VAT ~ an interesting case in the First Tier Tribunal (Tax Chamber)

'Value Added Tax' is disliked by most end-of-the-line consumers but it is a major 'earner' for governments.  In the UK, it was introduced in 1973 following entry to the European Economic Communities (EEC).  From 4th January 2011, the coalition government increased the rate to 20%.   Some things (such as 'food') are 'zero-rated' so there is VAT in theory but not in practice and it is, technically speaking, open to government to impose a rate.  More details of VAT are at HM Revenue and Customs (HMRC).

From a business viewpoint, where the 'registration threshold' is exceeded, a supplier of goods or services has to register for VAT and, in other cases, a business may apply for voluntary registration.   Registered businesses account to HMRC for the difference between output and input VAT.  Consider a business (B).  Output VAT is that which B collects from sales of its business output.  Input VAT is that which B has to pay on its purchases (i.e. input to the business) - see HMRC - How VAT is charged and accounted for.  The difference between output and input has to be accounted for.  Clearly, if output exceeds input then B has to pay the balance to HMRC.  Conversely, a claim may be made to HMRC.

These arrangements often result in businesses
holding large sums of money pending payment to HMRC.  In many instances, the temptation to disappear with that money has proved too much to resist and it is hardly a surprise that various 'scams' have arisen to try to avoid payment - HMRC VAT fraud.  These are referred to as 'Missing Trader Intra-Community' fraud (MTIC fraud).

There are two types of MTIC fraud - acquisition and carousel - as well as one variant - contra trading.  Complexity is frequently added by fraudsters operating via networks of companies often across several international boundaries.  A key element in such frauds is that despatches of goods within the European Union (EU) between VAT registered businesses are not subject to VAT.  As a very simple example, trader A (in UK) buys from trader B (in France).  No VAT at this stage.  A then sells the goods to trader C (in UK) and A receives the VAT on that sale from C.  Trader A then disappears with the money.  This example would be an 'acquisition fraud'. 

The amounts of money involved can be massive.  In the Mobilx case [2010] EWCA Civ 517, Elias LJ began by stating:

'For many years, Her Majesty's Revenue and Customs (HMRC) have attempted to combat "missing trader intra-Community" VAT fraud. It is notorious that the trades in bulk mobile phone and computer chips are especially susceptible to that type of fraud. Latest published estimates (Measuring Tax Gaps, December 2009) disclose potential losses in 2005-2006 of up to £5.5 billion and in 2008-2009 of up to £2.5 billion.'

The staggering extent of loss due to fraud is considered in an article BDO Fraudtrack report reveals shocking cost of VAT fraud to UK.    See also HMRC's document 'Measuring Tax Gaps' published in 2012.  

A recent case in the First Tier Tribunal (Tax Chamber) illustrates some of the complexity:  CCA Distribution Ltd v Commissioners for HMRC [2013] UKFTT 253 (TC) - the decision is also available via Bailii.  The case was concerned with decisions of the Commissioners to deny to CCA the right to deduct input tax.  The Commissioners argued that certain deals were connected with fraudulent evasion of VAT and that CCA knew (or should have known) this.   For the periods of time in question, CCA's trading activity involved buying mobile phones from UK suppliers and exporting them to other European Union (EU) States.

The First Tier Tribunal - with its various Chambers - came into being as a result of the reorganisation of tribunals following implementation of the Leggatt Report (2001) by the Tribunals, Courts and Enforcement Act 2007.   The structure is explained at Lawobserver-Tribunals.     In the CCA case, the Tax Chamber comprised just two members: a judge and a lay member.  They disagreed as to whether CCA should be allowed to deduct the tax.  The tribunal judge exercised his casting vote to decide the case in CCA's favour.


In 2006, the European Court of Justice (now the Court of Justice of the EU) decided Axel Kittel v Belgian State where it was decided that a taxable person is not entitled to deduct input tax where "it is ascertained, having regard to objective factors, that the taxable person knew or should have known that, by his purchase, he was participating in a transaction connected with fraudulent evasion of VAT"

Mobilx is the key English appellate decision on the interpretation of the words 'knew or should have known.'   The Court of Appeal considered the Axel Kittel judgment and held that in order for a taxable person to be deprived of the right to deduct input tax it had to be shown that he knew or should have known that his transaction WAS connected with fraudulent evasion of VAT.  It was not sufficient to show that the trader knew or should have known that it was more likely than not that his transaction was so connected.   However, a trader could be regarded as a participant and lose his right to deduct where he should have known that the only reasonable explanation for the circumstances in which a transaction took place was that it was connected with VAT fraud.

