Magna Carta - is she still alive?

City of London copy of Magna Carta

Updated 18th June with additional links

Magna Carta is among the most famous documents in the world.  It was on 15th June 1215, at Runnymede near Windsor, that King John reluctantly acceded to certain demands made by various powerful Barons.  The matter did not end there because King John reneged on the agreement and, after John's death, there were various versions of the charter.  In a speech to the Magna Carta Trust, Lord Neuberger (now President of the Supreme Court of the UK)  looked at some of the subsequent history and I need not repeat it here.

Much of the Charter was concerned with aspects of medieval law and, in particular, matters of importance to the powerful - (see charter text).  Most of the charter was repealed in Victorian times.  Today, on the statute book, are the three remaining Articles in the version of the charter dated 1297.  Article I is concerned

Not quite a totally secret trial ... Ministerial Certificate not quite a trump card !

Previous post 10th June - A TOTALLY secret trial ?

The Court of Appeal (Criminal Division), having taken time to consider the case, has given its DECISION  - HERE (pdf 7 pages). JUDGMENTS are to follow at a later date and there is to be an OPEN judgment, a PRIVATE judgment and an EX PARTE judgment [12].

The Court of Appeal stressed that it did not merely "review" the decision of Nicol J but had made an independent decision based on the material before it.  The material included certificates from the Home Secretary and Foreign Secretary together with supporting schedules of material [10].

The CORE of the trial could be held

Youth Justice - Venue for Trial

In England and Wales, criminal trials of children (aged 10 to 13) and young offenders (14 to 17 inclusive) normally take place in a Youth Court.  Such courts are a specialist subset of magistrates' courts and the judiciary will be either Justices of the Peace duly authorised under the Courts Act 2003 or a District Judge (Magistrates' Courts).  Youth Courts are not open to the general public.  Occasionally, either a child or young person will stand trial in the Crown Court with all the greater formality (judge and jury etc).  The law relating to when a trial in the Crown Court is appropriate has been considered by way of judicial review on a number of occasions, notably in R ( H, A and O) v Southampton Youth Court [2004] EWHC 2912 (Admin) - (see, in particular, paras 33-35).   Trial venue can be a difficult decision and the law is, to say the least, complex.  The general aim of the system is to avoid Crown Court trial but, in some instances the law requires it in relation to very serious offending.   The CPS website has a summary of the various provisions - see Youth Offenders.

Recently,

A TOTALLY secret trial?

Update 11th June: The Court of Appeal is expected to hand down its decision in the AB / CD case on 12th June.  Fuller judgment to follow later.

'Open Justice is not a mere procedural rule.  It is a fundamental common law principle' - Bank Mellat v HM Treasury No. 1 [2013] UKSC at para. 102 where the judgment of Lord Dyson in Al Rawi v Security Service [2012] 1 AC 531 is cited.

AB and CD are men who are to stand trial for certain "terrorism" offences.  Initially there was a ban on even reporting that the trial was due to take place.  Happily, that aspect of the case was overturned as a result of media action.  It seems that an order of Mr Justice Nicol that the ENTIRE trial may be held in secret remains in place though the order is under appeal.

English Common Law came to recognise the importance of hearings in OPEN COURT.  In Attorney-General v  Leveller Magazine [1979] AC 440, Lord Diplock stated that open justice 'provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains public confidence in the administration of justice.'  Nevertheless, Lord Diplock noted that the rule is subject to exceptions.  There may be departures from the rule 'where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation ...'  His Lordship continued: 'Apart from statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of the proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes to be necessary in order to serve the ends of justice.'

As far as I know, those words of 35 years ago

The Lord Chancellor - a heap of anomalies

Once upon a time, the Lord Chancellorship - (full title - Lord High Chancellor of Great Britain) - was the prize position sought by able lawyer / politicians. Nothing so modern as "separation of powers" existed in this peculiarly British role: a product of centuries of evolution rather than rational thought.  The Lord Chancellor was Head of the Judiciary of England and Wales; presided over the Appellate Committee of the House of Lords; acted as speaker of the House of Lords and was a member of the executive.  Judge; Legislator; Minister all rolled into one.   It is interesting that, perhaps up to the 1990s, such "multi-tasking" appeared to work well due, it seems, to various "protocols" and "understandings"within government as to how the role should operate in practice.  Also, in recent times, the office was held by some very notable individuals such as Lords Hailsham, Elwyn-Jones and Mackay.   A good overview of the Lord Chancellorship is available on Wikipedia together with a list of holders of the office.

The fact that

Human Rights and the Labour Party

The Human Rights Act 1998 section 2 places on courts a requirement to "take into account" decisions of the European Court of Human Rights.  Lord Bingham in Ullah v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, said: “The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”  This is the so-called "mirror principle" and I have argued that, on the whole, it makes good sense - (for example post of 3rd December 2013). 

In an article published by The Telegraph, Mr Sadiq Khan (Shadow Justice Secretary) indicates the Labour Party's support for the European Convention on Human Rights and the Human Rights Act.  However, Mr Khan goes on to suggest that a future Labour government would issue "guidance" to the judiciary about how they should apply section 2 of the Human Rights Act.  Mr Khan, significantly, does not rule out legislation but would clearly prefer the proposed guidance to work.


Whilst Mr Khan's article is refreshing in its support for human rights, the idea of guidance on interpretation is both constitutionally objectionable and unnecessary.  Objectionable because the judiciary apply the law as they find it and not as directed by the executive.  The "separation of powers" demands no less.  It is unnecessary because the judiciary has already recognised that the mirror principle is not absolute - (see Thoughts on Chester and McGeogh).  In any event, it is always open to Parliament to legislate and this includes amending the Human Rights Act 1998.

For articles on Mr Khan's proposals see Mark Elliott in Public Law for Everyone 3rd June 2014; Carl Gardner (Head of Legal blog) 4th June - Sadiq Khan: let me guide you where I think you're going ; Adam Wagner UK Human Rights Blog 5th June.  There is also an interesting further viewpoint from the London School of Economics.

Rehabilitation Reform: A gamble with public safety or a useful reform?

The provision of probation services is undergoing a major change.  From 1st June 2014, the 35 existing Probation Trusts were replaced by 21 Community Rehabilitation Companies (CRC) and a National Probation Service (NPS).  All of this has taken place under the Ministry of Justice Transforming Rehabilitation (TR) programme.   At the moment, the CRC are publicly owned but it will come as no surprise to most readers to learn that they are to be privatised.  The privatisation is to take place this side of the 2014 General Election causing the Shadow Justice Secretary (Mr Sadiq Khan) to express the concern that, if lengthy contracts for the provision of rehabilitation services are created, the hands of any future government may be tied and further reform prevented - see The Guardian 30th May 2014 Chris Grayling's probation privatisation is a reckless gamble with public safety

It is not unknown