Ambros Roth

On Tuesday 28th May, The Independent reported that 'the creator of a far right extremist group' had 'promised to ‘arrest’ Islamist cleric Anjem Choudary by 6pm tomorrow if the Met police do not.'

Who is Anjem Choudary and just what is a 'citizen's arrest?'

Soldier Lee Rigby was brutally killed in Woolwich on 22nd May. Certain individuals are under arrest and consequently the case should not be discussed further. Anjem Choudary, described as a 'Radical Islamist preacher' appeared on BBC Television and said he was shocked by the murder but did not condemn it. Choudary maintained a line that the killing was linked to British and U.S. foreign policy. Feelings were running high in the aftermath of the killing and the BBC came in for some vociferous criticism for allowing Choudary to state his views on TV - see, for example,The Guardian. Some politicians demanded that the Police act against Choudary perhaps for 'stirring up' hatred on religious grounds - The Sun 26th May.

In English law, arrest is
usually best left to the Police but there is a somewhat limited right for the citizen to effect an arrest. The history of this is convoluted and this post looks just at the modern position which is set out in the Police and Criminal Evidence Act 1984 section 24A. (The 1984 Act was amended by the Serious Organised Crime and Police Act 2005 and by the Racial and Religious Hatred Act 2006).

The 1984 Act s24A:

Arrest without warrant: other persons

(1) A person other than a constable may arrest without a warrant -

(a) anyone who is in the act of committing an indictable offence;

(b) anyone whom he has reasonable grounds for suspecting to be committing an indictable offence.

(2) Where an indictable offence has been committed, a person other than a constable may arrest without a warrant -

(a) anyone who is guilty of the offence;

(b) anyone whom he has reasonable grounds for suspecting to be guilty of it.

(3) But the power of summary arrest conferred by subsection (1) or (2) is exercisable only if -

(a) the person making the arrest has reasonable grounds for believing that for any of the reasons mentioned in subsection (4) it is necessary to arrest the person in question; and

(b) it appears to the person making the arrest that it is not reasonably practicable for a constable to make it instead.

(4)The reasons are to prevent the person in question -

(a) causing physical injury to himself or any other person;

(b) suffering physical injury;

(d) making off before a constable can assume responsibility for him.

(5) This section does not apply in relation to an offence under Part 3 or 3A of the Public Order Act 1986.

The Public Order Act 1986 - Parts 3 and 3A:

Part 3 is concerned with Racial Hatred. Part 3A - concerned with Religious Hatred - was enacted by the Racial and Religious Hatred Act 2006.

One feature of the Racial and Religious Hatred Act was that it inserted subsection 5 into s24A of the Police and Criminal Evidence Act 1984 and this prevents any citizen's arrest for offences under Parts 3 and 3A of the Public Order Act 1986. Only constables have power to arrest persons in the context of those offences.

The power under section 24A is limited:

Analysis of s24A shows that it is a limited power. 24A(1) is restricted to arrest of persons in the act of committing an indictable offence or anyone whom the arresting citizen has reasonable grounds for suspecting to be committing an indictable offence. Reasonable grounds are to be assessed objectively and not according to the subjective viewpoint of the person making the arrest.

s24A(2) requires that an indictable offence has actually been committed. Of course, whether an offence has been committed may turn on questions of law.

s24A(3) imposes further restrictions which speak for themselves. The right of the citizen to arrest another is clearly limited to cases where, at the time of the arrest, there is almost immediate risk of injury or property damage or 'making off.' The existence of such risk is, again, to be judged objectively.

s24A is also limited to indictable offences - i.e. any offence which may be tried in the Crown Court but not offences which are summary - that is, triable only by the Magistrates' Court. See Interpretation Act 1978.

Hence, apart for the clearest of cases, the citizen is ill-advised to try to arrest another citizen. If the arrest turns out to be unlawful, the citizen who made such an arrest may well be found liable in tort (civil wrong).

Student point:

Be careful if reading older cases about citizen's arrest. Cases are decided according to the law at the time and, in this area, there has been considerable change.

One of the key prerogatives of the Crown is the right to dispense justice. We have the Royal Courts of Justice in the Strand. Our judges and magistrates sit under the Royal Arms signifying that they dispense justice according to law on behalf of the Crown. In Magna Carta it was asserted that - 'We will sell to no man, we will not deny or defer to any man either Justice or Right.' Little else of that great feudal charter remains but those famous words - a part of the birthright of the British citizen - have resonated down the centuries and, I hope, still remain a fundamental element in the compact between the people and those who govern. Increasingly, in these modern times with huge economic challenges, it seems that the desire for commercialism is pushing aside such old constitutional principles.

The previous post 'Money, money, money ...' referred to a report in
The Times (28th May) that the government was considering privatisation of the courts. It was reported that the government would 'establish the courts as a commercial enterprise, paying its way and freed from Treasury control, with court buildings and thousands of staff put in the hands of private companies.' To counter fears of judges that privatisation would erode judicial independence, the courts would be placed under a Royal Charter - as proposed for regulating the press. The article offered no clues as to what might be in such a charter. Former Lord Chancellor, Lord Falconer, said that he favoured making more money from commercial court users and also favoured requiring those who commit crime making a bigger contribution to the courts but Falconer was not in favour of privatisation. 'The courts should not be beholden to any private provider because the courts have to be independent of every interest.' Judges should not have to negotiate with private contractors over whether, for instance, a court can be open on a Saturday for an emergency injunction' and such control was not compatible with independent justice.

Of course, a perhaps simplistic answer to Falconer's point about opening of courts is that provision for emergency hearings could be built into any contract(s).

The Chair of the Bar Council, Maura McGowan QC, was reported as saying that the 'courts are so much part of the justice system that they ought, in a proper society, to be administered by government as a public institution, just like the health service.' The comparison with the health service - which is far from being problem free - may not necessarily prove to be all that helpful.

It was also reported that Slaughter and May - one of the City "magic circle" law firms was involved in drawing up proposals as well as management consultants McKinsey. Costs for such work were not mentioned.