Returning then to the CCA case in the First Tier Tribunal.   The tribunal stated (para 386) that, as decided by Mobilx, it was enough to show that CCA knew or should have known that the only reasonable explanation of their dealings was that they were connected with fraud.  Given the complex factual background, the tribunal found this to be a borderline case (para 387) with the judge finding in favour of CCA's entitlement to deduct input tax whereas the second member came to the opposite view.  The judge's casting vote was then exercised to decide in favour of CCA.

A fuller explanation of the CCA case has been published by Mr James Pickup QC who represented CCA before the tribunal.  Pickup states:

' .....post Mobilx the Tribunals are moving away from a slavish examination of a trader’s due diligence and considering more the overview of the appellant’s trading practices, perhaps going back over a period of years, to determine the circumstances of its trading and whether in the appeal period there was any aspect of the trading which should have indicated that the “only reasonable explanation for the circumstances of the transaction was that it was connected with fraud”.

Other links:

Mobilx explained  - Maitland Chambers

Mobilx explained  - Monckton Chambers

Outlaw.com - Missing Trader Fraud

International Tax Review 28th August 2012 - Introduction of new measures to tackle VAT fraud

Accounting Evidence - 17 year sentence for VAT carousel fraud - R v Ravjani [2012] EWCA Crim 2519.
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Legal News - Legal aid - Hillsborough - Human Rights - Road safety - Kenya: a colonial legacy

Legal Aid - The Ministry of Justice received in the region of 13000 responses to their Transforming Legal Aid consultation.  Many of the responses are from bodies and practitioners with immense experience in the legal world.  Links to a sample of such responses are on the earlier blogpost.  On 4th May, a protest at the Ministry of Justice was addressed by several speakers including excellent speeches from Dinah Rose QC (a declaration of a lack of interest), Michael Fordham QC (the avocado of justice) and Geoffrey Robertson QC (there is a hidden agenda) - have a look at Head of Legal blog.    See also Garden Court Chambers blog - Speech of Stephen Knafler QC.  At this stage, it is possible for the Ministry to rethink their proposals given the overwhelming evidence that immense damage will be caused to justice should they bulldoze ahead and simply go for implementation.  The Ministry should rethink and engage with the legal profession and others to see where savings can be made without destroying the very fabric of justice for the citizen.

The MoJ is also beginning a full scale review of the legal services framework - Solicitors Journal 5th June. 

Hillsborough - In December 2012
the High Court quashed the earlier Hillsborough inquest verdicts and ordered fresh inquests.  Subsequently, Lord Justice Goldring was appointed as Assistant Deputy Coroner for South Yorkshire (East) and West Yorkshire (West) with a remit to conduct the fresh inquests - see their website Hillsborough Inquests.   Goldring LJ held a hearing in April and a further hearing on 5th June in London.  At the latter it was decided that the inquests would commence on 31st March 2014 at a venue in the North West of England - BBC News 5th June.  There will be a jury and the inquests will be Article 2 compliant.  On Article 2 compliance, please see post of 10th January 2013.

At the 5th June hearing, concern arose over the new police investigation under the leadership of Durham Chief Constable Jon Stoddart.  The judge expressed concerns during the hearing about the speed of the investigation into any criminal aspect of the disaster. Samantha Leek QC, representing the Stoddart team carrying out the probe, told the judge they were planning to complete interviews by December.  There was laughter from some of the Hillsborough victims' relatives when she said an advert had been placed for 70 or 80 additional officers on Friday.  When this was queried by the judge Ms Leek explained there had been "delays in the Home Office signing off on the recruitment of further officers".

It seems that G4S - heavily criticised over their handling of security at the London Olympics - are involved in the recruitment process for the fresh police investigation -  Clare Sambrook 30th May 2013 - Opendemocracy. 

Human Rights - Judge Dean Spielmann, the President of the European Court of Human Rights has commented that it would be a 'total disaster' for the UK to withdraw from the European Convention on Human Rights.  The Convention is, of course, inextricably linked to membership of the Council of Europe and also the European Union.  See the article by Joshua Rozenberg in The Guardian 4th June.

Road safety - The government's Department of Transport has a new campaign against drinking and driving and is also going to enable the Police to issue fixed penalty notices for careless driving (New plan to tackle tailgating and middle land hogging).   More detail on all of this is at Dept. of Transport - here.   The Department aims to bring the changes into force by July.  The implementation date will coincide with the completion of the national computer system, currently being rolled to all the police forces and Magistrates' courts in England and Wales. The new computer system will be used to record and process fixed penalty notice offences, and will enable police forces to deal with these offences more efficiently.

