Assange - Supreme Court rejects application to re-open

By way of a short statement, the Supreme Court has dismissed the application made by Julian Assange that his case be re-opened on the basis that a majority of their Lordships had decided the case on a basis which had not been argued before the court.

The grounds of the application were that the majority of the Court decided the appeal on a ground that Ms Rose QC, Mr Assange’s counsel, had not been given a fair opportunity to address. That ground was that article 31(3)(b) of the Vienna Convention on the Law of Treaties and the principle of public international law expressed in that article rendered admissible State practice as an aid to the interpretation of the Framework Decision.  When interpreting a treaty, Article 31(3)(b) permits consideration of "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; ..."

See the Supreme Court's announcement of 14th June 2012 and the earlier post on this blog of 30th May.

The seven Justices who

Children ~ Care Cases ~ Independent Experts

A Family Proceedings Court (FPC) made an order giving permission to the parties to jointly instruct an independent social worker (ISW) who would undertake a parenting assessment of parents. In A Local Authority v DS [2012] EWHC 1442 (Fam) the President of the Family Division (Sir Nicholas Wall) has issued guidance on handling of applications to the Legal Services Commission for the funding of ISWs.

ISWs do not come cheaply.  A solicitor in the case obtained quotes for the work.  One ISW wanted £4800 and another wanted £5229 plus VAT.  It is the Legal Services Commission (LSC) which would normally have to fund this.  If the court indicates the need for such a report, application is then made to the LSC for funding.  As part of the Family Justice Review, the courts are moving to a situation in which an expert report is only requested if it is necessary to resolve the case.  Any party wishing to instruct an expert is expected to explain to the court why the expert evidence proposed cannot be given by Social Services undertaking a core assessment or by the Children's Guardian.

Payments for such experts are governed by

Theresa May's latest lecture: Immigration rules

Revised Post - 12th June

Update 13th June

The Independent 10th June - Home Secretary Theresa May has "warned" judges that their powers to block the deportation of foreign criminals on human rights grounds may be curbed - if necessary by "primary legislation."  At this stage, Mrs May is seeking the backing of Parliament for new guidelines spelling out how the courts should apply the European Convention on Human Rights in such cases.  In particular, May is concerned about how the courts have applied Article 8 (Right to private and family life).

On this see Andrew Marr Show 10th June and the blogposts at UK Human Rights "Article 8 and a half" and at Tashalaw. 

So, just what is going on here?

The right to private and family life (Art.8) is subject to any limitations which are "in accordance with the law and which are necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The government is actually putting foward amendments to Immigration Rules.   The background

Treason

Sir Thomas More

In the recent post on "Marital Coercion", it was commented that "the law of treason is ancient, obscure, complex and extremely rarely used."   In 1940, during the second reading of the Treachery Bill, the Home Secretary of the day (Sir John Anderson 1882-1958) described the Treason Acts as "antiquated, excessively cumbrous .... " (see Hansard 22nd May 1940).   This whole area of law is a disgrace to our criminal law and reform is long overdue.  In a 1977 working paper, the Law Commission recommended that all treason statutes should be repealed and replaced with an offence of helping an enemy with whom this country is at war and a peacetime offence of aiming to overthrow constitutional government by force.

The law of treason dates from the Treason Act 1351 (25 Edward III c.2)     (The Act appears to be declaratory: stating that which was already understood to be treason).  The Act was originally written in Norman-French though the link supplied here also shows a translation.  Treason is based on the loyalty ("allegiance") due from subjects to rulers.  Only those owing allegiance to the Crown my be liable.

Over the centuries, by judicial interpretation of the 1351 Act, the scope of treason was extended considerably.  In effect, new treasons came

Forced Marriage

The government has announced that it wishes "forced marriage" to become a criminal offence - see No.10 Announcement and Home Office.

A forced marriage is one in which one or both spouses do not (or, in the case of some vulnerable adults, cannot) consent to the marriage but are coerced into it. It is not an arranged marriage. In an arranged marriage both parties have consented to the union but can still refuse to marry if they choose to.

The decision to create a specific offence of forced marriage follows a 12 week consultation which took views from the public, victims, charities and frontline agencies.  The Home Office consultation on forced marriage  (here) received 297 responses including 175 from the public - (here).  However, a response from

Odd Corners of the Criminal Law - Marital Coercion

Update 21st April 2014: The defence discussed in this post is to be abolished from 13th May 2014 though the abolition is not retrospective - Antisocial Behaviour, Crime and Policing Act 2014 section 177.

A defence to any criminal charge (other than treason or murder) - available only to women - is that of Marital Coercion.  The defence appears in the Criminal Justice Act 1925 section 47:

Abolition of presumption of coercion of married woman by husband.

Any presumption of law that an offence committed by a wife in the presence of her husband is committed under the coercion of the husband is hereby abolished, but on a charge against a wife for any offence other than treason or murder it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband.

Hence, unlike the old common law. coercion of the wife is not to be presumed, but it may nevertheless be proved.

To establish the defence, the man and woman

Law has become a tool for the rich

The Law pages in The Times 31st May stated - "Law has become a tool for rich."   The article by Jonathan Ames stated the views of Lord Phillips of Sudbury who has been a qualified solicitor for 48 years.

Regulatory change is blasting through the legal profession and Alternative Business Structures (ABS) are being created as a result of the Legal Services Act 2007.  ABS allows private equity and other investors into law firms.  Their only interest will be making money.  "The profession has sold its soul," said Lord Phillips.  "You can be absolutely certain that if leading corporations get involved in ABS they will not do the work that is complex, difficult and under-rewarded; they will cherry pick."

The diminishing number of high street solicitors firms trying to service the whole population - and in particular the less well-off - will be knocked out of the market.  Then, the ABS outfits