Debbie Purdy - RIP

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The death of Debbie Purdy (1963-2014) has been anounced. Her wikipedia entry is here.

The very last judgment of the House of Lords was in R (Purdy) v Director of Public Prosecutions [2009] UKHL 45; [2009] EWCA Civ 92.  In October 2009, The Supreme Court replaced the Appellate Committee of the House of Lords as the highest court in the United Kingdom.

In Mrs Purdy's case,
the House of Lords required the DPP to promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdy’s case exemplifies, whether or not to consent to a prosecution under section 2(1) of the Suicide Act 1961.  For the present guidance see the CPS Website - Assisted Suicide.

Last Judgments of the House of Lords - Artist Sergei Pavlenko

Riding to Hounds ~ the Hunting Act 2004

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The various Hunts came out on Boxing Day - BBC 26th December.  Twitter came alive with comments that, if they have a majority after the 2015 general election, the Conservative Party would, at some stage, allow a free vote on whether the Hunting Act 2004 should be repealed.

The Act does not prevent hunting other that of wild animals with dogs and even that is lawful if carried out in accordance with the conditions of an exemption.  Section 1 makes it an offence for a person to hunt a wild mammal with a dog unless the hunting is exempt. 
Exempt hunting is dealt with in Schedule 1.  Perhaps the most interesting of the nine exemptions relates to Stalking and Flushing Out.  Provided that 5 conditions are met, stalking a wild mammal, or flushing it out of cover, is exempt hunting.  The third condition limits to a maximum of two the number of dogs used in stalking or flushing out.  The fifth condition requires the animal stalked or flushed out to be shot dead by a competent person in the event that the stalking / flushing out is successful.


  Section 4 creates a defence where the defendant shows that he reasonably believed that the hunting was exempt.   Section 3 creates offences of assisting hunting - for example, by knowingly permitting the use of land.  Note - read section 3 in conjunction with section 11(3).  The penalty for an offence under the Act is a Level 5 fine and the offences are summary (i.e. triable by the Magistrates' Court).

One interesting fact about the Hunting Act 2004 is that it was enacted using the Parliament Acts 1911-49.  This led to an interesting challenge heard in the House of Lords - Jackson v Attorney-General [2005] UKHL 56 where it was argued that the Hunting Act 2004 was legally invalid because the Parliament Act 1949 was also invalid having been enacted using the Parliament Act 1911 which did not permit an Act such as that of 1949 to be enacted without the consent of the House of Lords (as a legislative body).  This ingenious argument was rejected.

Crown Prosecution Service information on the Hunting Act 2004 states:

"The issue of hunting is a contentious one and this was reflected in the debates during the passage of the legislation through Parliament. Prosecutors review all cases in accordance with the Code for Crown Prosecutors to determine whether there is sufficient evidence to provide a realistic prospect of conviction and, if so, whether a prosecution is required in the public interest. This is the Full Code Test which is applied to offences under this Act."

A number of prosecutions brought under the Act are referred to in this Wikipedia entry.

The relevant - (and different) - Scottish legislation is the Protection of Wild Mammals (Scotland) Act 2002.  See the archived material on the older website of the Department for the Environment, Food and Rural Affairs.

There is no doubt that the Hunting Act 2004 is controversial but, for all the problems inherent in the legislation and with enforcement, it currently represents the law on the subject.  The present coalition government had a similar plan to offer a free vote in the House of Commons on this matter.  For political reasons, the vote has not taken place to date.  One wonders whether a future similar promise will meet a similar fate? 

Case law:

DPP v Wright [2009] EWHC 105 (Admin) where the Administrative Court gave a restrictive interpretation to the Act ruling that the term 'hunts' under the Act does not include the mere searching for an as yet unidentified wild mammal.  Hence once a hunt begins, only a person who engages or participates in the pursuit of an 'identified' wild mammal is guilty of an offence.

Christmas 2014

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Best Wishes  for Christmas 2014 and New Year 2015

Enjoy the Festive Season - think of those less fortunate and, if you can, help them.  In the restless world of the law, there will be much more to write about in the coming days and months.   This blog will continue to follow at least some of the many stories and 2015 promises to be a most interesting year given the forthcoming general election which may bring about some new directions in government legal policy.  Here, I touch on four areas: Access to Justice; the European Convention on Human Rights; Devolution; and the EU.  


