Magna Carta

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The UK Human Rights blog has drawn attention to a new book - "Magna Carta and its progeny" - Hart Publishing, October 2014 - details here

The authors are  Anthony Arlidge QC and the former Lord Chief Justice  - Lord Judge.

Magna Carta was the subject of my blogpost on 17th June - Magna Carta - is she still alive?

Magna Carta contained the important ideas that those who govern must abide by the law and also that the governed would have access to justice.  The need for access to justice is as important as ever and, in today's society with highly complex law, legal representation should be a basic right.  The government will wish to capitalise on 2015 being the 800th Anniversary of Magna Carta BUT it cannot and must not be forgotten that the government has minimised legal aid and, as a consequence, access to justice for the majority of the population.  For the very rich, the legal system continues to offer a "Rolls Royce" service as discussed here in this excellent post on the Steve Cornforth blog.


The Independent - Magna Carta: Contemporary account of the signing of historic document discovered

The Counter-Terrorism and Security Bill ~ Overview

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Once enacted, the latest Counter-Terrorism and Security Bill will be the 6th terrorism-related Act since year 2000.  The announcement of the need for additional legislation was covered in my blogpost of 15th November.   Earlier this week the Home Secretary spoke about the terrorism threat to the UK, the Intelligence and Security Committee issued a report relating to the murder of Fusilier Lee Rigby and the Prime Minister spoke in the House of Commons about the report (Law and Lawyers 25th November).

Parliament's website has this PDF version of the Bill as introduced on 26th November.  The publication of the Bill is accompanied by Explanatory Notes (PDF 56 pages).   Matters such as the need for the legislation and the need for fast-tracking it through Parliament are addressed in the first 54 paragraphs.  Thereafter is a more detailed look at the clauses in the Bill.  The Explanatory Notes are well worth reading in full by any reader requiring a detailed look at the Bill.

The Bill is divided into 7 Parts and 5 schedules. The following paragraphs take a brief look at each Part.



Part 1 - Temporary Restrictions on Travel

Essentially, Part 1 -

(a) enables seizure and temporary retention of travel documents where a person is suspected of leaving Great Britain or the UK in connection with terrorism-related activity;

(b) enables the Secretary of State to impose Temporary Exclusion Orders provided that a number of conditions in Clause 2 are met.

A TEO will require the individual not to return to the UK unless the return is either in accordance with a Permit to Return issued by the Secretary of State or the return is because the individual is being deported back to the UK.    A TEO can last for 2 years and can be renewed.  If a TEO is issued it will invalidate any British passport held by the individual.  Permits to Return may contain conditions such as those that can be applied to TPIM.  The individual has to be given notice of the TEO.  Just how this is to be done is to be set out in Regulations.  Practitioners will need to look carefully how "service" is to be achieved.

This is a draconian new power that will be used against those who hold British Nationality and its legality may well be tested in the courts.  Whilst the individual can always apply for a Permit to Return, it may be - (not sure) - that lengthy exclusion might be held to amount to making the individual "stateless" for all practical purposes.  (For another view on this see the Head of Legal Blog 14th November - The PM's 'foreign fighters' plan: probably lawful).  The Independent Reviewer of Terrorism Law (David Anderson QC) has expressed concern at the lack of recourse to the courts in relation to the imposition of TEOs - The Guardian 26th November.

Part 2 - Terrorism Prevention and Investigation Measures (TPIM)


The Terrorism Prevention and Investigation Measures Act 2011 (TPIMA) replaced control orders with TPIM. The latest Bill amends this Act.

The various measures in Schedule 1 of TPIMA are either amended (Overnight Residence; Travel) or added to (Weapons and Explosives measure; Appointments Measure).  The result will be a list of 14 possible measures.

At present, a TPIM may be imposed provided that the requirements in TPIMA section 3 are met.  Conditions A to E have to be met.  Condition A states:

Condition A is that the Secretary of State reasonably believes that the individual is, or has been, involved in terrorism-related activity (the “relevant activity”).

This will be amended by the Bill to read:

Condition A is that the Secretary of State is satisfied, on the balance of probabilities, that the individual is, or has been, involved in terrorism-related activity (the “relevant activity”).

This enhances the degree of evidence required by the Secretary of State before a TPIM may be imposed and so it is an improvement to the legislation and the courts have a role in relation to TPIM - see TPIMA sections 6 to 9 and 16 to 18.

Part 3 - Data retention

Thinkbroadband takes a useful look at the likely impact of the Bill on use of the internet.

Part 4 - Aviation, Shipping and Rail

This Part is concerned with "Authority to Carry" Schemes.  A scheme will require the carrier (i.e. an airline, shipping company or railway operator) to obtain authority from the Secretary of State to carry specified persons.

By Clause 18(2) - An authority-to-carry scheme must specify or describe -

(a) the classes of carrier to which it applies (which may be all carriers or may be defined by reference to the method of transport or otherwise),
(b) the classes of passengers or crew in respect of whom authority to carry must be sought (which may be all of them or may be defined by reference to nationality, the possession of specified documents or otherwise), and
(c) the classes of passengers or crew in respect of whom authority to carry may be refused.


