It's no good ...!

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A stench of Ministerial hypocrisy pervaded central London this week.

The Global Law Summit was a "stellar" event attended by legal notables from around the world.  The Secretary of State for Justice spoke of the importance of the rule of law and the ideas implanted by Magna Carta.  The following extract gives a flavour of his speech:

"In the UK, the legal sector contributes over £20 billion to our GDP, employing over 300,000 people. And UK law firms play an important role in the success of international businesses worldwide.  In London, we have a centre of legal excellence that is rival to any other great city in the world. I would like it to stay that way.



I believe that this is best achieved by continuing to innovate, developing our legal system to keep pace with the world around us; continuing to grapple with difficult issues, learning from others and their experiences; but always remaining firmly rooted in the principles of Magna Carta that have served us so well to date."

The Lord Chief Justice also spoke at the opening of the event and referred to the importance of access to justice - read his speech here.

The government is rightly concerned to retain as much international legal business as possible in London.  It IS big money business and other legal centres are developing as challengers.

At home there is a depressing reality for the average individual who is in need of the law.  The government has systematically reduced civil legal aid to a shadow of what it used to be.  (Legal aid remains in some areas).  The result has been a large increase in the number of litigants in person and, given the absence of counsel, the resulting need in some cases for the judiciary to have to spend additional time and costs researching the law. See the Court of Appeal judgments in Linder v Rawlins 2015 at  paras. 32 to 34  where it was said:

" ... the husband who presented his case to us courteously and as comprehensively as he could. Nevertheless, the fact that he was not represented meant that he had approached it on a mistaken basis. The task that would normally have been fulfilled by the parties' legal representatives, of finding relevant documents amongst the material presented, and researching the law and its application to the facts of the case, had to be done by the judges of the Court of Appeal instead. This is not a satisfactory state of affairs as the time taken to attend to this is considerable and cannot be spared in what is already a very busy court."

The process of judicial review - (an important means of holding government to the rule of law) - has been made more difficult.  Also, big increases in fees to even begin civil proceedings are on their way - see the discussion on the Steve Cornforth blog - Pricing justice out of the market.  Further comment may be seen at Law Society - Court Fee increases.  Those increases have raised serious concerns within the judiciary - see the comments in December 2014 of the Lord Chief Justice - Response to consultation on court fees - Enhanced charging.

For criminal law, there is already means testing of legal aid and the number of legal aid contracts offered to solicitors will be drastically cut.  (The latter is currently the subject of a judicial review with an appeal to be heard on 10/11 March. - Law Society 18th February).

It must also be remembered that, if the Conservatives form the next government, "human rights" will be one of their key targets - see post of 6th October 2014.  The Human Rights Act 1998 would almost certainly be repealed and replaced with some alternative less onerous to government.  The outcome would be a diminution of the protection offered to the citizen by domestic law within the UK.

As this two tier (rich and not rich) legal system emerges, it is worth noting that Global Law Summit has not gone by without protest.  A Not the Global Law Summit protest took place in London.  This sought to bring to public attention the hypocrisy of the government.  Writing on his Nothing but the Sun blog, Francis Fitzgibbon QC comments:

 " ... The MOJ has denied access to justice (and hence, justice) to many, by taking key areas of law ‘out of scope’ of legal aid altogether, and cutting it to the bone where it remains. Kenneth Clarke, the Macavity of the LASPO cuts, said he had to do something about legal aid, because it had grown so much and ‘made the poor extremely litigious’: that casual smear stood in for the non-existent evidence for the MOJ’s ruthless policy. It has introduced fees that make employment tribunals unaffordable to most claimants, and proposes more increases across the board for Courts and Tribunals. At the same time the government has made it harder to get legal redress for administrative wrongs, by restricting the availability of judicial review – a remedy that Mr Grayling believes to be a preserve of left wing pressure groups, and therefore fit for strangulation. If he has his way, he will scrap the human rights protections given under the Human Rights Act.

His government has delayed justice by running down the whole system, so that the Courts are overstretched, underfunded and clogged by people representing themselves because they can’t get legal aid and can’t afford a lawyer. Now even the Public Accounts Committee, whose MPs nodded along when the cuts were being made, thinks they have been a disaster .... "

I will leave the final word for today to Tony Cross QC (Chairman of the Criminal Bar Association. On Monday 23rd February, he published a statement of what he intended to say at the Global Law Summit.  (I have not been able to find a link to his actual speech).  Mr Cross commented:

• It is no good championing the principle of access to justice whilst dismantling the mechanisms by which the common man achieves it
• It is no good claiming 'To no one will we sell justice' if a two tier system of justice evolves where those who can pay get access to justice and those who cannot, do not.
• It is no good saying we will not delay justice if our criminal justice system is so chronically underfunded or overstretched that delays become endemic.  When the courts are under funded, courts sit empty and trials get delayed.  These delays let down those accused of crime, entitled to have their case heard promptly.  Just as importantly, they betray victims of crime for whom justice delayed is not justice at all.