Legal aid has either been removed from numerous areas of law or made more difficult to obtain.  Judicial Review - (a vital legal mechanism for keeping officialdom subject to the law) - has come under attack.  The extent to which political parties will stop or reverse this trend should be a key election issue.  After all, the rule of law and access to justice for the citizen are vital elements in a democratic society.   The courts and tribunals of the land must not be allowed to become the tax-payer funded playground of super rich litigious individuals or huge corporate business.  As the 800th year of Magna Carta approaches, the time is right to say that the attacks on justice must not only stop but must be reversed.

There are threats to withdraw from the European Convention on Human Rights.  The Convention system has more than proved its worth in enhancing the rights of individuals against the State.  From time-to-time it requires government to take action to uphold convention rights but it is a falsehood to claim that government never wins cases.  Usually, the key issue is what should be the proper balance between the individual and the State.  Most of the rights in the Convention permit such a balance to be sought.  The extent to which the convention system restricts government ought to be generally welcomed.  Withdrawal from the Convention would be certain to do the UK untold harm internationally and ought logically to lead to the UK losing its place in the Council of Europe and the EU.  Surely, such things are unthinkable for a nation such as the UK which has always been outgoing in its desire for commerce with other nations.

A further massive issue is what form will the United Kingdom take in the future.  Devolution of power to Scotland, Wales and Northern Ireland - but not to England - has resulted in a highly asymmetric nation.  The logical outcome of devolution must be that the United Kingdom becomes a truly FEDERAL nation but there seems to be political unwillingness to accept this.

Yet another major issue is that of the European Union.  Certain of the fundamental principles of the EU are causing serious social and political concern and, in particular, freedom of movement of workers is blamed for continuing immigration which is placing enormous pressure on all forms of public service.  It would be unwise to ignore such issues.

So there we are.  Four important issues and there will be many others.  For now, let's enjoy Christmas with its vital message of Peace on Earth.

 

Will the EU accede to the European Convention on Human Rights?

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There has been a Treaty obligation requiring the European Union (EU) to accede to the European Convention on Human Rights (E Conv HR) - Treaty on European Union Art 6(2). 

On 18th December, the Court of Justice of the European Union (CJEU) ruled that the draft agreement on the accession of the European Union to the European Convention on Human Rights (ECHR) was not compatible with EU law.

See the Court's Opinion 2/13 and the associated Press release.



The CJEU is the ultimate authority on the interpretation of the law of the EU.  The European Court of Human Rights - (which operates as an organ of the Council of Europe and not the EU) - is the ultimate authority on the meaning of the ECHR.  It is fairly obvious that there could be a problem if two distinct courts held sway within the EU.  However, it was widely thought that the proposed agreement would deal with any such problems.  The CJEU, in a lengthy and complex opinion, disagreed.  The following articles are well worth reading for more detailed discussion of the opinion and its potential consequences.

UK Constitutional Law blog 24th December

Cambridge Journal of International and Comparative Law 20th December


ECHR Blog 20th December

EU Law Analysis 18th December

Euractiv 19th December

Despite the obligation in the Treaty on European Union, Opinion 2/13 makes it highly difficult for the EU to proceed with accession.  The CJEU seems to have been especially concerned to maintain its own position as the ultimate authority on the EU legal order.  The way forward is not yet clear but the Treaty obligation remains in place.

Strasbourg decides FOR the UK government

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The Criminal Justice Act 2003 Part 11 Chapter 2 (CJA) enacted major changes to the law relating to the admissibility in criminal trials of hearsay evidence.  The changes were based on Law Commission proposals though Parliament did not completely follow the Commission's scheme.  Since they came into force, the CJA provisions have been the subject of extensive case law.  In an article in The Guardian 17th December, Joshua Rozenberg looked at certain cases where the CJA provisions were examined at the European Court of Human Rights - ECHR cases won by UK government show flexibility of the human rights system. 

With the General election looming in 2015, voters would do well to ask candidates what they or their party plan to do about human rights protection.  I will leave it to a later post to look more closely at just what the various parties are proposing.



As Rozenberg says: - "  ..... no parliament can overturn the decisions of the court’s grand chamber – but the European court, like any other institution, is capable of getting things wrong. And, when it is persuaded that it has made a mistake, it is not too grand to think again.

Crucially, it was persuaded to do so in this case by the careful reasoning of the court of appeal and the supreme court. That’s what the court would lose if the UK pulled out of the human rights convention.


