Human Rights and the Battlefield

08:04 0 Comments

Policy Exchange has produced an interesting report - Clearing the fog of war: saving our armed forces from defeat by judicial diktat

The report, authored by Professor Richard Ekins (University of Oxford), Dr Jonathan Morgan (University of Cambridge) and Tom Tugendhat (a former Military Assistant to the Chief of the Defence, Staff General Sir David Richards), reaffirms that armed forces on the battlefield should not be above the law but that the rules governing conflict must fall under the Geneva Conventions rather than the European Convention on Human Rights (ECHR). It argues that a blanket derogation from the ECHR is essential in all future conflicts involving British military personnel.

The report makes the following recommendations:



1.  The government should derogate from the European Convention on Human Rights in respect of future overseas armed conflicts - using the mechanism of Article 15 ECHR

2.  The government should introduce primary legislation of amend the Human Rights Act 1998 to prevent military personnel relying on Article 2 ECHR against the Ministry of Defence in respect of injuries sustained on active operations. 

3.  The government should revive the Armed Forces Crown immunity from actions in tort during all future "warlike operations" overseas, by Ministerial Order under the Crown Proceedings (Armed Forces) Act 1987

4.  The government should undertake to pay compensation, on the full tort "restoration" measure, to all military personnel killed or wounded during active operations - without need to prove fault

5.  The government should take the lead in supporting the efforts by the International Committee of the Red Cross to strengthen the Geneva Conventions for the conditions of modern warfare

6.  The government should make an authoritative pronouncement of state policy - declaring primacy of the Geneva Conventions in governing the conduct of British Forces on the battlefield.
Derogation from ECHR:

I doubt that the form of derogation suggested is strictly-speaking possible.  Article 15 is headed Derogation in time of emergency.  "In time of war or other public emergency threatening the life of the nation" derogation is possible but only to the extent "strictly required by the exigencies of the situation."  Also, any derogation measures must not be inconsistent with the government's other obligations under international law.  Much would therefore depend on how "threatening the life of the nation" is viewed.  The matter of "threatening the life of the nation" was discussed by Parliament - see here -following the UK's derogation from Article 5 in the aftermath of the 9/11 events in New York.

Article 2:

Article 2 ECHR (Right to Life) is one of the articles which does not permit derogation.  Parliament could use its legislative supremacy to prevent military personnel relying on Article 2 ECHR against the Ministry of Defence in respect of injuries sustained on active operations.  However, such legislation is highly likely to bring the UK into breach of its international obligations under the ECHR.

(For a case based on Article 2 where the court decided in favour of the government, please see R (Long) v Secretary of State for Defence - full judgment).

Ministerial Order:

The Crown Proceedings (Armed Forces) Act 1987 removed an immunity in tort which the armed forces had under the Crown Proceedings Act 1947 section 10.  Section 1 of the 1987 Act states:

Subject to section 2 below, section 10 of the Crown Proceedings Act 1947 (exclusions from liability in tort in cases involving the armed forces) shall cease to have effect except in relation to anything suffered by a person in consequence of an act or omission committed before the date on which this Act is passed.

Section 2 enables the Secretary of State to make an order reviving the effect of section 10 where it appears to him to be necessary or expedient to do so for the purposes of any warlike operations in any part of the world outside the UK.

For more detail on this matter, please see the paper by Dr Jonathan Morgan - UK Armed Forces Personnel and the Legal Framework for Future Operations

Morgan also argues that a new Government commitment to compensating combat injuries fully, on a no-fault basis, be coupled with the revival of Crown immunity using the 1987 Act.  Whether there will ever be a government committed to compensating combat injuries fully is questionable given the substantial sums in question.  See the problems experienced by Gulf War veterans. Without a willingness to pay compensation, it would be highly unfair to simply reimpose the immunity.

So, does the Policy Exchange Paper make fair points?  I think that there is a case for saying that the reach of the law (common law and human rights) is at risk of going too far in relation to the armed forces.  There is merit in permitting actions in relation to procurement of equipment decisions which are, after all, taken over time in the safety of MoD London - MoD does have a duty of care.  The extension of human rights law to prisons abroad firmly under the control of British Forces is also defensible.  However, there is a clear need for considerable care in extending the law much further  - e.g to the decisions of commanders in the very different conditions of armed conflict abroad.  Military commanders must act within the constraints imposed by the Geneva Conventions even if opponents do not.  Often, such commanders have to act with less resources than they might like to have and there may be limited intelligence relating to the enemy.  Risks are a part of the military life.

The latest decision is that of Leggatt J in Al-Sadoon v Secretary of State for Defence [2015] EWHC 715 (Admin).  Many of the cases in this area are discussed by Leggatt J who began by saying:

1. One of the legacies of the Iraq war is litigation. Many claims have been brought in the courts of this country arising out of the British military involvement in Iraq between 2003 and 2009. Although it is now some six years since British forces completed their withdrawal from Iraq, the litigation is not abating. Most of the claims involve allegations of ill-treatment, unlawful detention and, in some cases, unlawful killing of Iraqi civilians by British soldiers. These claims fall into two groups.


