As June fades into July ... A short roundup ...

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As June fades into July, a little food for thought ...

Halsbury's Law Exchange has published an item by Lord Phillips (a former Lord Chief Justice and President of the Supreme Court) on Prisoner Voting - Should Prisoners have the right to vote?

Justice - Resources on the Criminal Justice and Courts Bill which will make important changes to the law including access to judicial review.  See details of the Bill on the Parliament website.
 The British like to believe they are free, but after Snowden, Miranda and the “war on terror”, how true can this be? Are most of us free while those who seek change discover a tenuous grip on freedom?'  See
London School of Economics - The State of Freedom in Britain

UK Human Rights Blog - 'Do not resuscitate' and the Right to Die - the Human Rights Roundup - Celia Rooney 30th June.

Marilyn Stowe blog -  The unravelling of the Family Justice System by John Bolch.

Our top 10 villas in Sicily

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View all villas in Sicily


At Holiday Homes in Italy, we absolutely adore Sicily! Its mountains, olive laden hills and above all the incredible coastline and sea. Sicily offers a rich and unique culture and is famous for its beaches, cuisine, fascinating history and architecture.

This island is a perfect backdrop for a villa holiday in Italy; the beauty of peace and nature and jaw-dropping scenery to relax and unwind, whilst a host of festivities and history on your doorstop to explore.

In terms of accommodation, Sicily is the perfect destination to find that perfect villa. Villas in Sicily are diverse; you can find modern high-end properties or rustic villas. What you will find is that all our villas in Sicily are of a high standard of accommodation, ensure a comfortable and unforgettable stay. So if you are looking for a villa or house in Taormina, a villa in Ragusa, a villa in Siracusa or a villa in Cefalu, you will be spoilt for choice.

We offer so many beautiful villas in Sicily that we really were spoilt for choice but here are our top 10 villas in Sicily:


Cornino villa – A bright and simple 3 bed villa with private swimming pool just a few steps away from the beach at Cornino near Trapani.  Light, airy and comfortable contemporary funishings. From £1,070 per week.

Siracusa seaview. Stunning 6 bed sea-front villa with private pool is situated in Fontane Bianche, a seaside resort, south of Syracuse. Stylishly decorated, it sits just a few hundred metres from one of the best sandy beaches on Sicily's east coast and offers stunning sea views.  From £2,758 per week

Tipico baglio - This sunny eighteenth-century country estate is located at the heart of baroque Sicily near Modica, and has been recently expertly renovated. It is surrounded by ancient olive, citrus and almond trees and offers two swimming pools, both situated in the sheltered and stylishly furnished Mediterranean courtyard. 5 beds, from £3,436 per week.

Villa Angeli south of Modica is perfect if you are looking for a more authentic stay. This nineteenth century 4 bed property offers a wealth of character, well-maintained gardens enriched by a collection of palm trees and a large swimming pool surrounded by a solarium-terrace.  From £2,185 per week.

Villa bella vista – this luxury 4 bed villa is situated not far from Trapani.  Combining comfort and luxury with contemporary design, the villa delivers ultimate quality and offers a private swimming pool and outstanding scenery: the Erice mountains, the centre of Trapani, the sea and the Egadi islands.  From £2,865 per week.

Villa in fiore – this 5 bed exclusive villa with private swimming pool is located just a few kilometres from Trapani, an elegant town, renowned for its beautiful historic centre with its cafes, restaurants, and boutiques.  The villa is surrounded offers breathtaking views over the countryside down to the sea. It is surrounded by lush gardens and exotic Mediterranean plants. The property evokes the aristocratic elegance of old Sicily and offers a light, refined interior, with all mod cons and is stylishly decorated to create a warm, cosy atmosphere. From £2,100 per week.

Casa bella verde – a really cute villa in a residence with shared pool.  The 3 bed property is surrounded by beautiful scenery and is a short drive from the beautiful beaches of Sampieri, Donnalucata, Punta Secca and Marina di Ragusa with its restaurants, bars and cafés. From £855 per week!

Seafront villa – this charming 3 bed property is located on the seafront of Santa Maria la Scala, a small evocative fishing village on the mythical Cyclops Riviera near Acireale. The villa enjoys a splendid position overlooking the sea and boasts enchanting views over the characteristic bay with its traditional painted wooden fishing boats. Recently restored, the villa is surrounded by spacious terraces ideal for relaxing outside and is within walking distance of amenities. From £1,715 per week

Villa Taormina – this gorgeous 4 bed villa lies opposite the bay at Mazzaro' just 200 meters from the beach at Spisone and 400 meters from the cable-car that takes you to the center of Taormina. The garden, which has a beautiful view of the sea, is very well-kept and offers a large, furnished terrace overlooking the bay, where you will also find a large Jacuzzi. From £2,965 per week.