An authority-to-carry scheme may specify or describe a class of person under subsection (2)(c) only if it is necessary in the public interest.  [Note: The Secretary of State will be the judge of what is in the public interest and it will be far from easy to challenge that - ].

Such schemes are not a new idea.  There is an existing scheme under the Nationality, Immigration and Asylum Act 2002.  However, the scheme in the Bill will replace existing schemes.

Part 5 - Risk of being drawn into terrorism

This Part is concerned with prevention of individuals becoming terrorists or supporting terrorism or extremism. 

Clause 21 imposes a duty on "specified authorities" to exercise their functions having due regard to the need to prevent people from being drawn into terrorism.  The Specified Authorities are set out in Schedule 3 and the list includes local councils.  The duty does not apply to judicial functions, to the House of Commons, to the House of Lords, the Scottish Parliament or the National Assembly for Wales.  There is an Henry VIII power in Clause 22 enabling the Secretary of State to amend Schedule 3 but certain authorities cannot be added - e.g. Houses of Parliament, Scottish Parliament, National Assembly for Wales, the General Synod of the Church of England etc.  The exclusion of the General Synod is interesting and I have not been able to find an explanation for this.  However, Schedule 3 does not refer to any other religious bodies.

The Secretary of State is empowered to issue guidance as to how the duty in Clause 21 is to be applied and Directions may be issued to a specified authority considered by the Secretary of State to be in breach of the duty.

This Part goes on to require local authorities to have a panel of persons to assess the extent to which identified individuals are vulnerable to being drawn into terrorism.  The Police will refer individuals to the panel.  Such individuals can become subject to a plan of support determined by the Panel - see Clause 28(4) for the detail of such plans.

Part 6 - Amendments to the Terrorism Act 2000

There will be a new section 17A inserted into the Terrorism Act 2000 to make it an offence for insurers to make payments in response to terrorist demands.  This is reflective of the UK government's stance - not necessarily agreed to by other States - to not pay ransom demands - see, for example, The Guardian 4th September 2014.

Lloyd's looks at the impact on insurers. 

Schedule 5 of the Bill amends Schedule 7 of the Terrorism Act 2000.  (Not considered further here).

Part 7 - Miscellaneous and General

This enables the Secretary of State to create a Privacy and Civil Liberties Board to be chaired by the person appointed under section 36 of the Terrorism Act 2006 - i.e. the Independent Reviewer of Terrorism Legislation.  At this stage, it is not clear to me how independent of government the Board will be in practice.

Part 7 covers the extent of the Bill - Part 5 extends to England, Wales and Scotland.  Other provisions extend also to Northern Ireland.  Part 7 also deals with commencement.

Independent Reviewer of Terrorism Legislation:

The Joint Committee on Human Rights has issued this uncorrected transcript of the evidence given to the committee by David Anderson QC on 26th November 2014.

House of Commons Library Research Paper:

On 28th November, this research paper into the Bill was made publicly available.

Some media reaction:

The Telegraph asks - How many counter-terrorism laws can we invent before terrorism is defeated?  It's a fair question and law alone is unlikely to defeat it.  Nevertheless, the latest Bill is highly unlikely to be the last in this area.  Powers granted to government - however justifiable individually - never seem to be quite enough.

The new TPIM provisions will enable a form of "internal exile" in the UK argued The Guardian on 21st November. 

Counter-terrorism and Security Bill: proposals and pitfalls - The Guardian 24th November

Counter-Terrorism Bill published, slammed by civil liberty groups - RT UK 26th November

Henry Jackson Society 26th November - Today's Counter-Terrorism and Security Bill is essential to effectively tackle heightened terrorist threat

The Birmingham Pub Bombings 1974

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21st November 1974 is another day that should live in criminal infamy.  Two explosions in Birmingham wrecked the Mulberry Bush and the Tavern in the Town.  21 people were killed and 182 injured.  A third explosive device failed to detonate.  Six men - (Hugh Callaghan, Patrick Joseph Hill, Gerard Hunter, Richard McIlkenny, William Power and John Walker) - were arrested and subsequently tried in the Shire Hall of Lancaster Castle (pictured) before Bridge J and a jury.  The trial commenced on 9th June 1975 and the men, having been convicted, were sentenced on 15th August 1975.  Bridge J rejected legal argument to the effect that the men's statements ought not to be admitted in evidence.  The statements were later shown to be unreliable.  It was not until 14th March 1991 that the convictions were finally quashed by the Court of Appeal (Criminal Division).  Financial compensation was subsequently paid.  Bridge J went on to eventually become Lord Bridge of Harwich and he sat in the Appellate Committee of the House of Lords from 1980 until 1992.

The Birmingham Six case, as it came to be known, has resulted in extensive literature including the book by Chris Mullins - "Error of Judgment: The truth about the Birmingham Bombings" - (see London Review of Books) and Chris Mullins' own comments about his book).