Kenya: a colonial legacy - The UK government is to express regret and announce compensation for thousands of Kenyans who were tortured during the Mau Mau uprising in Kenya in the 1950s.  Foreign Secretary William Hague is expected to announce compensation in the region of £14m ($20m).  More than 5,000 Kenyans say they were mistreated - some through torture - by the then-British administration.   BBC News 6th June BBC News 6th June.    This has followed extensive litigation in the High Court which commenced in January 2010 - see Matua and others v Foreign and Commonwealth Office [2011] EWHC 1913 (QB) - McCombe J where the government argued that any liability now belonged to Kenya and  Matua and others v Foreign and Commonwealth Office [2012] EWHC 2678 (QB) - McCombe J - where it was argued that the claims were time-barred .   Earlier post of 26th January 2010 - Britain and a ghost from the colonial past. 

Foreign Secretary's statement to Parliament 6th June 2013


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Some responses to MoJ consultation on Transforming legal aid

Protest at Liverpool 4th June
*** Please sign the e-petition on Legal Aid

Now at 73 links:

Legal aid is the beating heart of the rule of law - Michael Fordham QC

No lawyer should have a financial interest to betray his client - Geoffrey Robertson QC

The proposals fail the basic test of good administration - Dinah Rose QC

The government's consultation on Transforming legal aid ends today.  At court locations throughout England and Wales there were brief  'silent protests' just before 10 am.

Over the next few days I will add to this post links to some responses to the consultation where the writers have chosen to publish them - for example, on their blogs or via legal practice websites etc.  Inevitably, these will just be a sample of a very large number.  They appear in no particular order other than the order in which I came across them.

The Ministry of Justice has indicated that it will consider the responses and comment in the autumn.

There are signs that the general public is becoming aware of the devastating impact of these proposals on their rights - e.g. to choose their own solicitor if charged with a criminal offence.

Here are the links ...................


Bar Council   Law Society

One Inner Temple Lane     Five King's Bench Walk    Nine King's Bench Walk

Eleven King's Bench Walk        13 King's Bench Walk

Garden Court North - Save UK Justice          15 New Bridge Street

Garden Court London

Criminal Bar Association - Special Edition 4th June

Haldane Society of Socialist Lawyers   Family Law Bar Association 

Bingham Centre for the Rule of Law    Deans Court Chambers, Manchester

Public Law Project    Immigration Law Practitioners Association

Legal Services Consumer Panel        

St Johns Buildings    Freemans Solicitors

British Institute of Human Rights         Carmelite Chambers

Association of Prison Lawyers       Council of Circuit Judges        INQUEST

9 - 12 Bell Yard     5 St Andrew's Hill     Housing Law Practitioners Association

Shelter       Mr Francis Hoar - Barrister      Lawyer Watch (Richard Moorhouse)

No. 187 Fleet Street - Barristers         Doughty Street      One Crown Office Row

Sir Henry Brooke    Treasury Council     Matrix Chambers     Kent Law School

Freemans Solicitors    Black Solicitors Network       Resolution

Justrights (Children and Young people)      Leicestershire Law Society

The Parole Board    Birnberg Peirce and Partner

LIBERTY     Birthrights    Law Centres Network    Prisoners' Advice Service

Runnymede Trust       Judicial Executive Board

Local authorities   Charter Chambers

Constitutional and Administrative Law Bar Association and Bar European Group - (a joint response)

Church of England      Magistrates' Association ( Judicial Policy, Family Courts, Courts & Court Practice Committee)

25 Bedford Row       No Recourse to Public Funds Network     Children's Commissioner for England

Professor Roger Smith         TV Edwards LLP     Birds Solicitors

Association of Lawyers for Children     Tooks Chambers       Unite the union

Nick Cockerell Solicitor (a personal response)     Discrimination Law Association

Rights of Women    Mental Health Lawyers Association    Society of Asian Lawyers 

JUSTICE     HM Chief Inspector of Prisons    Public Interest Lawyers    


LOTS MORE  see Crimeline for an archive with numerous responses

ilegal (links to various responses)

Other links of interest:

Family Law Network (Arguments for and against change)

Six reasons why cuts to legal aid will ruin our justice system  (Simon Myerson QC)

Conor Gearty: Legal aid changes - UK Constitutional Law Group

Law Society Gazette 12th June - Top judges compound Grayling's PCT woes



Teeside 4th June
Newcastle 4th June
Ministry of Justice 4th June
My response:



Response to “Transforming Legal Aid”