Casa Licata – an impressive 4 bed villa with Mediterranean garden and swimming pool located on the south side of Sicily. The property is part of a country estate dedicated to growing organic produce and offers wonderful views of the surrounding softly rolling hills and olive groves. Guests can dine al fresco on the large terrace and cool off in the large swimming pool. The villa is decorated in country house style, with original ceiling beams and simple rustic elegance. From £1,443 per week

More accommodation

View all villas in Sicily

View houses and villas in Taormina and Catania areas (east Sicily)

View houses and villas in Cefalu and Palermo areas (north Sicily)

View houses and villas in Modica, Ragusa and Noto areas (south Sicily)

That pesky EU "Presidency" ... what is it?

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The European Union (EU) is based on the various European Treaties agreed by the 28 member States.  The EU is now has legal personality so far as international law is concerned but it is NOT a State.  Contrary to what the media sometimes lead us to believe, there is not a President of the European Union.  (Whether "federalists" would like there to be is another matter).  It is perhaps unfortunate that the words "President" or "Presidency" appear quite frequently because the words are used in at least five contexts relating to the various EU Institutions.

EU Presidents – who does what?

The court MAY issue a declaration of incompatibility

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On 3rd September 1953, the European Convention on Human Rights came into force with the United Kingdom among the first signatories.  For the next 47 years, the Convention operated almost entirely externally to the domestic legal systems within the UK.  Many a litigant trailed to the European Court of Human Rights (E Ct HR) at Strasbourg during those years and a considerable number obtained a judgment that the UK was in breach of the Convention.  In 1998, the Human Rights Act (HRA 98) was enacted by Parliament as part of an idea of "Bringing Rights Home."  Convention rights were to be a floor and not a ceiling for human rights protection in the UK.  The Act actually came into force on 1st October 2000. 

The HRA98 does a few apparently straightforward things. 
(1) courts must take into account various matters including judgments of the E Ct HR; (2) so far as it is possible to do so, courts are commanded by Parliament to read and give effect to national legislation in a way which is compatible with convention rights; (3) if a court (High Court or higher) is satisfied that a provision in legislation is incompatible with a convention right then the court MAY issue a declaration of incompatibility; (4) IF a declaration of incompatibility is issued by a court then the legislation continues in full force unless and until Parliament chooses to alter the law - (which normally it has done); (5) the HRA gives Ministers a right to being forward a "Remedial Order" as a fast-track method of amending the law but Ministers do not have to proceed in this way and the government could either do nothing or amend the law by bringing forward new legislation; (6) Public Authorities (e.g. Local authorities, governmental bodies) must act compatibly with convention rights (save where statute prevents them from doing so).  It is also worth noting that, if a court is considering making a declaration of incompatibility, then the Crown (in effect the government) is given a right to become a party to the proceedings.

This is an ingenious scheme designed to retain the right of Parliament to legislate as it wishes (i.e. the Legislative Supremacy of Parliament) but, at the same time, enabling the courts to bring to the attention of Parliament any areas where the law is considered by the judiciary to be incompatible with the convention.  This ingenious scheme, with its apparently straightforward ideas, has produced an enormous amount of comment (judicially and otherwise).  Some politicians have made no bones about their desire to see the repeal of the HRA 98.  Some might substitute some form of British Bill of Rights and others might put nothing in its place. 

In making decisions about compatibility it is only natural that the courts would look to see what the E Ct HR has said and it is also equally natural to adhere to the Strasbourg interpretation unless there is some good reason not to do so.  This is the "mirror principle" - articulated by Lord Bingham in Ullah v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323.  That seems to be a reasonable way of looking at what Parliament itself has commanded the judges to do - i.e.  "take into account" the view of Strasbourg.  What might amount to a good reason not to follow Strasbourg is clearly a problematic matter and is discussed in the earlier post "Thoughts on the Supreme Court's decision in Chester and McGeogh" - 21st October 2013.

If, having taken into account any views of Strasbourg, the court considers that legislation is incompatible then it MAY issue a declaration of incompatibility.  The court does not have to do so but that raises interesting questions as to when would it not do so and why not.

In the Nicklinson judgment - handed down by the Supreme Court on 25th June - the court could have made a declaration that section 2 of the Suicide Act 1961 was incompatible with Article 8.  The court declined to do so.  Only Lady Hale and Lord Kerr would have issued such a declaration.   Suffice to note here that the court has given Ministers and Parliament an opportunity to address this complex topic.

An Assisted Dying Bill is before Parliament but this applies to the terminally ill - very basically, expected to die within 6 months (see the Bill Clause 2).

Addendum 9th July 2014:

See the post of 25th June - Assisted Suicide: the cases of Nicklinson, Lamb and Martin

We underrate juries .... at our peril !

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Saunders J

This morning, Mr Justice Saunders was faced with an application to discharge the jury in the "phone-hacking" trial.  On Tuesday 24th June, the jury returned certain guilty verdicts against Mr Andy Coulson but there were other charges yet to be decided by the jury.  Defendant Miss Rebekah Brooks was acquitted on all the charges against her.  BBC News 24th June.