In the book "Justice in Error" (eds. Clive Walker and Keir Starmer - Blackstone Press, 1993), Barrister James Wood looked at the summing up by Bridge J,  Wood noted - "Although legally correct in every respect, Mr Justice Bridge brought his authority to bear upon the jury so as to ensure the outcome he clearly desired.  He reassured the jury of the quality of the advocacy they had heard; he informed the jury that (in their absence) he had heard all the evidence about the confessions and decided that it was admissible; he made his view plain that the defence forensic expert (Dr Black) was 'theorising'.  Similarly, when dealing with the confession evidence he said of Dr Harwood - (who had testified as to the accused's injuries) - ' ... can you believe a word of what Dr Harwood says? and then labelled him as a possible pejurer.  Lastly, he tried to make it sound outrageous that, as alleged by the defence, the police had conspired to deceive and fabricate evidence.  'If the defendants are giving you honest and substantially accurate evidence, there is no escape from the fact that the police are involved in a conspiracy to commit a variety of crimes which must be unprecedented in the annals of British criminal history.'

The case eventually reached the Court of Appeal (Criminal Division) in 1987 but the appeal was dismissed.  At the second, and final, reference in 1991, it was the concession of the prosecution rather than insight from the court that made the outcome certain.  Thus, the court indicated at a preliminary hearing that it would not be spoiling Christmas by looking at the papers and so securing an early release.

The Royal Commission on Criminal Justice:

The Birmingham Six case led to the setting up of a Royal Commission on Criminal Justice.  When setting up the Royal Commission, the Home Secretary (Mr Kenneth Baker) stressed the need to address the issues raised by the Birmingham Six case and to minimise the possibility of other miscarriages occurring.  There was widespread expectation that the Commission would fundamentally reappraise the structures of criminal justice.  Some of the features leading to miscarriages included: false confessions, failure by the Police or Prosecution to disclose to the defence exculpatory material and questionable forensic science.  Also, there was also a widespread perception that the Court of Appeal needed to be more ready to acknowledge that errors had occurred.

The Commission eventually reported on 21st June 1991 and made 352 recommendations (summarised in Chapter 12).

The Commission wanted research into the reasons why juries reached their verdicts; questioning of suspects after charge; and various additional safeguards for suspects.

A majority of the Commission believed that adverse inferences should NOT be drawn from silence at the police station but inferences could be drawn once the prosecution case had been fully disclosed.

A judicial warning was proposed in relation to confession evidence and the jury warned to take great care of convicting on the basis of the confession alone.

The Commission recommended removing the defendant's right to choose the mode of trial in either-way cases and to leave this decision entirely up to the Magistrate (after consultation with CPS and defence lawyers).   In fact, Commission's proposal would have meant that where the defence and prosecution lawyers were in agreement about mode of trial the Magistrates would have had no decision to make!

The abolition of "old-style" committal proceedings was proposed but a defendant could argue before trial that there was no case to answer and have that considered 'on the papers' by a Crown Court judge or a Stipendiary Magistrate (but not a bench of JPs).  [Perhaps an early sign of the desire to change the judiciary in the Magistrates' Court from the JPs to the professionally qualified Stipendiary].

The Commission had a great deal to say about disclosure by both the prosecution and the defence and all but one of the Commission (Professor Michael Zander QC) favoured an extension of the arrangements for defence disclosure.

The admissibility of evidence relating to any previous convictions of a defendant should not be too restrictive and the Commission asked that the Law Commission examine this as part of a recommendation to review the law of evidence.

There was a considerable amount in the report relating to Forensic Science with a recommendation to set up a Forensic Science Council to report to the Home Secretary on the performance, achievements and efficiency of the forensic science laboratories.

Further recommendations addressed the role of the Court of Appeal and included replacing the grounds of appeal with a single broad ground of whether the conviction 'is or may be unsafe.'

A further very significant recommendation was to set up a Review Authority with power to refer cases to the Court of Appeal and to remove the power of the Home Secretary (Criminal Appeal Act 1968 s17) to so refer cases.  This latter recommendation was very broadly welcomed at the time -  The Independent 7th July 1993

The report had what was, to my mind, a significant dissenting voice in 3 areas.  Professor Zander QC dissented on defence disclosure which, he argued, was wrong in principle and would also cause extra delay, cost and inefficiency - to little purpose.  There was a more detailed dissent relating to pre-trial procedures. In relation to appeals, Zander pointed out that a majority on the Commission favoured allowing the Court of Appeal to dismiss an appeal in cases where there was sufficient sound evidence BUT where there was also serious misconduct by the Police or prosecution.  Zander argued that the moral foundation of the criminal justice system required that such appeals be allowed and the convictions quashed.

See Justice Gap - Zander on the CCRC

After the Commission:

It is not possible in a blog post to consider the mass of subsequent legislation affecting criminal justice.   The process of change continues inexorably.  Suffice here to make just a few points.

The confidentiality of the jury remains and this prohibits "jury research": Contempt of Court Act 1981 s.8

The "right to silence" remains - at least in legal theory - but is heavily circumscribed by the provisions of the Criminal Justice and Public Order Act 1994 sections 34-39.  In securing the enactment of this Act, the government largely adopted legislation from Northern Ireland which had been in force for some years - (the Criminal Evidence (Northern Ireland) Order 1988).

Defendant's retain a right to elect jury trial in 'either-way' cases.

Committal proceedings took a long time to die but they are now a footnote in legal history having been replaced by a "sending procedure" - Crime and Disorder Act 1998 s51 and Criminal Justice Act 2003 s.41 and Schedule 3.  See also this Judicial College material.

