A glance at the Law Commission's work

The Law Commission reviews areas of the law that have become unduly complicated, outdated or unfair. Following a process of research and consultation, the Commission makes recommendations for reform of the law to Government.  The functions of the Law Commission are set out in legislation: Law Commissions Act 1965  and the Law Commission Act 2009

Some of the Commission's current work includes a discussion paper on the problematic area of Insanity and Automatism.  The criminal law relating to these topics is generally considered to be in need of reform.  The insanity defence continues to be based on M'Naghten's case 1843 - please see the post of 27th July 2011 'Breivik - would he have a defence of insanity in English criminal law?'

The Commission has also published its Annual Report 2012-13 and is consulting on their 12th Programme of Law Reform and on Hate Crime.  Responses to an earlier consultation on Unfitness to Plead have also been published.

How effective
is the Law Commission at getting its recommendations actually implemented into law given that it is the government dictating the implementation process.  A mixed picture emerges but the situation can be said to have improved somewhat since the Law Commission Act 2009 which places the Lord Chancellor under a duty to prepare an annual report on those Law Commission proposals implemented during the year.  The report must also address any unimplemented proposals and indicate plans for dealing with them.  Reasons must be given for any decision not to implement proposals.  This important reform was discussed by Joshua Rozenberg in the Law Society Gazette in 2009.

The 2012 Lord Chancellor report (issued March 2012) is available and is worth reading in full.  The government opted against implementation of proposals relating to Participation in Crime.   Whilst accepting the Commission's recommendations (and also those in  a report on Conspiracy and Attempts) the government did not see them as priority areas in the shorter term 'when resources are scarce' and therefore said that neither sets of recommendations would be implemented during the present Parliament.  This is despite the fact that the recommendations 'seem to offer potential and possibly significant benefits to the administration of justice, both in terms of facilitating prosecutions and in better targeting what behaviour should or should not be viewed as criminal.'    (The thorny topic of 'joint enterprise' comes to mind).  Furthermore, the LC's report acknowledged that 'there could be potential savings for the criminal justice system in the longer term in respect of a reduction of appeals and a more streamlined approach to prosecutions.' 

The government also said it would not implement a Law Commission report on Intoxication and Criminal Liability.  The Commission's report addressed the law governing the extent to which a defendant should be allowed to rely on an intoxicated state at the time of commission of an offence.  The present law has been developed judicially via case law.  The Commission wished to codify the law and make it more logical and consistent.  However, the government argued that the present law contained 'well understood processes' and saw no benefit in enacting a 'new test which practitioners would need to master, yet arguably would be scarcely more intelligible.'

The Lord Chancellor's 2013 report is also available.   There were no decisions not to implement any Commission recommendations.  However, a considerable number of recommendations 'roll over' from the LC's 2012 report.

Unfortunately, a regrettable fact is that many defendants are now forced to represent themselves due to cuts in legal aid especially in Magistrates' Courts.  The latest Transforming Legal Aid proposals seem likely to increase the number of such defendants and will also markedly increase the number of litigants in person in civil cases.  It might therefore be thought to be particularly desirable for legislation to be brought forward whenever it can simplify the law.  It is not as though the government lacks legislative opportunity since, as just one example, the Anti-Social Behaviour, Crime and Policing Bill is currently before Parliament.  Could this not have been used as a vehicle to bring forward some of the unimplemented criminal justice recommendations?

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North Liverpool Community Justice Centre ~ another idea bites the dust!

In 2005, the North Liverpool Community Justice Centre opened with fanfares and great promise of a new and more effective way to administer justice.  Much of the background to the setting up of the Centre may be read in an evaluation report prepared in 2007.  The Centre came about after the then Lord Chief Justice (Lord Woolf) visited the Red Hook Centre, Brooklyn, New York in 2002.  The Home Secretary (David Blunkett) visited in 2003.  Both were impressed with the community justice model they observed and a decision was made to establish a similar centre in the UK.

The Labour government developed a vision for a network of problem-solving US-style community justice centres tackling offending behaviour and listening to what communities expected from their courts. However, North Liverpool, based in a former secondary school on Boundary Lane in Kirkdale at a start up cost of £5.2m, was the only court centre built on that model.  Clearly the running costs proved to be prohibitive from the Ministry of Justice perspective.