The Prime Minister - who had employed Mr Coulson at No 10 Downing Street - chose to make a statement about it being a misjudgment to have employed Mr Coulson.  It was therefore no surprise that Mr Coulson's counsel sought the discharge of the jury.  However, Saunders J decided not to do so for reasons stated here:

Ruling on application to discharge the jury in Coulson, Goodman and others.

Later, as events turned out,
the jury was unable to reach verdicts on the remaining counts against Mr Coulson and Mr Goodman.  The judge discharged the jury and will announce his decision regarding whether there is to be a retrial at a later date.

The judge's ruling makes it clear that the Prime Minister was not the only politician to comment.  The ruling is notable for the judge's praise for the particular jury.  "Everyone who has watched the jury have been impressed with their dedication and their ability to concentrate on the evidence and follow directions of law.  Our legal system is based on the premise that juries comply with directions of law given by the judge"  - and later - "We underrate juries, and particularly this jury, at our peril."

It is also clear that social media such as Twitter and Facebook are causing the lawyers a great deal of concern.  It seems that the use of Twitter was monitored and the judge presented regularly with "tweets" considered to be prejudicial.  Precisely how this issue will develop is unclear but there will have to be greater trust in the ability of jurors to adhere to the directions of the judge and to discharge their oath conscientiously - (as this jury clearly did).  The judge noted that Miss Brooks was acquitted despite prejudicial material appearing via the internet.

Assisting Suicide: the cases of Nicklinson, Lamb and Martin

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Mr Nicklinson

Updates: This post will be updated with further materials and comments as they become available ... as they undoubtedly will !

The Supreme Court has handed down judgment in the assisting suicide cases of Nicklinson, Lamb and 'Martin' (a name used for the purpose of the case).  Essentially the court has held that amendment of the Suicide Act 1961 section 2 is a matter for Parliament and no declaration of incompatibility (Human Rights Act 1998 section 4) was issued.  However, the possibility of such a declaration in the future was not ruled out.   Furthermore, the court allowed an appeal by the Director of Public Prosecutions and upheld the legality of the DPP's 2010 prosecutorial guidance.  The guidance was issued following the House of Lords decision in Purdy 2009.

R (on the application of Nicklinson and another) (AP) (Appellants) v Ministry of Justice (Respondent) and R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant)

• Judgment (PDF)
• Press summary (PDF)

View the court giving judgment via YOUTUBE

It is now to be hoped that Parliament takes the opportunity to address this matter in the light of the court's judgment.

Previous post 1st August 2013



Further material, Comments etc:

Doughty Street Chambers ..... Matrix Chambers ..... UK Supreme Court blog .... UK Human Rights Blog (post by Roasalind English 25th June) .....

Items added 27th June:

UK Human Rights Blog - Rosalind English - Supreme Court rejects right to die appeals

Oxford Human Rights Bub 26th June  - Claire Overman - Moral arguments on the right to die: should courts intervene?

Public Law for Everyone 26th June - Dr Mark Elliott - The right to die: deference, dialogue and the division of constitutional authority 

4th July 2014:

Jon Holbrook - The state should not be the god of death - thoughtful piece here on individual autonomy which, the author fears, is in serious danger of being overlooked should suggestions of the Supreme Court be adopted.  That is, suggestions along the lines of requiring a High Court judge to decide whether someone may be assisted to die.

9th July 2014:

Carl Gardner - Head of Legal blog - Assisted suicide, human rights and Parliament: a wrong turning by the Supreme Court

Law in Focus - Nicola Padfield  University of Cambridge - Nicklinson - the right to die

Phone-hacking trial - charges, verdicts, links to media articles, Leveson and beyond

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Charges:

What were the actual charges in the "Phone-Hacking" trial?  Here they are as published by the Crown Prosecution Service.  The charges arose from two Police investigations referred to as Operations Elveden and Weeting.

CPS - Charging announcement in relation to Operation Elveden
Crown Prosecution Service - Operation Weeting - CPS Charging Decisions

Verdicts:

Are summarised at The Independent Phone hacking trial: the verdicts in full and at  Press Gazette

Media links:


The Guardian 26th June 2014 -  Phone hacking trial was officially about crime; but in reality, it was about power

The Guardian 26th June - Phone hacking trial: total legal costs approach £100m 

Mail Online 26th June - The most expensive case in British criminal history ...

Phone hacking trial: Why was Rebekah Brooks found not guilty ... The Drum 25th June 2014

Phone hacking trial: Why was Andy Coulson found guilty ... The Drum 27th June 2014

Phone hacking: newspapers fail to report the real story about the trial - The Guardian - Greenslade blog

The Telegraph 26th June 2014 - Peter Oborne wrote - Prime Minister and his gang haven't learnt their lesson

Leveson Inquiry and beyond:

The Prime Minister announced a two-part inquiry investigating the role of the press and police in the phone-hacking scandal, on 13 July 2011. Lord Justice Leveson was appointed as Chairman of the Inquiry.  The report is available via the Leveson Inquiry website and the principal recommendations are summarised here.