Disclosure in criminal cases is covered by the Criminal Procedure and Investigations Act 1996 (as amended) most notably as amended by the Criminal Justice Act 2003 Part 5 which replaced the core provisions of the scheme.  There is little doubt that disclosure has lengthened the overall timescale of cases and added costs.  However, criticism is nowadays appears to be directed at the detail of the disclosure processes rather than at the principle itself.

The Criminal Justice Act 2003 Part 11 made major changes to the law of evidence and, in particular, in relation to admissibility of hearsay evidence and character evidence (including bad character).  It seems fair to say that a defendant today who has a bad character (e.g. previous convictions) is much more likely to find them revealed to the jury than was the case in the past where, essentially, the defendant had a shield protecting him against such admission though there were exceptions to this.

The recent coalition government made major changes to the arrangements for forensic science.  Today, a Forensic Science Regulator is tasked with ensuring appropriate scientific quality standards.   In 2011, the Law Commission recommended changes relating to handling of expert evidence and the Lord Chief Justice spoke about this in October 2014. 

Amendments to the law relating to appeals came with the Criminal Appeal Act 1995.  The modern ground for quashing an appeal is that the court considers the conviction to be unsafe - see 1995 Act section 2.

The Criminal Cases Review Commission was set up by the Criminal Appeal Act 1995 Part 2. 

Prevention of Terrorism:

Within 8 days of the Birmingham bombs, the Prevention of Terrorism Act 1974 was enacted.  It seems that the legislation had already been drafted but, after the bombs, the government certainly acted quickly.  The legislation was renewed annually until its replacement by the Terrorism Act 2000.  Wikipedia Prevention of Terrorism Acts.

Finale:

The serious miscarriage of justice cases of the 1960s to 1980s are fading into history and a whole generation of practitioners are now operating within the untidy and complex system as it is.  They would do well to study the various cases and note how things went wrong, often with very serious consequences.

It would, in my view, be quite wrong to become complacent and think that injustice cannot occur today.  Much of the reform over the last 20 years or so has been concerned with procedure rather than the substantive law itself and there are areas where the substantive law is considered to be working injustice.  For example, a very serious argument can be made for reform of the substantive law on "joint enterprise" in criminal cases.

Those who have suffered a miscarriage of justice may not always receive compensation under the present day law.  The government has no desire to be generous to them.  Under the Antisocial Behaviour, Crime and Policing Act 2014 section 175, in cases of newly discovered evidence,  compensation will only be payable if the new evidence shows beyond reasonable doubt that the person did not commit the offence.

Today there is greater emphasis on the victims of crime - e.g. CPS Code of Practice for Victims of Crime.  There were over 200 victims of the Birmingham bombs and no further charges have ever been brought. It seems unlikely that they ever will be - Express and Star 40 years on and no justice for the Birmingham pub bombing victims. 

Alternative Christmas Shopping in the West Country

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You don't have to buy all your Christmas presents from the same old chain stores this year - why not take a look at the wonderfully diverse and eclectic range of local gifts available at Christmas fairs and special events across the West Country?

It’s a celebration of all things Cornish at Padstow’s traditional Christmas market, located on the quayside in a large marquee. It's one of the UK’s biggest food festivals, with cookery demonstrations and lots of free samples to set your taste-buds tingling. Explore the many stalls brimming with handmade gifts and marvel at the lantern parades and fireworks display.

The whole family is spoiled for choice at the Eden Project winter festival. Meet Father Christmas and his real reindeer, go ice skating, explore the enchanted rainforest at twilight, listen to choirs and live storytelling, and pick up some great gifts in their shop.

With the backdrop of the beautiful cathedral, a visit to Exeter’s Christmas market really cranks up the festive mood with more than 50 local and international traders present. Roast hog, Belgian chocolates, baklava, crepes, speciality cheeses and meats from across the continent, as well as traditional Christmas crafts and local foods will be on offer.

If you head to Bath Christmas Market, you'll find more than 170 twinkling, traditional wooden chalets surrounding ancient Bath Abbey and the famous Roman Baths deliver a mind-boggling array of handmade and beautiful gifts to delight your family and friends. Treat yourself afterwards to a tasty local dish or tipple.

Wherever you choose, you're sure to find a warm welcome and a healthy dose of Christmas spirit.

Terrorism ~ Report on the Murder of Fusilier Lee Rigby

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The need for legislation to give Ministers more anti-terrorism powers was announced earlier this month - Further anti-terrorism powers (15th November).  The new Anti-terrorism and Security Bill is to be presented to Parliament on Wednesday 26th November.  Comment to follow when its contents are fully known.  However, this week has seen a number of other terrorism-related matters.

1) On Monday 24th November, the Home Secretary (Theresa May MP) spoke of the terrorism threat facing the UK.
 
2) Parliament's Intelligence and Security Committee (ISC) has issued a report on the intelligence relating to the murder of Fusilier Lee Rigby - and see BBC 25th November - Woolwich murder: Lee Rigby's death 'not preventable'.  Michael Adebolajo and Michael Adebowale were convicted of the murder and sentenced to life imprisonment with, respectively a whole life term and a 45 year minimum term. - see Sentencing Remarks of Sweeney J (26th February 2014)

• Report on the intelligence relating to the murder of Fusilier Lee Rigby
• Committee Press Release on the Report on the intelligence relating to the murder of Fusilier Lee Rigby

LIBERTY has responded to the report - here.