Introduction:
The proposals of the Ministry of Justice in “Transforming legal aid: delivering a more credible and efficient system” (the consultation) are almost completely unacceptable for reasons which I put forward in this response.    Perhaps the majority of people will never have need of legal aid but even the most law-abiding citizen cannot entirely discount the possibility.  For example, a momentary lapse of concentration when driving may result in devastating consequences for another and result in the driver being charged with an offence requiring a trial in the Crown Court.  A document prepared by the British Institute of Human Rights offers numerous other examples of cases where often vulnerable individuals have required and benefited from legal aid – (BIHR – Proposed changes to Legal Aid: Why this matters to us all).  The right of the citizen to access the courts or tribunals is a fundamental element in democracy and, I believe, the proposals place excessive fetters on that right.  The proposals also place the citizen charged with an offence at an immense disadvantage compared to the State funded prosecution.


Of absolutely crucial importance in a democracy is the ‘rule of law’ and means must be available to ensure the legality of decisions taken by public bodies (including Ministers).  Application for Judicial Review is one way in which the legality of decision-making may be tested by a citizen with sufficient interest to be permitted to take the matter to court.   Contrary to popular belief, the legal profession  does not advise any client to embark on judicial review lightly and, even if they do so, the judges are astute to weed out weak cases at an early stage.   Placing further restrictions on access to judicial review is inimical to the rule of law.  It would be, in many instances, a denial of justice.


Given numerous statements by politicians, a rather sinister and authoritarian picture of governance is emerging and, on this, I hope that I am wrong.  Withdrawal from the European Convention on Human Rights is not ruled out by the Home Secretary.    That would appear to mean withdrawal from the Council of Europe of which the United Kingdom was a founding member and which has done immensely good work for the people of Europe.   Civil legal aid has already been severely curtailed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and many areas, of crucial importance to many ordinary people, no longer attract any legal aid apart (perhaps) under ‘exceptional funding’ rules.   In this latest consultation we see proposals which, I submit, will have the effect of decimating the legal profession and making justice even more remote from the ‘hard working families’ which the government is usually arguing it supports.
The proposals, if implemented, are bound to have major long-term adverse impact on access to justice, the right of the accused to have his case put to a court by a lawyer of his own choosing and the reputation of our country as a place where the rule of law is intact.    The latter could well have serious economic consequences.


I see no evidence that the public have lost confidence in legal aid though I acknowledge that certain types of case can be presented as particularly wasteful of resources.  The media are fond of doing this:  witness, the media coverage of the Abu Qatada deportation case and the Abu Hamza extradition case.  We also hear of high lifestyle criminals on legal aid but this could be dealt with as a discrete issue.  The vast majority of cases are simply not like that and such high profile cases should not be allowed to distort the picture.


The consultation claims that our system is amongst the most expensive in the world.  I believe that this is misleading and the consultation presents little evidence to support that stance.  It is arguable that countries with lower legal aid budgets have higher costs in other areas – e.g. in the running of courts in inquisitorial systems.   Argument on this may be read at AirLawDotMeand I urge you to consider this carefully.
Finally, in this introduction, the massive costs of imprisonment should be noted.  The UK has a very high prison population – e.g. almost double that of Germany.  England and Wales have in the region of 80,000 prisoners at a cost of around £35000 p.a. per prisoner.  A reduction in the prison population would make an immediate and very large saving.  The law of sentencing, last fully reviewed in the early 1990s, requires a review and millions could be saved.


I turn to the specific proposals.


Q1. Prison law


I do not agree that this should be further restricted.  I also do not agree that it should be included in any new criminal contracts.  In any event, prison law cases are not a large element in the legal aid budget.
Prison law practitioners are, at present, rather a specialised element of the legal profession.  Many do not practise general criminal law.  The loss of this element of expertise would be a tragedy and the expertise would not become readily available to any firms granted a legal aid contract.


Q2/3. Financial eligibility for Crown Court


Crown Court obviously handles the most serious cases and action could be taken to retain in the Magistrates’ Courts some of the lower level cases currently reaching the Crown Court.  (Not everyone will agree with the latter but jury trial ought to be retained and used only for the most serious of cases). 
In principle, I do not really like means testing for the Crown Court.  It would seem fairer to provide legal aid but require those found guilty to pay costs.  This would force payment from those guilty persons with the means to pay.  It is particularly unfair to get to a situation, as proposed, in which the acquitted individual who has paid privately will not recover full costs.


Q4. Residence


This one year test appears to me to be arbitrary and it is hard to see why some who have lawfully entered our country should be denied access to justice.   For example, what of the individual who is here seeking asylum from some foreign regime but who is experiencing some unconnected legal difficulty perhaps over accommodation etc.  Denial of legal aid here will not necessarily stop the person going to court but he is then a litigant in person with all the problems and expense that brings.  I therefore disagree with this proposal.