What else was in The Times article? A statement that fines and fixed penalties would provide another multi-million pound economic stream. No further detail here but it has been repeatedly reported that millions in unpaid fines remain to be collected - e.g. approaching £2bn owed - BBC 20th March 2012. This ought to be a clear priority for the Ministry of Justice (MoJ).

More court closures will be coming: between 80 and 100. Plans have already been drawn up by HM Courts and Tribunal Service in discussion with senior judges led by the Senior Presiding Judge Lord Justice Gross.

According to The Guardian 28th May, the MoJ denied this privatisation story or, more precisely, denied 'wholesale' privatisation. The article states:

The Ministry of Justice has dismissed claims that is actively considering "the wholesale" privatisation of the courts service as part of a radical review to save funds. While confirming that civil servants are looking at ways of improving the efficiency of the HM Courts and Tribunal Service (HMCTS), the MoJ denied that it planned to outsource all court buildings to a private contractor.'

In The Guardian today (29th May) barrister Sarah Vine wrote Privatising the courts system: the public are not customers, they are citizens

This article says that 'Her Majesty's Courts and Tribunals Service is not an enterprise, designed for the pursuit of profit. The very idea is repugnant.' Vine makes a good case and I urge you to read it.

The public are not "customers". They are citizens, and are entitled to public, accountable justice, administered without fear or favour; no sale of justice or right. If the insertion of private interests into the administration of justice did not offend against that principle, it would have been achieved by now.'

Vine sees the impartiality of court staff being affected -'even a fool could grasp the imperative to protect their impartiality' - 'pay people less, erode their job security, and ask them to serve two masters, and you cannot be surprised if they choose the one holding the purse-strings.'

Vine also sees the possibility of high fee paying litigants demanding preferential treatment. 'It will start with queue-jumping, and judge selection. And perhaps the contract-winning companies (....) will be more than happy to instruct their staff to oblige.' She concludes by saying:

'The tide of privatisation inches closer to the heart of our justice system by the day. Security, probation, transport and interpretation services are long gone. G4S provide child-abuse investigators and rape recovery suites, for profit. Legally-aided representation is in the MoJ's cross-hairs. If Grayling has his way, the only heads left above the corporate water will be the judges. For a while, at least.'

Let's bear in mind that we have not (yet) seen any specific proposals. There are undoubtedly financial gains to be made by some reforms and by more effective collection of penalties but the idea of privatisation of the courts is a major step too far and appears to be put forward out of political dogma that commercialism is always desirable. Inevitably, it will place the emphasis on profit. It is likely that the independence of court staff will be affected adversely and, through the intricacies of administration, the ability of the judiciary to control the Queen's Courts (which they may not then be ?) will be impaired. That comes very close to an attack on the very independence of the judiciary which is a jewel beyond compare in a democracy.

For a contrary viewpoint see Law Society Gazette - John Hyde - What is so bad about privatising the courts? Hyde argues that court premises and infrastructure could be improved as well as achieving better administration.

Chris Grayling MP - Sec. of State for Justice

The famous group ABBA sang "Money money money" and money seems to be all that HM Government is concerned with rather than trying to make sensible attempts to bear down on costs without destroying services in the process . People might well be forgiven for thinking that the Ministry of Justice 'Knows the price of everything and the value of nothing.'

Since 1st April, civil legal aid has been slashed under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Many areas of great importance were removed altogether from the scope of legal aid. The full impact of these cuts on access to justice for individuals and families remains to be evaluated.

Legal aid in criminal cases - already curtailed to a considerable extent in recent years - is now under attack and
an e-petition seeks to secure a debate in Parliament about the MoJ's latest proposals. The petition now has in excess of 60,000 signatures but at least 100,000 are needed before Parliament even considers whether to permit a debate. These proposals are likely to lead to serious injustice and the devastation of the independent criminal bar - please see the post by Mark George QC at The [Justice] Gap and also the earlier post on this blog. A truly independent criminal bar is an absolute necessity in any democratic nation: a very building block of democracy.

Law Centres are on the edge of extinction due to lack of funding - The Law Society Gazette (27th May 2013) As cuts of £350m to the civil legal aid budget bite, the services of Law Centres are needed more but local authorities are not usually putting up funds. Central government has little to no interest in funding this valuable sector even though timely advice can often avoid a court or tribunal hearing.

The MoJ's budget is large and, in 2012, the Ministry had 1219 contracts for various services. Some of the contracts involved huge expenditure. Examples include £140m for food; Agecroft Prison Management (£909,747.075); Applied Language Solutions (court interpreter services - see Justice Committee report) £125m; Bridgend Custodial Services Ltd £1515,255,225; Serco (for electronic monitoring of offenders) £176,581,883. Ashley Underwood QC was paid £100,000 for services in connection with the Azelle Rodney Inquiry. The Inquiry website informs us that total legal costs at 31st December 2012 were £1,438,054. Clearly, some of the MoJ expenditure is necessary and some of the contracts may well be 'one offs' but it is no surprise that government is seeking to bear down on some of the costs. Also, bear in mind that court closures over the last few years - especially of Magistrates' Courts - should, by now, have resulted in cost reductions. Further court closures are bound to arise.

For more on the MoJ's 2012 budget - see theintragent blog 29th May - Third letter to the Lord Chancellor - well worth reading!

Outsourcing of probation services is another controversial area. The government wishes to see more use of community sentences with various rehabilitative programmes being offered by commercial providers rather than the Probation Service. Such providers would be paid by results. The New Statesman offers three reasons why outsourcing is not a good idea. The author, Alan White, ends by saying: 'It’s hard not to conclude the reforms are a frantic attempt to put ideology into action before an electoral deadline, rather than any kind of considered response to the problems of reoffending. The Government must tighten up these proposals. Damage to public safety is a high price to pay.'

Please also see the excellent article by Francis Fitzgibbon QC - Short Cuts - which ranges critically over the various reforms put forward by Chris Grayling including the restrictions on Judicial Review particularly in immigration and planning cases.