The Milky Way – Italy’s temptingly sweet ski area

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In the UK, it may mean another thing but the Milky Way is fast becoming a pull for skiers from all over Europe.  Many holidaymakers look at individual resorts without realising that they offer access to a much broader ski area.


Sauze D’Oulx and Sestriere are definitely the big attractions in this ski area but the Milky Way also the less-known San Sicario, Cesana, Pragelato, Claviere and the French Montgenèvre, representing a mouth-watering 212 pistes (7 green, 67 blue, 97 red and 41 black) and 69 ski lifts. Those who only think of going to the Dolomites should really reconsider!




The ski in the Milky Way area is characterized by wide open spaces, panoramic and sunny slopes that connect traditional villages with modern amenities.  From the peaks and slopes you have magnificent views in all centres. The vastness and variety of the area can satisfy both the more demanding skier, thanks to the variety of long and difficult slopes, and those who are dipping their toes into the world of skiing for the very first time.  Snowboarders are also well catered for in the Milky Way with a fantastic new snowboard fun park available in Sestriere as well as mini parks available in each of the resorts themselves.


As a destination it's much more laid back than its rivals in France, Switzerland and Austria, so expect a great all-round holiday experience.

Family fun



For families, there are a myriad of activities available to children; fun parks with inflatable structures, great ski schools and plenty of off-piste activities.  Families with young children are welcomed even in the most chic hotels and restaurants.

Tasty food


Lovers of Italian cuisine will be completely satisfied by the Milky Way: there are over 30 mountain huts comforting skiers who prefer to stay on the slopes all day – prices are great in comparison to other resorts and neighbouring France. You will find plenty of pasta and Lasagna on offer but also more traditional mountain stews served with flavoursome and wholesome polenta, which is famous from the north of Italy.


How to get there

The Milky Way skiing area is located in Piemonte and is within easy reach thanks to its privileged geographic position and to the proximity to Turin airport. Most resorts can be reached within an hour of the airport, making them an ideal ski weekend or week’s holiday destination. Other connections are also available from Geneva, Nice and Milan. For those contemplating to attire by train, high speed trains stop daily at Oulx from Rome, Turin, Lyon and Paris.

Accommodation


Holiday Homes in Italy offers a great range of affordable ski accommodation from quaint Italian bed and breakfasts to self-catering ski apartments suitable for both families and larger ski groups.


View ski apartments in Sauze D’Oulx

View hotels and b&b’s in Sauze D’Oulx

View ski apartments in Sestriere

View hotels and b&b’s in Sestriere

A few items of interest ...

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A little list of items of interest ............

1. Severe cuts to legal aid have taken place in England and Wales.  The impact of these cuts is certainly being felt by many people who need access to law and must now try to fight their own case amid the thicket of law or, alternatively, who must simply give up the fight against the more powerful opponent with deeper and often publicly funded pockets.  In a report by the National Audit Office, the Ministry of Justice has been accused of slashing legal aid without understanding the impact of the cuts.  According to the National Audit Office, the £300m cuts to legal aid ‘cannot be said to have delivered better overall value for money for the taxpayer’.  

• Read the full report here

The report's conclusions are not surprising
but then again the cuts were, I believe, more to do with political ideology (to remove access to justice for people) rather than the economic downturn.

2. At a time when the Human Rights Act 1998 is under political attack, the British Institute of Human Rights has published - The Human Rights Act: Changing Lives.  Click here and download your copy.

3. BabyBarista blog has this interview between Lord Bingham of Cornhill and Shami Chakrabarti

4. On Criminal Law and Justice, Simon Tabbush looks at options for reforming Offences against the Person.  At the request of the Ministry of Justice. this topic is currently under review by the Law Commission - see earlier post.

5. Few would doubt that the statute book (i.e. the immense volume of legislation) is a mess.  Amendments are piled on  top of amendments and attempts by the legislature to tidy things up are rare.  One method - certainly used in the past - was the enactment of a Consolidation Act to bring together in one Act all the legislation relating to some particular topic.  Such Act are nowadays rare.  The Will Macgregor blog suggests that there be a general power for Ministers to consolidate Acts by using Statutory Instruments instead of having to enact a Consolidation Act.  An idea worthy of consideration I would have thought. 

A trip to Lydford Gorge

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Our marketing manager Adrian Innocent writes:

After much dilly dallying I finally managed to put my proverbial into gear and make my way to Lydford Gorge and I wasn’t disappointed, the south west’s deepest gorge living up to its billing as one of Dartmoor’s treasures.

I picked up a free map at the National Trust entrance to the site and set off with the intention of completing the entire walk of about three miles. There’s a well signposted route (helpful markers at regular intervals let you know exactly where you are so even poor map readers like myself can’t get lost) and I headed off in the direction of the famous White Lady Waterfall . At this point the gorge is lined with ancient woodland, full of birdlife but the first thing I noticed was the sound of water trickling (sometimes gushing) down the hillside. It was somewhat reminiscent of my walks of several years ago in the Lake District where you are never far from the sound of running water.

