Weekend reading ~ a "conference" of speeches

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3rd December - Updated with further links

Whether or not there is a collective noun for "speeches" - (perhaps a "conference" of speeches?) - there have been many in recent days. 

Lord Judge - former Lord Chief Justice - Bar Council Annual Law Reform Lecture 21st November - The evidence of child victims: the next stage

Speeches by Supreme Court Justices:

• Lord Carnwath gives the Garner Lecture 2013 (PDF)
  The Common laws of the environment – at home and abroad
  19 November 2013
• Lord Carnwath gives the ALBA Annual Lecture (PDF)
  From judicial outrage to sliding scales – where next for Wednesbury?
  12 November 2013
• Lord Neuberger at the ARBRIX Annual Conference, London (PDF)
  Address to property arbitrators
  12 November 2013
• Lord Clarke gives the Bracton Lecture at the University of Exeter Law School (PDF)
  What shall we do about fraudluent claims?
  8 November 2013
• Lord Sumption at the Denning Society (PDF)
  The Disunited Kingdom: England, Ireland and Scotland
  5 November 2013

Lord Sumption - 27th Sultan Azlan Shah Lecture, Kuala Lumpur - The Limits of Law

Lord Justice Laws - Hamlyn Lectures 2013 - Lecture 3 Common Law and Europe  The first two Hamlyn lectures are entitled - 1. Common Law and State Powre - 2. Common Law and Extremism.

In an article, Lord Neuberger (President of the Supreme Court) expressed views about short term prison sentences sentencing - Daily Mail 26th November - "One of the country’s  most senior judges provoked fury last night when he criticised short jail sentences for interfering with the home lives of criminals.  Lord Neuberger, president of the Supreme Court, said he rejected the idea that a couple of months behind bars – and what he called ‘the clang of the prison gates’ – could help bring criminals to their senses.  Instead, he warned such sentences ‘can be disruptive’ for the prisoner’s job and home life. The judge made his comments after visiting Holloway women’s prison in North London."
Sir Rabinder Singh - The Unity of Law - or the dangers of over-specialisation - Society of Legal Scholars Centenary Lecture 28th November.

Speeches by serving judges are, of course, extra-judicial matters and are not necessarily indicative as to how the particular judge would decide any actual case.  However, speeches reveal not only information about the law and legal practice but also reveal something of the personality and attitudes to law of the speaker.  Things have moved on considerably from the days of Lord Chancellor Kilmuir - (post of 2nd December 2011).  At the present time, there seems to be an excess of speech-making and it may (emphasis on "may") be that  certain judges are risking an appearance of aligning themselves with some members of the present government who undoubtedly wish to limit the influence within the UK of bodies such as the European Court of Human Rights.  Such an "impression" would be singularly unfortunate.   I leave it to the reader to look at the speeches and form a judgment on this point.

Links:

27th November 2013 - The Guardian - Joshua Rozenberg - Laying down the Laws: human rights court shouldn't have the last word.

2nd December 2013 - Francis FitzGibbon QC - Conspicuous Sumption

3rd December - Spare us from radical judges

3rd December - Thinking Legally - Hoffmann, Laws and Sumption: they come to bury the ECHR, not to praise it

Scotland ~ Independence White Paper

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Sgurr na Banachdich, Skye - 3166 ft

On 18th September 2014 (the 700th anniversary of the Battle of Bannockburn - see post of 26th January 2012), a referendum will be held in Scotland to enable the Scottish electorate to decide whether to proceed to an independent Scotland.  If there is a YES vote then the aim is to create an independent Scotland from 24th March 2016 (BBC - Proposed date for Scottish independence named).  24th March 1603 was the date of the Union of the separate Crowns of England and Scotland.

The Union of England and Scotland dates from 1st May 1707 - see  Act of Union with Scotland 1706 and the Act of Union with England Act 1707 ). Those Acts stated: 'That the Two Kingdoms of Scotland and England shall upon the first day of May next ensuing the date hereof and forever after be United into One Kingdom by the Name of Great Britain And ...'   Independence would bring to an end this historic Union which has withstood the fierce furnaces of major events for over 300 years.

The Scottish government  has put forward the case for independence in a White Paper - Scotland's Future (670 pages).  here is some of the media reaction to the White Paper:  BBC; The Scotsman; The Telegraph; Daily Mail. 



There is a considerable amount of material to be considered.  Numerous questions arise and the answers are not necessarily very clear.  Clarity is essential so that voters are able to make a fully informed decision.  There is danger here of a lot of political "spin" tending to obscure the difficulties.  Hence, more on this will follow.  As to whether the pathway to independence after even a YES vote will be difficult see The Guardian: Alex Salmond faces Westminster hurdles over an independent Scotland

Previous posts:

7th May 2011 - No to AV ... but what lies ahead?

26th October 2011 - Scotland and the EU ~ a tricky point

10th January  2012 - Scotland: we need to talk

21st January  2012 - Scotland's Constitutional Future: an influential Scottish voice

26th January  2012 - Scotland's (and UK's) future

2nd October  2012 - Scotland - Constitutional Futures Forum

27th October 2012 - Scotland and the EU - No.1

31st October 2012 - Scotland and the EU - No.2

Relevant legislation:

Scotland Act 1998 (Modification of Schedule 5) Order 2013 - an Order in Council made under powers in the Scotland Act 1998 sections 30 and 113.

Scottish Independence Referendum (Franchise) Act 2013 - (Scottish legislation)

Edinburgh agreement - October 2012

Scotland - 8th October 2013 - analysis paper on defence

Additional:

Brian Barder blog - Give Scotland the option of what most Scots want - full self-government within the UK

HS2 ~ Hybrid Bill published

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There is already an Act of Parliament relating to the proposed High Speed 2 rail project -High Speed Rail (Preparation) Act 2013.   It is an Act to make provision authorising expenditure in preparation for a high speed railway transport network.