According to an article in The Times (28th May) by legal editor Frances Gibb and Richard Ford, the latest MoJ wheeze is to privatise the courts. The Times operates behind a pay wall so, if needs be, I will follow up on this later. However, The Times website said:

Courts to be privatised in radical justice shake-up

Frances Gibb, Legal Editor and Richard Ford

'Courts in England and Wales are facing wholesale privatisation under revolutionary plans that would end the system that has existed since Magna Carta. The idea would establish the courts service as a commercial enterprise, paying its way and freed from Treasury control, with court buildings and thousands of staff put in the hands of private companies. It would save the Ministry of Justice £1 billion a year. Funding for the courts would be generated by bigger fees from wealthy litigants and private sector investment, with hedge funds encouraged to invest by an attractive rate of return. To counter judges’ fears that privatisation would erode independence, the courts could be placed under a Royal Charter — as proposed for regulating the press. Chris Grayling, the Justice…'

According to The Guardian 28th May, the MoJ has denied this privatisation story. The article states:

The Ministry of Justice has dismissed claims that is actively considering "the wholesale" privatisation of the courts service as part of a radical review to save funds. While confirming that civil servants are looking at ways of improving the efficiency of the HM Courts and Tribunal Service (HMCTS), the MoJ denied that it planned to outsource all court buildings to a private contractor. Responding late on Monday night to claims that a sale was actively being considered, an MoJ spokesperson stated: "We have always said we are determined to deliver a courts system that is more effective and efficient and provides improved services for victims and witnesses. The proposals being considered are not the wholesale privatisation of the courts service. We are committed to the firm, fair and independent administration of justice.

and, yes, there is little doubt that further cuts are to come. The BBC 28th May reports that 'George Osborne (Chancellor of the Exchequer) has reached agreement with seven Whitehall departments on savings he wants in 2015. The chancellor said he had found 20% of the £11.5bn he wants to cut spending by in the year from April 2015. Justice, energy and communities are among the departments agreeing to "significant savings", he said, adding that health, schools and foreign aid would be protected from cuts.'

In my email this morning came the following:

The e-petition 'Save UK Justice' signed by you recently reached 61,802 signatures and a response has been made to it.

As this e-petition has received more than 10 000 signatures, the relevant Government department have provided the following response:

We have one of the most expensive legal aid systems in the world and spend more than £1billion of taxpayer’s money on criminal legal aid each year. We must ensure we get the very best value for every penny spent. We are tackling areas which are eroding public confidence – such as wealthy defendants who can afford to pay their own costs routinely receiving legal aid; prisoners being given legal aid for issues better dealt with by via the prisoner complaints system; a small amount of high cost cases swallowing up many millions in pubic money; and those who do not have a strong connection to this country qualifying for legal aid. Under the proposals for reform of the criminal legal aid scheme that we are consulting on until 4 June, quality assured duty solicitors and lawyers would still be available – just as they are now. All providers would be required to satisfy specified quality standards when they submit their tenders and subsequently through contractual requirements. They would therefore all be capable and competent of delivering criminal legal aid services to any client. The consultation proposals aim to deliver a more credible and efficient system which will save £220million from the legal aid bill by 2018/19. The consultation is open until 4 June and the department welcomes submissions on its proposals ..... This e-petition remains open to signatures and will be considered for debate by the Backbench Business Committee should it pass the 100 000 signature threshold.

In this post I do not intend to unpick this response save to note that it is misleading in several respects and it will lead to loss of choice of solicitor for legally aided defendants and the allocated solicitor will get the same fee whether the plea is guilty or the case goes to trial. Please consider signing the petition - Save UK Justice. These changes are so crucial that they should not be allowed to be implemented by stroke of the Ministerial pen without Parliamentary debate.

Addendum 29th May:

The Justice Committee will be taking evidence on the criminal legal proposals on 11th June - Parliament.

On 23rd November 2011 this blog looked at The unfolding aftermath of the Iraq War and considered the decision of the Court of Appeal (Civil Division) in R (Ali Zaki Mousa) v Secretary of State for Defence [2011] EWCA Civ 1334 where the court (Maurice Kay, Sullivan and Pitchford LJJ) held that an investigatory process into allegations of ill-treatment committed by British armed forces personnel did not meet the requirements of Article 3 of the European Convention on Human Rights as interpreted and applied by the European Court of Human Rights. The investigatory process had been set up by the Secretary of State for Defence and involved an Iraq Historic Allegations Team (IHAT) reporting to the Iraq Historic Allegations Panel (IHAP).

The Administrative Court has now handed down judgment in R (Ali Zaka Mousa) v Secretary of State for Defence [2013] EWHC 1412 (Admin) - Sir John Thomas President of the Queen's Bench Division and Silber J. It is a
lengthy judgment but worth reading for its detailed analysis of the background.

In these proceedings, the claimants contended that, even as reconstituted, the investigative process was still not independent and they sought a more far reaching inquiry.

The investigative task is a large one with some 150-160 cases involving death (Article 2) and 700-800 cases involving mistreatment in breach of Article 3. The precise numbers will be determined by decisions as to the scope of the application of the European Convention on Human Rights to the activities undertaken by the British armed forces in Iraq. This latest judgment makes no decision on territorial scope. The Secretary of State faces an unprecedented task if he is to comply properly with legal requirements for effective and independent investigation.

The allegations involve murder, manslaughter, the wilful infliction of serious bodily injury, sexual indignities, cruel inhuman and degrading treatment and large scale violation of international humanitarian law. The incidents in relation to which the allegations arise are fact specific and what happened is often unclear and the subject of dispute. Many of the incidents occurred several years ago and the Iraqi witnesses are largely resident in Iraq. Some incidents have been the subject of prosecution and more may be. The only public inquiry that has been completed, Baha Mousa, has cost £25m and the second, Al Sweady, has cost more than £17m so far. Other investigations established by the Secretary of State are costing about £7.5m a year.

The court was satisfied that 'the Secretary of State has been assiduous and conscientious in his attempts to try and discharge the duties imposed on the State in these unprecedented circumstances, but it became apparent in the course of the proceedings that some further reconsideration must be given.' The court was satisfied that IHAT has been structured in such a way that it can independently carry out its investigative and prosecutorial functions. However, a new approach was needed if the investigation was to be concluded in a timely, cost effective and proportionate manner. The court set out its views on this at paras 212-221. Further, reconsideration was required of the way in which the duty to assess the systemic issues and to take account of lessons learnt is discharged so that there is greater transparency and public accountability. The court's views are at paras 222 to 225.