This first part of the route was fairly gentle but through wonderful woodland with some spectacular views down to the river Lyd rushing along the bottom of the gorge. I duly arrived at the far end of the site (you can park up and access the walk form there as well, there being two entrances to the National Trust site, both blessed with a cafe and shop) and enjoyed a well-deserved, revitalising pot of tea and sticky bun soaking up the late autumn sun on the patio outside the café. It was so refreshing and welcome I was already looking forward to more refreshments at the end of my walk before I’d even left this first staging post!

The second leg proved to be even more rewarding, especially the climb down to the bottom of the White Lady Waterfall – a 90 foot near vertical drop of white water, a splendid sight. The pathway then followed the route of the river from here and was quite slippery in parts as it clung to the side of the granite rock face lining the path of the river. This stretch eventually led to the other ‘must see’ feature of the gorge, the Devil’s Cauldron where foaming white water surges through narrow gaps between the rocks – you’ll hear it long before you arrive at the scene.

A short climb then found me back where I started and yet another round of refreshments, some delightful raspberry and white chocolate ice cream eagerly scoffed whist sitting on the grass outside the other café and stretching my ever-so-slightly weary legs. All told, it took about 2-1/2 half hours to complete the walk with plenty of stops to capture the beauty of the gorge on my camera.

If you decide to follow in my footsteps, it’s best to wear suitable footwear as the path is quite slippery and steep in parts.

Reforming the role of magistrates

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This morning I draw attention to an article in Modern Law Review (November 2014) - Reforming the role of Magistrates: Implications for summary justice in England and Wales

The article may be obtained (£) from the Wiley Online Library.  The Library website offers the following introductory paragraph.


"The role of lay magistrates in England and Wales has been progressively undermined by protracted processes of reform over the last two decades. Current government proposals aim to reorient and ‘strengthen’ their function through the creation of new magisterial responsibilities such as oversight of out of court disposals and greater involvement with local justice initiatives. This article argues that while these proposals embody necessary and important areas for reform, taken in isolation they will fail to consolidate the role of magistrates in summary justice unless they are enacted alongside other measures which aim to reaffirm the status of lay justices, and which seek to reverse the trend which has prioritised administrative efficiency at the expense of lay justice. Rapidly declining magistrate numbers together with continuous (and continuing) programs of court closures are irreconcilable with the future viability of a lay magistracy."

Some of the "reforms" have included:

• Transfer to District Judges (Magistrates' Courts) of prison adjudication cases formerly conducted by Boards of Visitors.  

•  Abolition of Magistrates' Courts Committees and local "commissions of the peace" by the Courts Act 2003.  Administration of the Magistrates' Courts was transferred to Her Majesty's Court Service (HMCS) and that was later merged with the Tribunal Service to form Her Majesty's Courts and Tribunal Service (HMCTS).  The reduction in the number of courts has resulted in fewer Justices' Clerks.  It is the Justice Clerk who holds the important legislative independence in terms of the legal advice given to the magistrates.  Associate Clerks (or legal advisers) carry out the actual in court advise to magistrates.

•  Transfer to Local Authorities of licensing functions relating to provision of alcohol and betting and gaming (Licensing Act 2003). 

•  Requirements for formal authorisation of magistrates before they may sit as members of the Family Court or Youth Court (see Courts Act 2003).  

•  A large number of local Magistrates' Court closures.  The more recent closures began under the Labour Government but accelerated under the Coalition government especially during the tenure of Kenneth Clarke as Secretary of State for Justice. 

•  Much greater use of out of court disposals for offences - i.e. Cautions, Conditional Cautions, Fixed Penalty Notices, Penalty Notices for Disorder.  This has markedly reduced the workload of many Magistrates' Courts.

• Recent years have seen much greater use of professionally qualified District Judges (Magistrates' Courts) - [prior to the Courts Act 2003 they were termed Stipendiary Magistrates and they existed, mainly, in the Magistrates' Courts of larger cities] - with a consequent knock-on effect on the type of work listed before Magistrates.

• A considerable number of powers may, by legislation, be exercised by a single justice of the peace.  The Courts Act 2003 s.28 enables Rules to be made enabling such powers to be exercised, in practice, by the Justices' Clerk or legal advisers (assistant clerks).  The current rules are the Justices' Clerks Rules 2005.

There can be little doubt that the above reforms have contributed to reducing the numbers of magistrates and making the role less attractive to good candidates as an important form of public service.   After all, no good candidate would wish to give their valuable time if there was little to do when they got to court.

One suspects that, due to financial cuts, the amount of training offered to magistrates has been reduced from what it was up to around 5 years ago.  If so, that is a great pity.  Magistrates and, more particularly, those authorised to Chair a court ought to receive adequate training on matters such as new legislation etc.  Such training is best delivered by their legal advisers.

Some earlier posts touching on Justices of the Peace are Explaining our Law and Legal System - No.5 - Magistrates (20th June 2011) and Magistrates' Courts - Sharing the Burden (11th January 2013).