The government is now seeking to close down the Centre - LINK - due, it is said, to falling workload.  In July 2012, the government published an analysis of Re-Offending rates.  This concluded:

  • There is no evidence that the NLCJC is any more effective in reducing re-offending than other courts
  • Offenders receiving a court order at NLCJC were more likely to breach the conditions of their order than offenders receiving court orders elsewhere
  • No evidence to suggest that offending behaviour generally has improved more in the North Liverpool area than elsewhere
  • Some evidence that NLCJC operated more efficiently than other courts.  Cases were dealt with more quickly.  However, there was also evidence of inefficiency at the court including a higher proportion of 'cracked trials' than elsewhere.

Various factors underpinning community justice were not examined in the 2012 report.  These include courts connecting to the local community; justice being seen to be done; having a strong independent judiciary and raising confidence within the community.

'Community Justice' principles have supposedly been embedded into the usual Magistrates' Courts but this is with mixed degrees of success.  The NLCJC had the merit of being dedicated to 'community justice' principles.

An article about the 2012 report was published by The Guardian on 3rd August 2012.   The article stated:

'You don't have to be a pessimist to suspect that in this "age of austerity" - huge cuts to the MoJ budget and a court closure program - that the pioneering court's days are numbered.'

Prophetic words indeed!

The Ministry of Justice consultation on the closure is open to 27th August.

Additional links:

Principles of Community Justice 

Red Pepper - A radical alternative to prison and see Lasting change or passing fad? Problem solving justice in England and Wales - (Greg Berman and Aubrey Fox - ed. Ben Ullmann)
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Roundup Thursday 18th July

Here is a miscellany of items of general legal interest.

Marriage:  Perhaps THE major development is the enactment of the Marriage (Same Sex Couples) Act 2013 - (PARLIAMENT).  Analysis of this will follow in a separate post.  Most of the Act remains to be brought into force by means of Commencement Orders.

Legal Aid: The Justice Committee has decided to issue a report on Transforming Legal Aid.  This follows the committee’s two recent oral evidence sessions – one with representatives of the professional bodies and one with the Lord Chancellor.  The Transforming Legal Aid proposals have attracted what appears to be almost universal condemnation and so it will be of major interest to see the views of the committee.

The Joint Committee on Human Rights has asked for evidence to be submitted regarding the government's legal aid proposals - (HERE).   Written evidence is requested by 27th September and hearings will take place in October.  The committee has requested that the government do not proceed with changes until the committee has reported.



PRISM: The Chairman of the Intelligence and Security Committee of Parliament, the Rt Hon Sir Malcolm Rifkind MP, has issued a statement regarding GCHQ’s alleged interception of communications under the US PRISM Programme.  'It has been alleged that GCHQ circumvented UK law by using the NSA’s PRISM programme to access the content of private communications. From the evidence we have seen, we have concluded that this is unfounded.' 

'Although we have concluded that GCHQ has not circumvented or attempted to circumvent UK law, it is proper to consider further whether the current statutory framework  governing access to private communications remains adequate,'


Arms:  The UK's enormous trade in arms has been the subject of a report by the Committee on Arms Export Controls.  For the first time, the Committee's Report details for each of the Foreign and Commonwealth Office’s 27 named Countries of Human Rights concern the number of extant strategic export licences for each country, their value (where provided by the Government) and the nature of the strategic exports that have been approved.  Interestingly, the report comes soon after the UK signed the United Nations Arms Trade Treaty - (AMNESTY).

Law in Focus:  On Youtube, Nicola Padfield (Reader in Criminal and Penal Justice, Cambridge University) may be seen talking about the decision of the European Court of Human Rights in Vinter and others v UK (Whole Life Sentences and Review)  and also the Supreme Court decision in R (Sturnham) v Parole Board [2013] UKSC 47 - HERE.  This is part of a number of similar items prepared by Cambridge University under the heading Law in Focus.

Terrorism:  A report on Terrorism legislation has been issued by the Independent Reviewer (David Anderson QC) - HERE
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Activism in the Judicial Committee of the Privy Council ~ scope of 'Malicious Prosecution' extended

The Supreme Court of the United Kingdom (UKSC) and the Judicial Committee of the Privy Council (JCPC) are located in Parliament Square, London.  The Supreme Court owes its existence to the Constitutional Reform Act 2005 - (the CRA 2005).  The Judicial Committee of the Privy Council has a long and interesting history and it was placed on a statutory basis by the Judicial Committee Act 1833 though this was recently amended by the CRA 2005.