2. The first group consists of claims for judicial review in which the claimants are seeking orders from the court to require the Secretary of State for Defence to investigate alleged human rights violations. I will refer to these claims as the "public law claims". At the beginning of 2014 there were 190 public law claims, but since then another 875 claims have been added. I am told by Public Interest Lawyers, who represent all the claimants in the main proceedings brought by Al-Saadoon and others, that they expect at least 165 more claims to be added to the register of claims before the end of March 2015, bringing the total number of claims to at least 1,230. Separate judicial review proceedings have been brought by two individuals, Yunus Rahmatullah and Amanatullah Ali, who are represented by Leigh Day.


3. The second group of claims consists of claims for compensation brought against the Ministry of Defence. To date, more than 1,000 such claims have been issued: some 294 of these claims have been settled but the rest are still pending. I will refer to these claims as the "private law claims".


4. This judgment follows a trial of eleven preliminary issues raised by the public law claims. The directions for this trial were agreed between the parties to the Al-Saadoon proceedings and ordered by the court with the aim of clarifying the scope of the duty of the United Kingdom to investigate allegations of wrongdoing by British forces in Iraq. The issues have been argued by reference to the assumed facts of certain cases which the parties have selected as test cases. Because some of the issues are also relevant to the private law claims and to the claims of Mr Rahmatullah and Mr Ali, the claimants represented by Leigh Day also took part in the hearing.


5. The preliminary issues have required consideration of a large body of law. The bundles of authorities prepared for the hearing contained over 300 cases and other legal materials, many of which were cited in the written arguments. I am grateful to all the parties for their detailed written submissions. Above all, the oral argument was conducted with conspicuous skill and helped to distil the key points in issue.


The issues in brief


6. The source of the duty on the state to investigate allegations of wrongdoing on which the public law claimants rely is the European Convention on Human Rights, incorporated into English law by the Human Rights Act 1998. Whether, and if so to what extent, the Convention applies to the activities of British armed forces in Iraq has itself been the subject of extensive litigation. It is now clearly established, however, and is accepted by the Secretary of State, that anyone who was taken into the custody of British forces in Iraq had certain rights under the Convention which the United Kingdom was bound to respect: in particular, the right to life under article 2, the right under article 3 not to be tortured or subjected to inhuman or degrading treatment and the right to liberty under article 5. It is also clearly established that where a person who is within the jurisdiction of a Convention state is killed by agents of the state or dies in state custody or makes a credible allegation of torture or other serious ill treatment by state agents, the state has a duty to carry out an investigation. That investigation must be independent and it must be effective.


7. There are, however, two major areas of controversy about the scope of the duty to investigate which are the focus of the present preliminary issues. The first is whether, and if so when, the Convention applied to the use of force against Iraqi civilians who were not in the custody of British forces. In particular, the Secretary of State does not accept that (save during the period when the UK was an occupying power) individuals who were killed during security operations carried out by British forces in Iraq were "within [the UK's] jurisdiction" for the purpose of article 1 of the Convention such that the UK was bound to secure their right to life under article 2. If this is correct, it follows that the UK has no duty under the Convention to investigate the deaths of such individuals. The claimants dispute this and argue that the UK's jurisdiction under article 1 is of wider scope. The first preliminary issue is aimed at resolving this dispute.


8. The second major area of controversy is the extent to which, where individuals were within the jurisdiction of the UK, there is a duty to investigate alleged violations of their rights. As mentioned, it is clear that such a duty arises in cases of suspected unlawful killing or serious ill-treatment. Two main points, however, are in dispute. One is whether, and if so when, the duty to investigate allegations of a violation of article 3 applies in cases where the nature of the allegation is not that the claimant was tortured or mistreated by British forces but that he was handed over to United States or Iraqi authorities in circumstances where there was allegedly a real risk that they would subject the claimant to torture or mistreatment. The claimants contend that the investigative duty of the UK extends to such "handover" cases but the Secretary of State contests this. Issues (2) to (4) are aimed at resolving these questions. The second main disputed point is whether, and if so when, there is a duty to investigate allegations that the claimant was unlawfully detained in violation of article 5. These questions are the subject of issues (5) to (7A).


9. The remaining three preliminary issues raise some further questions about the scope of the investigative duty under articles 2 and 3 of the Convention, including questions about the impact (if any) on that duty of the UK's international obligations under the United Nations Convention against Torture ("UNCAT").