A Bill, in two parts, has now been presented to Parliament - see Department of Transport.   The Bill may be read via the website of Parliament - High Speed Rail (London - West Midlands) Bill 

Bill (as introduced) - The Bill has 65 sections and 31 very detailed Schedules.


The Department of Transport said:


'HS2 will take a major step forward today (25 November 2013) with publication of the Bill for phase one of the country’s new railway between London and Birmingham.  The hybrid Bill, effectively the planning application for the scheme, will give the government the powers to construct and operate the railway. It will also give those affected by the proposed line the opportunity to petition Parliament, both for and against the proposals, and have their case heard by a committee of MPs.'

An interesting feature is that the Bill is a HYBRID Bill.  Bills are usually either Public Bills (e.g. the High Speed Rail (Preparation) Bill itself ) or Private Bills (see Private Bills 2009-10) but a Hybrid Bill  has features of both.  Private Bills  only change the law as it applies to specific individuals or organisations, rather than the general public.

Opposing a Bill may not necessarily be as easy for individuals as perhaps the Department of Transport announcement suggests.  Opposition may require technical analysis as well as the need to address some difficult legal issues.  For example, there will be legal issues relating to compulsory purchase of land, compensation for such purchases and planning law.  Furthermore, much of the Act is concerned with overriding matters such as consecrated land and disapplying controls under various local Acts of Parliament relating to Oxfordshire, Staffordshire and West Midlands.  The right of a petitioner to be heard in opposition to a private or hybrid bill (locus standi) depends on whether his personal property or interests stand to be adversely affected by the passage into law of the measure concerned.  It is possible for counsel to represent parties making representations about a bill - How to petition against a private Bill.

A Library Note relating to Hybrid Bills was published by Parliament on 19th November 2013 - Hybrid Bills - note .

Links of interest:

Parliament - Living Heritage - Roads and Railways

Parliament - Living Heritage - Roads and Railways - Private Acts


Local and Personal Acts of Parliament - Wikipedia

Phase 1 - Environmental impact

Northern Viewpoint ~ Scotland and the corroboration rule

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One of the fascinations of the British Isles has to be the diversity of its legal systems.

Scotland has its own Parliament (operating under devolved powers) created by the Scotland Act 1998.  There are Scottish Ministers.  There is a Scottish Judiciary, system of courts and legal profession.  Scots Law developed separately to the law of England and Wales and it has its own principles and procedures.

When the Scotland Act 1998 was enacted, what was known as 'devolution jurisdiction' was given to the Judicial Committee of the Privy Council.  This jurisdiction was transferred to the Supreme Court of the UK following the creation of that court by the Constitutional Reform Act 2005.  A 'devolution' case decided by the Supreme Court in 2010 seemed to send seismic shock waves through the Scottish legal system - Cadder v Her Majesty's Advocate [2010] UKSC 43 - [Press summary].

Following Cadder, the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 was passed by the Scottish Parliament.  Furthermore, a review of criminal law and practice was set up under Scottish judge Lord Carloway and this reported in November 2011 - Carloway Review.

One of Lord Carloway's recommendations related to the Scots Law rule of corroboration.  The necessity for corroboration has lain at the heart of the Scots criminal justice system since time immemorial and is seen by many as an important safeguard against miscarriages of justice.  The rule requires (1) at least one source of evidence (e.g. one witness) pointing to the guilt of the accused.  That evidence may be direct (e.g. an eye-witness) or indirect (circumstantial) (e.g. a fingerprint of the accused found at the crime scene).  Each "essential" or "crucial" fact, required to be proved, must be corroborated by other direct or indirect evidence (e.g. the testimony of another witness).

Lord Carloway pointed out that the rule has been seen as a defining characteristic of the Scots Law of evidence in criminal cases and it is part of the decision-making process at all levels of the Scottish criminal justice system.  Nevertheless, Carloway said:  'The Review is in no doubt that the requirement of corroboration should be entirely abolished for all categories of crime. It is an archaic rule that has no place in a modern legal system where judges and juries should be free to consider all relevant evidence and to answer the single question of whether they are satisfied beyond reasonable doubt that the accused person committed the offence libelled ....'

The corroboration rule is discussed in the Carloway Review at pages 255 to 286. 
 
The Scottish Justice Secretary (Kenneth MacAskill MSP) appears to be especially keen to implement this recommendation and its abolition has found its way into the Criminal Justice (Scotland) Bill  - see, for example, BBC Scotland - Corroboration has failed Scotland.  MacAskill is meeting with widespread opposition from Scots lawyers including some as distinguished as Lord Gill and Lord Hope.  (Wikipedia entries: Lord Gill and Lord Hope).  See also the view of the Faculty of Advocates  and the Law Society of Scotland. 

Part 2 of the Criminal Justice (Scotland) Bill  states (Clause 57):


It is worth noting that one of the points Lord Carloway made is that a legal aid system provides effective representation for the defence - (para 7.2.4 of the Carloway Review).  If legal aid goes the way that it going in England then this argument may no longer hold good and perhaps the need for retaining corroboration will be all the stronger.

I am not sufficiently versed in Scots criminal law, evidence or procedure to be able to express a view either way on this fascinating debate.  However, let us look briefly at the view of the Faculty of Advocates :

'The resulting report includes a review of the requirement for corroboration generally and recommends its abolition, but does so without taking into account existing procedural and evidential issues closely related to the requirement for corroboration, or giving adequate consideration to any additional safeguards or consequential changes required in the event of its abolition.

and, later

The Faculty remains of the view, as stated in its response to the Consultation Document, that the matters considered (including corroboration) are of such fundamental importance to the administration of justice in Scotland that they should be the subject of much fuller consideration by a Royal Commission.'

