The tort of negligence ~ a few thoughts on the elusive duty of care

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In the 13th edition of Salmond on Torts (1961) - (at page 428) - it was said:

" When ... a court holds that the defendant was under a duty of care, the court is stating as a conclusion of law what is really a conclusion of policy as to responsibility for conduct involving unreasonable risk ..."

and later

" ... there is always a large element of judicial policy and social expediency involved in the determination of the duty problem ..."



See also, Caparo Industries plc v Dickman [1990] 2 AC 605 where Lord Bridge stated:

"What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of "proximity" or "neighbourhood" and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope. Whilst recognising, of course, the importance of the underlying general principles common to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes." 

In an article "Viewpoint: Supreme Court preserves police immunity from negligence liability", the author, by Dr John Fanning - Law Lecturer University of Liverpool - comments: 

"Court-watchers may feel that Michael’s case bucks a recent trend. During the last decade, the Court has restricted the scope of the armed forces’ “combat immunity” (Smith v MOD) and abolished the immunity of expert witnesses (Jones v Kaney) and barristers (Hall v Simons) from negligence claims. The Court’s reasoning in those cases may have raised doubts about the future of similar immunities enjoyed by the likes of the police and fire brigade. Michael’s case dispels any hopes of new trend in the Court’s decision-making."

See also the useful overview at Bits of Law

A brief look at Michael v Chief Constable of South Wales Police and the IPCC Report

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On Wednesday 28th January, the Supreme Court handed down judgment in Michael and others v Chief Constable of South Wales Police and another [2015] UKSC 2 (Judgments).  The facts of the matter arose over 5 years ago in the early hours of 5th August 2009.  The Court of Appeal decided the case in 2012 - (Judgments). 

This post looks at the basic facts, notes the Supreme Court's judgment and looks at the very critical IPCC report published in 2010.  Some Additional Materials are at the end of the post.

Basic Facts:

At 0229 hrs, Joanna Michael used her mobile phone to call 999.  The signal was received by Gwent Police. Miss Michael informed the Police call-handler that her former partner, Cyron Williams, had come to the house, had found her with someone else, had bit her ear really hard and taken the other person away in his car, saying he would return to hit her.   Later on in the phone call, which lasted just over three minutes, she is recorded as saying that Williams said he was going to return to kill her. 
A factual issue was whether that was audible to the call-handler.  However, the handler said the call would be passed on to South Wales Police, who would want to call her back, and asked her to keep the phone free. She replied "Alright, then". The call was automatically graded as requiring an immediate response envisaging attendance on Ms Michael in about 5 minutes.  The handler passed the details to South Wales Police but made no mention of a threat to kill.  Consequently, South Wales Police graded the call G2 requiring a response within 60 minutes whereas Gwent had graded it G1 (immediate response).  A further 999 call was made at 0243 hrs and, again, received by Gwent and passed to South Wales.  The Police arrived at 0251 hrs only to find Ms Michael dead.  Cyron Williams subsequently pleaded guilty to murder and is serving life imprisonment. 

More factual information is in the judgments and also in the IPCC report (see below).

The decision:

The Supreme Court, by a 5 to 2 majority, has held that there is no Police liability in negligence to Joanna Michael.  Lord Toulson delivered the majority judgment.  There are dissenting judgments by Lord Kerr and Lady Hale.  The court was unanimous in holding that a claim based on Article 2 of the European Convention on Human Rights may proceed to trial to determine whether, on the facts, there is such liability.

Michael and others (FC) (Appellants) v The Chief Constable of South Wales Police and another (Respondents)

• Judgment (PDF)
• Press summary (PDF)

IPCC Final Report 2010:

The Independent Police Complaints Commission investigated the Police role and issued a critical report (17 pages pdf).  The full factual details in this report are not included in the judgments of the Supreme Court or the Court of Appeal.  The IPCC found breaches by the call-handler of Force Policy.  The paragraphs dealing with Call Handling are worth noting:

"The Gwent Police call handler was in breach of Gwent Policy policiesin failing to take proper details from Joanna and missed getting key information such as: the injuries she had suffered; the offender’s name and description; how it was not known how Williams had earlier entered the property; and whether there were any children in the household. The call handler also failed to pass on key information to SWP, such as the description and registration of the car Williams was using; that Joanna had said he would be back any minute; details of the assault; or that she had told Joanna to keep her phone free because SWP would call her back.

In fact, the tape of the call reveals that at times it seemed that the call handler was not paying proper attention to Joanna, repeatedly asking her the same questions. At one point the Gwent Police call handler talks to a third party and has to reassure Joanna that she is listening to her.

When Gwent Police passed the call to South Wales Police, the police response was down-graded from requiring an immediate response to needing a priority response.  The SWP call handler made this decision based on the insufficient information that had been given to him by the Gwent call handler.

The obvious course of action in the circumstances of not being provided sufficient information to carry out a proper risk assessment is to err on the side of caution and deploy officers immediately. The victim can then be telephoned to reassure them that officers have been dispatched and to obtain further information. If that then required the call grading to be changed at least the decision would be based on the full facts.

The investigation found that South Wales Police had three differing documents available to staff to guide them about call grading criterion. This is confusing and the force has agreed to review and rationalise their process into one coherent guide tograde emergency call responses ..."

"The IPCC investigation also found that the Gwent Police call handler, despite being employed by the force for 12years, had never attended any force training courses on domestic abuse. This is despite the fact that domestic abuse cases are a high proportion of all calls received by police call handling teams and require specific knowledge in the way that they are handled."