The court suggested that, suitably adapted, a form of inquisitorial inquiry derived from the model used by coroners might be used. The task could be broken down into different inquiries conducted by differently appointed persons for different deaths. This would permit a case by case examination and could be thorough and expeditious.

The judges recognised that the process they were suggesting lacked an independent person who could give the inquiries overarching direction or who could provide a comprehensive overview of the recommendations that should be made. However, there was no reason why the Secretary of State through his senior civil servants could not ensure that the necessary overarching momentum was maintained so that inquiries are commenced as soon as permissible and are completed as swiftly as possible. There could also be a designated judge to deal with any unresolved issues - e.g. whether any death is within the territorial scope of the Convention. The judge would be provided with regular information as to progress of each inquisitorial inquiry. He would hear applications if there was undue delay or other issues arose. Furthermore, since the Secretary of State is accountable to Parliament, there was no reason why a Parliamentary Committee could not scrutinise the wider or systemic issues and the recommendations made.

The court viewed this type of process as 'more than a sufficient counterbalance to the real difficulties relating to time, cost and manageability which would necessarily be inherent in the establishment of an overarching single inquiry.'

Thoughts:

The case is of particular interest in that we see the judges suggesting a way forward for the government to adopt if legal obligations for thorough, effective and independent investigation are to be met. The suggested approach may prove to be preferable to a very lengthy and highly expensive public inquiry (such as Baha Mousa or Al-Sweady). Such inquiries are not particularly suited to dealing with multiple specific cases. The idea of a Designated Judge to rule on legal issues seems sensible but further legal challenges might arise to the judge's decisions (e.g. by way of any appeals). There may also be greater difficulties than perhaps the judges envisaged in meeting the needs of the families to have any legal advice/representation and access to any hearings.

The government's response is awaited.

The Guardian 24th May - UK ordered to hold inquests into civilian Iraq deaths during Iraq War

UK Human Rights Blog - Adam Wagner - High Court directs major overhaul of Iraq death and mistreatment allegations

Former Conservative Party Chairman Lord McAlpine of West Green brought a libel action against Mrs Sally Bercow - wife of the Speaker of the House of Commons.

On 2nd November 2012, BBC Newsnight carried a story relating to child abuse at Bryn Estyn care home in the 1970s and 80s. A person perpetrating that abuse was described as a 'leading Conservative from the time.'    Sally Bercow tweeted - "Why is Lord McAlpine trending? *Innocent face*"

As a preliminary issue, Tugendhat J had to rule whether this 'tweet' was capable of bearing a defamatory meaning. His ruling is is at Lord McAlpine of West Green v Sally Bercow [2013] EWHC 1342 (QB).   It was necessary to assess the 'tweet' as it might have been understood at the time it was written as opposed to how it might look with the benefit of hindsight.

Tugendhat J said -
'The applicable law is well established and not in dispute. As a matter of law, words are defamatory of a claimant if (1) they refer to that claimant and (2) they substantially affect in an adverse manner the attitude of other people towards the claimant, or have a tendency so to do.'

Words are capable of either their 'ordinary meaning' or an 'innuendo meaning.'

The judge held that the Tweet meant, in its natural and ordinary defamatory meaning, that the Claimant was a paedophile who was guilty of sexually abusing boys living in care. He went on to add - 'If were wrong about that, I would find that the Tweet bore an innuendo meaning to the same effect. But if it is an innuendo meaning it is one that was understood by that small number of readers who, before reading the Tweet on 4 November, either remembered, or had learnt, that the Claimant had been a prominent Conservative politician in the Thatcher years.'

This judgement is worth reading as an example of how a judge assesses whether words written (or said) may be defamatory. The context in which the words are written (or said) is crucial.

Inforrm's Blog carries a considerable number of posts relating to defamation law. For example, the Explanatory Notes to the Defamation 2013 Act are considered here. See also Hugh Tomlinson QC's consideration of McAlpine v Bercow on the Informm's blog - here - where Tomlinson comments:

The case does, ... , illustrate the risks of tweeting in general and the risks of passing on rumours (or being perceived to pass on rumours) in particular.   As Ms Bercow said in her statement issued after the judgment was handed down

“Today’s ruling should be seen as a warning to all social media users. Things can be held to be seriously defamatory, even when you do not intend them to be defamatory and do not make any express accusation. On this, I have learned my own lesson the hard way”.

Links relating to the story:

Libel actions brought by Lord McAlpine against the BBC and ITV were settled earlier - Digital Spy 18th December 2012 'Lord McAlpine formally settles libel actions ...'

Operation Pallial - BBC 29th April 2013

Joshua Rozenberg discussed the case in The Guardian 24th May 2013 - 'Sally Bercow learns the social media rules the hard way in McAlpine case'

BBC apologises for Newsnight child abuse report - 10th November 2012

Defamation Law:

Defamation Act 2013- the Act is not yet in force. Commencement Orders are expected later in 2013. See article on Commencement from Halsbury's Law Exchange.

Global Witness - Defamation Bill becomes law - with link to Libel Reform Campaign's analysis of the 2013 Act

In civil aviation, few reports are more respected than those of the Department of Transport's Air Accident Investigation Branch (AAIB). The AAIB undoubtedly seeks to ensure that its investigations are as thorough as possible and that any recommendations are aimed at accident prevention and improved safety. See the AAIB website where reports are available.

It is definitely NOT the role of the AAIB to apportion blame or liability. This point became firmly established in the UK as a result of a 1958 accident to a British European Airways (BEA) Viscount aircraft near Prestwick Airport (Scotland) - Accident near Prestwick

Following this accident, concerns arose about the process of investigation and the Cairns Committee was set up - (News report of 2nd March 1961). Cairns was clear that the purpose of accident investigation should be to expose defects in structure, equipment or operating systems and procedures rather than the apportionment of blame. The Cairns Committee was reflecting the position already established, for civil aviation, by the Chicago Convention Annex 13 - (see para 3.1 of Accident and Incident Investigation).