Additional material:

Pump Court Chambers - Judges in the Combat Zone or Policing State Immunity

Parliament dissolved ~ the fight for power at Westminster commences

12:39 0 Comments

Today (30th March), Parliament was dissolved.  The coalition government remains in place pending the outcome of the General Election on 7th May and it may remain in place for some time beyond the election (see later).  At present, the opinion polls suggest that no political party will gain an overall majority over all other parties in the House of Commons.  Hence, one possible outcome is another coalition between the party with the largest number of seats and one or more of the other parties.  There being no such thing as free lunch, the other parties will make demands as a price for their support.  An alternative to a formal coalition is a supply arrangement with the largest party but that would lead to constant haggling over the conditions for support.



See the Coalition Agreement entered into in 2010.  No doubt, political analysts will examine how successful that agreement has been - (see this) - though it appears, on the whole, to have delivered a stable government with (perhaps) the prevention of some of the worst excesses of a full Conservative government.  For my part, I view the cuts to civil legal aid as particularly damaging for the future of the rule of law.  It must also be remembered that a future Conservative government appears to be committed to repeal of the Human Rights Act 1998.  Their promised draft legislation has not appeared but the talk in the autumn of 2014 included the extreme possibility of the UK withdrawing from the European Convention on Human Rights.

Whilst there is no doubt that other issues (Taxation, the NHS, Education, Defence etc) are more likely to dominate the election campaign, voters might do well to look at the party manifestos for indications of what may happen in the legal world.  One certainty seems to be that we cannot expect major reversal of the civil legal aid provisions.  "Tweaks" at most I fear !

The end of any Parliament is marked by a rather hidden process known as the "wash up" and various Bills manage to become law as a result.  On 26th March, some 21 Bills received Royal Assent and became law.  These include the Modern Slavery Act, Recall of MPs, Deregulation, House of Lords (Expulsion and Suspension), International Development (Official Development Assistance Target) and a Finance Act.  Some of those Acts are clearly of some constitutional importance and some are, at a time of imposed austerity, of significant economic importance.

The Fixed Term Parliaments Act 2011 is controversial.  In truth, it seems to have been enacted to lock the 2010-15 coalition into the House of Commons since an election may now only be called as prescribed by the Act (see section 2).  Aspects of this legislation may yet fall to be examined in the courts.  It is also interesting to speculate on what would happen if the Act were repealed.  Of course, the repealing legislation could enact a process to regulate the situation or, maybe, the repealing legislation could state that the process for dissolution of Parliament reverts to the situation as it was prior to the commencement of the 2011 Act.

The 2011 Act gave the Prime Minister the power to delay the election by up to 2 months - see section 1.   Despite some fears, I submit that this power may not now be exercised because the election has been called. Section 1 includes the following:

(5) The Prime Minister may by order made by statutory instrument provide that the polling day for a parliamentary general election in a specified calendar year is to be later than the day determined under subsection (2) or (3), but not more than two months later.

(6)A statutory instrument containing an order under subsection (5) may not be made unless a draft has been laid before and approved by a resolution of each House of Parliament.

(7)The draft laid before Parliament must be accompanied by a statement setting out the Prime Minister's reasons for proposing the change in the polling day.

There being no Parliament, the necessary statutory instrument cannot be approved.


After the election, an important document may prove to be the Cabinet Manual. Here is an important document saying much about governmental processes.  Paragraph 2.12 may prove to be vital:

"Where an election does not result in an overall majority for a single party, the incumbent government remains in office unless and until the Prime Minister tenders his or her resignation and the Government’s resignation to the Sovereign.  An incumbent government is entitled to wait until the new Parliament has met to see if it can command the confidence of the House of Commons, but is expected to resign if it becomes clear that it is unlikely to be able to command that confidence and there is a clear alternative."

Interesting, but, in a democracy, a Prime Minister or Government should not remain in place in defiance of the will of the electorate and, as regards an ultimate timescale, the manual is silent.  However, equally, there cannot be an absence of government.

Other material relating to general elections may be seen via the Parliament website.  Government UK - General Election 2015.

Of Interest to Lawyers - Is this the first time that the Monarch has not dissolved Parliament?

Magnificient Modica – discover self-catering heaven in Sicily

10:37 0 Comments

We love the south of Sicily and whilst nearby Ragusa is modestly known, Modica is a real hidden gem.  Baroque in style, this charming city is only 15 km from Ragusa and and is divided in two areas: Modica Alta (upper Modica) and Modica Bassa (lower Modica), which are connected by hundreds of steps.  The town, located between two valleys and on Pizzo’s hill, is a harmony of churches, palaces and buildings of the eighteenth century (all built according to the late baroque style).  Think narrow, quaint streets, inspiring domes, squares, and fantastic architecture – its picture postcard perfect!


The most extraordinary example of the architecture is Saint George’s Cathedral, which is recognised by Unesco.  Polara Palace (XVIII century) which overlooks Modica Bassa, is characterised by Saint Peter’s Cathedral that is embellished by its stairway with the statues of the twelve Apostles.


Modica is also famous for its chocolate that has been made since the eighteenth century – especially as it blends some interesting ingredients such as vanilla, cinnamon or hot pepper. It’s a chocoholic’s paradise!