That would seem to be a more sensible way forward even if takes rather longer.  A fundamental question would however seem to be - Is abolition of the rule necessary?  The view from south of the border seems that the answer from those who understand the system - Scots criminal lawyers and other practitioners - is, generally, a resounding NO.

Footnote on Cadder v HM Advocate:

The Cadder decision led to further cases in the UK Supreme Court - see UK Human Rights blog 24th November 2011 - "Sons of Cadder" - Supreme Court rulings on legal advice during Police interviews.   The Cadder decision was discussed on the Head of Legal blog 26th October 2010 and on the Scottish Law Reporter 26th October 2010.  The reader will see from the Scottish Law Reporter article that there was a considerable political element (and maybe resentment) in the response from Edinburgh to the Cadder judgment. 

Some other links:

30th November 2012 - a brief look at corroboration in English law - Sir Cyril Smith~Corroboration of evidence

Blogposts by Lallands Peat Worrier - the author looks at some aspects of the corroboration rule

Reforming Scots Criminal Law and Practice: additional safeguards following the removal of the requirement for corroboration: Analysis of Consultation Responses - This was a further consultation on additional safeguards including the possibility of an increase to the jury majority required for a conviction; widening of the trial judge's power to rule that there is no case to answer; and views were sought on the retention or abolition of the 'not proven' verdict.  As regards jury trial in Scotland it has to be noted that it is only used in a small percentage of cases (albeit the most serious cases).  Most criminal trials in Scotland are before either Justice of the Peace Courts or Sheriff Courts and are without juries.

Scottish Law of Evidence - Law Teacher

Scots Justice failed by corroboration - MacAskill - The Scotsman

The Corroboration Debate - The Point - Kevin Kane examines the debate on the removal of corroboration

Scots criminal law and practice reform - abolition of corroboration - a Police view - Chief Superintendent David O’Connor, President comments “we are not opposed to making some amendments in relation to corroboration and its application but hold a strong view that there should be no blanket abolition of the requirement for corroboration. Corroboration serves as a safeguard for the general public who come under suspicion of a committing a criminal act, the accused and also for police officers who are on occasion subject to false or malicious complaints as a course of executing their duty”.

' ... the principle of corroboration provides some balance between the protection of individuals from wrongful prosecution and/or conviction and miscarriage of justice. There is no doubt that there is scope for change but ASPS are not wholly convinced of the need for the complete abolition of one of the key safeguards in Scots Criminal Law.'

Corroboration - Random Thoughts Re Scots Law - Paul McConville

Corroboration and Distress - The Supreme Court - lecture by Lord Hope (2009) in memory of Sir Gerald Gordon

Corroboration in Scots Law: "archaic rule" or "invaluable safeguard" - University of Strathclyde

Proposal for reform of the law of evidence relating to corroboration - Scots Law Commission 1967 - this report related to the different topic of corroboration in CIVIL cases.

Home Secretary's 'certificate' did not terminate judicial review

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R (Ignaoua) v Secretary of State for the Home Department [2013] EWCA Civ 1498 (Lord Dyson MR, Richards and Sullivan LJJ) is a most important decision relating to judicial review.   

Lord Justice Richards (delivering the court's unanimous judgment) said - (links to legislation added):

1. The appellant is the subject of a direction by the Secretary of State of the Home Department excluding him from the United Kingdom on the ground that his presence here would not be conducive to the public good for reasons of national security. He was informed of that direction in July 2010 (a decision to maintain the exclusion was made in March 2011). There was no right of appeal. In October 2010 he brought proceedings against the Secretary of State for judicial review of the direction. Those proceedings were held up by problems arising out of the Secretary of State's reliance on closed evidence. There were still outstanding issues of disclosure when, on 16 July 2013, the Secretary of State certified the direction under section 2C of the Special Immigration Appeals Commission Act 1997 ("the 1997 Act"), as inserted by section 15 of the Justice and Security Act 2013 ("the 2013 Act"), which came into force on 25 June 2013.


2. The certificate opened the way for an application to the Special Immigration Appeals Commission ("SIAC") to challenge the direction, though the procedural rules required for such an application to be progressed within SIAC did not exist at the date of the certificate and are still not in force.


3. At the same time, by virtue of article 4(3) of the Justice and Security Act 2013 (Commencement, Transitional and Saving Provisions) Order 2013 ("the 2013 Order"), the purported effect of the certificate was to terminate the existing judicial review proceedings.


4. The appellant wanted to press ahead with the judicial review proceedings. He challenged the lawfulness and effect of the certificate both within the context of those judicial review proceedings and by way of a separate application for judicial review of the certificate. The separate application in respect of the certificate remains on hold. The issues otherwise raised by the appellant came before Cranston J, who held that the intention of Parliament was that, if an exclusion direction is certified by the Secretary of State, a challenge to it must be advanced in SIAC, and existing judicial review proceedings are terminated without any court order or residual jurisdiction in the court: see his judgment at [2013] EWHC 2512 (Admin). The judge granted permission to appeal.


5. The primary focus of the submissions of Ms Stephanie Harrison QC at the hearing of the appeal was on issues concerning ouster of the court's supervisory jurisdiction and the court's inherent jurisdiction to regulate its own procedures. But Mr Rory Phillips QC for the Secretary of State accepted that, leaving aside the court's undoubted jurisdiction to determine the separate challenge to the lawfulness of the certificate, the court has inherent jurisdiction to consider, in the context of the judicial review proceedings relating to the exclusion direction, whether the Secretary of State had the power under the statute to terminate the proceedings by the issue of a certificate. That concession greatly simplifies matters.


6. In the event, the central issue in the appeal is whether the Secretary of State's certificate was effective to terminate the judicial review proceedings relating to the exclusion direction. 