Having said this, are the reports of the AAIB admissible in evidence in civil proceedings in the courts?
This point recently arose in the High Court in Rogers v Hoyle [2013] EWHC 1409 (QB) Leggatt J. The claimants in the case are the executors of the estate of Mr Orlando Rogers who was killed in an accident, near Witchampton (Dorset), to a Tiger Moth aircraft in May 2011. The claimants allege negligence on the part of Mr Hoyle who was the pilot. They allege that in the course of the flight Mr Hoyle pulled up into a loop at an altitude of about 1400 ft but lost control of the aircraft, which entered into a spin from which Mr Hoyle was not able to recover. The aircraft crashed into a field and Mr Rogers suffered fatal injuries. Mr Hoyle survived the crash. Prior to the accident, the same pilot had successfully performed loops with another passenger (Mr Diamond) at similar height.

(Note: In aviation, the term 'altitude' refers to elevation above sea level. Height refers to elevation above a particular point on the ground. However, nothing appears to depend on this distinction).

The claimants argue that Hoyle was negligent in that he attempted to perform a loop (a) when he had no or no sufficient training and expertise in aerobatic flying or spin recovery and (b) at a dangerously low altitude such that there was insufficient airspace to recover from a spin. The defendant's case is that he was not attempting to perform a loop when the accident occurred. He says that the rudder pedals jammed and that he was not able to prevent the aircraft from stalling and flipping over into a spin from which, because the pedals were jammed, he could not recover.

Having set out the respective arguments of the parties [paras 3 to 7], Leggatt J then set out the legislative basis for the AAIB [8-10] and the statutory rules governing air accident investigation [11-17]. The AAIB report (of 14th June 2012) is referred to at para. 18. The claimants sought to rely on the report as hearsay evidence [19-20]. The admission of such evidence in civil cases is subject to the Civil Evidence Act 1995. The Act aims to allow hearsay evidence to be admitted with a number of safeguards. The defendant (Hoyle) contested admissibility [21-24] and the claimants counter arguments are set out at [25-26].

Leggatt J pointed out [27] that RELEVANCE is the paramount consideration in modern law. The law had moved away from rules automatically excluding relevant evidence. Exclusionary rules such as the hearsay rule had existed to prevent juries giving excessive weight to such evidence.

Next follows a discussion as to the relevance of the report. This is interesting for the way in which Leggatt J dealt with the question of what amount to be facts and that which is opinion. At [45] the judge said:

'If any non-lawyer was told that the law does not permit a court to have regard to the AAIB Report when deciding how the accident was caused, I am sure that he or she would express astonishment at the suggestion. Unless the court is prevented from doing so, it would be foolish and blinkered to ignore such a valuable resource.'

Leggatt J next referred to three cases where judges had considered AAIB reports to be of value though, in those cases, the formal question of their admissibility had not been raised [46-50]. Furthermore, there was no statutory restriction on admissibility of the report itself [51-52]. Hearsay evidence and the Civil Evidence Act 1995 are referred to at [53-56] and Leggatt J noted that there were several factors relating to the AAIB report which would affect the weight to be given to the evidence by the trial judge but not to whether it was admissible.

It is a long-established rule that opinion is not generally admissible as evidence. A key exception to that relates to expert opinion evidence. Leggatt J - [62] - stated: 'Unless, however, the person expressing an opinion is in a significantly better position than the court to evaluate the facts on which the opinion is based and to draw conclusions from those facts, evidence of the opinion itself is not admissible.'

The status of the AAIB report is next considered [63-67] with Leggatt J concluding that the report would be admissible whether as evidence of fact or expert opinion unless there was legal authority to the contrary. However, it was necessary to consider a substantial body of authority that findings of tribunals and inquiries are not admissible in subsequent proceedings. The authorities cited included several cases where there had been a previous investigation into the cause of an accident resulting in death or injury, and yet the findings of that investigation were held to be inadmissible in subsequent civil proceedings in which compensation for the death or injury was claimed. These included Inquest findings [70-72]; Marine Accident Inquiries [73-76]. The Bingham BCCI Inquiry is also referred to [77-78].

Leggatt J then turned to the controversial case of Hollington v Hewthorn [1943] 1 KB 587 where the Court of Appeal held that a conviction in the Magistrates' Court for careless driving was held not to be admissible in civil proceedings relating to the driving. - [79-83]. The actual decision – that a conviction by a criminal court is not admissible in civil proceedings as evidence that the offence was committed – has been reversed by statute: see s.11 of the Civil Evidence Act 1968. However, the rule was not abolished as regards findings made in earlier civil proceedings and unless and until it is reconsidered by the Supreme Court, the rule must, except in so far as it has been reversed by statute, be taken to represent the law [84-90]. Leggatt J then followed with a detailed analysis of the justification for Hollington v Hewthorn [91-107] and the scope of the rule [108-113]. This is essential reading for the student of evidence. He concluded:

'... the whole of the AAIB Report is admissible as evidence in these proceedings, with it being a matter for the trial judge to make such use of the report as he or she thinks fit. Even if I had concluded that the AAIB Report contains some inadmissible material, I would not have thought it sensible to engage in an exercise of editing out parts of the report. Even on that view, the whole report should be before the court, with the judge at trial taking into account what is admissible and ignoring the remainder.' [114-118].

Further argument that the AAIB Report should be excluded as a matter of discretion were dismissed as being without substance [119-126].

A final point related to the pleadings in the case which, Leggatt J ruled, required some amendment [127-129] A statement of case should plead the material facts which a party avers as part of its case and not the evidence on which the party will rely to prove those facts; and that a reply should plead facts which are relied on to answer a case made in the defence and not facts which form part of the basis for the claim itself. Leggatt J pointed out that both those basic rules had been transgressed [128].

Leggatt J then concluded:

'For the reasons given, I conclude that the AAIB Report is admissible as evidence in these proceedings, and I will make a declaration to that effect. There will be no need to make an order striking out any part of the claimants' statements of case provided that an application to make suitable amendments to the reply is made when matters consequential on this judgment are dealt with after it is handed down.'

Links:

The powers of the AAIB are contained in the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 ("the Regulations"). The Regulations were made to implement the EU obligations of the United Kingdom under Council Directive 94/56/EC of 21 November 1994 ("the Directive").