Subsequently, a Royal Charter on Self-Regulation of the Press came into being.  Such a Charter was not a recommendation of the Leveson Inquiry but came about as part of the political response.  See Privy Council 30th October 2013.   The Charter created a "Recognition Panel."    David Wolfe QC has been appointed as Chair of the Recognition Panel set up by the Royal Charter - Public appointments 26th June 2014.

Previous posts - e.g. 14th October 2013 - "We by Our Royal Prerogative ... will, ordain and declare as follows ...."

The industry also created the Independent Press Standards Organisation (IPSO) and Sir Alan Moses was appointed Chairman.  Sir Alan resigned his office as Lord Justice of Appeal with effect from 21st June 2014. 

IPSO faces a number of difficult challenges.

See also Media Stadards Trust poll shows IPSO fall short of public expectations for a new Press Regulator.

Protesters arrested ...

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Please view the video with this article in a Sheffield newspaper THE STAR - Video - Police arrest protest pensioners  

It appears that there was a protest relating to cuts to rail travel passes.  Such passes are (or have been) very beneficial to many elderly people.

It is not fully possible to properly determine just from the video whether the force used by the Police was "reasonable" (as is required by the Criminal Law Act 1967 section 3 / Police and Criminal Evidence Act 1984 section 117) but it certainly has the appearance of being very heavy-handed on the part of the Police.  See - CPS on Reasonable Force

The powers of arrest of a constable are in section 24 of the Police and Criminal Evidence Act 1984 (as amended by the Serious Organised Crime and Police Act 2005).  

Where an individual is aggrieved, a civil action against the Police may be possible though this is a diffcult legal area of law and practice.  Legal aid may sometimes be available though the rules are particularly complex - see Changes to civil legal aid - Practical guidance for the Bar.  An alternative is the use of Police Complaints machinery. 

Midsummer Roundup

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Midsummer Day (21st June) and the Summer Solstice are now behind us and, this year, we have enjoyed a fine spell of weather.  Unfortunately, England's football team did not figure in the World Cup.  A disappointing outcome but, as someone remarked on Twitter, there's always Wimbledon or the Test Matches.   Meanwhile, there is much of interest in the legal world.  Here are a few items:


Assisted Suicide:

On Wednesday 25th June, the Supreme Court will hand down judgments in:

R (on the application of Nicklinson and another) (AP) (Appellants) v Ministry of Justice (Respondent)
R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant)
R (on the application of AM) (AP) (Respondent) v The Director of Public Prosecutions (Appellant)

The hand-down will be streamed on Supreme Court Live and will then be made available on the Supreme Court's YouTube channel.   For an Earlier post on these matter see - December 2013 - Assisted Suicide: Appeals to the Supreme Court of the UK.

Youth Justice:

A Parliamentarian's Inquiry into the Operation and Effectiveness of the Youth Courts - chaired by Lord Carlile of Berriew QC - is stating that the Youth Justice System is failing children - Marilyn Stowe Blog 22nd June 2014.  The report argues that all lawyers should receive specialist training for this work - Law Society Gazette 19th June. The full report is here - 85 pages pdf.



Family Justice:

The President of the Family Division of the High Court is investigating whether some family cases might be heard in public - Marilyn Stowe blog 19th June.  The President's investigation may lead to a consultation later.

Freedom in Britain:

Head of Legal blog looks at the State of Freedom in Britain.  Here is an interesting report about an event held at the London School of Economics earlier this month.  Well worth reading. 

Religion and Belief:

Lady Hale - a Justice of the Supreme Court of the UK - addressed the Law Society of Ireland on Freedom of Religion and Belief.  In the speech, Her Ladyship discussed the controversial case of Bull v Hall [2013] UKSC 73.

Speech in Northern Ireland by Lord Neuberger:

Lord Neuberger has addressed a conference of the Bar Councils of Northern Ireland and Ireland.  Speech here.

Scotland - the march toward Independence:

From a general reading of the press, there is a feeling that the looking Referendum on Scottish Independence will be a close result.  The Scottish Government has published a draft of a first constitution for an independent Scotland - The Guardian 16th June. A good discussion of this may be seen at Katie Boyle: Scotland in Transition: the Scottish Government's proposed interim constitution and the Scottish Independence Bill. 

Joint Enterprise:

Parliament's Justice Committee has been following up on its earlier report on Joint Enterprise in criminal law.