The role of the JCPC is explained on the court's website.  Although the JCPC's role has declined, it remains the highest court of appeal for several countries, as well as the United Kingdom’s overseas territories, crown dependencies, and military sovereign base areas. Since most of the court's jurisdiction is external to the UK, its decisions do not strictly-speaking bind the English courts but they are persuasive precedents.  The composition of the JCPC naturally gives its decisions a high legal authority since its permanent judges are also the Justices of the UKSC though others occasionally sit.

A very interesting
and potentially important recent decision is Crawford Adjusters v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17 - Lord Neuberger, Lady Hale, Lords Kerr, Wilson and Sumption.  The facts of the case arose from the damage caused by Hurricane Ivan in 2004 when it struck Grand Cayman and extensively damaged a residential village insured with Sagicor.  Restoration works commenced under the supervision of a local chartered surveyor.  The project was reviewed by a loss adjuster who had a history of animosity towards the surveyor.  Ultimately, actions against Sagicor arose including allegations of abuse of process and malicious prosecution.

The abuse of process claim was unanimously rejected by the JCPC.  It was not alleged that the legal process was used forany purpose for which it was not designed, and such an allegation could not have been made out on the facts. The claim for malicious prosecution succeeded on a 3 to 2 majority.  (The minority were Lords Neuberger and Sumption).

The majority considered that the common law originally recognised that the tort of malicious prosecution extended to both civil and criminal proceedings.  Wrongs should be remedied.  There was no evidence that the tort deterred the honest bringing of litigation or that it leads to interminable litigation.  The requirements to demonstrate both malice and the absence of a reasonable or probable cause for the launch of proceedings present formidable hurdles to prospective claimants.  Further conditions were not required. 

As the Law Society Gazette (15th July) points out:   

'To depart from the previous position in relation to malicious prosecution is a radical step and inevitably a calculated risk – if the majority are correct, parties will have an important weapon in achieving justice against those who institute proceedings with malevolent intent. The alternative and less desirable possibility is that unsuccessful claimants will find themselves faced with the prospect of expensive and protracted satellite litigation, and that the action will be used as a threat with which to deter parties from bringing meritorious claims.'

Only time will tell which of these competing viewpoints is correct.   Of course, it may be that the decision does not survive IF a similar matter ever reaches the UKSC.  That might depend on the composition of the court and judicial opinion is divided.  However that may be, it seems right in principle that the law should offer a remedy to those harmed by the deliberate misuse of litigation. 
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Appointment of the next Lord Chief Justice of England and Wales announced


Downing Street has formally announced the appointment of Sir John Thomas as the next Lord Chief Justice of England and Wales Announcement and BBC 16th July.  'Her Majesty The Queen has been pleased to approve the appointment of The Rt Hon Sir John Thomas as the Lord Chief Justice of England and Wales from 1 October 2013. This appointment follows the retirement of The Rt Hon The Lord Judge on 30 September 2013.'  Read Sir John's statement upon appointment.

The announcement contains a biography of Sir John.  He was born in Wales in 1947.  Called to the Bar by Gray's Inn in 1969.  Queen's Counsel 1984.  Judge of the High Court 1996 and was a Presiding Judge of the Wales and Chester Circuit from 1998-2001 after which he took charge of the Commercial Court (part of the High Court's structure).  Appointed Lord Justice of Appeal 2003 and Senior Presiding Judge for England and Wales 2003 to 2006.  Vice President of the Queen's Bench Division of the High Court 2008 to October 2011 and thereafter President of the QBD.

This appointment
attracted a certain amount of media comment before the official announcement - e.g. Joshua Rozenberg in The Guardian 15th July.

Since the Constitutional Reform Act 2005 [the CRA 2005], the Lord Chief Justice is President of the Courts of England and Wales and is also Head of the the Judiciary of England and Wales [CRA 2005 s.7].   As President of the Courts he will (a) represent the views of the judiciary of England and Wales to Parliament, to the Lord Chancellor and to Ministers of the Crown generally; (b) maintain appropriate arrangements for the welfare, training and guidance of the judiciary of England and Wales within the resources made available by the Lord Chancellor; (c) maintain appropriate arrangements for the deployment of the judiciary of England and Wales and the allocation of work within courts.