Q5/6: Judicial Review


I referred to this in my introduction.  The attack on the rule of law here is such that these proposals should really have been drowned at birth.  In practice, over half of potential judicial review cases do not even reach the ‘in court’ permission stage since they are settled or withdrawn as a result of timely legal advice.  The judges are then astute to weed out unmeritorious cases.  This reform is unnecessary.  As far as I am aware, most lawyers do not advise JR where the prospects are less than 50% but cases can be envisaged where it might be in the public interest to fund a case even if, for the actual applicant, the prospects are low.  Such cases occasionally arise and enable decisions on difficult points of law to be decided.


Q7/8 Price Competitive Tendering (PCT)


The PCT proposals will have the result that many forms will be put out of business; the criminal bar will be all but destroyed.  Very few lawyers will find it viable to work in criminal law and, in the longer term, where will the criminal judges come from?  Our judges currently come from the ranks of the best legal practitioners (often Queen’s Counsel) and this system has proved its value of centuries and is the envy of much of the world.

I note that:

  • The present Attorney General spoke against PCT when Labour were in office;

  • PCT was abandoned by Labour after reasoned arguments put by the legal profession;

  •  The proposed 17.5% reduction makes this area of work even less attractive and viable;

  • Major problems have arisen in areas where competition has been introduced (e.g. interpretation services);
  • It is hard to seen any ‘providers’ coming forward as entrants to this new market;

  • Many specialist firms will go out of business – e.g. those practising in fraud, prison law or terrorism cases.

I do not offer specific answers to Qs 9 to 16 since I consider that PCT is an unacceptable model.  It is also a very odd model of competition in which the State guarantees each provider in an area an equal share of work (assuming I understand this aspect of the proposal correctly).


A further point is that the proposals care nothing for the public’s ability to easily reach their solicitor.  A defendant in Town A may well have to travel to Town B to see his solicitor.  Perhaps a journey of many miles in some parts of the country.  The allocated solicitor will not know ‘repeat clients’ and so the client’s entire history may have to be considered.


Q17 Choice


Even less acceptable to me is the effective removal of the individual’s right of choice regarding solicitor.  One will be allocated with a low rate of pay and to whom throughput of cases will be the main  consideration.
The removal of choice is very strange for a government which usually advocates choice for the ‘consumer’. 

 
Q18-25 Police Station


Timely advice and assistance by solicitor / accredited representative can save very serious problems arising which can be very expensive and difficult (sometimes impossible) to put right.   For this reason, early stage funding is vitally important. 


Q26 Fees


I see no good reason to pay a lawyer the same for a trial as for a guilty plea and fees should not taper downwards just because a trial runs longer.  (Judges should be well able to control the timescale of a case).  The proposal to cut fees by some 20 to 30% is utterly unacceptable since it will drive away practitioners from criminal law.


Q27/28 Very High Cost Cases


A more fundamental approach here might be to take a serious look at how these cases are handled.  The amount of evidence in some cases can be massive and, sometimes, numerous defendants are tried together.  It is perhaps time to examine the extent to which a different approach might be adopted.


Q29 Multiple advocates


Only if necessary should perhaps be the general rule.  However, the government is rather prone to using multiple advocates in some cases – e.g. THREE x QC for Abu Qatada’s bail hearing!  There are serious and difficult cases with many witnesses and extensive documentary evidence and multiple counsel seems justifiable in such instances.  I ask whether a better approach might be to require judges, through case management, to control this. 


Q30 Family law fees


At this stage I disagree.  The family courts are being re-organised into a unified family court.  This does not seem to me to be the time to be cutting lawyers fees and possibly causing some withdrawal from famil law work.  Once the new family court system has settled down it might be possible to revisit this area.


Q31 Fees to be harmonised in non-family civil cases


I am not entirely sure what is being proposed. I suspect a downwards drift in fees!  If so, many legal practitioners would not be able to continue. Many areas of civil litigation which continue post LASPO to attract legal aid are complex fields.


Q32 Immigration cases


Abolishing the uplift for appeals is unlikely to make this work as attractive but a reduction in the uplift might be possible.


Q33 Expert fees


Expert witnesses are required to inform the courts on matters of specialist knowledge and they are a crucial element in good decision-making.  A cut in fees of 20% is likely to make experts become unwilling to offer their services to justice.


Q34-36 Equality

Quite clearly, several aspects of the proposals will adversely affect minorities.