The Court of Appeal held:  

Conclusion

1. For the reasons given I would allow the appeal, declare that article 4(3) of the 2013 Order is outside the powers conferred by the 2013 Act and that the judicial review proceedings relating to the exclusion direction have not been terminated by the making of the certificate, and remit the case to the Administrative Court to decide on the future of those proceedings. 

Earlier post - 11th August 2013 - Justice and Security Act 2013 - On-going judicial review stopped

Henriques J

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This excellent article about Mr Justice Henriques (who retired in late October) requires no further comment - Justice has been done and been seen to be done - Blackpool Gazette

Judiciary - Retirements - Sir Richard Henriques

Cockler Gangmaster gets 14 years - BBC 28th March 2006

Met Police guilty over De Menezes shooting  - The Guardian 1st November 2007

R v Irfan Naseer - terrorist plot - The Independent 26th April 2013 

Does the EU Charter of Fundamental Rights apply in UK or not - the Lisbon "opt out" (so called)

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The British government are openly talking about the possibility of the UK withdrawing from the European Convention on Human Rights (the convention) which is a limited menu of fundamental rights.  The convention system comes under the aegis of the Council of Europe and it is designed to underpin human rights by requiring governments to protect such rights.  The Council of Europe (with 47 member states) is to be distinguished from the European Union (EU) (with 28 member states).  The judicial body of the Council of Europe is the European Court of Human Rights (E Ct HR) based at Strasbourg.  The distinct judicial body for the EU is the Court of Justice of the EU based at Luxembourg.  

The EU is itself on a road toward becoming a signatory to the convention - Council of Europe.  It is argued by the Council of Europe that the EU's accession will strengthen the protection of human rights in Europe, by submitting the EU’s legal system to independent external control. It will also close gaps in legal protection by giving European citizens the same protection vis-à-vis acts of the EU as they presently enjoy from member states.  The Court of Justice of the EU (CJEU) has also recognised and applied human rights when making decisions in particular cases - see, for example, the article by Elizabeth F. Defeis "Human Rights and the European Court of Justice" (2007) 31 Fordham International Law 5.

A further
important international agreement is the Charter of Fundamental Rights of the EU (the charter).  The Charter brings together in a single document the fundamental rights protected in the EU. The Charter contains rights and freedoms under six titles: Dignity, Freedoms, Equality, Solidarity, Citizens' Rights, and Justice. Proclaimed in 2000, it was hoped by the EU that the Charter would become legally binding on all EU member states with the entry into force of the Treaty of Lisbon, on 1st December 2009.  However, the United Kingdom entered into a Protocol to the Lisbon Treaty which has been, misleadingly, often referred to as an 'opt out' to the Charter.

The 'opt out' (so called):

A Protocol to the Lisbon Treaty states:


Title IV (Solidarity) is concerned with workers rights.

The Lisbon Treaty and the protocol have effect in English law because of the European Communities Act 1972 s.2 and the European Union (Amendment) Act 2008.  (UK Parliament approves EU Treaty).


I have always found the drafting of the protocol to be inelegant and its effect to be unclear.  It may well be thought that the cumbersome wording was designed to deny to the British people the rights etc. conferred by the charter except to the extent that the British government chose to permit such rights in national law by procuring the enactment of legislation by the UK Parliament.  In other words: an "opt out."

However, in Case C-411/10 and C-493/10, R (NS) v Secretary of State for the Home Department [2013] QB 102 the Court of Justice of the EU took a different view and decided that article 1(1) of the protocol explains article 51 of the Charter with regard to the scope thereof and does not intend to exempt the Republic of Poland or the United Kingdom from the obligation to comply with the provisions of the Charter or to prevent a court of one of those member states from ensuring compliance with those provisions.   This case was a reference to the CJEU from the Court of Appeal (Civil Division) - see R(NS) v Secretary of State for the Home Department [2010] EWCA Civ 990.

Article 51 states:  Field of application


As explained by Mark Elliott on the Public Law for Everyone blog, the "opt out" is not really an opt-out at all: it merely clarifies the provision already made by the Charter itself concerning its scope of application.

See also Who's right about the EU Charter of Fundamental Rights? - Head of Legal blog 22nd November - for a detailed analysis of the position by Carl Gardner.  (This link added 22nd November).



Judgment of Mostyn J:

Entering into the fray came Mostyn J in R (AB) v Secretary of State for the Home Department [2013] EWHC 3453 (Admin).   The learned judge said at paras 12 and 13:

'Although the language of this protocol reveals a certain amount of political haggling, to my mind it is absolutely clear that the contracting parties agreed that the Charter did not create one single further justiciable right in our domestic courts ......

However, my view that the effect of the seventh protocol is to prevent any new justiciable rights from being created is not one shared by the Court of Justice of the European Union (CJEU) in Luxembourg .....'

and then at para 14, Mostyn J said:

'The constitutional significance of this decision can hardly be overstated. The Human Rights Act 1998 incorporated into our domestic law large parts, but by no means all, of the European Convention on Human Rights. Some parts were deliberately missed out by Parliament. The Charter of Fundamental Rights of the European Union contains, I believe, all of those missing parts and a great deal more. Notwithstanding the endeavours of our political representatives at Lisbon it would seem that the much wider Charter of Rights is now part of our domestic law. Moreover, that much wider Charter of Rights would remain part of our domestic law even if the Human Rights Act were repealed.'  (My emphasis).

The cat among the pigeons:

As might be expected, Mostyn J's judgment has put the cat among the pigeons in the Ministry of Justice and in other political circles.  Perhaps more accurately, it might be said that it is the Court of Justice of the EU which threw the cat in.  However that may be, the Secretary of State for Justice has indicated that the government will seek a suitable case to challenge this view - see The Guardian 19th November 2013.

Denying to the British people rights enjoyed by nationals of other EU member states is a political question and it must be remembered that it is not just the Conservative Secretary of State who is doing this. It was a Labour government which signed the Lisbon Treaty - (Gordon Brown arrived late) - and entered into the Protocol which, according to the CJEU, is not an "opt out" after all and, indeed, may never have been more than just a rather confusing clarification of the application of Article 51.