The EU parallel accident investigation regime is established by Regulation (EU) 1996/2010 ("the EU Regulation").

Update 28th May - this post was kindly reproduced by Legal Business - here

Updated 21st May with some further links

'Injustice anywhere is a threat to justice everywhere' - Martin Luther King - Letter from a Birmingham Jail - 16th April 1963

Having already successfully stripped legal aid from so many areas of civil work, the government is now bearing down on criminal legal aid. 'Price Competitive Tendering' (or PCT) is one of the latest 'in phrases' but what, in practice, does it amount to?

Stripped to its essentials, it means that anyone charged with an offence and who requires legal aid - (that is, most people) - will be allocated a defence lawyer working for one of a small number of large 'defence factory' commercial providers. This lawyer will earn money by case turnover and so will not want to spend too much time on your case and the temptation to advise clients to plead guilty and 'get it over with' will be there.

Does this matter
given that anyone charged with anything serious these days is 'obviously guilty' and classed in the media as a 'scumbag criminal' before the case has even got near a court of law never mind it being actually proved to a jury of our peers? Well it should matter. Make no mistake: the person charged could be YOU. A moment's inadvertence when driving which has massive and tragic consequences for someone else. A false accusation made by a jealous work colleague. An ill-advised 'tweet' posted in a moment of sheer frustration - remember Paul Chambers and the Robin Hood Airport tweet?

Please believe me. If this happens you could find yourself lambasted in the media (which usually only has interest in headlines). You could be remanded into custody or, at best, on bail for a long time probably with restrictive bail conditions whilst the Police take what will seem like forever to investigate the case. Your family life could well be devastated and you will soon know who your true friends are. You could lose your job. So YES - it does matter to each and everyone of us. If it happens you will be more than grateful for having a fearless and independent advocate presenting your case.

Now you may still not believe any of this is about to happen in a 'land of the free' with the 'Mother of Parliaments.' After all I am but a mere blogger these days so why take my word for it? Hang on though! Pease read what Sir Anthony Hooper has to say - Express 19th May Top judge warns Government's legal aid reforms could bring meltdown. He had a distinguished career in the law and as a judge in the Court of Appeal and so he does know what he is talking about.

Perhaps even after that you remain convinced that it can never happen to you. I now urge you to read the excellent blog A Barrister's Wife. Read the stories of: Exhibit A (The "Child Pornographer" - actually an innocent grandfather); and Exhibit B (The "Murderer" - actually an innocent man and the real 'scumbag' remains free); Exhibit C ("The Paedophile"- guilty man not the accused father but the mother's boyfriend) and Exhibit D ("The Fraudster" - female employee 'set up' by other workers). These are true, real-life, stories.

Another great blog on all of this is - Letter to the Lord Chancellor of Great Britain, Secretary of State for Justice - (theintrigant blog 19th May).

The right to choose your own lawyer will, of course, remain in the strict letter of the law BUT the reality will be that unless you are wealthy you will have to make do with someone allocated to you by the State or, alternatively, you may feel forced to represent yourself. No true freedom of choice there.

This is NOT special pleading by lawyers. It is a matter which strikes at the very heart of democracy - a society which believes in the rule of law and in the proposition that an accused person is innocent until proven guilty to a high standard before a properly constituted court which is independent of the government.

Please act NOW to preserve criminal legal aid - get on to your MP (find your MP here) and please sign the PETITION with a view to getting all of this debated in Parliament before the Secretary of State signs off an 'Order' implementing these appalling plans.

Ministry of Justice:

Transforming legal aid: Delivering a more credible and efficient system - Consultation Paper issued 9th April 2013. Responses by 4h June 2013.

--- OOOOO ---

Other links:

The Defence Brief - if lawyers were only interested in their income they would be campaigning to abolish legal aid. 'The truth is that if lawyers got into the legal aid game to make quick and easy cash then they are fools because legal aid has never been well paid in comparison to other areas of privately funded law.'

Of Interest to Lawyers blog - Save UK justice - or else - If citizens are not properly represented when the State accuses them of a crime, then society and civilisation breaks down ......

The Virtual Lawyer (Steve Cornforth blog) - What price justice?

Save UK justice

Legal Voice - Ministers 'out of touch with voters' on legal aid - according to a survey

Bar Council - Legislation and lobbying - Ministry of Justice consultation on legal aid

Save UK Justice

In summary the proposed changes means that:

• You will not be able to choose the lawyer who represents you

• You will not be able to choose a lawyer with a good reputation

• You will not be able to change your lawyer

• Your legal representative will be rewarded financially for agreeing with the case against you

• Less qualified individuals will handle cases involving crime and family law

• Thousands of small firms will go out of business and tax payers money handed to big businesses and corporations

This is the fourth post in a short series aimed at showing how the European Convention on Human Rights (E Conv HR) and the Human Rights Act 1998 (HRA) have made significant and beneficial changes to our domestic law. The earlier posts in the series are Part 1, Part 2 and Part 3.

The Convention has had a profound impact upon the way in which those with mental health problems are treated and cared for. The British Institute of Human Rights (BIHR) has just published an excellent document - Mental Health Advocacy and Human Rights: Your Guide. Aimed at both advocates and people who use services, this handy guide explains how the Human Rights Act can be used in mental health settings to secure better treatment and care for people. It draws on real life stories of how laws and legal cases can be used in everyday advocacy practice, providing helpful flow-charts, worked through examples and top tips. Here is a direct link to the document (pdf - 24 pages).

Sanchita Hosali, Deputy Director of the British Institute of Human Rights said:

“BIHR is delighted to launch Mental Health Advocacy and Human Rights: Your Guide. As we know from working with our partners in Mind Brighton and Hove, Wish and NSUN, all too often people with mental health problems are marginalised or overlooked. We also know that when people understand that they have human rights which are protected by the law; this can give them and their advocates the confidence and power to voice their concerns and get the changes that are needed. We hope that our latest guide will be valuable resource for advocates and individuals, helping to ensure people with mental health problems are treated with equal dignity and respect.”

The Mental Capacity Act 2005 (MCA) - (link to the Act).