Our pick of new hotspots in Italy's up and coming Le Marche

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View holiday rentals in Le Marche


We have been championing Le Marche as a region for holiday rentals for many years and its no secret why; the region offers a rich diversity of arts, history and culture that sets it apart from the rest of Italy and it a perfect location for a relaxing and more traditional holiday in Italy.

Urbino

Le Marche is like an outdoor museum, with a backdrop of historical hill towns, countryside villages and beautiful beaches. Set along the Adriatic Sea, the region offers spectacular coastline, the Sibillini mountains and gorgeous rolling countryside to rival that of Tuscany.

San Benedetto

Whilst Urbino, a beautiful hillside town in the northern Marche and San Benedetto del Tronto in southern Marche on the coast tend to gain many column inches in international travel magazines (we had to admit that we love these areas too), we think that there are more absolute gems in this region, which are often overlooked and lend themselves to perfect holiday spots;

Macerata

- Macerata countryside - The rolling hills of the countryside around Macerata offer a wonderful location for a holiday.  It is dotted with exceptional little towns such as Montecassiano (with its historic centre, lovely piazza, XV century Palazzo Priorale and panoramic views) and Appignano. The medieval provincial capital of Macerata is a good place to visit and offers a broad range of shops, festivals and architectural treasures and the coast is only 30 mins drive away.


- San Ginesio and surrounding countryside - situated on a hill, this walled town provides an ideal position from where to admire the Sibillini Mountains. It is hard to describe the beauty of the landscape with the green valley below and the towering peaks covered in snow. Although situated on a hill, this town is rather flat inside the walls. Many shops and a lively square framed by historical buildings dating back to XI century offer the visitor a welcoming atmosphere. During the summer a few folkloristic festivals take place and the town seems to go back in time with actors dressed in costumes, drums, medieval music, dances and “battles”. This area offers a great base for walking and there are a host of activities on offer including fishing, mountain biking and horse riding.

Sibillini mountains

- Numana and Sirolo - An active port, Numana has today the characteristics of a typical Italian beach resort with very large sandy beach and sea of deep blue. Its location, only a few minutes away from Mount Conero, make it an ideal base for excursions to the Conero Regional Park with regular boat services link Numana with the most beautiful beaches some of which only accessible by boat. Sirolo has a medieval centre and a tree-lined, balcony piazza that teeters high above the sea. The best beaches are accessible using a half-hourly bus service that drops down to each of the coves. Wild beaches, steep cliffs, caves, white rocks covered by pine trees overlooking deep and transparent seawater, make of Sirolo the ideal place to discover a still uncontaminated nature. Both resorts are within 30 minutes of Ancona airport.

Conero

- Jesi countryside - Jesi itself is impressive with the high walls that surround the historical centre and well worth a visit but it is the surrounding countryside that offers breathtaking scenery and lovely hill towns such as Belvedere Ostrense, Ostra and Apiro.

As a holiday destination, Le Marche offers most of the highlights of its nearest and most popular neighbours but without the tourists! Our four suggestions are just a handful of ideas in an area full of beautiful countryside, impressive towns and a great coastline.  If you are looking for a peaceful and authentic holiday in Italy, then Le Marche hits the spot.

Accommodation


View property in the Le Marche countryside

View property on the Le Marche coastline

View Le Marche Villas

View all self-catering property in Le Marche

Casa Sibillini

Impeachment - if it is not obsolete then it should be !

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Impeachment of Warren Hastings

Addendum: 27th June - Chilcot Report into 2003 Iraq invasion hit by further delay

Not for the first time, there has been a call for the Impeachment of former Prime Minister Tony Blair who, it is alleged, misled Parliament in the run up to the UK's involvement in military action in Iraq in 2003.  Today, the Father of the House of Commons (Sir Peter Tapsell MP) raised the matter during Prime Minister's Questions - see BBC News 18th June.  His call appears to have been swept aside by the Prime Minister who simply stated that it was important to see the results of the Iraq Inquiry under the Chairmanship of Sir John Chilcot.

There were earlier calls for Blair's impeachment, notably in 2004 (Guardian 26th August 2004) and in 2006 (Craig Murray blog).  The latest call appears to have stemmed from an article by Simon Heffer in the Daily Mail 17th June - Impeach Tony Blair: ..... writes Simon Heffer and see The Guardian 18th June 2014.

What is Impeachment?

At least in theory, Impeachment remains a possibility.  For an explanation of Impeachment see the Parliamentary Standard Note dated 16th November 2011.  The note begins by stating:


Impeachment is when a peer or commoner is accused of  'high crimes and misdemeanours, beyond the reach of the law or which no other authority in the State will prosecute.’ (Erskine May 1st ed p 374) It is a procedure that is ‘directed in particular against Ministers of the Crown’ ........ The procedure is considered obsolete.