It appears that the Gwent call-handler was dismissed - BBC Wales

Comment:

The Supreme Court majority appear to have been assiduous in finding reasons to reject the claim in negligence.  It is worth noting para 4 of the judgment where the court said that it would proceed on the basis that all the factual allegations could be proved.  If the IPCC report is correct (as, again, one must assume), then the degree of fault on the part of the Police was considerable.  (It was not necessary here to consider the respective fault of Gwent and South Wales).  It is not particularly clear why the Police ought to retain that degree of exemption from negligence claims when in other areas the protection from negligence claims has been removed (e.g. lawyers - see here).  Whilst the existence of a duty of care is beyond doubt in many situations (e.g. motorists liability to other road users etc), there continue to be cases where it is arguable that a duty should exist.  In such cases, the test for the existence of the duty of care permits judges to impose a duty or not according to their perceptions of what public policy requires.  This is far from satisfactory.  On the known facts of this case, the judgments of Lord Kerr and Lady Hale seem to be preferable.

Additional material:

BBC 28th January - Analysis: Why can't we sue the Police for negligence - Dominic Casciani

Doughty Street Chambers 28th January - Landmark Police Immunity judgment from the Supreme Court - this article has a link to a summary by Nicholas Bowen QC of the case and issues.

Article by Dr John Fanning - Law Lecturer University of Liverpool - "Viewpoint: Supreme Court preserves police immunity from negligence liability."  Dr Fanning commented: 

"Court-watchers may feel that Michael’s case bucks a recent trend. During the last decade, the Court has restricted the scope of the armed forces’ “combat immunity” (Smith v MOD) and abolished the immunity of expert witnesses (Jones v Kaney) and barristers (Hall v Simons) from negligence claims.
The Court’s reasoning in those cases may have raised doubts about the future of similar immunities enjoyed by the likes of the police and fire brigade. Michael’s case dispels any hopes of new trend in the Court’s decision-making."

Supreme Court Blog

See also Police Law blog - Art 2 claims: damage for operational failure vis the back door?

Police Liability in Negligence for Failure to Prevent Crime: Time to Rethink - Tofaris and Steel - 21st July 2014

Lord Neuberger on the (civil) Trial Judge's role today

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Lord Neuberger - President of the Supreme Court of the UK - has delivered an interesting speech in Manchester - Some thoughts on the post-LASPO civil judge's role before and during trial

Lord Neuberger emphasised the importance in the common law system of the trial judge and said that, when it comes to case and trial management, as much as possible should be left to the trial judge, whose authority and confidence should be reinforced, no undermined or second guessed, by appellate courts [para 5]. 

" ... the Court of Appeal should be very reluctant in principle to interfere with a trial judge’s procedural ruling, and should only vary or reverse it, when the decision is plainly outside the wide range of reasonable choices which is normally open to a judge in such circumstances. And the
Supreme Court should generally not get involved in such matters, which it is normally much less well qualified to deal with. This difference in responsibility inevitably brings to mind the famous dictum of Lord Asquith, a Law Lord in the early 1950s. He observed that the first instance judge should be quick courteous and wrong, which was not to say that the Court of Appeal should be slow rude and right, because that would be a usurpation of the function of the House of Lords. I hope that the Supreme Court is only slow to the extent that the difficulty or importance of a case justifies careful thought, that we are never rude (even about each other) and that we are always right (some hope)."


At para 7 he added:

"The importance of the first instance judgment, and therefore the significance of the trial judge, in our common law system when compared with almost all European legal system is worth emphasising particularly so long as Europe is centripetally, rather than centrifugally, inclined. It may render our first instance cases more expensive and time-consuming, but it avoids the costs, delay and stress of automatic appeals, especially those many European appeals which are what we would characterise as rehearings."

The speech goes on to make interesting observations about devolution [13], Judicial Specialisation [14], the Judicial College [15], the Rule of Law [16], the need for costs to be proportionate [18], Litigants in Person [20-22], Mediation [25, 26] and Online Dispute Resolution [27], Cost management [28] and Fixed Costs 29]. 

With regard to "fixed costs" in "fast track cases" he said [29]:


"Fixed costs throughout the fast track was one of Rupert Jackson’s recommendations which was accepted more than four years ago.  Particularly bearing in mind the Government’s fundamental duty to enable access to justice and their swingeing cuts in civil legal aid, it is more than disappointing that after all this time, we still do not have fixed costs for all fast track cases."

Certainly, the litgant in person with a relatively straightforward case, ought to be assisted by being able to know at an early stage what the costs of litigation would be.

Lord Neuberger concluded by saying [30]:

"I referred to Lord Asquith’s likely surprise if he was alive to see how the judicial role has changed over the sixty years since he was a Law Lord.  From having been a detached umpire who gave a view on the law and the facts at the end of a case and held the ring in the mean time, a judge is now a case manager, a time-tabler, a time-keeper, a rules enforcer, a mediation facilitator, a mediator, a chairman of a meeting, and a costs assessor before and after the event.   First instance judges have been, if you like, converted from guard dogs, who sat on the sidelines and only barked occasionally to warn, into sheep dogs, who continually worry away at the parties to ensure that they fall into line.  So I suppose that means that the Court of Appeal judges are the shepherds.  I am not sure where that leaves the Supreme Court Justices, but, as our role should be very limited, perhaps that does not matter."
.

!! Guard Dogs to Sheep Dogs !!

A shabby deal !

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The UK - Saudi Arabia deal:

The Ministry of Justice and its Secretary of State are at the top of a pyramid which includes the National Offender Management Service (NOMS) and, within NOMS, is a somewhat little known entity: Just Solutions International.  JSi maintains a separate website - HERE. 

In a 2014 Mid-Year Report to Parliament, the Ministry of Justice said that:

"The Secretary of State visited Riyadh in September 2014 to sign a Memorandum of Understanding on Judicial Cooperation, to build upon the existing bilateral justice relationship, promote UK legal services in Saudi Arabia and raise awareness of the upcoming Global Law Summit. He also met UK lawyers with offices in Riyadh. Discussions were also held on judicial cooperation, King Abdullah’s reform programme, and human rights issues."  The report offered no further detail.