As BIHR point out in the Guide, the MCA was designed to protect those who cannot make decisions for themselves. The MCA is underpinned by human rights principles that aim to ensure its provisions are applied in a way that respects our human rights. Guiding principles of the MCA include:

Presumption of capacity: recognition that everyone has the right to make their own decisions if they have the capacity to do so.

Maximising decision making capacity: people should be supported and empowered to be able to make their own decisions.

Right to make unwise decisions: people have the right to make decisions that others might think are unwise.

Best interests: any decision or action carried out on someone’s behalf must be in their best interests.

Least restrictive option: any decision or action carried out on someone’s behalf must be the least restrictive on a person’s rights or freedoms (this is called proportionality).

The House of Lords has just announced the formation of a committee with a remit to examine the Mental Capacity Act in the light of concerns that the procedural safeguards in the Act may not be meeting the requirements of the Human Rights Act 1998.

The papers establishing the Committee go on to say - “The Mental Capacity Act was amended in the light of the Bournewood judgment which found the UK in breach of [the right to liberty]…The recent findings about the treatment of residents at the Winterbourne View care home, together with a recent Mencap report highlighting deficiencies in the care of mentally disordered patients, suggest that the legislative regime for mentally incapacitated adults would merit scrutiny by a House of Lords post-legislative scrutiny committee. Such scrutiny could include consideration of external oversight of the decisions made on behalf of incapacitated individuals by medical professionals and guidelines on “best interests” decisions, where social workers and others have taken over decision-making in areas such as personal welfare, type of care or financial affairs on someone else’s behalf.”

The 'Bournewood' judgment is HL v UK [2004] ECHR 471. The case concerned an autistic man

(HL) with a learning disability, who lacked the capacity to decide whether he should be admitted to hospital for specific treatment. He was admitted on an informal basis under common law in his best interests, but this decision was challenged by HL’s carers. In its judgment, the E Ct HR held that this

admission constituted a deprivation of HL’s liberty and, further, that: the deprivation of liberty had not been in accordance with ‘a procedure prescribed by law’ and was, therefore, in breach of Article 5(1) of the E Conv HR. Also, there had been a contravention of Article 5(4) of the ECHR because HL had no means of applying quickly to a court to see if the deprivation of liberty was lawful.

Deprivation of Liberty Safeguards (DOLS) are part of the Mental Capacity Act - see Sch edule A1 inserted by the Mental Health Act 2007. They are intended to offer additional safeguards for people who lack capacity to ensure they do not have their freedom restricted more than is absolutely necessary, and that any restriction is in their best interests. The DOLS were created as a result of HL v UK. HL was not normally detained (“sectioned”) at Bournewood Hospital. There were no specific guidelines or safeguards for adults without capacity who are deprived of their liberty in hospitals and care homes whilst voluntary patients. The Court found that the detention of the man had been unlawful, and identified a gap in mental health law. The DOLS were designed to plug this gap by requiring an authority that wishes to deprive an adult who lacks capacity of their liberty to do so in a way that respects their human rights.

Court of Protection:

Please see Overview of the Court of Protection. Parliament established the court by enacting Part 2 of the Mental Capacity Act 2005. It came into existence from 1st October 2007 and replaced earlier arrangements often confusingly referred to as court of protection proceedings.

Mental Health Act 2007 - (link to the Act)

The Mental Health Act 1983 allows you to be detained and treated if you have a mental health disorder. The 2007 Act made several important changes to the 1983 Act - see the summary in the Explanatory Notes. For example, the MHA now places a duty on the authority to make reasonable arrangements for ‘qualifying patients’ to have access to an Independent Mental Health Advocate (IMHA). An IMHA can provide a range of support including helping people access information about their rights or any conditions or restrictions they have been placed under, and any medical treatment they are being given.

Care Quality Commission:

There are considerable legal difficulties in relation to the whole area of "care homes" for the elderly and the vulnerable. A Care Qua lity Commission was created by the Health and Social Care Act 2008 The Commission enjoys considerable powers relating to registration of service providers and to inspection and enforcement - (see section 2 of the 2008 Act).

Following the events at Winterbourne View, the UK Human Rights Blog published an excellent article looking at the legal mechanisms available to prevent abuses or to achieve justice for victims - Panorama at Winterbourne Park: the Human Rights angle

Summary:

The E Conv HR has been instrumental in improving the lot of those with mental health problems and the convention continues to have influence via the developing case law as well as through mechanisms such as the recently announced House of Lords committee on the Mental Health Act 2005. Without the requirement in the Human Rights Act 1998 section 6 for public authorities to act compatibly with convention rights, it is doubtful that these improvements would have been made. There is however no room for complacency as events such as Winterbourne demonstrate.

Acknowledgment:

Thanks to Sanchita Hosali of the British Institute of Human Rights for agreement to the inclusion in this post of extracts from Mental Health Advocacy and Human Rights: Your Guide.

Other Links:

Alzheimer's society - Deprivation of Liberty Safeguards

Morgan Cole - Deprivation of Liberty Safeguards

Social Care Institute for Excellence - Deprivation of Liberty Safeguards

Mills and Reeve - Case Law - pdf - a number of cases are considered concerning the Deprivation of Liberty Safeguards

Ministry of Justice - Protecting the vulnerable - Mental Capacity Act

BBC News Bristol - Timeline: Winterbourne View abuse scandal

Winterbourne View - Staff Convicted

Winterbourne View Hospital: Department of Health Review and Response

In 2012, the Home Secretary (Theresa May) was heckled at the Police Federation Conference in Bournemouth because of her stance on Police Pay and Conditions. This year she returned to the lion's den with a message that, subject to consultation with the sentencing council, the sentencing starting point for those who murder a police officer will be a whole life term (without parole) and that the law would be altered to that end - The Independent 15th May. Against a background of the murders of two Police Officers at Hattersley (Greater Manchester) in 2012, this will have been a welcome message to many.

The present sentencing framework:

The sentencing basis is now to be found in the Criminal Justice Act 2003 Schedule 21. Under s269 of the Act, the Lord Chancellor may by Order amend Schedule 21 following consultation with the Sentencing Council. Under section 330(5), the Lord Chancellor's Order must be approved by resolution of each House of Parliament.

The power to amend Schedule 21 has been used previously - see Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term ) Order 2010.