Other links:

Miscarriages of justice - The Guardian 23rd February -  Why is Britain refusing to compensate victims of miscarriages of justice

"Welcoming guests to the Global Law Summit in London this week, the prime minister reassured the 2,000 delegates that “Britain continues to lead the way in promoting … the rule of law around the world”. But what sort of rule of law allows an innocent person to be locked up for many years and then denied any compensation for their wrongful imprisonment?"

Justice gap - Law without justice is like a body without a soul.  It's a dead letter - Hundreds of lawyers, trade unionists and campaigners gathered outside Parliament on Monday afternoon in defence of the legacy of Magna Carta and to highlight the hypocrisy of the government’s three-day event to mark the 800th anniversary of the historic document, the Global Law Summit.

Good speech from Lord Pannick at Global Law Summit (open to all with money) #GLS2015 http://t.co/QLk6HiZ5XD
— Kirsty Brimelow QC (@Kirsty_Brimelow) February 26, 2015

See the Circuit Leaders' letter to the Times. The duty to speak out. Politicians need to listen. Weigh the vote. pic.twitter.com/MZPpGCQf9A
— Andrew Langdon QC (@westcrct) February 26, 2015

We won't stand by and watch the further erosion of the justice system. Make it an Election Issue. What's the choice? http://t.co/cxzvMIGktI
— Andrew Langdon QC (@westcrct) February 26, 2015

A blog comparing #FailingGrayling #GLS2015 with @justallianceuk #NotGLS2015 and #RelayForRights#MagnaCarta #LegalAid http://t.co/KCDvYROjNS
— Greg Foxsmith (@GregFoxsmith) February 25, 2015

While Chris Grayling tries to sell British justice abroad, this Government is pulling it apart at home http://t.co/JY4osB8dOD
— Helga Speck (@HelgaSpeck) February 25, 2015

Supporters gather at #NotGLS2015 Stop cuts to justice, sign our petition! http://t.co/S49bt6w1EG pic.twitter.com/QbgWUJkqYZ
— Speak Up For Justice (@SpeakUp4Justice) February 23, 2015

How Chris Grayling became a Keyser Söze figure to the legal profession. A new #GLS2015 blog from @JvdLD http://t.co/oxdzs4WAKR #notGLS2015

— Solicitors Journal (@SJ_weekly) February 27, 2015

A most serious report

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Here is a very serious report - Equality and Human Rights Commission - Preventing deaths in detention of adults with mental health conditions.

I wonder whether government will really take very seriously the matter of the deaths of those detained by the State.

With respect to deaths in prison - INQUEST has some statistics.  Over the years 2010-14 there were 1001 deaths in prison and 336 of them were self-inflicted.

Over the same period, deaths of those aged 21 or less and detained in either prison or young offenders institutions came to 38 out of 38 - see here.

The figures do not necessarily
show that there is a link to the government's penal policies but there are surely grounds for major concern that there MAY be such a link.  It is time for a thorough look at this issue.  For my part, I would like to see Parliament taking a greater interest in the REALITY of penal policy.

Following such deaths, an inquest has to be held.  The Lord Chancellor (aka Secretary of State for Justice) has recently lost a judicial review in the High Court relating to the guidance for legal aid at inquests - see the judgment of Green J in Letts v Lord Chancellor [2015] EWHC 402 (Admin).

There has been a governmental reluctance to grant legal aid to the relatives of deceased persons and this has been "justified" on the basis that a Coroner's Court uses an inquisitorial process as opposed to an adversarial one. - see para 53 of the judgment.  This argument has always seemed to me to overlook the essential fact that the law is complex and an important role of counsel is to assist the court to not only get the law as accurate as possible but to also apply it correctly to the facts of the case.

The Judiciary has published a response from the Chief Coroner to the EHRC report.

Once upon a time the government considered abolition of the EHRC - see Bonfire of the Quangos 8th October 2010.   Always a possible answer to a body that issues "awkward" reports !!  However, the EHRC did not end up listed in Schedule 1 to the Public Bodies Act 2011.

How to go birdwatching in Somerset

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If you're a keen birdwatcher, you'll probably already know that the south west of the country is one of the best places to spot our feathered friends. In fact, the National Trust describes the region as a "mecca" for them.

In Somerset there are birdwatching opportunities all year round, but the spring and autumn migrations are by far the most exciting times of the year to see a variety of bird species, from starlings and sparrowhawks to wood warblers and wagtails.