The Mid-Year Report also noted that:


"In August 2014, JSi submitted a £5.9m proposal to the Kingdom of Saudi Arabia, Ministry of Finance to conduct a training needs analysis across all the learning and development programmes within the Saudi Arabian Prison Service."

The Justice system of Saudi Arabia:

Some information about the Justice System in Saudi Arabia may be seen on the website of the  Royal Embassy of Saudi Arabia, Washington DC

It is a justice system that has become increasingly condemned by human rights organisations.  For instance, it is reported that in 2015 there have already been 16 individuals beheaded.  The public flogging (public torture) of a "blogger" has also aroused disgust.

It appears that, at the time JSi submitted its proposal, Saudi Arabia had already carried out at least 40 executions by beheading in 2014 - (See this article - Beheadings remain an integral part of Saudi justice system).  

UK links with Saudi Arabia:

Historically there have been very close commercial and military links with Saudi Arabia.  Such links continue.  It is not the purpose of this blogpost to analyse those but some further in formation is available in the article by historian Mark Almond (Daily Mail 25th January) and in The Guardian 27th January.   Lord King of Bridgewater is a trade envoy to Saudi Arabia.  This article (Asharq al-Aswat 1st December 2014) covers an interview with Lord King.  It is noted that:

"Britain remains one of Saudi Arabia’s most prominent trading partners, with British exports to the Kingdom jumping 29 percent in 2013 to reach a total of 4.2 billion British pounds (6.6 billion US dollars). Britain is also the second-biggest foreign investor in the Saudi economy, with total investments currently valued at 11.5 billion pounds (18 billion dollars), and both kingdoms share historical, economic and strategic links harking back to the founding of Saudi Arabia at the start of the last century."

The "Corner House" case:

The intelligence links with Saudi Arabia came to public prominence with the "Corner House" case in 2006 - see House of Lords judgment of 2008. The question for the House of Lords was whether the decision by the Director of the Serious Fraud Office to discontinue a prosecution was lawful.  Baroness Hale (at para 52) said:

" ..... It is extremely distasteful that an independent public official should feel himself obliged to give way to threats of any sort. The Director clearly felt the same for he resisted the extreme pressure under which he was put for as long as he could. The great British public may still believe that it was the risk to British commercial interests which caused him to give way, but the evidence is quite clear that this was not so. He only gave way when he was convinced that the threat of withdrawal of Saudi security co-operation was real and that the consequences would be an equally real risk to "British lives on British streets". The only question is whether it was lawful for him to take this into account."

and, at para 57 Her Ladyship said:

" ..... although I would wish that the world were a better place where honest and conscientious public servants were not put in impossible situations such as this, I agree that his decision was lawful and this appeal must be allowed." 

The fact remains however, that pressure was applied to the SFO Director.

Should there be this deal?

Should the Ministry of Justice / JSi have entered into a deal relating to prisons in Saudi Arabia.  For my part, I would say that it should not have done so.  It appears that the deal is not yet final and, if that is right, then I would urge the government to abandon the deal.  To enter such a deal is to lend tacit support for a regime that continues to operate barbaric criminal justice policies and which shows no sign of abandoning them.  In fact, the reverse seems to be the case given the three further executions carried out in recent days.

The estimable blogger Jack of Kent (David Allen Green) offers a "must read" detailed analysis of the situation - A conflict of interest: the Saudi State and the UK's Ministry of Justice. Mr Green concludes by saying:

"The Lord Chancellor and Secretary of State for Justice cannot combine the duty to uphold the rule of law and protect the integrity of the domestic legal system at the same time as entering into a commercial deal with the Saudi state described in the Corner House case (and other cases).

In summary: whatever else is wrong about this deal, the Lord Chancellor and Secretary of State for Justice should not enter into a high-value and beneficial commercial relationship with a Saudi state which is well documented as using illegitimate force to disrupt the legal system of the UK."

With that, I respectfully agree.

The Lord Chancellorship:

It is worth noting here that the Secretary of State for Justice also doubles as the Lord Chancellor (LC).  The LC post is but a shadow of the historical post though it retains a considerable number of duties allocated to it by numerous statutes over the centuries!  There are clear conflicts between the Lord Chancellor's role to uphold the rule of law and his other Ministerial functions to deliver controversial policies such as the cutting of legal aid and reforms to prisons and probation.

In December 2014, a report was published by the House of Lords Select Committee on the Constitution  - The Office of Lord Chancellor - 6th report of Session 2014-15 

It is a detailed and interesting report but the LC role survived!  That committee even recommended that the Lord Chancellor be given responsibility within government for oversight of the constitution.  If some future government is to adopt that recommendation then serious consideration should certainly be given to separating the LC and Secretary of State roles and requiring that the LC be a lawyer of considerable experience.

11 of the best unusual events in the West Country – part two

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Every year across the world, people celebrate some interesting traditions in very unique ways and nowhere does it better than the West Country. Here’s part two of our look at some of the most unusual festivals in our corner of Britain (read part one here)…

Giant Bolster Festival, St Agnes
Every May, the village of St Agnes recreates the story of the Giant Bolster, who terrified the local people and rampaged through the neighbourhood, only to be brought to justice by a fair maiden. In a lively celebration of Cornish music, art and legend, the pageant takes in life-size puppets, dancers and a live band culminating in a spectacular showdown between the Giant Bolster and the knight Sir Constantine. All the while, a 28-foot high effigy of the Bolster watches over proceedings. Saturday evening’s lantern procession takes villagers up to the top of St Agnes Beacon for a bonfire, followed by a barbecue and musical performances.

Flora Day, Helston
Every May, the Cornish market town of Helston celebrates the ancient Flora Day festival (pictured above) to welcome in the springtime. Processional dancing takes place throughout the streets from early morning, when the big bass strikes, until late at night. Men wear top hats and tails and women don elegant dress, while shops and homes across town are adorned in bright, colourful flowers. The Helston Town Band play traditional tunes until the early hours.