In addition to its history, Modica really does have a lively heart.  The Marina Di Modica, which is close by is considered a paradise for surfing and windsurfing.  The lovely long beaches offer endless relaxing days and at night there are plenty of restaurants and nightly haunts to make the most of the the long hot summer evenings.


Getting to Modica, couldn’t be easier – Catania airport is a mere 90 min drive away and there are plenty of other Sicilian delights within easy reach such a Syracuse and Scicli.

In terms of accommodation, Holiday Homes in Italy offers some wonderful villas dotted around the Modica countryside, try:


Casa di Petra

Casa di Pietra is a small stone house of the kind characteristic of Ragusa with a fab swimming pool. Its only 10 km from Modica and the beautiful beaches of Sampieri and Donnalucata can be reached in just a few minutes by car.



Mediterraneo Apartments

This beautiful complex of apartments is just a stone's throw away from the beautiful, wide sandy beach of Marina di Modica.  Its location is perfect to experience a wonderful holiday by the sea, and is also a great starting point for exploring the surrounding area.


Tipico Baglio

This sunny five bedroom eighteenth-century country property is located at the heart of baroque Sicily, and recently expertly renovated. It is surrounded by the typical local carob plants, fields of grain, ancient olive, citrus and almond trees and wonderfully scented jasmine.  It offers two swimming pools, both situated in the sheltered and stylishly furnished Mediterranean courtyard. This is a wonderful base to discover the City of Modica (8 km away).



Villa Angeli

This is the property to discover an authentic Sicilian way of being, a cosy 4 bedroom patrician dwelling tracing back to end of the nineteenth century.  Situated in a quiet, sunny but not isolated location, the villa looks on to a well-maintained garden enriched by a collection of palm trees while at the back extends the large swimming pool and a panoramic small terrace with wonderful views on the countryside.

Eleganza

There’s no better way to take in the sights of Modica than staying in the centre and waking upp too its awe-inspiring view every day.  Eleganza is a refined, exclusive 2 bed house in the historical centre, just a few metres from the beautiful cathedral of San Giorgio. Its cosy terraces offer wonderful, uncommon and suggestive views of the enchanting roofs and alleyways of the old this baroque town.  Lovingly and carefully renovated, the property is a wonderful and traditional Sicilian holiday home.



La Ciliegia

A lovely old 3 bedroom country house located in the vicinity of Modica. This beautiful dwelling, which has been recently expertly renovated, belongs to an old, charming "baglio", a traditional, rural architecture which was built round an internal courtyard that includes the manor house itself and the close farmhouse, occasionally occupied by the owner. Beyond the courtyard is the large swimming pool with terrace-solarium surrounded by a luxuriant garden with citrus trees and Mediterranean plants.



Villa Modica Vista

A lovely 3 bedroom old farmhouse lying between Modica and Frigintini that dominates a wide stretch of olive trees and carobs, a peaceful place that a well-known sicilian artist has restored with love and with her own artistic style. The garden is enclosed on one side by a wall in local stone, and on the other it looks over the countryside, and is characterized by a long, 21 metre, irregular-shaped swimming-pool, with a large paved farmyard and green spaces with olive and palm trees, and is all perfectly blended in with its natural surroundings.

Three of Cornwall's best parks for families

05:14 0 Comments

R v Jogee ~ Supreme Court to hear joint enterprise appeal

04:41 0 Comments

The Supreme Court has agreed to hear an appeal in the case of R v Ameen Hassan Jogee.  The Court of Appeal Criminal Division judgment is at [2013] EWCA Crim 1433.   Here is an appeal which is potentially of major importance in the controversial area of "joint enterprise" liability in criminal law.  Please read the Court of Appeal's judgment .... more will undoubtedly follow.  In the Supreme Court the case number is UKSC 2015/0015.

Despair and not a lot of hope ...!

04:07 0 Comments

Rarely, if ever, has a British government engaged in such an assault on justice than the present coalition.  The brunt of the assault applies to England and Wales since justice matters are mostly devolved to Scotland and Northern Ireland.  (The devolution settlements have become complex - see Wales, Scotland and Northern Ireland).  I am not proposing in this blogpost to analyse all the regressive changes made by the coalition over the last 5 years but they are likely to be very far reaching indeed.

The coalition has had two Secretaries of State for Justice:  Kenneth Clarke QC MP and Chris Grayling MP.  That office has been doubled with that of Lord Chancellor though the modern version of the Lord Chancellorship is nothing like the immensely influential (if not powerful) office that it was prior to the Constitutional Reform Act 2007.



Kenneth Clarke - a lawyer in his earlier days - embraced with enthusiasm the Treasury demand for budgetary cuts.  The spadework for legal aid cuts was completed by the time Grayling - a non-lawyer - was appointed though, at that time, the Legal Aid, Sentencing and Punishment of Offenders Bill was still before Parliament and the legal world had raised major concerns over its legal aid provisions.