See also Acudemia

Further anti-terrorism powers

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The Government is particularly concerned about UK citizens who travel to conflict zones and perhaps return to the UK with skills and intentions acquired from fighting or training with terrorist groups.  In a speech to the Australian Parliament, the Prime Minister (David Cameron) indicated that a new Counter-Terrorism Bill is to come before the UK Parliament with a view to getting it on the statute book by January 2015.  The Prime Minister noted that Australia had already passed new legislation to tackle foreign fighters - see the Australian Counter Terrorism Legislation Amendment (Foreign Fighters) Bill

According to Mr Cameron, the UK Bill will contain - "New powers for police at ports to seize passports, to stop suspects travelling and to stop British nationals returning to the UK unless they do so on our terms.  New rules to prevent airlines that don’t comply with our no-fly lists, or our security screening measures, from landing in the UK."  See The Guardian 14th November and  BBC 14th November




We do not have exact details of these plans in advance of the Bill but there has already been considerable debate in legal circles as to the legality of some of the ideas.  For some of the possible problems see BBC 14th November and the reaction of LIBERTY to the proposals.

As that article indicates, critics fear that excluding Britons from returning to the UK - even if they face the most serious national security allegations - could amount to making them stateless.  Also, other countries will become involved.  For example, would (say) Turkey be happy to detain - for potentially months on end - a Briton suspected of illegally fighting for a terrorist organisation if he turns up at Ankara airport but is banned from departing for the UK?  It is not clear if the British government has negotiated any agreements with other States at this stage.  There is also the question of why these people need to be excluded in the first place given that there are already powerful tools in the State's armoury.  Can't they be arrested and charged with a terrorism-related offence as soon as they arrive back?  An alternative to arrest and charge might be to make the individual the subject of a TPIM (Terrorism Prevention and Investigation Measures Act 2011). 


On the Head of Legal Blog, Carl Gardner looks at the proposals as they are now understood.  He notes, in his analysis of the proposals  that the idea is not to completely prevent return but to impose terms if the individual wishes to return - a sort of three-walled prison .  Therefore, the individual is not rendered Stateless,  Gardner is of the view that the proposals are probably lawful.  See also Head of Legal blog - Grieve: Counter-terrorism measures "probably getting to the right place."

Quilliam is the world’s first counter-extremism organisation, dedicated to promoting civic interventions in the fields of extremism, integration, citizenship, identity and disenfranchisement - see their reaction to the proposals.   Quilliam stresses the need for greater emphasis to be placed on programmes such as the Channel Process. 

Given the international nature of this form of terrorism, it would seem to make sense for there to be an international framework for dealing with the problem.  The Council of Europe has suggested that there be such a framework - Council of Europe: Jagland: Europe needs common legal framework to fight challenge of "foreign fighters" and "Islamic State" terrorism.  Secretary General Thorbjørn Jagland said - “A Council of Europe framework, taking into account our democratic principles and the rule of law, as enshrined in the European Convention on Human Rights would assist member States in adapting their legislation in full compliance with international law.”

Very broadly speaking, major British Commonwealth nations are all facing the problem of "foreign fighters" and the governmental responses are broadly similar though key differences exist.  

A publication by the Center for Strategic Studies (CSS), ETH Zurich considers the responses (as at March 2014) of eleven countries.

Publication of the Bill is eagerly awaited. 

Earlier related posts:

Fighting abroad - is it against the law? (5th February 2014) and Serious concerns about British citizens fighting abroad (22nd August 2014).

Other links:

Australian Counter Terror Laws

Canada - "And Don't Come Back" - an article looking at Canadian powers to revoke passports etc.

New Zealand is considering similar powers

Law Commission ~ Offences against the Person

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The Law Commission has commenced a "scoping consultation" about Offences against the Person - Law Commission 12th November 2014.  and also see Law Commission Offences against the Person.  The consultation remains open until 11th February 2015.  The Commission comments that :

"Offences of violence are some of the most common in our criminal justice system: those covered in our paper are charged anything up to 200,000 times each year.  It is, therefore, essential that the laws in this area are clear, fit for purpose in the 21st century and (ideally) collated together in a single, readily-accessible statute. This is especially so in an era with increasing numbers of litigants in person, even in criminal cases.

 The scope of the consultation is limited to
only some of the offences that could come under the banner of “offences against the person”: broadly speaking, it is concerned with violent offences against the person, which are principally contained in the Offences Against the Person Act 1861, although we do also cover the common law offences of assault and battery and the section 89(1) Police Act 1996 offence of assaulting a constable in some detail.  However, we do not consider sexual offences or kidnapping and false imprisonment, nor do we discuss those offences that are in the 1861 Act but which involve much broader policy considerations: bigamy, attempted abortion and concealing a birth."  [Links added]


This is not the first time that the Commission has visited this area of the law.  In the 1980s, the Commission considered that the criminal law was in urgent need of codification - (see Law Commission 177, 1989).  In 1993, the Commission issued "Criminal Law - Legislating the criminal code - Offences against the Person and General Principles."  Whilst these older reports are instructive to students of the law and, sometimes, practising lawyers, it is perhaps unfortunate that they have not resulted in legislative action by Parliament.

The Ministry of Justice has requested the Commission to examine the law in this area and it is to be hoped that reforms are eventually taken forward.