Hunting the Earl of Rone, Combe Martin
Every Spring Bank Holiday weekend, the town of Combe Martin escapes into ancient tradition as locals dress in 19th-century peasant costume and roam the streets on the hunt for the ‘Earl of Rone’. Local legend claims that the Earl was Hugh O’Neill (Earl of Tyrone) who fled Ireland in the early 1600s, only to be shipwrecked in the local bay and captured by Grenadiers. The hunt begins on Friday… when Monday comes around and the Earl is ‘found’, he is mounted on a donkey, taken down to the sea and thrown in!

Honiton Hot Pennies day
Back in the 13th century, Honiton was granted a Royal Charter; today, this is celebrated with Hot Pennies day. The town crier - in full historic dress – enters the Old Pannier Market to announce the start of the procession and crowds cram the streets along the route to catch the warm pennies. The pennies give a nod to the days when affluent members of the community would throw hot coins to peasants to watch them burn their fingers.

Totnes Orange Rolling Race
Started by Sir Francis Drake (so legend says) back in the 16th century, the orange rolling race is one of the zaniest – and messiest - of the country’s traditions. The 450-metre dash starts from the top of the hill at Market Square - contestants must throw their orange down the hill and then kick, throw or roll it to the finish line. The winner must arrive with an orange! The event takes place in August and also includes an Elizabethan market and charity auction.

Tar Barrels, Ottery St May
Every November, the East Devon town of Ottery holds the procession of Flaming Tar Barrels. The tradition is hundreds of years old and Ottery is the only place in the West Country where people carry flaming barrels on their shoulders instead of rolling them! There are 17 barrels carried throughout the day, with the final barrel brought into the square at midnight. Ottery’s giant bonfire is a key part of the annual tar barrels and is in itself a dazzling spectacle.

11 of the best unusual events in the West Country

07:04 0 Comments

Every year across the world, people celebrate some interesting traditions in very unique ways and nowhere does it better than the West Country. Read on for an intriguing glimpse into the most unusual festivals in our corner of Britain…

Lentsherd in Clovelly
Every year on Shrove Tuesday, the village of Clovelly marks Lentsherd (pictured above). On this day, locals honour the age-old custom of ridding the village of all the negatives of the previous year. When dusk falls, children gather to walk from the town centre down to the harbour, each dragging a tin can attached to a long string. These cans are then thrown into the sea, driving the devil away just in time for Lent to begin. Every child who takes part receives a free pancake decorated with sweet toppings and entry is free after 4.30pm.

St Ives Silver Ball
Over in Cornwall, one of the best-loved local traditions comes in the form of the ‘hurling of the silver ball.’ Celebrated on the 9th February, this tradition is part of the St Ives Feast - a festival that begins with the mayor’s civic procession and blessing in honour of the anniversary of the consecration of the Parish Church of St Eia. The ‘hurling’ event consists of two teams playing a very lively game of old-style rugby to gain possession of the cricket-sized silver ball. The game takes place across the town and the ball has even ended up in the sea on occasion but the ultimate goal is to return the ball to the mayor at midday in front of St Ives Guildhall.

’Obby ‘Oss day
The ‘Obby ‘Oss (Hobby Horse) day is hugely important to the local people in Padstow and Minehead, as it makes up the traditional Mayday celebrations. Dressed in traditional white garb, the crowds cheer on the two ‘obby ‘oss mascots, decked out in colourful masks and costumes. The parades travel through the flower-strewn streets all the way to the maypole, with revellers accompanied by the beat of the drums and the sound of the maysong, and horses escorted by a ‘teaser’ who leads the song and dance in an excitable fashion.

Knob Throwing in Dorset
If you fancy doing something a bit different this year, head on over to Cattistock, Dorset on 3rd May to take part in the annual Knob Throwing event. The “knob” is actually a traditional local biscuit shaped like a sphere, which has been baked in the village since 1880. Participants must (underarm) throw the knob as far as they can – winners receive their biscuit and their name on a plaque in the village hall. The unique event also includes such activities as Knob Darts and Guess The Weight of the Big Knob.

St Piran’s Day
St Piran’s Day honours Cornwall’s patron saint and is such a popular event that locals are campaigning to make it a bank holiday. Legend has it that Piran landed on the shores at Perranporth after being cast to sea by the Irish King, who believed him to be suspicious due to his magical powers. It was here that he built a chapel in the sand dunes and people came to hear him preach. Today St Piran’s Day is celebrated by hundreds of people who make a pilgrimage to Perranporth to watch a re-enactment of his story on the sand dunes.

We’ll post the remaining 6 events next week!

Supreme Court ~ Definitive Maps

10:24 0 Comments

 Updated 19th March 2015:

England has some 140,000 miles of footpaths and many are a delight to walkers.  The various classifications of public rights of way are well described on the website of the Institute of Public Rights of Way and Access Management. 

"Definitive Maps" are kept by local authorities in England and Wales (Wildlife and Countryside Act 1981 section 53) and the map is conclusive evidence as to certain matters (section 56).   If there is dispute as to whether a route over the ground is a public right of way then the first port of call should be this map.   The Act contains a process for modifying the maps and an application has to be accompanied by a map drawn to a scale of not less than 1:25,000 (the "map requirement").

The Trail Riders Fellowship are seeking
to have the status of "Byway open to all traffic" (BOAT) confirmed in relation to 5 ancient lanes in Dorset described in an article in The Guardian 14th January as "tranquil tracts of the county far inland from busy tourist beaches."  Dorset County Council refused to accept the applications because, they argue, the map requirement was not met because the Trail Riders submitted computer-enlargements from a map drawn originally to scale 1:50,000.  Whether these enlargements meet the "map requirement" is the subject of an appeal in the Supreme Court of the UK.  Certainly, maps drawn originally to 1:25,000 might be expected to reveals more detail than the smaller scale 1:50,000.  The Supreme Court (Lords Neuberger, Clarke, Sumption, Carnwath and Toulson) heard the case on 15th January and judgment is awaited.