Impeachment has been used some 70 times from 1376 to its last use in 1806 (Henry Dundas, 1st Viscount Melville).  A very notable impeachment was that of Warren Hastings in the 18th century where the trial was dragged out over some 7 years!   The procedure involved is extremely cumbersome.  Here is a description:

'Under this ancient procedure, all persons, whether peers or commoners, may be prosecuted and tried by the two Houses for any crimes whatever. The House of Commons determines when an impeachment should be instituted. A member, in his place, first charges the accused of high treason, or of certain crimes and misdemeanours. After supporting his charge with proofs the member moves for impeachment. If the accusation is found on examination by the House to have sufficient grounds to justify further proceedings, the motion is put to the House. If agreed, a member (or members) are ordered by the House to go to the bar of the House of Lords. There, in the name of the House of Commons and of all the commons of the United Kingdom, the member impeaches the accused person. A Commons committee is then appointed to draw up articles of impeachment which are debated. When agreed they are ingrossed and delivered to the Lords. The Lords obtain written answers from the accused which are communicated to the Commons. The Commons may then communicate a reply to the Lords. If the accused is a peer, he is attached by order of that House. If a commoner, he is arrested by the Commons and delivered to Black Rod. The Lords may release the accused on bail. The Commons appoints ‘managers’ for the trial to prepare the evidence; but it is the Lords that summons witnesses. The accused may have summonses issued for the attendance of witnesses on his behalf, and is entitled to defence by counsel. When the case, including examination and re-examination, is concluded, the Lord High Steward puts to each peer, (beginning with the junior baron) the question on the first of the charges: then to each peer the question on the second charge and so on. If found guilty, judgment is not pronounced unless and until demanded by the Commons (which may, at this stage, pardon the accused). An impeachment may continue from session to session, or over a dissolution. Under the Act of Settlement the sovereign has no right of pardon.'

Abolition:

In a number of reports, Parliament itself has called for abolition of the procedure - see, for example, Parliamentary Privilege 1st Report (30th March 1999) where, at Chapter 1 para 16, it is noted:

'There are other elements of privilege, which are mainly historical. Freedom from arrest has little application today. Privilege of peerage, which is distinct from parliamentary privilege, still exists although the occasions for its exercise have diminished into obscurity since a peer's right of trial by his peers was abolished in 1948. Even more archaic is impeachment, which has long been in disuse. The 1967 House of Commons select committee on parliamentary privilege recommended that the right to impeach should be formally abandoned and legislation should be introduced for that purpose. The circumstances in which impeachment has taken place are now so remote from the present that the procedure may be considered obsolete.'

The process is regarded as obsolete due to the development of what are supposed to be other methods of holding Ministers to account such as the possibility of a motion of no confidence, Parliamentary select committees, the doctrine of collective responsibility etc.  The effectiveness of such methods is beyond the scope of this blogpost.

It also seems unlikely that the impeachment process meets modern legal standards such as requirements for legal certainty.  For example, just what are 'high crimes and misdemeanours'?  The trial process before the House of Lords would raise serious questions as to the right to a fair trial under the European Convention on Human Rights.  For instance, could it be truly said that a political body was 'an independent and impartial tribunal' for the purposes of Article 6? A further problem would be that the courts of law would seem to be prohibited from questioning any impeachment because of the Bill of Rights 1689 Article 9 (where the word 'impeach' is used in a different sense). 

Various Iraq Inquiries:

There have been a number of Inquiries into matters to do with Iraq 2003. In June 2003, the House of Commons Select Committee on Foreign Affairs looked at whether the Foreign Office had presented accurate and complete information to Parliament in the run up to the war - especially with regard to Weapons of Mass Destruction (WMD).  The Intelligence and Security Committee looked at whether intelligence on Iraqi WMD was properly assessed and accurately reported in government publications - (Report here).  Then there was the Hutton Report on the death of Dr David Kelly which spent much time on the September 2002 WMD dossier.  Next there was the Butler Report on Intelligence and Iraq.  These inquiries are discussed by Richard Aldrich - Whitehall and the Iraq War: the UK's Four Intelligence Inquiries. 

The Iraq (Chilcot) Inquiry itself commenced its work in autumn 2009 and ended hearing evidence in 2011.  The Inquiry's website states that the inquiry will ...

' ...  consider the period from the summer of 2001 to the end of July 2009, embracing the run-up to the conflict in Iraq, the military action and its aftermath. We will therefore be considering the UK's involvement in Iraq, including the way decisions were made and actions taken, to establish, as accurately as possible, what happened and to identify the lessons that can be learned. Those lessons will help ensure that, if we face similar situations in future, the government of the day is best equipped to respond to those situations in the most effective manner in the best interests of the country.'

The Chilcot Report is still awaited.  Some explanation for the delay is set out by the Inquiry in a letter from Sir John Chilcot to the Cabinet Secretary (Sir Jeremy Heywood) dated 28th May 2014.  It looks as though publication of the report will still take some time and seems unlikely - perhaps for political reasons - this side of the 2015 General Election.   The so-called "Maxwellisation" process is also likely to take a considerable time - The Guardian 29th May 2014.