And just in case the message is not clear, the court has just refused to reopen the vexed question of prisoners voting. Its decision in August refusing damages or even costs to disenfranchised prisoners (though confirming a rights violation) is now final. So this issue has been parked until after the general election. Though prisoners will not have a say, Strasbourg will be watching the voting with interest."

The cases:

Al-Khawaja and Tahery v UK, a chamber of the court ruled that article 6 would be breached if a conviction had been based solely or decisively on statements that a defendant had received no opportunity of challenging.  English judges did not agree with this decision and the matter reached the UK Supreme Court in December 2009 - supreme court decision.  In December 2011, the E Ct HR grand chamber modified its earlier ruling so that a conviction based solely or decisively on the statement of an absent witness would not automatically result in a breach of article 6. However, there would still a breach of the defendant’s rights unless there were counterbalancing factors, including strong procedural safeguards, to compensate for the difficulties caused to the defence and the dangers of relying on hearsay evidence.

See the recent Strasbourg decision in Horncastle and others v UKtrasbourg chamber decision. 

  

The truth, the whole truth and nothing but the truth

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The Torturer has long been regarded as the enemy of mankind (Hostis humani generis).  Those who authorise the use of torture or who, when in an official capacity, condone it or turn a blind eye to it should also be condemned - see, for example, Prosecutor v Furundzija. 

The US Senate "Torture" report:

The US Senate Select Committee on Intelligence has released an important summary of a report covering the period September 2001 to January 2009 - Committee Study of the Central Intelligence Agency's Detention and Interrogation Program .  The document contains the Executive Summary, Findings and Conclusions of a much larger report that remains classified though declassification may be considered later.  In the Foreword to the document, the Chairman of the Committee (Senator Dianne Feinstein) stated - " .... it is my personal conclusion that, under any common meaning of the term, CIA detainees were tortured ....".  She goes on to add, " ... conditions of confinement and unauthorised interrogation and conditioning techniques were cruel, inhuman and degrading ..."   See the comments of 9th December by Senator Feinstein on her website.

Criticism and and concerns:



The report has been criticised, mainly by political opponents of its authors (see New York Times 8th December), but it is a very candid statement of  how various detainees were treated.  The document contains no reference to any United Kingdom involvement with the treatment of detainees though it has long been suspected that, for example, UK aerodromes were used by rendition flights and that British authorities supplied questions to be put by others - (perhaps more brutal others) - to detainees.  (In 2008, there was a government admission that two rendition flights had used Diego Garcia in 2002).  Such suspicions are damaging to the UK's international  standing and there is no surprise that, given the publication of this report,  there are demands for some form of UK inquiry.  At the present time, the most likely form of inquiry will be an investigation by Parliament's Intelligence and Security Committee - BBC 14th December - MPs and Peers seek material on any UK 'torture' role.    

According to that BBC article, Labour's shadow home secretary (Yvette Cooper) has concerns that the intelligence committee lacks the capacity or scope to be able to get to the truth.  Conservative MP Andrew Tyrie, who chairs the all-party parliamentary group on extraordinary rendition, called for the government to "reconstitute a judge-led inquiry" with "wide-ranging powers" and a "substantial investigative capability" to look into the UK's role in the CIA's interrogation programme.  Clare Algar, from the charity Reprieve, told the BBC that Prime Minister David Cameron had previously said only a judge-led inquiry could get to the bottom of the UK's involvement, adding: "I think that is still the case."

The ISC:

The Intelligence and Security Committee has extensive powers.  The committee's website states:

"The Intelligence and Security Committee of Parliament (ISC) was first established by the Intelligence Services Act 1994 to examine the policy, administration and expenditure of the Security Service, Secret Intelligence Service (SIS), and the Government Communications Headquarters (GCHQ). The Justice and Security Act 2013 reformed the ISC: making it a Committee of Parliament; providing greater powers; and increasing its remit (including oversight of operational activity and the wider intelligence and security activities of Government). Other than the three intelligence and security Agencies, the ISC examines the intelligence-related work of the Cabinet Office including: the Joint Intelligence Committee (JIC); the Assessments Staff; and the National Security Secretariat. The Committee also provides oversight of Defence Intelligence in the Ministry of Defence and the Office for Security and Counter-Terrorism in the Home Office."

There are claims that the ISC lacks powers to adequately investigate these matters.  Possibly, if Parliament (or Government) were so minded, any lacunae in the powers could be addressed.  The present position of the ISC can be found in the Justice and Security Act 2013 Part 1 and Schedule 1.