The President of the Courts of England and Wales is president of the following courts and is entitled to sit in any of them: the Court of Appeal, the High Court, the Crown Court, the county court* and the magistrates' courts.  In practice, it would be rare for the Lord Chief Justice to sit other than in the Court of Appeal where his attention is required for the most serious and difficult cases.  The office also carries huge administrative burdens.

Sir John will be the 18th person to hold this office since the great legal reforms of 1875 when many separate courts merged to form the High Court of Justice - Wikipedia.  I think it is correct to say that he is only the second since 1875 to have been born in Wales.  The other being Alfred Lawrence (1st Baron Trevithin who served 1921-22).

The CRA 2005 is not entirely a happy reform.  Prior to the implementation of the Act, it was the Lord Chancellor who was Head of the Judiciary.  An interesting article about this appeared recently on the Constitutional Law Group Blog (26th June) - Does the Lord Chancellor really exist.  Detailed discussion of the reform may be read at the Select Committee on the Constitution 6th Report (2007).  At the end of January, the present Lord Chief Justice spoke about his role to the House of Lords Constitution Committee (HERE).

The CRA 2005 created the Supreme Court of the United Kingdom as a replacement for the House of Lords (strictly the Appellate Committee of the House of Lords).  This reform emphasised the separation of the judicial power from the legislative power.  The Supreme Court has its own President, Lord Neuberger, who took part in the selection procedure for the new Lord Chief Justice.

See also Week Woman - Our new Lord Chief Justice: a barrister's perspective
-----

Note* - Currently there are County Courts but there will be a single County Court when the Crime and Courts Act 2013 is fully implemented.

Syr John Thomas wedi ei benodi Arglwydd Brif Ustus Cymru a Lloegr a bydd yn cychwyn y swydd ar 1 Hydref, 2013
 

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Kettling and Police Powers

Mengesha v Metropolitan Police Commissioner [2013] EWHC 1695 (Admin) - Moses LJ and Wyn Williams J - is a short judgment on an important issue.  The court had to consider whether the Police can lawfully require individuals 'kettled' (or 'contained') to give their details or be videoed before they are allowed to leave the 'kettle' (or 'area of containment').  A further question related to the legality of the Police retaining CDs showing the individuals for 6 years being the limitation period for civil actions in respect of false imprisonment and malicious prosecution.

On 30th November 2011, the Police authorised a 'kettle' on Panton Street, near Haymarket, London.  About 100 individuals were kettled including the claimant Mengesha who was present as a legal observer.  No one disputed that the containment was justified because serious damage and a breach of the peace had occurred and officers reasonably apprehended an imminent further breach of the peace.



At the time, there was authorisation under the Criminal Justice and Public Order Act 1994 section 60 for a constable in uniform to stop any pedestrian and search for offensive weapons or dangerous instruments.  The Police took the view that those within the containment area should be searched as part of a disciplined release from containment.  The legality of such a search was not questioned.

As people were funnelled out of the containment area, a Chief Superintendent decided to film those leaving and obtain their details.  He took the view that such action would help in any subsequent post-incident investigation to identify persons involved in criminal acts.  The claimant was held in a separate area, surrounded by police officers, and filmed. She was asked to give her name and address and date of birth. She attempted to ask what police power was relied upon authorising the police to film her and ask her details. Those questions were not answered until she had been filmed and given her details.

The court noted that Police Powers exist which can require individuals to give their details to the Police.  The Police Reform Act 2002 section 50 enables the Police to require names and addresses of a person who has been or may have been behaving in an 'anti-social' manner.  (Anti-Social Behaviour Orders or ASBO  are another controversial area).   The Police and Criminal Evidence Act 1984 section 64A allows the Police to photograph those who have been arrested.  Neither of those powers enabled the Police to take details and video before a person was allowed to leave a containment area and there was no statutory or common law power permitting such action.

Since the video had been obtained unlawfully, it could not be retained.

Videoing a member of the public engaged Article 8 of the European Convention on Human Rights when the video was  taken as the price of being required to leave a containment area.  The retention of the video was not 'in accordance with the law' and the retention was therefore a breach of Article 8.  The claimant merely sought vindication of her claim and did not seek any other form of just satisfaction.

The judgment is well worth reading in full.  At para. 12 is a succinct summary of the law relating to 'kettling'....