In the USA:

The Constitution of the USA (Article 2 Section 4)  provides that Congress has a power to impeach the President and other officials - see the Wikipedia article Impeachment in the USA.  The purpose of impeachment is to secure the removal from office of the individual.  In relation to the Presidency, impeachment has been used twice - Andrew Johnson in 1868 and Bill Clinton in 1998/99.  In neither case was the impeachment successful.  Richard Nixon was not impeached though the process was commenced.  He resigned the Presidency on 9th August 1974.

Overall:

The idea of using this antiquated, cumbersome and obsolete procedure which seems to nowhere meet modern standards of due process is risible.  The time to have held the executive to account was in 2002 and 2003 when the personal commitment of Mr Blair to assisting the USA was all too plain. On the whole, at the time, the Parliamentary system did not operate effectively to question in depth the information presented to it.  The various other inquiries and reports had quite narrow remits and little by way of criticism of Mr Blair emerged.  It is my view that, whilst Chilcot may eventually point criticism at Mr Blair and others, the report when it emerges is unlikely to be anywhere near as damning as Blair's political opponents would like.  After all, according to its terms of reference, Chilcot is about "lessons to be learned" as opposed to political reputations.  Rather than holding an impeachment, Parliamentary time might be better spent considering ways in which to enhance the effectiveness of its procedures for holding the executive to account including the possibility of enacting a more up to date process to replace impeachment should such a process be considered necessary.

Magna Carta - is she still alive?

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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
with the freedom of the church; Article IX addresses the freedoms of the City of London and certain other places.  Article XXIX is the one most frequently referred to.  Here is the text as it appears on the UK Statute Law database:

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

Article XXIX is an assertion that decisions affecting the liberty of individuals or their property are to be determined by legal process and not in some arbitrary manner.  The idea of the "Rule of Law" took hold and it is in Magna Carta that we see the emergence of the view that even those who rule are subject to the law.  In a lecture at Royal Holloway in June 2011, Lady Justice Arden referred to Magna Carta as 'a monumental affirmation of the rule of law.'   Herein is perhaps the spirit of the law as opposed to its mere letter.  As Earl Warren - Chief Justice of the USA (1953-69) stated - 'It is the spirit and not the form of the law that keeps justice alive.'


Historically, there is no doubting that the ideas originating with Magna Carta have been of enormous influence - see, for example, The influence of Magna Carta on other Constitutions.  English constitutional law remains wedded to the notion that government has to obey the law.  Constitutionally, it is the Queen in Parliament which legislates and, at least in legal theory, seems to be free to legislate for anything it wishes though there are some interesting observations about this in Jackson v Attorney-General [2005] UKHL 56.  The interpretation of the law is for the independent judiciary and judicial review remains a vital instrument for ensuring that government adheres to law.

Writing for the Financial Times - The Myth of Magna Carta - David Allen Green argues that 'as law', Magna Carta 'is of little or no practical use.'  'Nobody in modern times seems to have ever relied on it to determine the outcome of a case. It is not “live” in the way the Bill of Rights is in the United States or similar constitutional guarantees in other countries. It is ornamentation, not legislation.'

and later, Mr Green states:

'But perhaps the worst thing is that Magna Carta provides no check in principle to Parliament legislating against the rights of citizens. All that is needed is an act of Parliament, and individuals can be held without trial and refused access to a lawyer. There is no means by which a statute can be disapplied by reason of it breaching Magna Carta.

Magna Carta does not trump the supremacy of Parliament.'

This view sees the continuing existence of Magna Carta as a barrier to developing a mature approach to constitutional rights.

 ' .. our politicians and judges would prefer us to believe in a medieval myth which allows them to do to us what exactly they would do to us anyway.'

This is a view which merits a great deal of respect and, as a statement of where English law now is, I would not seek to challenge it in any way.  My aim is to offer a mere gloss.  It may be that some form of modern British Bill of Rights will eventually emerge though there will be endless debates as to what should and should not be within any such Bill - see the 2012 Report of the Commission on a Bill of Rights.  Meanwhile, there is the European Convention on Human Rights which has force in domestic law subject to the terms of the Human Rights Act 1998.  The Convention is much maligned by some members of the present government and those individuals do not rule out trying to take us out of the Convention system altogether.  Nevertheless, as a statement of fundamental "human rights" it would probably be difficult to better the Convention.  It recognises the value of the individual in a democratic society and insists that a fair balance be sought where different rights come into conflict. It is therefore interesting that most of the Convention rights can be traced back to a document forged in the turbulent years of 13th Century England - Magna Carta !

See also - UK Human Rights blog post by Adam Wagner - Whose Magna Carta is it anyway?

Reading:

Text of Magna Carta

The Master of the Rolls (Lord Dyson MR) - Magna Carta, Religion and the Rule of Law

David Allen Green - FT Blog 16th June 2014 - The Myth of Magna Carta

UK Human Rights Blog - Whose Magna Carta is it anyway?