Alternative inquiries:

The alternative to an ISC investigation would be a statutory inquiry under the terms of the Inquiries Act 2005 but that is a form of inquiry which has also been the subject of criticism given the degree of control exercisable by Ministers - see Local Government Lawyer 20th March 2014 and Law Society Gazette 27th March.  Further, the government could set up a non-statutory inquiry such as it did with the Child Abuse Inquiry announced earlier this year.  The government would set the terms of reference for such an inquiry.  Even when set up, inquiries can be a lengthy (not to mention expensive) process and the final report may be delayed (as with the Chilcot Iraq Inquiry) or perhaps either not published or published just in redacted form.  The lengthy delay with regard to the Chilcot Inquiry appears to be undermining whatever public confidence existed in the Inquiry.  In any event, the Chilcot Inquiry will first report to the Prime Minister.

Gibson Inquiry:

An inquiry set up in 2010 under the Chairmanship of Sir Peter Gibson was closed down by the government in 2012 though a report was prepared for the Prime Minister in late 2013.  (See Report of the Detainee Inquiry - December 2013).   The Gibson Inquiry was set up to inquire into the question of British complicity in torture conducted abroad - BBC 6th July.

The Open Society Justice Initiative report:

Rendition by the United States of America's Central Intelligence Agency (CIA) is the subject of a report by the Open Society Justice Initiative (OSJI) - see "Globalizing Torture: CIA Secret Detention and Extraordinary Rendition" - (PDF 216 pages).  This report states that some 54 countries (including the United Kingdom) offered some level of support for rendition.  The United Kingdom is discussed in Section V at para 51.

The publication of the report was covered by The Guardian (5th February 2013) CIA rendition: More than a quarter of countries offered covert support  

The UN Torture Convention:

The United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment was ratified by the UK December 1988 and the Criminal Justice Act 1988 section 134  defines the offence of torture for the purposes of the criminal law.

Universal Jurisdiction is an aspect of international law that seeks to ensure that there is no safe haven for torturers.

A former UN Special Rapporteur on Torture (Professor Manfred Nowak) has argued that the UK must probe its role in torture - The Guardian 20th December.

The Al-Sweady Inquiry:

This Inquiry has reported - see Watching the Law 18th December 2014.

Endpiece:

It remains to be seen whether the UK will hold a truly effective investigation or inquiry into the various allegations of involvement in the matters set out in the reports of the US Senate and others such as Sir Peter Gibson's report of December 2013.  The government would do well to ensure that there is such an investigation or inquiry and that the truth, the whole truth and nothing but the truth is established.  Furthermore, a secretive process will not address public concern.

   

R v Teret ~ "Historical" sexual offending

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The Judiciary website has published the sentencing remarks of Mr Justice Baker in the case of R v Teret.

"Disc jockey" Ray Teret was well-known in the North West of England during the 1960s and 1970s.   He has been sentenced to a total of 25 years imprisonment.  He will serve half of that in custody and then be released on licence.  He is subject to the notification requirements of the Sexual Offences Act 2003 section 80.  He was convicted of 11 counts of indecent assault and the applicable maximum sentence for each of those offences was 2 years.  Baker J imposed sentences of 18 months imprisonment on each of five of the counts and 12 months imprisonment on each of six counts.  Teret was also convicted of seven counts of rape and he received 25 years imprisonment on each count.  ALL of the sentences will run concurrently - thereby making 25 years in total. 

The sentencing may seem severe
given Teret's present age but the extent and nature of his offending was also particularly serious including 7 convictions for rape for which the applicable maximum sentence was life imprisonment.  As Baker J pointed out, Teret can have no justifiable complaint that most of his remaining life may be served in prison since he had maintained his liberty during the years since the commission of the offences.  [Note: The possibility of compassionate release under the Crime Sentences Act 1997 section 30 remains].

At one point in the sentencing remarks, Baker J referred to the possibility of imposing an extended sentence. This must have referred to an extended sentence under section 226A of the Criminal Justice Act 2003 (inserted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 section 124 which came into force on 3rd December 2012).  Such a sentence would not have been available in Teret's case since it appears that there was not a significant risk of further specified offending.