Although the common law has sanctioned containment it has done so in only restricted circumstances.  This is designed to avoid uncertainty and the potentially chilling effect on freedom of assembly and expression to which Lord Mance drew attention in R (Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55 [2007] 2 AC 105 at 141.  Containment is only permitted where a breach of the peace is taking place or is reasonably thought to be imminent.  It is a method of last resort where other possible steps to prevent a breach of the peace would be ineffective - Austin v Commissioner of Police of the Metropolis [2007] EWCA Civ 989 [2008] QB 660 at paras 20, 35 and 119(2) and it must be proportionate (R (Moos) v Commissioner of Police of the Metropolis [2012] EWCA Civ 12 at paras 39 and 95.   It is clear, therefore, that containment is not permissible for some purpose other than to prevent a breach of the peace which is taking place or reasonably thought to be imminent.

In principle, there is nothing to prevent any individual VOLUNTARILY offering the Police their details.  On the facts in this case, the court considered that the claimant had not acted voluntarily.  However, the reader may find paragraphs 14 to 16 of interest since the court discusses voluntary identification and notes an issue which may arise some future case but was not for decision in this case.

Addendum:For a further view on this case see Paul Bernals' blog -  Identity Crisis



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Reflections on an interesting week in Strasbourg

Mordor - Lord of the Rings
This week saw the European Court of Human Rights decide two cases concerning the United Kingdom.  Vinter and others v UK (previous post) dealt with whole life orders imposed (exceptionally) for murder.  Allen v United Kingdom (previous post) was concerned with compensation for miscarriage of justice.  The British government lost Vinter (howls of Ministerial protest and headlines attacking interference by foreign court) and won Allen (Ministers enjoy a glass of Pimms on a sunny evening).

A good article by journalist Grace Dent appeared in The Independent 10th July

Dent's article - entitled - 'Appalled by the fuss over human rights for serial killers? - came after the Vinter judgment and before Allen.   Dent views basic human rights - (though she does not amplify on the word 'basic') - as a buffer zone keeping at bay the 'quiet savage lurking in all of us.'   Leaving to one side any Saints
(and I do not know any of those), who amongst us has not felt intense anger after the commission of numerous immensely serious crimes?   However, as Dent says, 'I love my country because at its heart is is civilised, fair and mindful about the concept of human rights.  It does this on my behalf, even during the times I may feel wholly savage.'  In addition, I also love my country because, amongst many other virtues, it has maintained the principle of access to justice for those who need it and not merely for the wealthy and powerful.

In Vinter, Strasbourg did not offer any prisoner even a right to be granted parole.  They are merely entitled to ask for it and, it might be added, for their request to be considered by an independent body.  Many may not want these men - (they are all men apart from Rosemary West) - to have any hope.  After all, the life hopes of their victims were cruelly extinguished and their relatives are left to mourn - perhaps for years as did the late Winnie Johnson - mother of Keith Bennett.   I have little sympathy for those properly convicted of such heinous crimes and yet, as Dent put it so eloquently, there is 'a wafer thin line in the human condition between what makes us fair, civil, humane and decent and what makes us barbarians.'   If Strasbourg has to deal with a few legally aided cases each year then that is a small price to pay for civility.

Withdrawal from the Convention is advocated by some notable members of the present coalition government.  IF that comes about, what would remain is not crystal clear.   Despite reductions in legal aid and access to justice, we might not quite descend into a kind of legal Land of Mordor.  However, when some of the illiberal laws enacted in recent years are considered, we might also be in a far worse position particularly if legal checks on that fundamental concept of the British constitution - (the Supremacy of Parliament) - were either very limited or non-existent.

Writing in The Guardian 12th July, Cherie Blair QC argues that concentration on cases such as Abu Qatada (now back in Jordan) paints a distorting picture and ordinary members of the public need the protection of human rights legislation too.  Blair offers examples of where human rights law has helped to secure justice.  Agree with her or not, the learned lady's article is worthy of consideration particularly when she says:

'Human rights are indivisible and universal. They are the most integral part of you, as a human being. They are the last (or first) line of defence between the individual and the state, and they need defending. You might not think you need them now, but you may just miss them if they're gone.'

A further excellent piece about the coalition government's stance on justice is by Francis Fitzgibbon QC - Short Cuts  - who argues that:

'A fundamental shift in the relationship between the government and the governed is taking place: by restricting access to the law, the state is handing itself an alarming immunity from legal scrutiny.'