Conclusion


The consultation document is disingenuous in places and little evidence is offered to support the proposals.  Seen from the standpoint of the rule of law, the proposals are seriously flawed and likely to lead to loss of legal expertise in the courts.  Loss of the UK’s excellent reputation for justice is likely and this may well have serious economic implications given the huge contribution to the economy made by legal services – a point already accepted publicly by Mr Grayling.


I would urge abandonment of this paper and suggest that HM Government gets to work with the legal profession and others to see how costs can be reduced.

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Legal Aid ~ consultation closes 4th June

Under government proposals, criminal legal aid will be severely curtailed - Money, money, money ... just where is Justice heading?. and 'The real 'scumbag criminal' is still free ~ A matter at democracy's heart'.   The government's consultation ends on 4th June - see the consultation  here.

Recently, Gabriela Knaul (United Nations Special Rapporteur on the Independence of Judges and Lawyers) has urged world governments to develop and sustain effective legal aid systems as an essential component of a fair and efficient justice system founded on the rule of law - see Office of the High Commissioner for Human Rights


" Legal aid, a right in itself" - UN Special Rapporteur

GENEVA (30 May 2013) – “Legal aid is both a right in itself and an essential precondition for the exercise and enjoyment of a number of human rights, including the rights to a fair trial and to an effective remedy,” said Ms. Knaul, presenting her latest report to the UN Human Rights Council. “It represents an important safeguard that contributes to ensuring the fairness and public trust in the administration of justice.”


“Legal aid should be as broad as possible,” she said, stressing that its aim “is to contribute to the elimination of obstacles and barriers that impair or restrict access to justice by providing assistance to people otherwise unable to afford legal representation and access to the court system.”

The human rights expert underlined that legal aid should not only include the right to free legal assistance in criminal proceedings, but also the provision of effective legal assistance in any judicial or extrajudicial procedure aimed at determining rights and obligations.

“States bear the primary responsibility to adopt all appropriate measures to fully realize the right to legal aid for any individual within its territory and subject to its jurisdiction,” the Special Rapporteur said. “Beneficiaries of legal aid should include any person who comes into contact with the law and does not have the means to pay for counsel.”

“The right to legal aid must be legally guaranteed in national legal systems at the highest possible level, possibly in the Constitution,” Ms. Knaul highlighted among the specific recommendations provided in her new report.

The independent expert also observed that it is up to the individual State to identify the model that can maximize access to free legal aid for all individuals within its territory and subject to its jurisdiction.

“Regardless of the structure of the legal aid programme or its formal status, it is of paramount importance that legal aid schemes be autonomous, independent, effective, sustainable and easily available in order to ensure that they serve the interests of those who need financial support to have access to justice on an equal basis with others,” she concluded.

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For more information, please look at the following links.  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.

Garden Court North Chambers - Save UK Justice and here is a response to the consultation from Pete Weatherby QC of Garden Court North.

Law Society - Criminal legal aid

Bar Council - Legal profession joins forces to oppose unreasonable legal aid proposals

Law Society - Leading academics warn that legal aid cuts could have devastating effects

British Institute of Human Rights - Proposed changes to legal aid: why this matters to us all

The Independent - Legal aid cuts put a generation of children in danger

Airlawdotme 15th April 2013 - Legal aid reform - the justification - looks at some international comparisons

Lawyer Watch 3rd June 2013 - Response to legal aid consultation

The government is also bearing down on access to judicial review - a process by which Ministers and public bodies can be made accountable to the rule of law.  Please read the letter to The Telegraph by 90 Queen's Counsel.  Also, Short Cuts by Francis Fitzgibbon QC
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60 years ago today

2nd June is the 60th Anniversary of the Coronation of HM Queen Elizabeth II.  The BBC has had the original footage digitally remastered - see here and the The Coronation of Queen Elizabeth II  may be viewed on BBC Parliament from 1010 BST on Sunday 2 June.

The Queen's accession to the throne actually took place upon the death of her father King George VI on 6th February 1952 - 60 years a Queen: the Diamond Jubilee.  In the years of post war austerity, the Coronation was a splendid occasion and seemed, at the time, to lift the spirits of the country.  It was televised but few homes, at least where I lived, had a receiver.  In those - now seemingly far away days - the Queen made her Coronation Oath :

Archbishop. Will you solemnly promise and swear to govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, Canada, Australia, New Zealand, the Union of South Africa, Pakistan, and Ceylon, and of your Possessions and the other Territories to any of them belonging or pertaining, according to their respective laws and customs?



Queen. I solemnly promise so to do.

Archbishop. Will you to your power cause Law and Justice, in Mercy, to be executed in all your judgements?