The approach to sentencing historic sexual offences is set out in Annex B to the Sexual Offences Definitive Guideline and the maximum sentences available are set out in Annex C

An excellent discussion of this guideline is by Felicity Gerry (now QC) on the UK Criminal Law Blog 18th December 2013 -  Sentencing Historic Sexual Offences - The new Guidelines.  The same blog contains a discussion of some general points relating to Historic Sexual Abuse Allegations

Whether Teret appeals these sentences to the Court of Appeal (Criminal Division) remains to be seen.  On this see Criminal Law Blog - Ray Terret sentenced to 25 years for historic sex offences 

Supreme Court ~ taking into account Strasbourg decision but not bound

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The Supreme Court judgment in R (Haney, Kaiyam and Massey) v Secretary of State for Justice and R (Robinson) v Governor of HMP Whatton and Secretary of State for Justice [2014] UKSC 66 concerns individuals who had been sentenced to Imprisonment for Public Protection (IPP) under the regime imposed by the Criminal Justice Act 2003 s.225 (in force 4th April 2005) but now abolished by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 s.123.   IPP applied to those convicted before 3rd December 2012.

Supreme Court judgment and associated press release.

IPP caused serious problems for the Prison Service and the Parole Board - see Oxford Human Rights Hub - James, Wells and Lee v UK.  The House of Lords
in James, Lee and Wells [2009] UKHL 22  criticised the ‘deplorable’ systemic failure of the Secretary of State to put in place the rehabilitative resources necessary to enable IPP prisoners to progress their sentences. However, they stopped short of holding that IPP prisoners were unlawfully detained. It was held that the purpose of IPP sentences was public protection, not rehabilitation. The Parole Board could still perform its review function. Therefore, in their view, the Applicants’ indeterminate imprisonment could not be considered arbitrary. The European Court in James, Lee and Wells v UK (2012) 56 EHRR 399, by contrast, unanimously held that the Applicants had been subjected to an arbitrary deprivation of liberty thereby rendering their continued detention unlawful.


The Supreme Court's judgment is of particular interest because of its discussion of the legal relationship between the Supreme Court and the European Court of Human Rights - see, for example, paragraphs 18-23, 30-37 and 38-39 of the judgment.  The Human Rights Act 1998 requires only that the courts in the UK 'take into account' judgments of the European Court.  The words 'take into account' have provoked considerable recent discussion.

The Supreme Court held that the express wording of Article 5(1) or 5(4) did not create any relevant duty to provide prisoners with a reasonable opportunity to progress their rehabilitation and release.  However, the overall scheme of Article 5 did impose an implied ancillary duty on the Secretary of State to facilitate prisoners' rehabilitation and release.  Breach of that duty would not affect the lawfulness of the detention but would entitle prisoners to damages. 

Thus, the Supreme Court found itself not entirely in agreement with Strasbourg but not entirely following the House of Lords either. A midway position was adopted.

"Drink / drive" ~ lower limits apply in Scotland

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From 5th December, the alcohol limit for driving in Scotland has been reduced - see Scottish Government - Lower Drink Drive limits and also Scottish Government - New Drink drive limit.  It appears that prosecutions are likely to be brought even in marginal cases where the reading is just above the limit - Why the new Scottish Drink Drive Limits are even tougher than you think.

The relevant Scottish legislation is the Road Traffic Act 1988 (Prescribed Limit)(Scotland) Regulations 2014 and the new limits are:

a) 22 microgrammes of alcohol in 100 millilitres of breath ... 35;
b) 50 milligrammes of alcohol in 100 millilitres of blood ... 80
c) 67 milligrammes of alcohol in 100 millilitres of urine ... 107

The figures in red show the corresponding limits for England, Wales and Northern Ireland. 
For England and Wales, the Crown Prosecution Service (CPS) offers this guidance - Drink Driving Offences

In England and Wales, the excess alcohol offences (Road Traffic Act 1988 section 5) is triable summarily in the Magistrates' Court - see the sentencing guidelines at page 124 of the Sentencing Guidelines document.   The offender's driving licence must be endorsed and a minimum disqualification of 12 months imposed.  In some situations the minimum disqualification must be higher.  The actual sentence imposed will vary according to the actual alcohol reading from Band C fine at the lower end to 26 weeks imprisonment at the higher end.  The surcharge provisions will apply as well as court costs.  Even when the offender's disqualification ends, a vastly increased insurance premium is inevitable.

Many defendants charged with excess alcohol offences find that they do not qualify for legal aid to cover representation in the Magistrates' Court.  This is because legal aid is subject to a double test: (a) interests of justice and (b) means.