The clear aim of the Schedule, as presently drafted, is
to reserve a whole life starting point for cases which are of exceptional seriousness. For offenders aged 21 or over (at time of offence), the starting point is a a whole life order where the court considers that the seriousness of the offence is exceptionally high. The Schedule then lists some types of case which normally fit that category:.

(a) the murder of two or more persons, where each murder involves any of the following -

(i) a substantial degree of premeditation or planning,
(ii) the abduction of the victim, or
(iii) sexual or sadistic conduct,

(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,

(c) a murder done for the purpose of advancing a political, religious, racial or ideological cause, or

(d) a murder by an offender previously convicted of murder.

The Schedule goes on to provide that, for an offender aged 18 or over (at time of offence), the starting point will be 30 years where the court considers that the seriousness of the offence is particularly high. Again, some types of case which would normally fit this category are listed and these include (a) the murder of a police officer or prison officer in the course of his duty.

Once the starting point is decided, the judge will then apply any aggravating and mitigating factors (see the lists in the Schedule) to the extent that they have not already been allowed for in choosing the starting point. Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order.

It is important to note that, as presently drafted, Schedule 21 is not a rigid 'tick box' system. As the
Crown Prosecution Service indicates (Mandatory Life sentences in murder cases), the judge retains discretion to determine the minimum term - (see R v Sullivan and others [2004] EWCA Crim. 1762 at paragraph 11). However, the court must state its reasons for departing from the guidance.

Whilst the present framework gives a 30 year starting point for the murder of a police officer (in the course of his duty), judicial discretion has been retained and where there are aggravating features the actual term set could be longer. If there are mitigating features then the term could be shorter. The retention of judicial discretion in any change to the law will be essential if serious injustice is to be avoided. Theresa May's announcement referred to a whole life starting point and so it appears that judicial discretion will remain to lower the minimum term if appropriate.

It is interesting to note that Schedule 21 - as now written - refers to prison officers as well as police officers. It is not clear whether Theresa May's thinking extends to raising the starting point for persons other than police officers.

Challenge to 'Whole Life Orders' under the existing framework:

In January 2012, the Fourth Section of the European Court of Human Rights gave judgment in

Vinter and Others v. the United Kingdom - (Judgment of 4th Section). The applicants, Douglas Gary Vinter, Jeremy Neville Bamber and Peter Howard Moore, are currently serving mandatory sentences of life imprisonment for murder. When convicted the applicants were given whole life orders, meaning they cannot be released other than at the discretion of the Secretary of State on compassionate grounds. They argued that their whole life orders amounted to a breach by the UK of the prohibition of inhuman or degrading treatment (Art 3). They also relied on Article 5(4) (right to have lawfulness of detention decided speedily by a court), Article 6 (right to a fair hearing), and Article 7 (no punishment without law). The E Ct HR held unanimously that Art 3 was not violated.

In November 2012, the Vinter case was heard by the Grand Chamber of the E Ct HR - Whole Life Terms for Murder - Vinter and others v UK (28th November 2012). A key point in the argument for the applicants was that when a 'whole life term' is set there is no review mechanism and that, as a result, Article 3 of the E Conv HR is breached. The British government submitted that whole life terms - for murders of the most extreme gravity - do not breach Article 3. This position was supported on 21st November by the Court of Appeal (Criminal Division) sitting as 5 judges with the Lord Chief Justice presiding - David Oakes and others v R [2012] EWCA Crim 2435 - (post at Law and Lawyers 22nd November Two BIG stories).

Judgment in the Vinter case has yet to be handed down by the Grand Chamber.

Other links:

List of Police Officers killed in the line of duty since 1900

Odegbune and others v R - Court of Appeal 15th May 2013

Today it is reported that the 'Eurozone' continues to be in recession - (The Guardian 15th May). Yesterday, a DRAFT European Union (Referendum) Bill was published on behalf of the Conservative Party - BBC 14th May.

The Bill provides for a referendum on EU membership to be held on any date up to 31st December 2017. The referendum would be triggered by an Order made by the Secretary of State though there is a requirement for the Order to be 'laid before, and approved by a resolution of, each House of Parliament.'

Clause 3(3) enables the Order to modify or amend 'this Act or another enactment.' Henry VIII is alive and kicking - (see views of Lord Judge CJ - Henry VIII clauses). Clause 3 reads:

Conduct of the referendum and further provisions

(1) The Secretary of State shall by order provide for the rules in accordance with which the referendum is to be conducted.

(2) The Secretary of State may by order make further provisions about the referendum.

(3) An order under this section may make provision modifying or amending this Act or another enactment.

(4) An order under this section may not be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.

The Bill has been introduced at this time for party political reasons with 'Eurosceptic' MPs worried about the success of the UK Independence Party (UKIP) in the recent local government elections. The Eurosceptics are annoyed that a referendum Bill was not included in the recent Queen's Speech. For more of the political detail see, for example, The Guardian and for details of Britain's financial contribution to the EU - see B udget Information.

The draft legislation has been published by the Conservatives so that it can be brought to the Commons for debate by one of the party's backbench MPs in the form of a private member's bill, rather than one sponsored by the government.

It will be interesting to watch the political shenanigans over this matter. Of course, even if the Bill eventually becomes law, it will not bind the next Parliament since it is a basic principle in Constitutional Law that 'Parliament may not bind its successors' - see Public Law for Everyone

Addendum 16th May:

The Guardian - Cameron snubbed by 114 Tory MPs over absence of EU poll in Queen's Speech

BBC - EU Referendum: Tory MP will take forward bill

Ambros Roth

Sponsor

Citizen's Arrest - a limited power

Arrest without warrant: other persons

Privatisation of the courts?

Money, money, money ... just where is justice heading?

The aftermath of the Iraq War - the continuing story

Tweeters beware ~ a defamatory tweet ~ Lord McAlpine v Sally Bercow

Air Accident Investigation Branch Reports - admissibility in evidence at civil proceedings

The real 'scumbag criminal' is still free ~ A matter at democracy's heart

Domestic Law and the European Convention on Human Rights - No. 4

Whole Life Orders for murder

At Westminster, Henry VIII is alive and kicking !

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