You don't need to go anywhere particularly special to spot birds in Somerset, but there are some parts of the county where you get a really special, close-up and uninterrupted view, and the Somerset Levels and Moors are most definitely among them.

This vast coastal and wetland plain covers around 160,000 acres and consists of marine clay levels and peat-based moors that support a vast array of wildlife, including numerous bird species.

Cranes
The Levels and Moors are home to the largest lowland population of breeding wading birds, with around 60 cranes living wild in the area and fitted with small radio transmitters so that their movements can be monitored.

Cranes were a common sight in UK wetland areas more than 400 years ago, but they were sadly wiped out by hunting. Fortunately breeding programmes are seeing them reintroduced and these magnificent creatures can be viewed on a Crane Safari organised by the Great Crane Project.

Starlings
Starling mumurations can also be witnessed on the Somerset Levels and Moors in autumn and winter as these pretty little birds flock together to create huge and spectacular aerial displays.

There are a number of nature reserves dotted around this area, but Westhay Moor, Shapwick Heath and RSPB Ham Wall are three of the best for starling spotting. To find out exactly where the starlings are during your visit to Somerset, simply call the Avalon Marshes Starling Hotline on 07866 554142.

Bitterns
The Levels and Moors are also a great place to hear the unique 'booming' call of the bittern. These rare birds - a member of the heron family - have been making a remarkable comeback across Somerset in recent years and are doing very well in the Avalon Marshes.

Due to their secretive nature, they are difficult to spot, but if you are lucky you might hear the male as he attempts to attract a female during the breeding season.

Other species
There are numerous other species of birds to be seen across the Levels and Moors from season to season. In spring, look out for mute swans, lapwings, skylarks and reed buntings, and in summer keep your eyes peeled for buzzards, kestrels and little egrets.

As autumn arrives, you may be able to spot kingfishers, green sandpipers and - if you're lucky - peregrines, while winter brings with it large flocks of wigeons, teals, mallards and occasionally shovelers, gadwalls and pintails.

Read more information on our inspected and star-rated Somerset holiday cottages.

3 of Devon's best vineyards to visit

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English wines have been growing in popularity for a number of years now, and many of them are produced in the agriculturally-diverse county of Devon.

There are vineyards and wineries scattered across the region, and some of them have been winning awards for their excellent tipples. You can explore them yourself, or take a guided tour and find out how the wine is produced from grape to glass.

Either way, a visit to one of Devon's beautiful vineyards is not to be missed, especially if you're a wine connoisseur who can't wait to sample what the county has to offer.

1. Sharpham Vineyard
Situated near Totnes, this beautiful vineyard lies within 500 acres of farmland owned by the Sharpham Trust and unpasteurised cheeses are also produced here, so you can enjoy a nibble with your wine tasting.

Sharpham Vineyard (pictured above) offers a variety of tours - from Trek and Taste, which allows visitors to explore at their leisure - to the Sharpham Experience, which is described as an "all-singing and dancing tour with bells on top" taking in the vineyard, the winery and Sharpham House.

Each tour includes wine and cheese tasting, and from Easter through to September you can also enjoy alfresco dining at the Vineyard Cafe, which serves a variety of fresh, organic locally-sourced food, as well as light refreshments.

2. Kenton Vineyard
This vineyard, planted in 2003, lies on the west side of the Exe Estuary and produces thousands of bottles of white, red, rose and sparkling wine every year.

There is a varied programme of events and activities taking place at Kenton throughout the year, including wine tastings, food and wine matching events and grape picking. You can also take a guided tour of the vines and the winery with a qualified viticulturist and winemaker.

Still wines can be sampled free of charge in the wine shop, or you can order by the glass and relax on the beautiful sun terrace overlooking the vineyard, taking in the stunning views of the surrounding Devon countryside.

3. Yearlstone Vineyard
This is Devon's oldest vineyard, started in 1976 by pioneering viticulturist Gillian Peakes who experimented with wine growing techniques for the English climate. Since then it has grown from 1.5 acres to more than 7.5 and includes a mature orchard from which cider is also produced. It can be found near the village of Bickleigh.

It also offers both self-guided and guided tours of the vineyard. The latter option includes an explanation of the history of English wine, the recent boom in its popularity and the principles of vine growing in the south west, as well as a visit to the winery to learn about the process of wine making and to sample the goods in a tutored tasting session.

There is a cafe on site called the Deli Shack, where a variety of seasonal dishes are available. Guests can dine inside or out on the terrace - where there are stunning views of the Exe valley towards Exeter and the sea - and the cafe also caters for hen groups and wedding after parties.