I have no doubt that it will not be long before the rest of the UK comes into line with Scotland and, for that matter, most of EU.

Winter Walks in the West Country

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Or if you're in SE Cornwall and feeling especially energetic, how about this 12km walk covering Looe, Talland & the Giant's Hedge. Or if that's a bit of a stretch, try this 5.5km walk from Cremyll Ferry to Kingsand & Cawsand.

Was this entirely right? A mother's dilemma.

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There will not be too much public sympathy for Yusuf Sarwar and Mohammed Ahmed who were recently sentenced to a custodial term of 12 years 8 months for Preparation of Terrorist acts - Terrorism Act 2006 section 5.  Under this extended sentence (Criminal Justice Act 2003 section 226A*) there is a custodial term and, thereafter, an extension period during which time the offender is on licence.  The extension period here is 5 years.  One aspect of an extended sentence is that the the court must 'consider that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences.'

I have not been able to find publication of the sentencing remarks of His Honour Judge Topolski QC who sentenced the men at the Crown Court sitting at Woolwich.  It is a pity that sentencing remarks are not readily available and that we are in the position of having to rely on media reports.  Clearly, from the fact of an extended sentence, prime concerns of Judge Topolski would have been deterrence and prevention of further offending.  The whole purpose of the extension period is to give further protection to the public from serious harm occasioned by the commission by the defendant of further 'specified' offences.

Here are three reports offering details of the case:  The Guardian 5th December 2014;   BBC 7th December;   Birmingham Mail 9th July 2014.



It is to be noted that the men entered guilty pleas in July 2014.  Yusuf Sarwar's mother had reported to the Police her concerns about her son.  The judge commented about her 'extraordinarily brave conduct.'  However, Mrs Sarwar now feels very 'let down' by the length of the sentence imposed and says that it is unlikely that other parents will report similar concerns.  Regrettably, on that she may well be proved to be right.  

According to this Guardian report - Mrs Sarwar said:

“The police say ‘mothers come forward’, you can trust us, we will help. But now they will see what happened to my son. What kind of person would go to the police if they think their son will get 12 years in prison? Nobody wants to do that. I did not want that.”

Mrs Sarwar also pointed to the sentence handed down last month to British soldier Ryan McGee, from Greater Manchester, an English Defence League supporter, convicted of making bombs filled with shrapnel. McGee was in possession of knives, axes and imitation guns; he was sent to prison for two years.

The family had been told that Yusuf, whose grandfather served with the British army, might expect a similar kind of sentence after their pleas of guilty.

Whether the Court of Appeal (Criminal Division) will come to consider this sentence remains to be seen.  In the event of an appeal, it will be interesting to see the weight (if any) given by the court to the conduct of the mother in reporting this to the authorities.

Footnote:

* CJA 2003 s226A was inserted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 section 124 which came into force on 3rd December 2012.  226A replaces the extended sentence provided for by CJA 2003 s227.

Judicial Review at Bay ~ Criminal Justice and Courts Bill ~ Ping Pong

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Update:  On Tuesday 9th December, the House of Lords will consider whether to back down in the 'ping pong' over the judicial review proposals.

Update 10th December:  The House of Lords "ping pong" took place on 9th December and the House remained firmly opposed to the government's plans to make access to judicial review more difficult.  The debate may be read here.  See also Law Society Gazette - Grayling admits misleading Parliament as JR reforms defeated again where it is noted that the matter will return to the House of Commons in the New Year.

Update 21st January 2015:  Ping pong in the Lords 21st January and also Parliament Criminal Justice and Courts Bill 22nd January 2015
-------

Judicial review has been described by Liberty as - “a crucial tool which allows ordinary people to challenge decisions by the authorities—either because they’re unlawful, irrational, or made in the wrong way.”  This crucial tool has come under attack from the government.  In this post, I look at the House of Commons debate on 1st December when House of Lords amendments to the Criminal Justice and Courts Bill were considered.

At times, the process referred to a "ping pong" (or "consideration of amendments") can be rather like a showdown in a western movie.  Parliament's description of "Ping Pong" states that - "When a bill has passed through third reading in both Houses it is returned to the first House (where it started) for any amendments made by the second House to be considered."  A bill may go back and forth between each House until both Houses reach agreement on the exact wording of the bill.