The view expressed by the British government in its submission to the Court of Appeal in R(NS) v Secretary of State for the Home Department was (para 7):

" ..... the Secretary of State accepts, in principle, that fundamental rights set out in the Charter can be relied on as against the United Kingdom, and submits that the Judge erred in holding otherwise (judgment, paragraphs 155 and 157, first sentence). The purpose of the Charter Protocol is not to prevent the Charter from applying to the United Kingdom, but to explain its effect."

In so far as the Charter has any effect in English law it will, in any event, be limited to cases where EU law is under consideration.  This follows from Art 51.1 (quoted above) which contains the phrase 'only when they are implementing Union law.'


Other materials:


Interesting material on this topic appears at UK Human Rights blog (The EU Charter: are we in or out) where, back in 2011, Rosalind English considered the effect of the so-called opt out.   Rosalind English has also contributed a further article on 8th November 2013.

Open Europe Blog - New light shed on Tony Blair's Charter of Fundamental rights "opt out" - 5th March 2013

The role of EU law in the human rights sphere is now the subject of one of the UK government’s “balance of competences” reviews, which contains a detailed and helpful explanation of the relationship between EU law, the ECHR and domestic law in the human rights field.

Who's right about the EU Charter of Fundamental Rights? - Head of Legal blog 22nd November - a detailed analysis of the position by Carl Gardner.

Today Chris Grayling told parliament the law is unclear. In 2010, Theresa May said it was clear. 😣 pic.twitter.com/bUIus4ddHz ht @AdamWagner1
— Jon Mack (@JonDMack) November 19, 2013

Legal aid ~ Special General Meeting of the Law Society

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There is to be a Special General Meeting of the Law Society.  The meeting will be held on Tuesday 17 December 2013, at 10.30 am.

Here is the motion:

'That the meeting has no confidence in the ability of Nicholas Fluck, President of the Law Society of England and Wales, and Desmond Hudson, Chief Executive of the Law Society of England and Wales, to properly and effectively represent those members of the Society who undertake publicly funded legal aid work in negotiations with the Lord Chancellor as to the future and extent of criminal legal aid in England and Wales on the grounds that they purported to enter into an agreement with the Lord Chancellor without a mandate from those members of the Society who practise publicly funded criminal law and in circumstances where the purported agreement was to the detriment of and against the will of those members and to the maintenance of a sustainable legal aid service to those subject to criminal proceedings.'

• Read the SGM notice (PDF 133kb)
• Response to legal aid proposals
• Open letter and response

The Law Society's stance on criminal legal aid has been set out on their website.

The Law Society Gazette 5th September - This is best deal possible - reaction to amended legal aid plan

The Virtual Lawyer (Steve Cornforth Blog) - Divided we fall

The Lincoln's Inn 'Legal Aid Rally'

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Nigel Lithman QC is the present Chairman of the Criminal Bar Association.  In his 'Monday Message' he reports about a Rally at Lincoln's Inn last Saturday.  The meeting was attended by barristers from all over the country.  They are united in opposition to the government's plans for legal aid as revealed in two consultations - (discussed previously on this blog - First consultation 4th June and Second consultation 1st November).  Lithman makes the point that the Ministry of Justice is not listening to the many voices raised in opposition to their savage proposals (e.g. the first consultation received around 16000 responses) and he goes on to set out the resolutions agreed by the meeting.

The issues raised are immensely serious ones for the future of a fair system of criminal justice in England and Wales.  One of the most serious effects of the government proposals is that the junior bar will cease to be financially viable for the vast majority of junior barristers.  Already, the point may now have been reached where a career at the criminal bar is out of the question for many talented young people of modest means.  This will impact on the diversity of the legal profession and, in the longer term, on the quality of legal representation available to accused persons and, of course, on the eventual quality of the judiciary.

Please read the 'Monday Message' fully.   The resolutions are also set out here. They include this:



The calling of a day or days of action on which no members of the criminal bar will undertake work in either the magistrates or crown courts. We will ask for the support of the representative bodies of the solicitor’s profession in standing by us on that (those) day (s). The purpose will be to demand that the government stays all its current proposals for legal aid and that the justice secretary engages with us meaningfully.

Other links:

Legal Voice - Barristers threaten to 'strike' over legal aid cuts - Hundreds of criminal barristers from across the country have unanimously voted in favour of strike action if the government does not back down on its proposed further cuts to legal aid.  The vote took place at Saturday’s Criminal Bar Association (CBA) national delegates’ conference at Lincoln’s Inn in London, where barristers from each of the six circuits turned out to make a stand against the government’s reform proposals for legal aid, including the proposal to cut defence barristers’ fees in criminal legal aid cases by a further 17.5%.

Justice Alliance is seeking to persuade the Liberal Democrats to oppose the cuts put forward by the Conservative / Liberal Democrat coalition.   See the Justice Alliance website.

The government's attack on barristers is a looming disaster - Telegraph 19th November.

Bar Council

.@mojgovuk response to Saturdays conference as predictable, and wrong, as ever. STILL using false figures http://t.co/3dySQrsOjU
— The CBA (@TheCriminalBar) November 18, 2013

MoJ is working through the latest consultation responses - have put one man on it - promise he will read them all... pic.twitter.com/ZO9fqBQEcp
— Chris Grayling (@FailingGrayling) November 18, 2013

View from Strasbourg ~ Paul Mahoney

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At the European Court of Human Rights, each member State of the Council of Europe has a judge from that State.  Paul Mahoney is the judge from the UK.  In the Law Society Gazette he has set out some of his views - Law Society Gazette 11th November - The UK’s judge at the European Court of Human Rights explains how it ‘insures’ nations against ‘backsliding into totalitarian government’

'The Strasbourg court is no longer like some satellite in outer space,’ the UK’s judge at the European Court of Human Rights, Paul Mahoney, tells the Gazette. Its rulings have become ‘almost the common law of Europe’, he says, as the 47 member states of the Council of Europe (CoE) integrate them into their national laws.