Read more information on our inspected and star-rated Devon holiday cottages.

Contributory negligence ~ Supreme Court decision

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Here is an interesting case from Scotland.  The legal principles involved will be much the same for England and Wales.   

 

The facts of the case arose 11 years ago - in 2004.  A collision took place on an "A" road near the junction of that road with a private road leading to a farm where the "pursuer" (claimant) - then aged 13 - lived with her family.  The "A" road had a 60 mph limit and was unlit.  It was about 40 minutes after sunset.   

 

The claimant had just got off the school bus which had parked on the opposite side of the "A" road to the private road to the farm.  The "respondent" (defendant) was driving home in the opposite direction and travelling at around 50 mph.  His car lights were on.  The pursuer walked behind the bus, got into the path of the respondent's car and she suffered serious injuries.  The judge (the Lord Ordinary) held that the pursuer was mainly to blame though the driver was also negligent.  The Lord Ordinary decided that the pursuer was 90% responsible though, on an appeal, this was reduced to 70%.

The Supreme Court allowed the pursuer's appeal by a majority of 3 to 2 and held that she was 50% responsible for her injuries. 

 

At one time, a finding that a claimant was also negligent could defeat the claim.  The essential unfairness of that common law rule was removed by the Law Reform (Contributory Negligence) Act 1945 which provides that:

 

"Where a person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons. a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable ... shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."

 

In passing this Act, Parliament actually borrowed a rule from Admiralty Law (Shipping) where contributory negligence had long been recognised.*

 

A judge having to apportion responsibility for an event that has caused injury or other damage often faces a difficult task.  This appeal will be of particular interest because of the statement that only a difference of view as to apportionment that exceeds the ambit of reasonable disagreement will warrant an appellate court finding that a lower court was wrong.

 

Should compensation for road accidents be governed by claims in tort (negligence)?  In the 1970s a Royal Commission under Lord Pearson examined that question and recommended a no fault compensation system to be paid for by a levy on fuel.  The recommendation was not implemented.  New Zealand has operated a compensation scheme since the 1970s - Accident Compensation Corporation.  See the Corporation's website. 

 

18 February 2015

Jackson (Appellant) v Murray and another (Respondents) (Scotland)

• Judgment (PDF)
• Press summary (PDF)

* For the historical perspective, the law student might be interested in reading The Volute [1922] 1 AC 129 - speech of Lord Birkenhead.  (It may be that the speech was actually written by Lord Phillimore).

09:36 0 Comments

Please see LIBERTY - Human Rights Act Myths:  The myths are listed below and each one is "exploded" by the website.



The UK Human Rights Blog has an exciting new project and is appealing for assistance.  Please have a look and do what you can.  You do not have to be a lawyer to get involved.

Drugs and Driving

09:22 0 Comments

The Road Traffic Act 1988 s.4 deals with Drugs and Driving.  However, from 2nd March 2015, there will be a change to the law due to a new section 5A inserted into the Act by the Crime and Courts Act 2013 section 56.   The new section is headed - "Driving or being in charge of a motor vehicle with concentration of specified controlled drug above specified limit."  

Section 4 is the offence of being "unfit" to drive (i.e. the person's ability to drive is for the time being impaired).  Section 5A introduces into the law a specific limit offence for "specified controlled drugs."   (Controlled drug has the meaning given to it by the Misuse of Drugs Act 1971 s.2). 

The difficulties involved in proving impairment due to drugs means that section 4 of the 1988 Act is not often used in drug driving cases. While section 5 of the 1988 Act makes it a separate offence to drive or be in charge of a motor vehicle with an alcohol concentration above the prescribed limit, no similar offence existed prior to the new legislation for drugs.



The applicable limits are set out in The Drug Driving (Specified Limits)(England and Wales) Order 2014.  

Somerset's historic harbours and stylish marinas

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Somerset is absolutely full of historic harbours and stylish marinas.

Holidaymakers spending time in the county would do well to take a trip to one or more of these if they can, as they all offer a unique taste of life in the south-west.

Here are just four great locations to get you started.

1. Minehead
Minehead is thought of as the Northern Gateway to Exmoor and is the largest town in the area. This makes it the ideal site from which to explore the moors and the Quantock Hills.

It is also great for seaside holidays, as the town boasts a large, long and flat sandy beach. The sand here is perfect for building castles, or playing games.

There is also a picturesque harbour with a Royal National Lifeboat Institution station and shop, with pleasure boat cruises on the paddle steamer Waverley and motor vessel Balmoral being regularly hosted in the summer.

2. Watchet
Watchet is a bustling harbour town that boasts a long and fascinating history as a busy seaport.

This lineage is traced on a fascinating Heritage Trail, which guides visitors on a trip back in time through more than 1,000 years of Watchet's history.