In May 2013, the Court of Appeal (Civil Division) Maurice Kay, Black and Rafferty LJJ ruled that the enlargements met the map requirement - Judgment here.  Supperstone J -  [2012] EWHC 2634 (Admin) - had agreed with the Council's interpretation.

Parliament - Establishing Rights of Way

Update 19th March:

By a 3 to 2 majority, the Supreme Court held that the enlarged maps met the requirement of the legislation.

R (on the application of Trail Riders Fellowship and another) (Respondents) v Dorset County Council (Appellant)

• Judgment (PDF)
• Press summary (PDF)

5 years old

03:40 0 Comments

Expanded 25th January:

The 5th birthday of this blog was a few days ago.  Hopefully, it will plod on for some time to come looking at legal stories of interest.

Criminal Proceedings:

A report by Sir Brian Leveson - (President of the Queen's Bench Division) - has now been published.  It is entitled Review of Efficiency in Criminal Proceedings: Final Report.  It is a lengthy report (140 pages) touching on many aspects of criminal proceedings. A summary of his recommendations is at page 96.


Interestingly, at para 13 of the report, Sir Brian notes that - "Between 1989 and 2009, Parliament approved over 100 Criminal Justice Bills and more than 4000 criminal offences were added to the statute book.
From an historical context, the figure is more startling: Halsbury’s Statutes of England & Wales has five volumes devoted to criminal laws that (however old they may be) are still currently in force. Volume One covers the law created in the 637 years between 1351 and 1988, and is 1,249 pages long. Volumes Two to Five cover the laws created in the 24 years between 1989 and 2013 and are no less than 4,921 pages long. The 2013 Supplement adds a further 200 pages. So, more than four times as many pages were needed in Halsbury’s Statutes to cover laws created in the 24 years between 1989 and 2013 than were needed to cover the laws created in the 637 years prior to that."

The Chapter on Magistrates' Courts should be read in conjunction with Ministry of Justice - Transforming Summary Justice (2013) and the associated Implementation Plan (2014).

With regard to "disclosure" see Review of Disclosure in Criminal Proceedings (Gross LJ - 2011); Further Review of Disclosure (Gross and Treacy LJJ - 2012; Magistrates' Court Disclosure Review - (Gross LJ et al. - 2014)

Solicitor's Journal - 19th century criminal trials too expensive, says Leveson.

Counter-Terrorism: "sneaky" amendments:

"Amendments" to the Counter-Terrorism and Security Bill have been tabled."  The amendments (PDF), have been put forth by Lords King, Blair, West and Carlisle.  They are far from being straightforward textual amendments or minor additions.  Quite the reverse!  They will add significantly to government powers to access personal data. These amendments, which were NOT included in the consultation on the original Bill that was conducted late in 2014, are a major step toward reinstating the former Communications Data Bill.  Given that this Bill is on a fast-track route, it seems particularly problematic to introduce major amendments in this way.

New UK surveillance regime tacked onto anti-terror bill by securocrat peers https://t.co/NxX4GeKY4O
— David Meyer (@superglaze) January 23, 2015

Judicial Review:

In this 800th year of Magna Carta, it is interesting to read of these six judicial reviews lost in the courts by the Secretary of State for Justice - Magna Carta 800.   Unfortunately, the House of Lords "ping pong" on the Criminal Justice and Courts Bill bowed to the House of Commons and permitted amendments relating to judicial review to proceed.  True enough, the Lords secured some amendments but they are likely to prove to be very restrictive on judicial review in the future.

Chilcot:

As the learned and estimable blogger CharonQC would say - here is the Tweet du Jour ...

'Give Chilcot a break: he’s probably still working on his inquiry into the Battle of Hastings' http://t.co/A1q7lITguK pic.twitter.com/CgdaFm0e8G
— The Independent (@Independent) January 23, 2015

For a somewhat different "take" on Chilcot, this makes for interesting reading - The Guardian 21st January.

A proposed new trade agreement:

David Hart QC draws attention to proposals for a new trade agreement referred to as TTIP - UK Human Rights Blog.  The Conservative Party - if it forms the next government - is threatening to take the UK out of the European Convention on Human Rights because a "foreign court" occasionally finds against the British government.  It is interesting to note that TTIP will do the reverse and result in more "foreign judges" criticising our laws.  The agreement will allow - " ... investors (think multi-nationals) the right to sue governments for regulatory regimes causing loss of profits to those investors. This ability to sue is known as Investor-State Dispute Settlement or ISDS. And the suing does not happen in domestic courts, but in a special international law tribunal consisting of corporate lawyers drawn from the world over ..."

"To the manor born" ~ Manorial Rights ~ an interesting report

11:47 0 Comments

English land law has always been a very convoluted subject.  Although it has undergone reforms, it retains considerable complexity.  It is often dreaded by students and can present tricky problems for practitioners.  One problem that can appear from time-to-time relates to so-called "manorial rights."  This is the subject of an interesting report from the House of Commons Justice Committee - and see also The Guardian 22nd January 2015. 

"Lordships of Manors", "Manorial Land" and "Manorial Rights" are akin to ghosts from a bygone era of English legal history.  However, they can be very troublesome spirits as pointed out by Judith Bray (Senior Law Lecturer University of Buckingham) who wrote:



"Manorial rights can be owned separately from land and can give powerful and valuable rights to the owner. The Lord of the Manor had an important role in society which gave him certain rights over those living in the manor but to whom he also owed duties and protection. Today some of the rights remain, often in the hands of people who have no connection with the area other than their title, but the protective role has disappeared. These rights can be highly lucrative but often at the expense of vulnerable people."  [See this link].