The reduction in legal aid has led to many more litigants in person and, as Rachel Rothwell says in the Law Society Gazette 16th March, this is particularly frustrating for judges because they are having to explain, time and again,the basics of procedure - and seeing a court timetable filling up with the type of case that, had a lawyer been consulted at the outset, would never have been brought, or would have settled early on.  What a waste of resources.

Another point is that, when they were practising as barristers or solicitors, most of the present judiciary learned their business via legally aided work.  If the legal profession is unable to either attract or retain the brightest young people, the judiciary of the future is clearly at risk.

Further damage has been inflicted on justice by the recent legislative changes to judicial review.  This is an important - though admittedly rather cumbersome and costly - route by which the law ensures that government operates within the law.  Yet more damage to access to justice will be achieved by the huge increases in court fees.  Hardly a move that will help those for whom litigation is a necessity if their future lives are to have any quality.  The statement in the House of Lords by Lord Faulks QC that litigation was very much an optional activity is one of the most uncaring and objectionable comments I have ever heard from a government.  Furthermore, the fee increases are damaging to medium and small business who, far too often, have to sue to recover debts.

In the late summer of 2014, Grayling appeared to be supercharged over Conservative Party reforms to human rights law.   It looked as if the attack dog had got the cream!  According to Grayling, if a Conservative government is elected in 2015, there would be a new relationship with the European Court of Human Rights since their judgments would be regarded as "advisory" only and the Human Rights Act 1998 would be repealed to be replaced by some form of British Bill of Rights.  His legally illiterate ideas were excoriated by lawyers and clearly would not have been acceptable to either the Liberal Democrat party (the other part of the coalition) or to the devolved administrations in Edinburgh and Belfast.  These ideas appear to have been shelved.  Maybe?  It may be that they are seen as electorally toxic material since attacking the rights of the British citizen is hardly likely to go down too well even if it is not an everyday talking point on most high streets.  For my part, I suspect that this topic has just been put in a dark room and will emerge again into the light of day should the Conservatives manage to form the next government.

Please read the excellent article by Joshua Rozenberg - Law Society Gazette 16th March - Legacy of a law lord chancellor.   Also, please take a look at the Justice Committee 8th report slamming the government's badly researched and implemented legal aid cuts which have impeded access to justice.  The committee's concern is touching but it's a shame that more MPs did not oppose the Bill.

What hope is there for the future?  Well, of course, that might depend on the political form of the next government but the signs are far from encouraging.  If Clarke and Grayling have achieved the big savings demanded then the bigger players in government are pleased and most opposition politicians seem to be quietly happy that the dirty work has been done before they might have to to take on the  real responsibilities of office.  As the Justice Committee notes-

"There is no realistic early prospect of substantially increased funding for legal aid in the civil courts. This makes it even more important that the recommendations we have made to ensure the current scheme works properly are implemented. These include: better information from the Government on remaining eligibility for legal aid; proper management of the exceptional cases funding scheme so that it works as Parliament intended; an amendment to the Civil Legal Aid (Procedure) Regulations 2012 giving the Legal Aid Agency discretion to grant legal aid in appropriate cases involving domestic violence; free mediation assessments for a year; a rethink on the Legal Aid Agency's approach in a number of areas; and careful monitoring of the geographical distribution of legal aid providers. In the longer term, proper research into the costs and effects of the scheme should inform a more fundamental review of the policy."

Intelligence and Security ~ an important report

09:32 0 Comments

 12 March 2015 - The Intelligence and Security Committee of Parliament has today published its Report 'Privacy and Security: A modern and transparent legal framework'. This Report includes, for the first time in a single document, a comprehensive review of the full range of intrusive capabilities available to the UK intelligence Agencies. It contains an unprecedented amount of information about those capabilities, the legal framework governing their use, and the privacy protections and safeguards that apply. The Report also reveals the use of certain capabilities – such as Bulk Personal Datasets and Directions under the Telecommunications Act 1984 – for the first time. The Report represents a landmark in terms of the openness and transparency surrounding the Agencies’ work.

The Committee has also released a press statement on the report, and the opening statement from a press conference held on 12th March. The Guardian - Joshua Rozenberg - Legal limbo where spies reside is beyond spooky  Telecommunications Act 1984 - Directions in the interests of national security

Deaths in Prisons

05:45 0 Comments

Open Democracy 10th March 2015 asked - "Could Ministry of Justice and Grayling be prosecuted for manslaughter over prison suicides?"    The Prisons and Probation Ombudsman has repeatedly expressed concerns about the number of suicides of persons in detention - see his reports.   This blog - 26th February 2015 "A most serious report" - looked at a report by the Equality and Human Rights Commission - Preventing deaths in detention of adults with mental health conditions.