Early prosperity based on sea trade paved the way for the town's current popularity as a holiday spot - and a new marina and a station for the West Somerset Railway are among the key attractions.

A statue of the Ancient Mariner celebrates the harbour's links with Romantic poet Samuel Taylor Coleridge.

3. Portishead
Portishead is a beautiful coastal fishing town in the North of Somerset. Overlooking the Severn Estuary, it is just five miles from Bristol.

It has a lot of attractions on offer, including an outdoor swimming pool during summer, a boating lake, with several cafes and play areas, a cricket ground, and football and hockey pitches.

The Victorian High Street is also full of unique local shops that are not to be missed, as well as the usual big-name fixtures.

A wide variety of bars can be found at the marina, as well as restaurants and cafes offering pleasant views of yachts and sailing boats.

4. Porlock Weir
Porlock Weir started life as a busy port, but is now a much more peaceful and picturesque hamlet.

This delightful harbour hosts yachts and fishing boats and is situated along the South West Coast Path, which makes it a good starting point for walks.

Indeed Culbone is not too far away, and is home to the smallest church in England. Porlock Weir itself is the site of the famous award winning restaurant, Andrews on the Weir.

Read more information on our inspected and star-rated Somerset holiday cottages.

A few items of interest ....

04:13 0 Comments

Ladybower Reservoir December 2014

Advocacy:

Law students and those starting a career in advocacy would do well the read this article by Nigel Pascoe QC - The Art of Cross Examination.

Age and the law:

In this link, Dan Bunting contrasts the age of consent with the age of criminal responsibility - Age of Consent v Age of Responsibility   The article states - "Obviously, if a 13 year old has sexual relations with a 41 year old man, it’s clear that the man is to blame, and is fully to blame. The case does raise the question of whether we have a consistent attitude to children in the criminal justice system – if we say that a 15 year old lacks the capacity to consent in law to sexual activity, then should we be prosecuting 10 year olds for that? Or for any offences?"



Our age of criminal responsibility is far, far lower than the European average. As a consequence, the gap between the age of consent and of responsibility in England is more than four times the European average.

The government has continually maintained that the age of criminal responsibility for England and Wales should be 10.  The former common law "doli incapax" rule was abolished by the Crime and Disorder Act 1998 s.34.  For further, please see my post on Youth Justice dated 28th August 2011.

Diversity:

"Diversity" (or perhaps the limited nature of diversity) in the legal profession is a concern.  Here is some interesting material - Chambers Women and Diversity

Surveillance:

The Local Government Lawyer 5th February looks at the new RIPA Surveillance Codes

The Protection of Freedoms Act 2012 s.38 altered the law so as to require judicial approval for certain forms of surveillance.  In his report for 2013-14, the Surveillance Commissioner was critical of the lack of training given to magistrates in this area.

Legal aid cuts:

Severe legal aid cuts were imposed by the coalition government in the name of austerity.  For my part, I have always had the view that austerity had little to do with it.  More of an ideological attack on access to justice for the average citizen.  However that may be, please read some views expressed recently in the Court of Appeal.   

With regard to criminal legal aid, this letter published in the Law Society Gazette is self-explanatory and rather chilling.

All worth thinking about as the Global Law Summit heads toward London - (post of 12th January).

Witnesses:

Don't forget the CPS Consultation on Speaking to Witnesses in Court

Abuse Inquiry:

See the Pre-appointment hearing of Justice Goddard - 11th February 2015

Heroes and Villains:

Nigel Poole QC is the author of Learned Friend blog.  Here is an interesting look at the Social Action, Responsibility and Heroism Act Act 2015- "all the hallmarks of a something must be done Act"


Legality of Mass surveillance:

The Legality of Mass Surveillance Operations | OHRH http://t.co/08ApHU4jiF
— Oxford Human Rights (@OxHRH) February 12, 2015

2015 Public General Acts of Parliament: include ....

Counter-Terrorism and Security Act 2015  
Social Action, Responsibility and Heroism Act 2015  
Criminal Justice and Courts Act 2015 

Please note the "Commencement" sections in each of the Acts.

Four reasons why Dorset is great for foodies

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When it comes to food, Dorset really has it all.

Whether you're after fish and chips by the sea, a visit to a traditional tearoom, an upscale restaurant or something else, the county will not disappoint.

Dorset is well known throughout the UK for both the quantity and quality of food it has on offer. While there are plenty of traditional choices - you haven't lived until you've tried Dorset apple cake or Blue Vinny cheese - eateries in the area have embraced flavours and styles from Europe and Asia.