Queen. I will.

The Coronation Oath is based on the Coronation Oaths Act 1688 section III.  An interesting document was issued by Parliament on 27th August 2008 - The Coronation Oath. (pdf).  The document cites Halsbury's Laws ([Vol 8(2) paras 28 and 39] which states that the duties imposed by the coronation oath are:

(1) to govern the peoples of the United Kingdom of Great Britain and Northern Ireland, and the dominions etc belonging or pertaining to them according to their respective laws and customs;

(2) to cause law and justice in mercy to be executed in all judgments, to the monarch's power;

(3) to maintain the laws of god, the true profession of the Gospel, and the protestant reformed religion established by law, to the utmost of the Sovereign's power;

(4) to maintain and preserve inviolable the settlement of the Church of England, and its doctrine, worship, discipline and government as by law established in England; and

(5) to preserve unto the bishops and clergy of England, and to the Churches there committed to their charge, all such rights and privileges as by law do or shall appertain to them or any of them.

Does this old law - with its antiquated wording - have relevance to our modern country.  Items (3) to (5) in the list relate to the Church of England - an established church with the sovereign as its Supreme Governor.

Item (1) links to the oath to govern the various peoples according to 'their respective laws and customs.'   The  Act of Settlement s 4, declared that 'whereas the laws of England are the birthright of the people thereof and all the kings and queens who shall ascend the throne of this realm ought to administer the government of the same according to the said laws and all their officers and ministers ought to serve them respectively according to the same ... the same are....ratified and confirmed accordingly.'   

In modern times, the sovereign does not govern personally.  This is left to Parliament (the legislature) and to Ministers of the Crown (the executive).   The judiciary have an immense role to play in upholding the rule of law.  The sovereign has the rights to be consulted, to encourage, to warn - Walter Bagehot 'The English Constitution' (1867).

The fact that the Queen governs through Ministers is recognised in the Act of Settlement which says that all their officers and ministers ought to serve them respectively according to the same. The Act remains part of our law.


Of course, nothing in the Act of Settlement prevents the law being altered by constitutional process such as an Act of Parliament but the words 'the laws ... are the birthright of the people' are interesting.  Are they just a flowery expression without meaning?  I do not think so.  The idea that the monarch is subject to the law was reflected in Magna Carta some 500 years before the Act of Settlement.  Fundamentally, the Act of Settlement recognised that the law belongs to the people and it is the duty of legislators to act in ways which preserve constitutional fundamentals such as the rule of law and the ability for the ordinary citizen, regardless of wealth or status, to have recourse to justice.  In that light, the attacks of the present government on legal aid and access to justice are unacceptable and appear to be contrary to the constitutional settlement which has existed since the Act of Settlement.

Her Majesty is now the second longest ruling monarch.  Queen Victoria (1819-1901) ascended to the throne on 20th June 1837 at the age of 18.  She died on 22nd January 1901.  Queen Elizabeth's reign would become longer on, I think, 9th September 2015.

The Queen is Head of the Commonwealth and is also Head of State of several independent nations. 
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Whole life term imposed for murderer of April Jones

Crown Court - Mold
Mark Bridger (47), is to serve a 'whole life term' for the murder of April Jones - The Guardian 30th May 2013.  April disappeared in October 2012 and her body has not been found - BBC 31st May.   It was revealed during the trial that fragments of bone consistent with a juvenile human skull were found among ashes in a woodburner, along with April's blood near to a number of knives, including one which was badly burned.

The sentencing remarks of  Griffith Williams J are available via the Judiciary website.  The judge described Bridger as a 'pathological and glib liar' - a 'paedophile who harboured sexual and morbid fantasies about young girls'.  Bridger's laptop stored images of 'foul pornography of the gross sexual abuse of young children.'

Factors for determining the minimum term are
in Schedule 21 of the Criminal Justice Act 2003 - see post of 16th May Whole Life Orders for Murder.  A murder of a child involving abduction or sexual or sadistic motivation points to a whole life term.  Aggravating features in this case included significant premeditation and concealment of the body.

Murder trials where the body has not been found have an interesting history - Wikipedia.   The modern law stems from R v Onufrejczyk [1955] 1 Q.B. 388.   In Brougham v The Queen [2000] UKPC 20, Lord Slynn of Hadley cited Lord Goddard's judgment in Onufrejczyk :
"… the fact of death, like any other fact, can be proved by circumstantial evidence, that is to say, evidence of facts which lead to one conclusion, provided that the jury are satisfied and are warned that it must lead to one conclusion only."
The Telegraph 30th May reported on concerns regarding the availability of pornography on the internet.
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Police Arrest and Police Bail - should there be a time limit?