Would it be possible to bring such prosecutions under the Corporate Manslaughter and Corporate Homicide Act 2007 ? 
The offence of Corporate Manslaughter is defined in section 1
and it applies to those "organisations" set out in section 1(2).  They are -  (a) a corporation; (b) a department or other body listed in Schedule 1; (c) a police force; (d) a partnership, or a trade union or employers' association, that is an employer.  Thus, a government department (or its Minister) are distanced from possible prosecution unless they are listed in Schedule 1.  A number of government departments are listed in Schedule 1 but the list does NOT include the Ministry of Justice.   

Section 2  deals with the meaning of "relevant duty of care" and section 3 states that public authorities do not have a "relevant duty of care" in respect of a decision as to matters of public policy (including in particular the allocation of public resources or the weighing of competing public interests.  See further the Explanatory Notes on section 3.

For those reasons, the Ministry of Justice and its Minister appear to be safe from prosecution under this Act.

With regard to those organisations who are responsible for the day-to-day management of prisons and prisoners (or others detained), there will be a duty of care under the Act though the difficulties should not be underestimated.  The Crown Prosecution Service offers a more detailed summary of the Act.

Many of the problems in the Act were highlighted by LIBERTY when the Bill was passing through Parliament.  LIBERTY pointed out that whilst the Act removed "Crown Immunity" (see section 11)  it was effectively re-introduced by the exemptions.

Therefore it must be concluded that the place to hold the Ministry of Justice and its Minister to account is Parliament and that, of course, is precisely one of the constitutional functions of Parliament.  This is not to say that Parliament has ignored deaths in custody.  For example, INQUEST gave this evidence to the Justice Committee in 2013.  However, it would be good to see the full glare of Parliamentary scrutiny brought to bear on this issue.   Little hope of that however given that the present Parliament will be dissolved on 30th March.

04:34 0 Comments

My top ten favourite things about Sardinia

Four of Cornwall's best castles to visit

09:22 0 Comments

Cornwall is absolutely steeped in history - and there is no better way of getting to grips with this than by exploring heritage sites.

There are so many on offer that it is likely to be a case of narrowing down the choice to what you can fit in with the rest of your holiday plans.

The county's castles range from medieval keeps to 16th century fortresses. Here are just a few of the sites open to the public.

Launceston Castle
Launceston Castle is a Norman motte and bailey. Central to the attraction is a 13th century round tower that was built by Richard, Earl of Cornwall. It sits inside a shell keep that predates the construction of the central tower. This may have been built as early as 1067, shortly after the Norman conquest.

The top of the tower can still be reached by a dark internal staircase - and it is well worth the trip, as spectacular views are offered over the surrounding area of Bodmin Moor and the Tamar Valley. Approaching the castle is also a rewarding experience, as it dominates the landscape.

An exhibition is present at the site, which traces 1,000 years of Cornish history, including finds from site excavations and details of how the site continued to be used as a prison after the Civil War.

Restormel Castle
Restormel (pictured above) is another 13th-century circular shell-keep, which encloses the main rooms of the castle and has helped to keep them preserved in very good condition. Like Launceston, it is built on an earlier Norman mound and is surrounded by a deep dry ditch.

It also commands spectacular views over south Cornwall - including the River Fowey - and is a popular picnic spot. This is also a popular area for distinctive wildlife, such as the Tetraphasis Obscurus - or the Black Pheasant. Outdoor theatre performances are regularly hosted here in summer evenings - and visitors can still climb the castle steps to look down on the remains of the rooms.

Pendennis Castle
Pendennis was originally constructed between 1540 and 1545 and has a lot to offer as a family day out. It is one of many great fortresses built by Henry VIII to defend the country against invasion. It remained active as a Royalist stronghold in the Civil War, and also as a Second World War observation post.

This fascinating history is traced in exhibitions throughout the site, which include a recreated Tudor gun room, interactive exhibitions, a hands-on Discovery Centre, and displays of George Butterworth's wartime cartoons.

St Mawes Castle
St Mawes is also one of Henry VIII's coastal artillery fortresses - and is arguably the best preserved. It boasts a charming clover-leaf shape that was originally surrounded by octagonal outer defences.

Unlike Pendennis, little development work was carried out on the site after its completion - and visitors will still be able to see carved Latin inscriptions in praise of King Henry VIII and his son Edward VI.

An audio tour is available to help bring this history back to life for visitors.

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

Court fee increases approved

02:43 0 Comments

Like the Ritz, justice is open to all

Court fees will rise as a result of approval by Parliament of a Statutory Instrument imposing the increases - Law Society Gazette 5th March.  For many people in need of the law, access to justice will now be a forlorn hope.

The House of Lords debate approving the increase may be read HERE.  The Statutory Instrument in question is The Civil Proceedings and Family Proceedings Fees (Amendment) Order 2015



An article published by Litigation Futures is well worth reading.   Lord Faulks QC, for the government, said that “It is also worth bearing in mind that litigation is very much an optional activity..." 