So bearing this in mind, let's have a look at some of the best options.

1. Celebrity chefs
Some of the UK's best-known chefs have chosen Dorset as the base for their stunning restaurants. For example, Alex Aitken (pictured above) cooks at The Jetty in Mudeford and this has been awarded the title of 'Taste of the South West'. Sienna in Dorchester is another superb location, as the Russell Brown-run establishment has one Michelin Star and three AA Rosettes. Lesley Martin and Hugh Fearnley-Whittingstall also have eateries in the county.

2. A relaxing tearoom
What could be better than visiting one of Dorset's many tearooms for a lazy afternoon lunch? Abbots Tearoom in Dorchester offers homemade scones and Duchy Originals Strawberry Jam - the perfect combination. The Worth Matravers Tea and Supper Room in Swanage is also worth a visit, as it provides a beautiful setting in rural Dorset. You can even eat outside during the warmer months.

3. Pub lunches
There are a whole host of traditional pubs in Dorset offering top-quality food at reasonable prices. Rural gastropubs will offer unique takes on classics such as prawn cocktail and the ploughman's lunch, while one of the local delicacies is the crab baguette. These establishments come alive during the summer months, as you can call in for a relaxing bite to eat - and a glass of delicious scrumpy cider - after a hard day spent exploring the local countryside.

4. Night time dining
Obviously you'll be looking to have some memorable meals on your trip to Dorset, which is why you're lucky there is such a comprehensive selection of eateries. Seafood plays a big role in the local menus due to the county's location, so make sure to go somewhere like Captain's Club Hotel Restaurant in Christchurch or the Riverside in Bridport. But Dorset really is a place for everyone, as places like The Corner in Swanage offer a dining experience you will not forget and rivals anywhere else in the UK.

Regardless of the duration of your trip, be it a long weekend or a two-week holiday, Dorset can cater to your dining needs. The county has the perfect mix of fine establishments and relaxed eateries, meaning you can choose your destination based on how you are feeling on the day.

Read more information on our inspected and star-rated Dorset holiday cottages.

Were Police seeking Charlie Hebdo readers?

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An article published by The Guardian 10th February reports that in at least three Police Force Areas some newsagents have been contacted regarding sales of the Charlie Hebdo magazine published in the immediate aftermath of the murders in Paris - see earlier post Charlie Hebdo - Freedom of Expression.  Officers in Wiltshire, Wales and Cheshire have approached retailers of the magazine, it has emerged, as concerns grew about why police were attempting to trace UK-based readers of the French satirical magazine.


The article indicates that there was some form of intelligence sharing within the Police Service following "an assessment of potentially vulnerable communities."  The article also states that, in Presteigne (Wales), the wife of a newsagent was questioned for 30 minutes by a detective and a PCSO and that the questioners sought information (reportedly not revealed) as to who had purchased the magazines.   "A Dyfed-Powys police spokeswoman declined to say why officers sought the names of Charlie Hebdo readers but said: “Following the recent terrorism incidents, Dyfed Powys police have been undertaking an assessment of community tensions across the force area.  Visits were made to newsagents who were maybe distributing the Charlie Hebdo magazine to encourage the newsagent owners to be vigilant. We can confirm the visits were only made to enhance public safety and to provide community reassurance.”

It is unclear whether the Police were concerned with the possibility of "hate crime" about which I posted back in January 2012.  The Crown Prosecution Service publishes on its website a considerable number of items relating to "hate crime" and this page is of particular interest from which the following is extracted:

"Racist and religious crime

We regard a racist or religiously motivated incident as:

Any incident which is perceived to be racist or religiously motivated by the victim or any other person.
An offence is racially or religiously aggravated if:

• at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim's membership (or presumed membership) of a racial or religious group; or
• the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.

Certain offences, including assault, harassment, criminal damage and public order offences, can be prosecuted specifically as racially or religiously-aggravated offences.

With any other offence where there is evidence of racial or religious aggravation, the defendant faces a harsher sentence than if he or she were found guilty of a non-racial or religious crime.

Further information relating to racist and religious crime is available on this website in the Prosecution Policy and Guidance/Other Guidance/Racist and Religious Crime section."


What might have happened had a newsagent provided a list of customers?  One possibility is that the individuals might have had a visit from the Police and a "talking to" about possible "hate crime."  (It would not be a first time).  Another possibility is that the individuals might have been put under some form of surveillance in case they stepped out of line in some way.  