The main manorial rights are sporting rights and rights to mines and minerals.  It was thought that if "fracking" takes place then compensation might have to be payable to owners of manorial rights of the land concerned - previous post of 5th November 2011 refers.  The Justice Committee considers that this is not the case though, strictly speaking, the matter might yet be tested in the courts since the Justice Committee does not make binding statements as to the law.  It is also worth noting the Conclusion to Chapter of the report which states at para 56:  " ... there may be certain manorial rights, particularly those related to mines and minerals over rural land, that are of considerable and real value to the rights holders ..."

Manorial rights - Land Registry Practice Guide 22

The Justice Committee has recommended that "a review be carried out assessing whether the law related to manorial rights should be changed, including the question of whether all or some categories should be abolished, and how legislation could appropriately address compensation and human rights issues in such an event. We would expect the Law Commission to carry out this work .... "

Interestingly, the Law Commission was looking at Feudal Land Law but the project was abandoned for reasons stated here.

Additional links:

Property Law Journal May 2014 - Manorial rights

Chancel repair Liability:

Another blast from the past - but  which could be painful today - is Chancel Repair Liability.  This came to prominence in legal circles with the decision of the House of Lords in the Aston Cantlow case.  Lord Nicholls of Birkenhead described it as "one of the more arcane and unsatisfactory areas of property law."  This particular liability is not covered by the Justice Committee report.

Chancel repair liability attracts to land which previously belonged to a monastery or abbey and which was sold off by the Henry VIII (the Crown) after the Dissolution of the Monasteries in the sixteenth century.  The owners of this land are known as lay impropriators or lay rectors and the recovery of funds from them is governed by the Chancel Repairs Act 1932.

Here is a useful link stating the position with regard to this liability.  A Private Member's Bill to abolish the liability is currently before Parliament but is not likely to become law.

Note for students:

The Law of Property Act 1922 abolished copyhold tenure (explained here).  "Incidents" of the tenure that existed were divided into 3 categories:

a) those abolished when the Act came into force (1st January 1926);
b) those preserved until 1936 and
c) those preserved indefinitely.

Category (c) rights included rights of the lord to mines, minerals, fairs. markets and sporting etc.  These rights became overriding interests in the system of registered title - a system which is, of course, now rapidly superseding the old unregistered title system.  The Land Registration Act 2002 sought to reduce the number of overriding interests. Manorial rights lost overriding status from 12th October 2013.  This explains why there was something of a rush to register such rights prior to that date.

A (disturbing) thought on the Counter-Terrorism Prevent Duty

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The immediately preceding post looked at the Prevent Duty within the Counter-Terrorism and Security Bill which is now racing through Parliament with minimal opposition.  The Institute of Race Relations has published an article examining the Bill - Farewell Magna Carta: The Counter-terrorism and Security Bill.

An acquaintance recently drew my attention to an homework question set for a 13 year old.  The topic was


At the time I recall thinking that it was an interesting question relating to relatively recent history. 
A good answer to it would take a considerable amount of time to prepare but, of course, a 13 year old is not expected to do a degree-style presentation!  Nevertheless, it would be necessary to at least touch upon matters such as - what was the holocaust; how did the holocaust come about; what is religion and is it actually definable; what is racism; how did economic problems of the 1920s and 30s assist the rise to power of Hitler; why did the Nazis single out for hatred Jewish people and various other human beings (Victims of Nazism); whether the Treaty of Versailles created conditions enabling the rise of Nazism and so on. 

Since considering more carefully the Prevent Duty in Part 5 Chapter 1 of the Counter-Terrorism and Security Bill a more disturbing thought occurred.  Perhaps I am wrong about this and would actually like to be wrong but one must wonder!  There will be many answers to an essay topic such as this and it might just be that a teacher takes exception to something a child writes if not in that essay but maybe some other topic.  The outcome might then be, because of diligent adherence within the school (a "specified authority") to the Prevent Duty, the child is reported ("referred") as being at risk of being "drawn into terrorism."  If that were to happen then the Secretary of State's guidance would kick in.  This guidance, as things stand, will not even require the approval of Parliament.  Schools will, of course, have to be be diligent because of the enforcement powers within the Bill - see, in particular, Clause 25 of the Bill.

Para 110 of the draft guidance document states:

"Institutions will need to demonstrate that they are protecting children and young people
from being drawn into terrorism by having robust safeguarding policies in place to identify
children at risk, and intervening as appropriate (by referring pupils to Channel or Children’s
Social Care, for example). These policies should set out clear protocols for ensuring that
any visiting speakers – whether invited by staff or by pupils themselves – are suitable and
appropriately supervised within school."  [My emphasis].

Para 113 - Staff Training - states:

"Senior management and governors should make sure that staff have training that gives
them the knowledge and confidence to identify children at risk of being drawn into terrorism
and challenge extremist ideas which can be used to legitimise terrorism and are shared by
terrorist groups. They should know where and how to refer children and young people for
further help.  Prevent awareness training will be a key part of this."

So we now have a child identified as at risk and he or she gets referred to Social Care.  What might then happen?  Might it just be that the child is found to be at risk of significant harm so that Care Proceedings under the Children Act 1989 are instituted?  "Harm", for the purposes of the Act, can include impairment of social or behavioural development.

Maybe all my concern is far-fetched and I am sure that the reader will form his or her own view!  Please comment - particularly if you think I am in error in some way.  Meanwhile - kids everywhere must get on with their  homework !!

Addendum 21st January:

The Institute of Race relations article (link in the post above) comments  ...

"Would young children’s expression of faith be justification for nursery staff to warn police, or for social services to remove children from overly pious homes? These fears are not fanciful. Since the start of the Channel programme (on a voluntary basis) in 2007, 1,400 children, including 153 under-11s, had been referred for anti-extremism programming, out of a total of 3,600. The referrals were overwhelmingly of Muslims."

The link in the last paragraph is to A Decade Lost: Rethinking Radicalisation and Extremism - - Professor Arun Kundnani January 2015.  .The document is highly critical of the existing (voluntary) Protect strategy.