Posts on Human Rights:

Domestic law and the European Convention on Human Rights - Part 1 - 5th May 2013

Domestic law and the European Convention on Human Rights - Part 2 - 7th May 2013

Domestic law and the European Convention on Human Rights - Part 3 - 14th May 2013

Domestic law and the European Convention on Human Rights - Part 4 - 18th May 2013
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Compensation for Miscarriage of Justice ~ Allen v United Kingdom

On 12th July, the European Court of Human Rights Grand Chamber gave judgment in Allen v United Kingdom - JUDGMENT - The Guardian 12th July.   The case concerned the refusal to grant compensation to a mother acquitted of the manslaughter of her four-month old son, following the quashing of her conviction.  The E Ct HR held, unanimously, that there had not been a violation of Article 6  of the European Convention on Human Rights.

On 7 September 2000 Ms Allen was convicted of the manslaughter of her four-month old son and sentenced to three years’ imprisonment. The conviction was based on evidence given at her trial by expert medical witnesses who testified that her son’s injuries were consistent with “shaken baby syndrome”, also known as “non-accidental head injury” (“NAHI”), because of the presence of a triad of intracranial injuries.



In her appeal, Ms Allen claimed that new medical evidence suggested that the triad of injuries could be attributed to a cause other than NAHI. In the meantime, she was released from prison, having served her sentence.

On 21 July 2005 the Court of Appeal (Criminal Division) (“CACD”) quashed Ms Allen’s conviction on the grounds that it was unsafe. It found that the new evidence might have affected the jury’s decision to convict Ms Allen. The prosecution did not apply for a re- trial given that, by the time Ms Allen appealed her conviction, she had already served her sentence and a considerable amount of time had passed.

Ms Allen lodged a claim with the Secretary of State under section 133 of the Criminal Justice Act 1988, which provides that compensation shall be paid to someone who was convicted of a criminal offence but has subsequently had that conviction reversed on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. Her claim was refused on 31 May 2006. 

She brought judicial review proceedings challenging this decision. Her claim was dismissed by the High Court in December 2007. It concluded that, in Allen's appeal against conviction, the CACD had only decided that the new evidence, when taken with the evidence given at trial, “created the possibility” that a jury “might properly acquit” Ms Allen. Her appeal was subsequently dismissed by the Court of Appeal in July 2008. Noting that the acquittal decision did “not begin to carry the implication” that there was no case for Ms Allen to answer, the Court of Appeal concluded that the test for “miscarriage of justice” had therefore not been made out.

Leave to appeal to the House of Lords was refused in December 2008.

The European Court of Human Rights found that the legislation under which Ms Allen had requested compensation did not require her criminal guilt to be assessed and did not question her innocence. Furthermore, the UK courts had considered, as they were required to do under that legislation in order for compensation to be awarded, whether any “miscarriage of justice” had taken place and had concluded that the existence of a miscarriage of justice had not been established beyond reasonable doubt.   They had not questioned the conclusion in her criminal appeal that her conviction was unsafe and had not commented on whether Ms Allen should be, or would likely be, acquitted or convicted on the basis of the new evidence which had led to the quashing of her conviction. Indeed, they had consistently repeated that it would have been for a jury to assess the new evidence, had a retrial been ordered. Therefore the language used by the UK courts in their decisions to decide on compensation had not undermined Ms Allen’s acquittal or treated her in a manner inconsistent with her innocence.

Justice Minister Damian Green MP is reported to have said - "I am pleased that the European Court of Human Rights has agreed with the judgment of our domestic courts and agrees that compensation is not applicable in this particular case." - BBC 12th July

Cases where new evidence proves innocence beyond a reasonable doubt will be the exception.  More usually, the new evidence raises some degree of doubt which, had it been presented to a jury, may have altered the jury's verdict.  The compensations scheme under section 133 pays lip-service to the UK's international obligations (under Article 14(6) of the International Covenant on Civil and Political Rights 1966).  A parallel 'ex gratia scheme' was abolished by the Labour government - a reminder that parsimony is not confined to the present coalition - see Justice Gap.

Previous posts:
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Legal Aid Debate in House of Lords 11th July

On Thursday 11th July, the House of Lords debated the government's Transforming Legal Aid proposals.  The record of the debate is HERE and the proceedings may be viewed HERE. (the debate is opened by Baroness Deech at approximately 1406).  The House of Lords adopts a far less confrontational atmosphere than the House of Commons but the various speeches were no less critical of the government's proposals.  Many of the speakers pressed the government and the legal profession to work together to find a better solution to the legal aid issue.