Lord Pannick QC poured scorn on the notion of litigation as an optional activity. “As the minister well knows from his experience as a very successful barrister, for many people – those suing for debts or to recover compensation for personal injury – litigation is often a necessity to keep your business alive or to maintain any quality of life…

“The fee remission provisions to which the minister, perhaps somewhat desperately, referred are not going to assist other than in exceptional cases.”

The power to charge court fees at above cost price is contained in section 180 of the Anti-social Behaviour, Crime and Policing Act 2014.  Lord Pannick asked: “But is it a fair, reasonable or proportionate exercise of that power? Plainly not. For litigants to have to pay such substantial sums in advance of bringing a legal claim will inevitably, in practice, deny access to the court for many traders, small businesses and people suing for personal injuries.


He said section 180 does not alter the Lord Chancellor’s legal duty under section 92(3) of the Courts Act 2003 to “have regard to the principle that access to the courts must not be denied”.  Lord Pannick argued: “The courts will interpret the powers conferred by section 180 as not intended to authorise regulations which impose an unreasonable or disproportionate barrier to access to the courts…

“If you wrap yourself in Magna Carta, as Mr Grayling sought to do last week at the Global Law Summit, you are inevitably and rightly going to invite scorn and ridicule if you then throw cold water over an important part of our legal heritage.”

A judicial review of the increases is likely.  Lord Pannick was optimistic that the courts will inevitably add this order to the long list of Mr Grayling’s regulations which have been declared unlawful in the past three years”.  For my part, I would not be so sure at this stage and I think it is a pity that Lord Pannick withdrew his "regret motion."

How the fee increases might affect individuals:

The Law Society gives some examples:

One concerned a pensioner with a claim against a financial adviser for the loss of his entire pension fund, for which the fee for applying to begin court proceedings will increase from £910 to £5,000.

Another case study found that a young girl with brain damage due to a failure by doctors to diagnose meningitis as a toddler will now require £10,000 to mount any fight for a secure financial settlement.

The increases were condemned by the judiciary and by professional bodies such as The Law Society and the Bar Council.

Last week, the Law Society issued a pre-action protocol letter as the first step to obtaining a judicial review of the increases. The letter has been signed by the Bar Council, Chartered Institute of Legal Executives, the Commercial Bar Association, Action Against Medical Accidents and representatives of claimant and defendant lawyers.

The jury

01:44 0 Comments

We know that King John put his seal to a document at Runnymede in 1215.  The document was the Articles of the Barons and eventually it came to be known as Magna Carta (the Great Charter).  There were various versions and what remains of the 1297 version is the one still having legal force today.   Article 29 states:

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



The notions of (a) judgment by peers (that is,"equals") and (b) that justice is not for sale, have survived through the centuries and have had huge significance for legal process in much of the world.

During legal history, older forms of criminal trial (e.g. trial by ordeal), came to be replaced by the system of jury trial as we now know it.  The jury is a common law development.  (Here is a summary of the history of the jury system).  In the Crown Court of England and Wales, every working day, juries will be found deciding the most serious criminal cases. The judge directs the jury as to the law.  The jury is the constitutional decision-maker and the jury decides the facts and the question of guilt. Sentencing of those convicted is for the judge and it must be exercised within the sentencing framework set out in legislation and decisions of the Court of Appeal.

In 2014, the athlete Oscar Pistorius went on trial in South Africa for the murder of Reeva Steenkamp.  The trial was by judge alone:  Judge Masipa.  In an article for The Justice Gap, Felicity Gerry QC considered the case - Oscar Pistorius verdicts - 'was it a miscarriage of justice?'   South Africa abandoned jury trial some years ago.  Gerry observes:

"The jury system is a much better option than a single judge. Provided cases are properly presented, it avoids individual attacks on judges and keeps the community in the system. The debate between 12 people in a jury room gives a far more satisfying verdict than a legal judgement which has to be delivered like a complex exam paper."

Attempts to whittle down the jury system are sometimes based on cost with the result that trial becomes a summary trial before a bench of magistrates or even a single District Judge (Magistrates' Courts). Another reason for the legislature requiring trial by judge alone has been risk of jury intimidation - see Criminal Justice Act 2003 Part 7.

Explaining our law and legal system - No.4 - Juries - June 2011. (Note: the article may require some updating).

Magna Cartas united at British Library to celebrate 800th anniversary

A multi-angled story ...

15:05 0 Comments

 The revelation of the name of the individual usually referred to as "Jihadi John" is a news story with several legally interesting aspects.  He has been named as Mohammed Emwazi - BBC 26th February.  Some time ago he had contact with the organisation CAGE which had received some of its funding from certain charities.

CAGE recently published a statement concerning "Jihadi John" (Mohammed Emwazi) who, CAGE claims, was "harassed" by MI5 and this may have contributed to the radicalisation of the Kuwaiti-born computer graduate who grew up in west London - see BBC 27th February - CAGE: Important human rights group or apologists for terror?  This individual is said to have wielded the knife in the murders by beheading of a considerable number of people such as the American journalist James Foley - (Wikipedia Jihadi John).