Counter-terrorism and security bill ~ Prevent Duty

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The Counter-Terrorism and Security Bill (previous post) is proceeding apace along its fast track Parliamentary process.  Rushed legislation is rarely considered as thoroughly as it ought to be and is often problematic when it comes to implementation. 

In the area of trying to prevent terrorism, the government has the CONTEST strategy - summarised here.  Para 1.12 of the document states that counter-terrorism strategy is organised around 4 workstreams referred to as Pursue; Prevent; Protect; Prepare.  Prevent seeks to stop people becoming terrorists or supporting terrorism.  Prevent is addressed further on this government website.

The Counter-Terrorism and Security Bill
- Part 5 Chapter 1 - effectively places PREVENT on a statutory basis.  Specified authorities will come under an enforceable legal duty to have due regard to the need to prevent people being drawn into terrorism.  The Secretary of State will issue guidance and a draft is available for consultation until noon on 30th January. The Secretary of State will be able to amend the guidance and may also issue directions to the specified authorities. 

The Joint Committee on Human Rights has expressed serious concerns about this - see their report - where the committee's view of the impact on freedom of expression in Universities is expressed.  The committee considers that universities should not be specified authorities.  Furthermore, the committee has called for the guidance to become subject to an affirmative resolution procedure in each House of Parliament.  For more on the possible impact on universities, see here.

Will the Bill turn schools into spying agencies reporting on children considered to be at risk of being drawn into terrorism?  This possibility - denied by the government - is discussed in an article published by The Telegraph on 4th January - Anti-terror plan to spy on toddlers 'is heavy handed'

The Muslim Council has called for a rethink on the Bill.  They condemn terrorism but have a perception that all aspects of Muslim life must undergo a "Prevent Compliance" test to prove loyalty to the country.  They wish to see evidence based proposals that do not target any one community and which also address threats from far right Islamophobic groups across Europe.

The human rights organisation Liberty sees the Bill as Unsafe and Unfair.


Prevent duty guidance - Consultation (pdf 38 pages)


What, it may be asked, is extremism?  The government has defined extremism in the Prevent strategy as: "vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs."  They also include in the definition calls for the death of members of the armed forces.  It remains to be seen just how many vociferous viewpoints might end up being considered to be extremist.   This is considered in an article published by LSE Human Rights. which concludes:

" ....  our government has made public statements communicating its commitment to freedom of expression and its importance for counter-terrorism. If this really is its position, then it seems the Counter-Terrorism and Security Bill requires immediate amendment."   

Whilst abandonment of Part 5 Chapter 1 of the Bill is unlikely, it would not affect CONTEST or PREVENT as they currently operate but would allow time for proper and careful consideration of  whether this type of legislation should proceed and, if so, precisely how.  Full and thorough consultation ought to take place on any proposals.  Perhaps that is too much to ask with the general election looming up in May.

Should the reader remain unconvinced of the dangers inherent in this Bill, then please read this article by the Institute of Race Relations. - Farewell Magna Carta: The Counter-terrorism and Security Bill. 

Speaking to witnesses in court ~ CPS Consultation

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The Crown Prosecution Service (CPS) has announced a consultation on draft guidance for dealing with witnesses in court - Consultation on Draft CPS Guidance on Speaking to Witnesses at Court

The CPS website notes that the Crown Prosecution Service is committed to giving an excellent service to all victims and witnesses who attend court as part of its overall commitment to support victims and witnesses effectively throughout their time in the criminal justice system.  The draft guidance gives prosecutors clarity on what is expected of them in supporting victims and witnesses at court.  You can also download the consultation document - Draft CPS Guidance on Speaking to Witnesses at Court from this site.  Comments may be submitted by 16th March 2015.

See also
The Guardian 19th January 2015 where it is reported that the consultation comes after two suicides linked to rape trials: the suicide last year of Tracy Shelvey, just days after a man was cleared of raping her, prompted the police to call for “root and branch” changes to the way vulnerable witnesses are dealt with in court.  Shelvey’s death followed that of violinist Frances Andrade, who took her life in 2013 during the trial of choirmaster Michael Brewer after telling friends she felt as though she had been “raped all over again” after undergoing a gruelling cross-examination in court.

An article by Rupert Myers in The Telegraph 19th January offers serious criticism of these proposals - The CPS wants to stack the deck against the defence.   To my mind, the proposals come perilous close to "coaching" of prosecution witnesses so that they are better prepared to answer defence questions.  This may help to make the giving of evidence less of an ordeal but it will also play into the hands of the dishonest.

For coaching of witnesses see the Court of Appeal judgment in R v Momodou and Limani [2005] EWCA Crim 177

Notes:

Frances Andrade - see post of 11th February 2013 - Special Measures in Criminal Proceedings

An inquest into the death of Tracy Shelvey is to commence in February 2015 - Manchester Evening News 11th Augsut 2014

Child Contact Centres ~ a vital need

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National Association of Child Contact Centres - Awareness Campaign

The Children Act 1989 (CA89) came fully into force in October 1991 and it remains, albeit with subsequent changes, the principal statutory framework for dealing in the Family Court with cases involving children.  The court is empowered to make various orders such as a Child Arrangements Order under section 8 of the CA89 when the court will specify arrangements concerning with whom a child is to live, spend time or otherwise have contact.  Following the breakdown of the relationship between a child's parents, there is normally a need to enable contact between the child and the parent who is no longer in the family home.  It is here where the network of Contact Centres plays such a vital role.

A contact centre provides
a neutral venue for children to meet with their non-resident parent, or other family members, after a breakdown in a relationship.   They are child-centred environments that put the needs of children first.  A contact centre provides a safe environment where the relationship between adult and child can be developed.