That is a bold statement
given the UK coalition government’s repeated threats to withdraw from the European Convention on Human Rights (the convention), which it is the court’s responsibility to enforce. The government is regularly incensed by judgments from Strasbourg, where the court is based, allowing ‘hate preachers’ to appeal their deportations (for example). Another ruling, saying that a blanket ban on prisoners voting was unlawful, even made our prime minister feel ‘sick’, or so David Cameron complained.

Mahoney, who replaced Sir Nicolas Bratza in November 2012, has little patience with such ‘little England views’. He says: ‘The UK is strong enough to absorb the flea bites of judgments that go against us. Our staying within the system is good news for Europe, in particular for member states that, unlike the UK, do not have a history of democracy behind them. The UK is a role model for the democratic protection and promotion of human rights.’

and later

'What does he say to complaints that Strasbourg overrides the sovereignty of parliament? He replies: ‘A parliamentary majority would seem to imply a respect for democracy, but that isn’t always the case. Adolf Hitler and, more recently, Morsi in Egypt, were both democratically elected. To ensure the protection of individuals and institutions, you need some sort of international guarantee outside the national system. That is what the CoE and the court do. They are a kind of insurance policy against backsliding into totalitarianism.’

Full article at Law Society Gazette 11th November

Mr Mahoney was elected by the Council of Europe's Parliamentary Assembly following the submission of three names by the British government - Strasbourg insider become UK's next human rights judge - Telegraph 28th June 2012

Section II of the European Convention on Human Rights deals with the court and its judges.

Justices of the Peace

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The office of Justice of the Peace is one of the oldest known to our law.   I wrote about the justices in June 2011 as part of a series of posts about our legal system.  Today, a considerable number of the justices are members of the Magistrates' Association and its recently elected chairman has suggested that there be a debate about allowing some former offenders to become magistrates - Law Society Gazette 11th November - Let ex-offenders sit as magistrates.  The article is worth reading since the suggestion is more nuanced than the headline would suggest.  Nevertheless, I disagree with any weakening of existing policy in this area.  (Existing policy does not necessarily exclude those with minor convictions).  It has to be paramount that the bench maintains not only legal authority but also moral authority to sit in judgment on the actions of fellow citizens.

In 1307 and 1308 Keepers of the Peace
were empowered to arrest people on suspicion of felony, and in 1316, in Kent, they were empowered to judge the cases of those they had arrested, so the jails could be cleared (Alan Harding - The Law Courts of Medieval England - 1973).  Although appointed by the King, the 'Keepers' were local men.  In the reign of Edward III, the office of justice of the peace was established (Justices of the Peace Act 1361) and it was stated that there were to be  'three or four of the most worthy in the county, together with some learned in the law.'  In 1388 the numbers of justices in each county was increased and it was enacted that they be paid 4 shillings for each day of their sessions: in effect, twelve times the average working wage of the day.  At the present time, justices receive certain expenses which are not all that generous!  The magistracy celebrated its 650th anniversary in 2011.  Over the last 652 years, the role of the magistrate has changed many times (and continues to do so) but it has been an abiding requirement that justices be of demonstrably good character.   I for one hope that this will be maintained.

Guidance notes for applicants - Section 4 explains the present policy regarding previous convictions

Addendum 18th November:

Law Society Gazette - Felons on the bench would be a crime  - former criminal defence solicitor John Morton argues that Richard Monkhouse's thoughts do not merit much consideration.  Does the public really want ex-criminals sitting in judgment over them?  Morton also argues that appointing minor ex-criminals to the bench is a slippery slope.

Newspapers, spooks, a naked man, a PCSO, undercover cops, sex in prisons.

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Here is a roundup from my surveillance of legal stories.

The Daily Mail on the naughty step:

Back in October some law bloggers took issue with the Daily Mail's article - 'Human Right to make a killing'.  Please see my post of 8th October - Human Rights attacked again - the thorny issue of just satisfaction.  No less a body than the Council of Europe considered it necessary to also take issue - Court concern at seriously misleading UK news articles.  The Daily Mail has now admitted that the article was misleading.  Not a front page admission of course but an admission nevertheless though the damage to human rights and respect for the European Court of Human Rights has been done as was, I suspect, intended.  Adam Wagner (UK Human Rights blog) comments on the Daily Mail's correction.    The Mail's pathetic correction is here.   It is so brief that I may as well quote it in full:



'An article on 8 October said that the UK has paid £4.4million in compensation to criminals under rulings by the European Court of Human Rights.  In fact, the money went to a range of claimants and only £1.7million was compensation; legal costs accounted for the rest.'

Gough v DPP [2013] EWHC Admin 3267 - is an interesting application of section 5 of the Public Order Act 1989.  As Sir Brian Leveson P stated: For some ten years, Stephen Gough (the Appellant) has walked naked through the highways and byways of the United Kingdom, from John o' Groats to Land's End. He has made it clear that arrests, prosecutions and convictions will not deter him from nude walking in the future. On 11 March 2013, he was convicted at the Calderdale Magistrates Court in Halifax, before District Judge (Magistrates' Courts) Lower, of a breach of s. 5(1) of the Public Order Act 1986 ('the 1986 Act') which is a summary only offence, the maximum penalty for which is a fine up to level 3 on the standard scale. He now appeals against that conviction by way of case stated.   The High Court held that Mr Gough's conviction was right in law.

Earlier this year, Mr Gough received a sentence of 48 weeks imprisonment for breach of an Antisocial Behaviour Order (ASBO) and this sentence was upheld by the High Court - see [2013] EWHC Admin 1418.