"Ping pong" is the present stage
of the Criminal Justice and Courts Bill.  On Monday 1st December, the House of Commons - in a very thinly attended debate - looked at House of Lords amendments to the Bill.  A particular point of serious concern is the government's attempt to impose further restrictions on the process of judicial review.   The House of Lords put forward important amendments but the House of Commons has disagreed with the Lords and taken the government's side.  It will now be for the Lords to decide if they wish to maintain their opposition to the government's proposals for reform.

The actual voting in the Commons belies the number who actually attended and heard the arguments.  The motion was that "this House disagrees with Lords amendment 97" and the House did disagree by a vote of 319 to 203.  


Politics.co.uk looked at the 1st December debate - "The Night the Lib Dems gave up their last remaining principles" and also see the article by Clive Coleman at BBC Judicial review reform: An attack on our legal rights."   A further particularly good piece is by Owen Bowcott in The Guardian 1st December - "Charities warn of 'chilling' move to restrict access to judicial review,"

It was plain from his very language that the Justice Secretary finds the process of judicial review to be exceptionally irritating.

"Judicial review was never intended to be a tool for pressure groups to seek to disrupt perfectly lawful decision making in Government and Parliament, it was never designed to be used as a political campaigning tool, and it was never intended to put the courts above the elected Government in taking decisions over the essential interests of this country. Yet, in far too many examples, that is precisely what it has become and is why reform is necessary ......

and later he said:

If a group can find a clever enough lawyer, almost any Government decision can be judicially reviewed, and very many are, not necessarily on the basis of specific breaches of specific laws, but far too often on a loose argument that something was not quite right with the consultation paper, that there should have been a bit more consultation, or that a tough decision seen in isolation was irrational. Without undermining the essential core of judicial review, we need to restore common sense to the way in which the judicial review system works, and that is what we are working to do."


Particularly notable speeches were by Mr Frank Dobson MP and Mr Andy Slaughter MP.

Mr Dobson said:

The right hon. Gentleman talks of technicalities, but the law is full of technicalities—that is all it is. He says that Ministers and officials are frightened of judicial review, and so they should be. The pressure on them is to comply with laws and regulations that we have passed. We are encouraging law breaking if we let someone say, “Well, it’s okay. You can skate over that, or you can skate over this. You can get away with it. It was only a minor technicality.”


and Mr Slaughter said:

We do indeed stand on the shoulders of giants in conducting this debate. The names that graced the amendments that were made in the House of Lords included not only the former Lord Chief Justice, but other esteemed lawyers such as Lord Pannick, the Labour spokesman Lord Beecham, Lord Carlile and many other senior jurists. Indeed, the President of the Supreme Court and the Master of the Rolls have also spoken out in clear and emphatic terms to say that the Government proposals are not just folly, but dangerous steps to take. I am amazed that any Lord Chancellor—even this one—would ignore those protestations.


and, later, he added:

It is not wrong to see this concerted attack on judicial review as being of a piece with other reductions in access to justice that this Government have advanced, such as on legal aid, on no win, no fee, and on court and tribunal fees. However, judicial review seems to receive particular opprobrium from this Lord Chancellor. That is strange in many ways. Judicial review is already a remedy of last resort and already includes a permission stage. Its accessibility has been limited by the changes to the rules on legal aid for judicial review and the shortened time limits for applying. Indeed, Lord Justice Jackson, some of whose recommendations on costs and civil claims the Government have grabbed on to, advised that it was already very difficult for the ordinary citizen to apply for judicial review for want of funds and expert knowledge, and that we should look at broadening the basis for bringing a judicial review claim.

The attack on judicial review should be of concern to us all. It is a remedy that can protect the rights of very vulnerable individuals, such as young prisoners and dementia sufferers; that can save whole communities from wrongful decisions by the state, such as when the closure of Lewisham’s accident and emergency department was ruled unlawful; and that can establish the law on important points of policy, often with the help of expert bodies that intervene to assist the court on a point of general principle. It is, as Liberty says,

“a crucial tool which allows ordinary people to challenge decisions by the authorities—either because they’re unlawful, irrational, or made in the wrong way.”


Parliament: 

MPs consider Lords amendments to the Criminal Justice and Courts Bill

Criminal Justice and Courts Bill Commons disagreements, reasons and amendments in lieu

Further reading:

Please read this excellent post on Public Law for Everyone - " The Justice Secretary on Judicial Review - five basic misconceptions"

Legal Business 2nd December