For my part, I do not like Charlie Hebdo and I have not and do not read it.  Many of its cartoons were (and maybe still are), to say the least, tasteless and insensitive.  Nevertheless, freedom of expression is a very vital right in a democracy.  It is NOT an absolute right but restrictions to it must be clearly justifiable on one of the grounds in the European Convention on Human Rights and such restrictions must be properly defined in law.  The terrible Charlie Hebdo events in Paris were major news and the publication of a special edition in the days following the murders was understandable.  It was also understandable that a lot of individuals might wish to obtain a copy of that edition.  In a free society, that should not make them either a criminal or even a potential suspect.

Prism / Upstream ~ decision of the Investigatory Powers Tribunal

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The Investigatory Powers Tribunal (IPT) was created by Part IV of the Regulation of Investigatory Powers Act 2000 (RIPA).  It lies outside the general tribunal structure and is linked to the Home Office though it has an eminent membership including three High Court Judges.  The Tribunal's website contains much useful information.

The Tribunal has handed down judgment in relation to the legality of the regime governing the soliciting, receiving, storing and transmitting by UK authorities of private communications in a case brought against the intelligence agencies in respect of alleged interception activity involving UK and US access to communications. The Complainants are Liberty, Privacy International, Amnesty International and seven overseas human rights groups.

Liberty (The National Council of Civil Liberties) & Ors v The Secretary of State for Foreign And Commonwealth Affairs and Others [2015] UKIPTrib 13_77-H (06 February 2015)




FOR THE REASONS SET OUT IN THE TRIBUNAL'S JUDGMENT OF 5 DECEMBER 2014 ("THE FIRST JUDGMENT") AND THEIR JUDGMENT OF THIS DATE ("THE SECOND JUDGMENT") 

IT IS DECLARED

(i) THAT prior to the disclosures made and referred to in the First Judgment and the Second Judgment, the regime governing the soliciting, receiving, storing and transmitting by UK authorities of private communications of individuals located in the UK, which have been obtained by US authorities pursuant to Prism and/or (on the Claimants' case) Upstream, contravened Articles 8 or 10 ECHR, but

(ii) THAT it now complies with the said Articles.

Unhappiness remains!   Privacy International - GCHQ-NSA intelligence sharing unlawful, says UK surveillance tribunal - notes that:

"While we welcome today’s decision, Privacy International and Bytes for All disagree with the tribunal’s earlier conclusion that the forced disclosure of a limited subset of rules governing intelligence-sharing and mass surveillance is sufficient to make GCHQ’s activities lawful as of December 2014.  Both organisations will shortly lodge an application with the European Court of Human Rights challenging the tribunal’s December 2014 decision."

RIPA 2000 s67(8) is worth noting - "Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court."

Thus it appears that the decision on a question of law by this Tribunal is not subject to an appeal to either the Court of Appeal or to the UK Supreme Court.  The gateway to Strasbourg is open once all domestic remedies have been exhausted (Art 35 of the ECHR).  Whether it is always worthwhile entering those gates is another matter.


Links:


Liberty (The National Council of Civil Liberties) v The Government Communications Headquarters and Others [2014] UKIPTrib 13_77-H (05 December 2014)


Amnesty - Historic victory with today's GCHQ surveillance ruling

Rotherham ~ Secretary of State plans intervention

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In August 2014, Professor Alex Jay published the report of an Independent Inquiry into Child Sexual Exploitation in Rotherham.  It concluded that over 1400 children had been sexually exploited in Rotherham between 1997 and 2013.  The majority of the perpetrators were said to be of Pakistani background.  See 1st September post

The council is in the news again following a new report commissioned by Communities Secretary Eric Pickles.  The report
- by Louise Casey CB - states that the Council was not fit for purpose.  The government has published several documents relating to this - see Inspection into the Governance of Rotherham Council and these include a letter from the Secretary of State to Rotherham Council detailing the proposed intervention in the running of the local authority.  Also, the Secretary of State proposes to impose fresh council elections from 2016.  Rotherham has up to 18th February to respond to the Secretary of State's letter.

Local Government Act 1999 Part 1 (Best Value)

Local Government Act 2000 s.86

The National Crime Agency (NCA) has announced that its ongoing investigation into child sexual exploitation in Rotherham will be extended in the light of Miss Casey's findings.  (Formation of the NCA - see Crime and Courts Act 2013).

Facial recognition ~ Police database revealed

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NEW Independent Panel Inquiry into Child Sexual Abuse with NEW Chair

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The Honourable Justice Goddard has been appointed by the Home Secretary to chair the Independent Panel Inquiry into Child Sexual Abuse. 

Justice Goddard is a Justice of the High Court of New Zealand.