Misconduct by a PCSO:

The Court of Appeal, in R v Bunyan [2013] EWCA Crim 1885, concerned a Police Community Support Officer (PCSO)'s who used his position to engage in consensual sex with vulnerable women.  He was convicted of 8 counts of misconduct in public officer.  The Court considered the sentences imposed in the Crown Court and decided to revise them so that Bunyan must serve a total sentence of 3 years imprisonment.

Undercover Police Officers and sex:

AJA and others v The Commissioner of Police of the Metropolis and others [2013] EWCA Civ 1742 explored whether sexual contact between undercover police officers and those under investigation is lawful.  Lord Dyson (the Master of the Rolls) stated the issues before the court as:

The first issue that arises is whether the IPT has jurisdiction to determine the claims brought under section 7(1) of the HRA. This turns on whether the establishing or maintaining of an intimate sexual relationship by a covert human intelligence source ("CHIS") was "conduct to which Part II [of RIPA] applies". If it was not conduct to which Part II applies, the claims are not subject to the jurisdiction of the IPT. The judge held that the alleged conduct was conduct to which Part II applies and that the IPT therefore has jurisdiction to decide the human rights claims.

The second issue arises from the fact that, for reasons that we shall describe in detail later in this judgment, the judge stayed these proceedings pending the determination of the HRA claims by the IPT. The appellants submit that he was wrong to do so. The respondents submit that this was a case management decision which was not plainly wrong and with which this court should not interfere.

The court held that Parliament clearly intended that human rights proceedings about the establishing or maintaining of relationships by undercover police officers should only be determined by the IPT [para 42] and the actions in the High Court may proceed [66]. 

See also the earlier post of 17th January 2013.

Howard League Report - Sex in prisons:

The Howard League for Penal reform has a Press release relating to Sex in Prisons - Here

'The need to promote safer sex in prisons is widely recognised but measures to prevent the risk to public health are poorly delivered, the Commission on Sex in Prison has found.

In its first briefing paper, Consensual sex among men in prison, the Commission warns that the prison population is a high-risk group for sexually transmitted infections and risk-taking sexual behaviour.
Most prisoners will eventually return to the community, meaning that sexual health policies in jails are important not just for inmates, but for the public as well.

The independent Commission, which comprises eminent academics, former prison governors and health experts, was established by the Howard League for Penal Reform.,

Murder in Helmand

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Conviction:

The Court-Martial has found Marine 'A' guilty of murder of an already wounded Taliban fighter-  see The Independent 8th November.   Two other Marines were acquitted.  The Court Martial has jurisdiction over the case by virtue of the Armed Forces Act 2006 section 42.   Upon a conviction for murder, English law requires that a sentence of life imprisonment be imposed.  The term to be served before 'A' may be considered for release remains to be set by the Judge (His Honour Judge Jeff  Blackett who is also the Judge Advocate General).  In setting the term, the judge is able to consider any aggravating and mitigating features*.  Following the conviction, the Service Prosecuting Authority (SPA) issued a statement:



'Following a 13 day trial involving careful consideration of all the evidence made available to them, the members of the Court Martial Board have convicted the Defendant known as Marine A of murder. The Defendants known as Marines B and C were acquitted of the same offence. This combination of verdicts was always open to the Court Martial Board and the SPA respects the decision that has been reached. This was always going to be a complex trial which polarised opinions as to actions on the battlefield. With the conviction of Marine A, the Court Martial Board has sent an unambiguous message that there can be no excuse or justification for the unlawful actions described during this trial and that the consequence of such actions will be of the utmost seriousness.

As articulated by the Judge Advocate General, the Defendant will be sentenced at a later date to be specified. The issue of sentence is for the Court Martial and not for the SPA.'

Sentence / Clemency:


The Chief of the Defence Staff (General Sir Nicholas Houghton) has publicly said that it is not for the service command structure to request clemency - BBC 10th November.  Gen. Houghton made it clear in his interview with Andrew Marr that there is a proper judicial process for sentencing which must be adhered to.  (There are also rights of appeal to the Court Martial Appeals Court - CMAC).

Political background to Afghanistan:

The British government committed the armed forces to Afghanistan in 2001 (Prime Minister Tony Blair's statement of 7th October 2001).  It has been a terrible campaign with the deaths, as of 5th November 2013, of 446 British service personnel - Casualties in Afghanistan.  On 7th October 2011 The Telegraph looked back on a decade of conflict - Afghanistan: A decade of conflict.  The purposes of military involvement in Afghanistan have never been made particularly clear to the general public.  It has been presented in various ways: the War on Terror following on the 9/11 tragedies in the USA to the need to control opium production or perhaps it was more about seeking to ensure access to natural resources etc.  As troops withdraw, there is considerable debate over what, if anything, has actually been achieved - e.g. Telegraph 19th August 2013 ; New York Times 17th October 2013 - As they leave Afghanistan, Britons Ask, 'Why?' and Arab News 28th June 2013 Chasing Shadows in Afghanistan    According to United Nations reports, opium production is increasing as troops withdraw - BBC 13th November.

Open court and anonymity:


In general, the Court Martial is required to sit in open court - Armed Forces Act 2006 section 158.   The requirement for open court is subject to anything to the contrary in 'court martial rules'.  Rule 153 of the Armed Forces (Court Martial) Rules 2009 permits the court to withhold matters from the public.  The accused Marines were granted anonymity under a ruling by Judge Blackett - (Order of 6th November 2012) and see - (Order of 8th November 2013) - where the Judge rescinded the anonymity order but allowed until 15th November for an appeal relating to this ruling to be lodged with the Court Martial Appeal Court (CMAC).  A first point in any such appeal will be whether the CMAC has jurisdiction under the Armed Forces (Court Martial) Rules 2009 Rule 154 to hear the appeal.