It is disturbing to read that some 40 contact centres have closed over the last 18 months.  This seems to be due to the fact that legal aid has been removed from many family cases.  When legal aid was available, solicitors would often advise use of a contact centre as a means of enabling both parents to have contact with their child(ren).  The Guardian explains the situation very well in an article published on 17th January - Contact Centres are disappearing as legal aid cuts take effect.  Further loss of such centres could prove to be highly problematic.

It is perfectly possible for parents to approach a contact centre without any referral from professionals such as social workers, solicitors or the court.  Please see, as an example, how the Withington Contact Centre in Manchester explains this. 

What is a Contact Centre

National Association of Child Contact Centres and also see Find a Centre

Please read this link if you wish to become involved in Contact Centre activity

Court Orders and Pre-Proceedings - Dept. for Education April 2014

Children and Families Act 2014 - replaced residence and contact orders with Child Arrangements Orders.

Something is rotten in the State .... !

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Head of Legal Blog - Post by John Cooper QC - Global Law Summit - By going there we are tacitly accepting what Grayling is doing


The Global Law Summit 2015 is heading for London.  The importance of London as a centre of legal excellence cannot be denied though other locations keen to have the business of commercial disputes are developing such as Singapore.  This stellar event - with several high profile speakers - seeks to exploit the fact  that 2015 is the 800th anniversary of the signing of Magna Carta by King John.  This document is generally seen as one of the foundation stones of the rule of law.  It effectively asserts that those who rule must comply with the law.  The Charter contains the famous statement - "We will sell to no man, we will not deny or defer to any man either Justice or Right."  Before looking a little closer at the Law Summit, we should remind ourselves of some of the reality of the government's justice policies seen from the worm's-eye viewpoint of the citizen as opposed to the immensely wealthy world of international commercial business.

Judicial review at bay -


The Criminal Justice and Courts Bill has been at the so-called "ping pong" stage for some time - see post - Judicial Review at Bay   The House of Lords "ping pong" session took place on 9th December and the House remained opposed to the government's plans to make access to judicial review more difficult.  The debate may be read here.  The matter returned to the House of Commons om 13th January when, as expected, the Secretary of State for Justice asked the House to reinstate the restrictions on judicial review.   He successfully did so albeit with certain concessions -  see Legal Business.  The debate may be read here.  The Commons also voted to extend to 30th March the time allowed for this Bill (known as a Carry Over Motion).

See the Public Law Project Parliamentary Briefing Paper on this topic.  

Legal Aid axed - Under the coalition government, legal aid for the citizen has been severely curtailed.  Austerity is the stated excuse but political ideology the more likely reason.  This has resulted in a considerable increase in the number of litigants in person who, quite understandably, often struggle with difficult law and procedure.

Global Law Summit - the government is keen, for economic reasons, to attract high profile legal business into London and Ministers are clearly delighted that the Global Law Summit is to be held at the Queen Elizabeth II Conference Centre in February.  The Summit's website notes that the event is being held in February to mark 800 years since the sealing of Magna Carta.  "It is a unique opportunity to commemorate, celebrate and embrace 800 years of legal history which have inspired lawyers and non-lawyers alike for generations."

In a highly outspoken article in The Telegraph 8th January - The hypocrites have jumped aboard the Magna Carta bandwagon - Peter Oborne points out that the government has launched a systematic attack on the legal aid system which gives poor people access to the justice system.  "The government changes ... run flatly contrary to Magna Carta."  "So does the latest Criminal Justice Bill, with its vicious attack on judicial review, the main way in which arbitrary government decisions are held to account through the courts."  "Most important of all, Mr Cameron is close to committing Britain to withdraw altogether from the European Convention on Human Rights, a document which entrenches the principles of Magna Carta in international law."   The article summarises - " ... Mr Cameron's government has launched something close to an out-and-out attack on the rule of law.  The idea that either he or his ministers give a damn for the principles that underlie Magna Carta is preposterous."

The Cameron government's "justice" policies are a disgrace in what should be a modern democracy.  For my part, I see little chance of any different government reversing the cuts though some changes may be made.    It is saddening to note that the sickening hypocrisy surrounding Global law Summit.  For all but the wealthy, justice in England and Wales is no longer in a good place and the consequences of the governmental attack on the rule of law will be felt for many years to come. 

Counter terrorism and Security Bill - Joint Committee on Human Rights

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Updated 13th January

The Joint Committee on Human Rights has issued its report on the Counter Terrorism and Security Bill and has called for better safeguards in a number of areas.  The Committee's Conclusions and Recommendations are HERE.

• Report: Counter-Terrorism and Security Bill
• Report: Counter-Terrorism and Security Bill (PDF)
• Inquiry: Counter-Terrorism and Security Bill
• Parliament TV: Counter-Terrorism and Security Bill
• Joint Committee on Human Rights

There are indications that if a Conservative government is
elected it will seek greater powers relating to electronic communications - The Guardian 12th January - What new snooping powers do PM and MI5 want and what are the concerns? and Telegraph 9th January - Osborne hints at bringing back Snooper's Charter after Paris attack.  The Communications Data Bill, known as the Snooper's Charter, would have allowed security services to access records of every website people visit and social media communication people send.  The Bill was abandoned due to political disagreement within the coalition government.  This article in The Independent (12th January) puts forward seven reasons why a snoopers charter would be a travesty.

See also The Guardian 12th January where Joshua Rozenberg looks at Police plans for a new Code of Ethics and, on the question of encryption, see Wikpedia Crypto Wars.


Earlier posts:

14th June 2012 - Draft Communications Data Bill introduced 

14th July 2014 - Data Retention and Investigatory Powers

Code of Practice on Acquisition and Disclosure of Communications Data:

If you care about investigative journalism and the public sector sources ("whistleblowers") who make much of it possible please take a moment to respond to the consultation on the RIPA code of practice which closes on 20 January 2015.

Confidential journalistic sources impossible with UK Govt plans Only 8 days to protest @pressgazette http://t.co/YeePrA8ejw
— alan rusbridger (@arusbridger) January 12, 2015