Updated

Neil Wallis, writing in The Guardian 28th May, points out that it is not unusual for individuals to be on police bail for months before they are either charged or the investigation is discontinued.  Wallis says that some 3000 families are currently affected by this.   Such bail may well be on restrictive conditions  In fact, this situation has existed for some time and this post looks at police powers of arrest and the power of the police to issue bail.  The Law Society is calling for a 28 day limit on police bail after which the police would have to justify further restrictions to a court - Law Society 29th May

Powers of arrest:

The previous post considered arrest by citizens.  It is unsurprising that Police powers are much wider in scope.

Police powers
of arrest are in the Police and Criminal Evidence Act 1984 section 24.  `The following has applied since 1st January 2006 when amendments to the law were introduced by the Serious Crime and Police Act 2005.

Arrest without warrant: constables

(1) A constable may arrest without a warrant -
(a) anyone who is about to commit an offence;
(b) anyone who is in the act of committing an offence;
(c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence;
(d) anyone whom he has reasonable grounds for suspecting to be committing an offence.

(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.

(3) If an offence has been committed, 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.

(4) But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.

(5) The reasons are—
(a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);
(b) correspondingly as regards the person's address;
(c) to prevent the person in question—
(i) causing physical injury to himself or any other person;
(ii) suffering physical injury;
(iii )causing loss of or damage to property;
(iv) committing an offence against public decency (subject to subsection (6)); or
(v) causing an unlawful obstruction of the highway;
(d) to protect a child or other vulnerable person from the person in question;
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;
(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.

(6)Subsection (5)(c)(iv) applies only where members of the public going about their normal business cannot reasonably be expected to avoid the person in question.

Section 24 merely refers to 'offences' and so the powers of arrest extend to any offence however minor.  The former concept of 'arrestable offences' (which existed from 1st January 1968 to the end of 2005) has been abolished.  The powers in section 24 are a simplification of the law but, at the same time, an extension of police powers.

The extensive use of the word 'reasonable' in the section requires that objective grounds exist.  This is a limitation on the powers but is not a particularly high barrier and is usually difficult to contest.

Thus, 24(1) is limited to cases where an offence is about to be committed or is being committed but, under 24(1)(c) or (d) the constable only requires reasonable suspicion.

24(2) requires reasonable suspicion that an offence has been committed and a constable is then entitled to arrest anyone he reasonably suspects is guilty of it.

24(3) requires that an offence has been committed and the police may then arrest anyone they reasonably consider to be guilty of it.

In the case of all arrests, one of the grounds in 24(6) must exist.  These are hardly a formidable barrier to an arrest - e.g. to check address or to allow prompt and effective investigation of the offence or the conduct of the person in question.

See PACE Code G - 2012

How long may bail be imposed for?

Bail may be imposed by the police subject to legislation - in particular the Police and Criminal Evidence Act 1984 (PACE) and the Bail Act 1976.  These Acts are almost unbelievably convoluted and there is a desperate need for a clear statement of police powers in this area.  Where bail is imposed it may be conditional bail and the conditions imposed may prove to be onerous for the individual.

The legislation imposes no clear limit on the time for which an individual may be subject to police bail. This is the issue raised in the article by Neil Wallis who was arrested in 2011 on suspicion of  'phone hacking' and spent 19 months on police bail before a decision was taken not to charge him.

A useful analysis of the problem may be seen at BBC News - Law Society calls for 28 day limit on police bail.  The limit suggested by the Law Society would be subject to extension if authorised by the Magistrates' Court - see Law Society announcement.  According to the BBC article - More than 57,000 people are on police bail in England, Wales and Northern Ireland.  In one case a person arrested three-and-a-half years ago remains on bail.

The data, obtained by a BBC Radio 5 Live Freedom of Information request shows that at least 57,428 people are currently on bail. Of those, 3,172 have been waiting for more than six months for a decision on charges.




Where a person is subject to police conditional bail it is possible to ask the police to vary the conditions.  Also, the Magistrates Courts Act 1980 s43B may enable a person subject to police bail to apply to the Magistrates' Court to vary bail conditions imposed by the Police.  However, there is always the risk that the court might impose more onerous conditions.  As far as I am aware, very few individuals make such applications but I do not have any exact figures.

This is a far from a simple matter and there has to be recognition that some, though not all, police investigations are complex and time consuming.  There must also be better recognition of the impact on the lives of those individuals who are subject to police bail and the 'Convention rights' of the individual come into play.  Where the balance has to be struck ought to be the subject of a review and the legislation should be restated in straightforward form.     

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