R v Max Clifford - Appeal against sentence

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On 2^nd May 2014 Frank Maxwell Clifford ("Max Clifford") was sentenced to a total of 8 years on eight counts of indecent assault contrary to s14(1) of the Sexual Offences Act 1956.   He appealed against the sentence and his appeal was dismissed.  The judgment is worth reading in full - R v Frank Maxwell Clifford [2014] EWCA Crim 2235

The judgment is considered in an interesting article by Joshua Rozenberg - The Guardian 12th November 2014 - Appeal court ruling on Max Clifford shows how far defendants can go 

Addendum 24th November:

Silence if Golden -  Law Society Gazette - David Corker comments - "Some may regard with alarm the establishment of this sentencing principle; essentially whether the defendant showed adequate respect for the criminal justice system. Bearing in mind the presumption of innocence, it seems inapt to hold that those who reiterate that by claiming to be so should be exposed to the risk of punishment."

All aboard the Polar Express in Okehampton

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If you and your children are fans of The Polar Express, the magical animated film starring Tom Hanks as the conductor of a very special train, you'll probably jump at the opportunity to ride the real thing.

Dartmoor Railway is running special trips from Okehampton Station on selected dates between 28th November and 28th December. Trains depart at 5pm and 7:30pm.

The trip will take you on a mystical round-trip journey to the North Pole. You're invited to wear pyjamas if you want to stay true to the film!

Once seated you'll find the conductor punching away at the children’s golden tickets, plus chefs dancing and delivering hot chocolate and cookies. There will also be readings of the original story and sing alongs to music from the film.

Once at the North Pole, Santa will be waiting with a gift of a silver sleigh bell for all the children. In addition, each passenger in Premium Class seating will receive the commemorative Polar Express mug.

European Arrest Warrant and other EU measures

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Update 11th November:  The Criminal Justice and Data Protection Regulations were approved in the House of Commons. This completed the transposition into domestic law of 11 of the 35 measures that the government wished to retain.  The debate was dogged by procedural tactics and, to the annoyance of many MPs, there was no separate vote on the European Arrest Warrant even though there had been political assurances in advance that there would be.  Nevertheless, legally, a vote was not required on opting back into the EAW and so it will remain in force in relation to the UK.

Update 8th November: Parliament -  The UK's 2014 block opt-out decision: Joint Commttee Statement  and see the DRAFT Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014

On Monday 10th November, the House of Commons will vote on a package of EU measures and one concern is whether the European Arrest Warrant (EAW) will continue to have force in the UK- BBC News 6th November 2014.   This is to be part of a one day debate relating to the opting out by the UK of some 110 EU Police and Criminal Justice measures and the opting back into 35 including the EAW - please see the post on 5th September.  



There are good reasons why the EAW should be retained and these are succinctly stated in a letter sent to The Telegraph by a considerable number of notable lawyers who argue that "there is no credible alternative."  The same point is made in a post on the Head of Legal blog.

It is very significant that, in a news item issued on 6th November , Fair Trials International argue that the need is to reform aspects of the EAW rather than tear it up.  Fair Trials International do not share the pessimistic view that EU-wide reform of the warrant is not possible.  They also point out that new safeguards against injustice were introduced into the UK’s extradition arrangements with the rest of Europe by the Anti-Social Behaviour, Crime and Policing Act, which received Royal Assent to become an Act of Parliament on 13 March - (see Part 12 of that Act).

The European Scrutiny Committee considered the opt outs and, in October 2013, issued its 21st report and the government's response was issued in March 2014.

It cannot be said that the politicians have made it easy for the public to see precisely what is being opted into and, for that matter, what will be opted out of.  One straightforward publication is this Commons Standard Library Note dated 15th July 2013 which considers, as things stood at that date, the bloc opt-out and selective opt-back-ins.    See also Cm 8671 - July 2013 - Decision pursuant to Article 10 of Protocol 36 to the Treaty on the Functioning of the EU - a list of the opt-ins appears at pages 8 to 12.
 
Parliament -  The UK's 2014 block opt-out decision: Joint Commttee Statement  and see the DRAFT Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014

Three questions needing satisfactory answers

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1.  Why should lawyers continue to offer pro bono work as a means of covering up the fault-lines in government lack of legal aid policy?

Steve Cornforth blog - Who needs legal aid when lawyers do it for free?




2.  After two failed attempts (Butler-Sloss / Woolf), the Home Secretary's attempts to find a suitable chair for the child abuse inquiry continue.  Would it not be preferable to scrap the present inquiry, start again with proper terms of reference for an inquiry with much sharper focus and with adequate powers to investigate and also proper safeguards for witnesses?

Here is a view as to why the present inquiry is heading for disaster - Matthew Scott's view on Barrister Blog

BBC 3rd November 2014 - Teresa May 'sorry' for two child abuse inquiry resignations


3.  Why should fundamental rights be by the grace and favour of government?

Institute of Race Relations - Human rights at the government's discretion

I am not expecting satisfactory answers any time soon !!

See also:

Law and Lawyers 6th October - Human Rights - a look at the Conservative Party proposals

Head of Legal Blog 29th October  - Dinah Rose QC: The Conservative human rights paper is "just so rubbish"