The CAGE comments about Emwazi have been condemned by several politicians, including the Prime Minister and Boris Johnson (Telegraph 1st March 2015).  


Although Downing Street will not comment specifically on the identity of Jihadi John, Mr Cameron’s official spokeswoman attacked the comments by Cage in the strongest possible terms.  She said: “It is completely reprehensible to suggest that anyone who carries out such brutal murders – they are the ones responsible and we should not be seeking to put blame on other people, particularly those who are working to keep British citizens safe. The people responsible for these murders are the people we are seeing in the videos.”

What is CAGE?

Its website states that it is - "an independent advocacy organisation working to empower communities impacted by the War on Terror. The organisation highlights and campaigns against state policies, striving for a world free from oppression and injustice."  Needless to say, CAGE has frequently been very critical of many aspects of governmental policy in relation to the "War on Terror" etc.  CAGE is not itself a charity but it has received some funds from the Joseph Rowntree Charitable Trust and the Roddick Foundation.  Charity Commission inquiries are taking place into the compliance of those charities with their charitable objectives - (see also BBC). The Rowntree Trust has responded with this statement.

CAGE bank accounts:

In 2014, CAGE bank accounts were frozen by, it appears, the banks with whom CAGE had accounts.  The precise reasons for this are not particularly clear though it is said that it was due to the connection between CAGE and Moazzam Begg - Third Sector 7th October 2014   Begg was released after terrorism charges against him were withdrawn - BBC 1st October 2014.  Furthermore, financial restrictions on Begg were lifted by HM Treasury - The Guardian 14th October 2014.  In relation to terrorism and banking see the Terrorist Asset-Freezing etc. Act 2010.  
 
Charities and how they apply their funds:

Charities are those bodies meeting the requirements of the Charities Act 2011.  A charity must have charitable purposes (see the Acts sections 2 and 3) and it must also meet the public benefit requirement (see section 4).  The powers of the Charity Commission have been enhanced considerably by recent legislation and the Commission must remove from the register any charity which it no longer considers is a charity- section 34. Appeal lies to the Charity Tribunal (now in the General Regulatory Chamber).   

The Charity Commission website states that - "Charity trustees must use their charity's funds and assets only in furtherance of the charity's purposes. They must ensure that funds are properly protected so that, for example, they are not used for illegal or improper purposes, including for terrorist and other criminal purposes. In practice, a significant aspect of a trustee's legal duty to protect charitable assets with the necessary care means ensuring that where a charity gives money to partners or beneficiaries, or uses partner and delivery agents, or where it funds other projects, charity trustees must properly and appropriately monitor the use of the charity's funds, checking both that funds reach their destination and that they are used for the purposes intended."  (Charity Commission - Due diligence monitoring and end use of funds).

Quintin Kynaston Academy - Emwazi's School:

The school which Emwazi attended is the subject of an inquiry ordered by the Secretary of State for Education - Telegraph 28th February 2015.   The fact that Emwazi attended the school, as well as two other Islamist fighters, has raised questions over what measures had been in place to tackle the radicalisation of Muslim teenagers.   A third Islamist fighter was taught at the same north London academy.   Choukri Ellekhlifi, a contemporary of Jihadi John at Quintin Kynaston academy, was killed fighting with terrorists in Syria in 2013.  The disclosure comes after The Telegraph reported that another former pupil at the St John’s Wood school, Mohammed Sakr, had died fighting for al-Shabaab, an affiliate of al-Qaeda in Somalia.

In July 2014 the Education Select Committee looked at Radicalisation in Schools 

The Counter-Terrorism and Security Act 2015 Part 5 is headed - Risk of being drawn into terrorism.  This Act imposes on "specified authorities" (see Schedule 6) a duty to "have due regard to the need to prevent people from being drawn into terrorism."  This is referred to as the "Prevent Duty" - see The Guardian article "Counter-terrorism duties: What schools need to know" 

Speakers at Universities:

 The Guardian reports a political row over limiting free speech on university campuses.   This row has erupted in the wake of the evidence that Emwazi may have been radicalised at Westminster University in London where he studied computer science.

Westminster University has published guidance for external speakers. In early February, the government sought to assure universities that the Counter-Terrorism and Security Bill (now an Act) would not endanger freedom of expression.   In relation to Universities, Section 31 of the Counter-Terrorism and Security Act 2015 Part 5 is of particular relevance.

Control Orders v TPiM:

The coalition government's decision to replace Control Orders with TPiMs has come under renewed scrutiny - BBC 2nd March 2015.   The Shadow Home Secretary (Yvette Cooper) said that the relocation powers contained in control orders should not have been ended. The Home Secretary (Theresa May) defended the present position.  The debate may be read HERE.

See the Terrorism Prevention and Investigation Measures Act 2011