Just a few extracts from the debate ......


What we are debating today is the health of one of the great pillars of our democracy and liberty; namely, our legal system and the way citizens may benefit from or challenge laws which, as this House knows well, are painstakingly established for the good of the community. Access to justice is every bit as vital to our societal health as access to health services - Baroness Deech

I draw your Lordships’ attention to some recent decisions of our highest court in claims that could not in practice have been brought without legal aid but would not be eligible for legal aid under the proposals. First, there is the Lumba case in 2011, the leading case on the Home Secretary’s ability to detain individuals using immigration powers .......  Secondly, there is the decision of the House of Lords in Simms in 2000, which held that Prison Service policy and instructions preventing prisoners from having oral interviews with journalists, even on questions of whether they had been wrongly convicted, were unlawful.  That claimant would no longer be eligible for legal aid, as he will be excluded under the prison law reforms. Thirdly, in Al-Skeini in 2007, the claim arose from the deaths of six Iraqi civilians and the brutal maltreatment of one of them, causing his death. Each of the deceased was killed, and the maltreatment was inflicted by members of the British Armed Forces. That claim, which succeeded in the Supreme Court, could not be brought under the proposals, because the claimants would fail the residence test - Lord Irvine of Lairg

This debate is actually about an important constitutional issue, as others have said. It is a constitutional issue because legal aid has an important constitutional function. It is about access to justice, but it is also about the integrity of our criminal and civil justice system as a whole. Further, it is a constitutional issue because it is about holding government and public bodies to account. It is not just legal aid lawyers who are complaining, it is judges, commercial lawyers, academic lawyers who study the effects of law on people’s lives, and indeed most lawyers who see that the system is of a piece and that taking the shears to parts of it has implications for the whole. Justice is a central component of any civilised society and we have to maintain trust in it - Baroness Kennedy of the the Shaws

However, I regard the proposal [on Judicial Review] not as mischievous but merely as fundamentally misguided. It is misguided because it stems from a basic misapprehension of the place of permission in the process of judicial review and it would result in consequences far removed from those intended and very damaging to this critical part of the courts’ jurisdiction—the ability to supervise the proper exercise of public power - Lord Brown

This debate is about something fundamental: the quality of the society in which we live. It is about the clarity of the political conscience, which must be sure that our legal institutions are properly implemented and are to be trusted. One of my great mentors was the much-lamented Emlyn Hooson, a colleague of ours on these Benches and one of my predecessors as Member of Parliament for Montgomeryshire. Emlyn Hooson represented Ian Brady on legal aid at his celebrated trial—the Moors murders trial. One of the reasons why we have been able to be confident that what has happened to Ian Brady has been just is because he had the advantage of a proper legal aid defence of the highest quality. We should let go of that at our peril - Lord Carlile of Berriew

The Government’s latest proposals, following on frighteningly fast from the implementation of part 1 of LASPO, have been the subject of sustained and deadly attack during this debate. For example, my noble and learned friend Lord Irvine effectively pulled apart the proposals for judicial review, particularly the residence test, revealing it as a tawdry ideological assault on the rule of law and the Lord Chancellor’s duty to uphold it - Lord Bach

Is it the philosophy that the right to legal aid—and thus the ability to make a claim against a state—should be based on the status of the claimant? Is our system, with its grand tradition of protecting the rights of all, to become so diminished that it will not allow justice, where it is necessary, for all those who need it?  - Lord Bach

The Minister of State, Ministry of Justice (Lord McNally) responded to the debate.  He did not place on record a detailed response to the many individual points and questions raised but said that he would treat the Hansard of the debate as an input unto the consultation under way.  He also promised to see whether he could cover some of the specific points in an omnibus letter to be circulated later.
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Meddlesome European Judges ~ the E Ct HR ~ Mubenga Inquest ~ Female Offenders

' .... meddling European judges rule even Britain's most evil killers have human right to seek freedom' - was how the Daily Mail 10th July greeted the European Court of Human Rights (E Ct HR) decision in Vinter and others v UK. The howls from British Ministers were all too predictable - (The Guardian 9th July) - and the decision seems to have reinforced desire within at least the Conservative Party to take the UK out of the European Convention on Human Rights (E Conv HR).  Article 58 of the Convention permits a State to 'denounce' the convention on giving 6 months notice to the Council of Europe.