The Lawyer - Magna Carta - what is there left to celebrate? - discusses the ideological attack by the British government on legal aid and access to justice.  Spare five minutes and watch this powerful film setting out why legal aid is so important to our justice system and for a fairer society.

Lord Neuberger - Speech to the Magna Carta Dinner 17th October 2011

Royal Holloway University of London - Magna Carta series of lectures  and, in particular, Lady Justice Arden Magna Carta and the Judges - Realising the Vision

Constitution UK - Crowdsourcing the UK's constitution - London School of Economics and Political Science

City of London and Magna Carta 

The complete Magna Carta texts

The 2014 Helpful Holidays vs Gidleigh Park Cricket Match

02:02 0 Comments

As many of you will know, some of us at Helpful Holidays are keen cricketers and we have an annual charity match with the fine folk at Gidleigh Park. We all aim to entertain the crowds and raise as much money as we can for our charity of the year, the Marine Conservation Society.

It all takes place on Sunday 22nd June at Chagford Cricket Club, one of the most beautiful settings in Devon for a game of cricket. The teams are made up from staff, their families and friends of HH and Gidleigh Park, with some pretty good cricket played on the day - if we do say so ourselves! This is the 3rd year of this fun but very worthwhile event, now tied at one game each, HH having come out on top last year.

Last year we raised over £4,300 for the Devon Air Ambulance but we’d love to improve on that this year. There are some fantastic prizes in this year’s raffle, drawn immediately after the match, including:

• Seashore safari for 2 with Monty Halls' marine biologists, courtesy of Monty Hall' Great Escapes
• Short break at a 5* cottage, Parford, Chagford, courtesy of Helpful Holidays
• Lunch for 2 at Gidleigh Park
• Sunday lunch for 4 at Bovey Castle with a bottle of house wine
• Boxed Glenmorangie whisky, courtesy of the MCS
• Fantastic wildlife trip with AK Wildlife Cruises for 2
• Day on the river with King Harry Ferry with tickets to the National Maritime Museum
• Quba Original X-10 jacket, RRP from £374
• Weekend break for 2 at Hallsands, south Devon

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

03:19 0 Comments

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
in camera [14] but a number of significant matters should be in open court [16].   In para 14, the Court of Appeal referred to there being 'a significant risk - at the very least, a serious possibility - that the administration of justice would be frustrated were the trial to be conducted in open court.'  That does not appear to be a particularly demanding test for determining when departure from a 'fundamental principle of the common law' [2] may be departed from.

In open court may be: the swearing in of the jury; reading of the charges to the jury; at least part of the the judge's introductory remarks to the jury; at least part of the the prosecution opening; the verdicts, and if any convictions result, sentencing (subject to any further argument before the trial judge as to the need for a confidential annexe).

At the conclusion of the trial, the question of publication will be reviewed.  (The decision allows also for a possible review during the trial if there is a substantial change of circumstances) [18].  A small number of accredited journalists will be permitted to attend the trial but this is to be on strict terms of confidentiality until a either a review at the end of the trial or any further order [19].  How those journalists will be selected is not discussed by the court.

Anonymity of the defendants is not necessary [20] and the court expressed the opinion that it was difficult to conceive of a situation where both an in camera hearing and defendant anonymity were necessary [21].

From what we know of the case, the court's decision appears to be a sensible balance.  However, para. 5 is important:

'As is well-established in our law, these tensions are resolved along the following lines:
i) Considerations of national security will not by themselves justify a departure from the principle of open justice;
ii) Open justice must, however, give way to the yet more fundamental principle that the paramount object of the Court is to do justice; accordingly, where there is a serious possibility that an insistence on open justice in the national security context would frustrate the administration of justice, for example, be deterring the Crown from prosecuting a case where it otherwise should do so a departure from open justice may be justified.
iii) The question of whether to give effect to a Ministerial Certificate (asserting, for instance, the need for privacy) such as those relied upon by the Crown here is ultimately for the Court, not a Minister.  However, in the field of national security, a Court will not lightly depart from the assessment made by a Minister.'

Thus, it seems likely that the court will be faced with many more such Ministerial Certificates and that such certificates will amount to an important card in the Crown's hands even if not quite a trump card !

Other links:

Amnesty International UK

UK Criminal Law Blog - raises the important question of whether the jury will be vetted - CPS Jury Vetting  and also here.

Twitter comment:

Take care not to laud the Appeal Court judgment on Secret Trials. They started from nil & reasserted a basic right to 2 on a 1-10 scale
— John Cooper (@John_Cooper_QC) June 13, 2014

The Court of Ap said Admin of Justice might "possibly be frustrated" A lower standard of proof to compromise open justice than criminal st.
— John Cooper (@John_Cooper_QC) June 13, 2014