In making the anonymity orders, Judge Blackett considered Re L (An Officer) [2007] UKHL 36 and Re W's application [2004] NIQB 67

Killing of the enemy:


An element of the definition of murder is that deceased must have been 'under the Queen's Peace' at the time of the killing.  This point tends to be dealt with very briefly in most criminal law textbooks.  The killing of the enemy in the heat of battle will not be unlawful killing.  Such enemies would not be deemed to be under the Queen's Peace.  There are however situations in which the enemy must not be killed.  For instance, the Geneva Conventions - (to which the UK is a party) - become relevant.  As the Red Cross indicate:

'The Geneva Conventions and their Additional Protocols are at the core of international humanitarian law, the body of international law that regulates the conduct of armed conflict and seeks to limit its effects. They specifically protect people who are not taking part in the hostilities (civilians, health workers and aid workers) and those who are no longer participating in the hostilities, such as wounded, sick and shipwrecked soldiers and prisoners of war.'    Hence, Article 12 of the First Geneva Convention states: 'Members of the armed forces and other persons mentioned in [Article 13] who are wounded or sick, shall be respected and protected in all circumstances ...'

The events were recorded by a head camera and, at one point, X can be heard referring to the Geneva Convention - Royal Marine executed captured Afghan Court Martial hears

Marine A then says: “There you are. Shuffle off this mortal coil you c***. It’s nothing you wouldn’t do to us.”
He turns to his patrol and says: “Obviously this doesn’t go anywhere fellas. I have just broken the Geneva Convention.”
One comrade replies: “Roger”.
Later, the patrol can be heard reporting back on the radio that the fighter has died of his wounds.

The full recording has not been made public - UK government argues releasing video would risk lives

Of course, the statement that - It’s nothing you wouldn’t do to us" - is likely to be perfectly true but the fact remains that the UK abides by the Geneva Conventions and the rule of law.  As the Chief of the Defence Staff pointed out (link above) we wish to maintain a 'moral ascendancy' over those who are our enemies.

Trial of murder committed abroad by a British citizen:


A court in England and Wales may try a British citizen for murder or manslaughter even when it is committed abroad - Offences against the Person Act 1861 s.9 and British Nationality Act 1948 s.3

Notes:


* In sentencing, the judge could take into account the impact on the individual of the extreme stress of exposure to battlefield conditions.  This is a matter which a court martial is well placed to consider.

International Committee of the Red Cross - Geneva Conventions and Resources (Documents)

ICRC - Development of modern international humanitarian law

Manual of Service Law (JSP 830) 

Addendum 17th November:

Marine A - it's a question of leniency - Telegraph 17/11/13.  As mentioned above, I see no legal reason why the judge cannot take fully into account the impact on the individual of the extreme stress of exposure to battlefield conditions.

Addendum 18th November:

UK Human Rights Blog - Will Marine 'A' retain his anonymity - reporting that an appeal to CMAC by Marine 'A' has been commenced.

Addendum 20th November:

Halsbury's Law Exchange - Marine 'A' and the sentencing of battlefield executions 

Addendum 5th December:

The Guardian - Naming of Marine A   and The Guardian 5th December 2013 

Judiciary UK - Orders of 5th December 2013 

Parliament ~ Prisoner Voting ~ Evidence from Secretary-General of the Council of Europe and the Attorney-General

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On Wednesday (6th November) a Joint Committee of both Houses of Parliament resumed its work considering the draft Prisoner Voting (Eligibility) Bill.   The Bill contains 3 options but also notes that there 'will no doubt be other possible options.'  The options put forward are: a ban for prisoners sentenced to 4 years or more; a ban for prisoners sentenced to more than 6 months or a ban for all convicted prisoners.  The third option is, of course, the status quo and cannot be compatible with the European Convention on Human Rights Protocol 1 Article 3 in the light of the Strasbourg case law (e.g. Hirst No 2) and note the Supreme Court's recent decision in Chester and McGeogh.  In our domestic law, it is open to Parliament to legislate contrary to the European Convention but doing so in this matter will place the UK in breach of its international obligations. 

The committee took
evidence from the Secretary-General of the Council of Europe Thorbjorn Jagland and also from Dominic Grieve QC the Attorney-General.  A full viewing of the session is recommended.  Parliament was reminded strongly of the need for the UK to abide by its obligations.  As Mr Jagland noted - “If the United Kingdom doesn’t implement a judgement from the court, it would set a bad example.  If the convention system is weakened or dissolved then it will harm human rights for millions of citizens on this continent and it will give much more cover to those who want to have more power at the expense of the people.”  Mr Jagland also noted that defiance, or even withdrawal from the convention system, is “inconceivable,” given the United Kingdom’s role, as a “founding father” of European human rights protection after the Second World War and its reputation as a global defender of treaty obligations.'

The Attorney-General warned the committee that flouting European judges over prisoner voting would risk international "anarchy."  Whilst sticking to international rules could be "irksome" at times, it had been the "settled view" of British governments for centuries that such obligations should be met -  Telegraph 6th October 

Both Mr Jagland and Mr Grieve sought to encourage the committee to consider the wider international implications of deliberately retaining the status quo (i.e. Option 3) and thereby denying prisoners the vote.

Some members of the committee were not at all sure that any action will be taken during the current Parliament and some clearly did not want to see any form of  voting for prisoners.  From the viewpoint of the UK's reputation, it is to be hoped that wiser counsels prevail.  Mr Grieve made it clear that, as things stand, either Option 1 or 2 would appear to meet the UK's obligation though the possibility of a future case at Strasbourg deciding otherwise could not be entirely ruled out. 
 
Observations from the Council of Europe were submitted to the joint committee in October.

See also the article by Joshua Rozenberg in The Guardian 6th November


Dr Howard Davis’ post -  here.