal professions through their relevant professional bodies.

Since then, a lot of very turbulent water has passed under the bridge in the development of a scheme now referred to as the Quality Assurance Scheme for Advocates or QASA.  The scheme is described on the Bar Council website which makes the point that the scheme will regulate the quality of all advocates appearing in the criminal courts in England and Wales, whether they are barristers, solicitors, or legal executives. The Scheme will include all advocates whether they are self-employed or employed, and whether they are acting for the prosecution or defence.  A number of Frequently Asked Questions (FAQs) are also answered - here.

Under the scheme, advocates will be

Sir Stephen Sedley's Essay

Now in retirement, former Lord Justice of Appeal Sir Stephen Sedley has written a powerful essay entitled "Judicial Politics - Stephen Sedley on Separation of Powers."  The text has been made publicly available via the London Review of Books and, given the legal eminence and experience of the author, it is well worth reading in full.

Here is an elegantly written antidote to the 2011 F A Mann lecture delivered by Jonathan Sumption QC who has now taken his seat as a Justice of the Supreme Court - "Judicial and Political Decision-Making: The Uncertain Boundary."  (Lord Sumption made the speech after being selected for the Supreme Court but before being sworn in).

I do not propose to gloss in any way Sir Stephen's essay which concludes by saying of Sumption QC's lecture:

" ... the effect of the kind of critique advanced in this lecture is not neutral. It harms the standing of the judiciary and confidence in the law, just as it would do if a judge, naming no names and citing no instances, were to deliver a public lecture on the perils of judicial corruption. Smoke, in the public mind, means fire. Nobody who knows the history of English public law would deny that there have been decisions which smack at least as much of politics as of law: the condemnation of the Poplar councillors in 1921 for paying men and women equal wages, for example. But that is a long way from the charge that modern public law judges, lacking any jurisprudential compass, routinely cross the boundary separating law from politics."

There is more in the lecture:  a critique of the European Court of Human Rights for trying to make one size fit all – a problem the court itself is well aware of and has been grappling with for decades – and a perfectly tenable argument that the modern growth of public law has been stimulated by a perceived deficit in the democratic process. But there is a possibility that the central allegation of repeated judicial intrusion into the business of government will be seen as a political incursion into the business of adjudication. One leaves the lecture reflecting that if we had parliamentary confirmation hearings for new judicial appointees (something Sumption rightly opposes), this is the kind of manifesto we would get and that politicians would probably applaud. What would happen to a candidate who stood up for the integrity of modern public law and for judicial independence within the separation of powers is anybody’s guess.

For me, Stephen Sedley ranks as one of the finest legal minds of modern times and he is a very fine writer.  Upon his retirement, Sir Stephen's book "Ashes and Sparks: Essays on Law and Justice" was published.

See also the earlier Law and Lawyers post - "Judicial Review: Keep out of politics ... but can the judges do so?"

Other links - added 20th February:   The UK Constitutional Law Blog has published "Lord Sumption and judicial responsibility" and "What role should judges play in the constitution Lord Sumption?"  These articles look at the views of Lord Sumption as expressed in the F A Mann lecture.  The first article is by Tom Adams - Law Lecturer St. Hilda's, Oxford and the second is by Stuart Lakin - Law Lecturer, Reading University.

Dizaei - convicted at second trial

In February 2010, Dizaei, a Commander in the Metropolitan Police, was convicted at a trial before Simon J and a jury of the offences of misconduct in a public office and doing acts with intent to pervert the course of justice.  In May 2011, the Court of Appeal (Criminal Division) - Hughes LJ, Treacy and Cranston JJ - ordered a retrial - judgment - which took place at the Crown Court at Southwark before Saunders J and a jury.  Dizaei was again convicted of misconduct in public office and perverting the course of justice - BBC 13th February.    The BBC's report states that Dizaei may appeal.  Saunders J sentenced him to 3 years imprisonment but 15 months already served will be allowed for.

The sentencing remarks of Saunders J are available on the Judiciary website.   It is interesting that, at the first trial, Dizaei was sentenced to 4 years imprisonment but 3 years was imposed at the second trial.  Saunders J gave his reasons for being able to impose a lower sentence.  The judge said