Upon a calmer analysis, the Vinter case does NOT tell the UK that it cannot apply whole life orders to the worst murderers.  The judgment requires a review of the need for continued detention after a period of perhaps 25 years with periodic reviews thereafter.  There has to be a penological reason for continuing detention such as
the risk of danger to the public if the individual were to be released.  Ministers should also consider that the UK argued before the E Ct HR that our law already allowed for the possibility of release if it could be shown that there were no penologoical grounds for continuing detention of a particular prisoner.  Any changes to the law or the Prison Order as a result of Vinter should not therefore present the sort of fundamental change in penal policy which Ministerial rhetoric suggests.

For a critical look at the Vinter case see Carl Gardner's Head of Legal blog.   Gardner concludes that the judgment is open to criticism and thinks that 'it goes too far by effectively ruling out prospective whole life orders in all cases, even though none of the applicants showed any unfairness in his own specific case. But it’s not as obviously bad or overreaching as Hirst or S and Marper, it does not have any serious or immediate effect on our legislation and it does not make any actual prisoner more likely, in the real world, to be released. It ought not to be that big a political deal. But I’m not surprised that it is.'

Oxford Human Rights Hub - Why the majority was right to find that whole life orders violate Art 3


National Profiles on the E Ct HR website:

The E Ct HR wesbite has a profile for each State.  The UK's profile is interesting.   There were 2082 applications from the UK in 2012.   2047 of those were inadmissible or struck out.  24 judgments were handed down with 10 violations found.  The 13 page profile contains short notes about cases which have involved the UK and also refers to a number of pending cases.  The Convention has touched our domestic law in a considerable number of areas such as freedom of religion; asylum and immigration; terrorism and national security; police powers; surveillance; LGBT rights; Trade Unions etc.

Risky Changes afoot at E Ct HR:

Remember the Brighton Declaration and concern over the backlog of cases at Strasbourg?  Some important changes are afoot and these are covered in an excellent post by Andrew Tickell on the UK Human Rights blog - Radical but risky changes afoot at the European Court of Human Rights.  As Tickell argues:

' ... these changes are unlikely to trouble the small number of wealthy litigants whose cases have already been aired in the highest domestic courts before finding their way onto the European Court’s docket. By contrast, the changes to time-limits, compounded by the Court’s new Rules, risk having a disproportionate effect on the poorest and most vulnerable applicants, with the least access to legal advice, subject to the worst outrages at the hands of their states.'

UK and the European Union (EU):

According to The Guardian 9th July   the Home Secretary, Theresa May, has announced that the UK will opt out of 133 EU criminal justice measures, using a "block opt-out" negotiated by a previous Labour government. It will then seek to sign up again to some 35 of them, including a "reformed" European arrest warrant (EAW).  The EU opt-out is also about the role of the Court of Justice of the EU.  Once the UK opts back in to these 35 measures, EU judges rather than UK judges will have the last word on how they are interpreted.

Jimmy Mubenga Inquest:

An inquest has ruled that, in 2010, Jimmy Mubenga was unlawfully killed during his deportation from the UK: The Independent 9th July.  In 2011, the Crown Prosecution Service decided not to prefer any charges but it is now reported that this decision is being reconsidered.

Amnesty has commented about the inquest and is calling for 'a root-and-branch overhaul of the entire immigration removal system.'  In 2011, Amnesty published a report Out of Control: The case for a complete overhaul of enforced removals by private security companies (PDF).

INQUEST has produced a 'Briefing' on the case (HERE) and calls for a parliamentary committee inquiry into the use of restraint and force in deportation cases and the use of private companies in the removal process.

Magistrates and the Treatment of female offenders:

The Howard League for Penal Reform has expressed concern that some Magistrates' Courts are four times as likely to send a woman to prison than others Magistrates' Courts.   Frances Crook, chief executive of the Howard League for Penal Reform, said:

"We welcome the drop in the use of short prison sentences for women in recent years, but it remains the case that a woman convicted of a non-violent offence is more likely to go to prison than a man.

Women who find themselves in court often need a lot of support. They are often victims of crimes themselves such as domestic abuse or pimping. Sending these women to prison for a few weeks is not the answer to the complex issues in their lives.

"We are concerned that legislation currently going through parliament may make the situation for women worse. The offender rehabilitation bill extends short prison sentences with a year of supervision in the community but it is unclear how specialist services for women will survive as the government seeks to privatise probation using large regional contracts that will squeeze out small local providers."

A final thought:

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