See the Home Secretary's Statement to the House of Commons 4th February 2015.  The statement makes it clear that the original inquiry is terminated and the panel dissolved.  Now there is to be a new statutory inquiry with a new panel.  Please note, in particular, the following extract from Mrs May's statement - (my emphasis and some links added):

Strasbourg has spoken - in FAVOUR of the UK - Whole Life sentences for murder

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The Fourth Section of the European Court of Human Rights has found by a majority of 6 to 1 that there was no violation of Article 3 - (Prohibition on torture and inhuman or degrading treatment or punishment) - of the European Convention on Human Rights in the case of Hutchinson v United Kingdom - Court's judgment.

In October 1983, the applicant broke into a family home, stabbed to death a man, his wife and their adult son and repeatedly raped their 18 year‑old daughter, having first dragged her past her father’s body. He was arrested several weeks later and charged with the offences. At trial he pleaded not guilty, denying the killings and claiming that the sex had been consensual. On 14 September 1984, at Sheffield Crown Court, he was convicted of aggravated burglary, rape and three counts of murder.



The trial judge sentenced the applicant to a term of life imprisonment and recommended a minimum tariff of 18 years to the Secretary of State for the Home Office. When asked to give his opinion again on 12 January 1988, the judge wrote that “for the requirements of retribution and general deterrence this is genuinely a life case”.

On 15 January 1988 the Lord Chief Justice recommended that the period should be set at a whole life term stating that “I do not think that this man should ever be released, quite apart from the risk which would be involved”.

On 16 December 1994, the Secretary of State informed the applicant that he had decided to impose a whole life term.

Following the entry into force of the Criminal Justice Act 2003, the applicant applied to the High Court for a review of his minimum term of imprisonment. On 16 May 2008, Tugendhat J handed down judgment in the applicant’s case ([2008] EWHC 860 (QB)), finding that there was no reason for deviating from the Secretary of State’s decision. The seriousness of the offences alone was such that the starting point was a whole life order. In addition, there were a number of very serious aggravating factors. Tugendhat J made express reference to an impact statement from the surviving victim, which described “sadistic as well as sexual conduct”. There were no mitigating factors. On 6 October 2008, the Court of Appeal dismissed the applicant’s appeal.

In finding that there was no breach of Article 3, the court took fully into account the decision of a five judge constitution of the Court of Appeal (Criminal Division) in R v McLoughlin and Newell [2014] EWCA Crim 188 - please see previous post and the Judgment. 

This Strasbourg judgment will no doubt be welcomed by the British government and gives lie to the myth that Strasbourg generally finds against the United Kingdom.

On the Defence Brief blog - That Bloody Europe - solicitor Nicholas Diable comments:

Obtaining data ~ Proposed amendment to Counter-Terrorism and Security Bill withdrawn

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When any Bill is introduced into Parliament, it is not unusual for politicians to introduce amendments.  After all, that is a part of their role and it is generally done with a view to either correcting errors or seeking to make improvements to the drafting.   From time-to-time, additions (still referred to as "amendments") are tabled.  However, it must be somewhat rare for politicians to seek to make additions to a government Bill when those amendments are aimed at bringing into law something that was rejected by the government quite recently.  It is even more unusual for major additions to be tabled in the House of Lords after the Bill has passed the House of Commons and is nearing the end of its progress through Parliament.

In 2013, following objections by the Liberal Democrat part of the coalition, the Data Communications Bill was withdrawn.  In November 2014, the Counter-Terrorism and Security Bill was introduced by the government and it is being "fast-tracked" through Parliament.  Recently, four Peers
- (Lords Blair, West, King and Carlile) - tabled amendments aimed at bringing in similar State powers to those in the Data Communications Bill and rejected in 2012.   The  amendments were withdrawn but then re-introduced in a somewhat watered down form.  The re-introduced amendments have now been withdrawn - and see Lords attempt to sneak through snoopers' charter again.

The amendments would have expanded surveillance powers over electronic media.  Internet Service Providers (ISP) would have had to collect and store data taken from their subscribers' online traffic for 12 months and hand this over to the government without a warrant.  The latest set of amendments contained a "sunset clause" so that they would have lapsed at the end of 2016.  According to those seeking the powers, this would have plugged a gap in the State's ability to fight terrorism.  The next Parliament would then have been able to fully address the issues involved which it seems likely to do in any event though much may depend on the political make-up of the next government.  

The detailed proposed amendments (now withdrawn) may be read HERE  The Secretary of State would have been able to ensure that communications data was available to be obtained from telecommunications operators by relevant public authorities.  (The list of such authorities was narrowed after the first set of amendments were abandoned).  Data would have been retained for 12 months or longer if requested for the purpose of legal proceedings.  Authorisation to obtain data could have been issued by designated senior officers of a relevant public authority.  The powers would have also extended to postal operators and postal services.

Previous post on the Counter-Terrorism and Security Bill - 12th January 2015