Ambros Roth

The Crown Prosecution Service (CPS) has announced a consultation on draft guidance for dealing with witnesses in court - Consultation on Draft CPS Guidance on Speaking to Witnesses at Court

The CPS website notes that the Crown Prosecution Service is committed to giving an excellent service to all victims and witnesses who attend court as part of its overall commitment to support victims and witnesses effectively throughout their time in the criminal justice system. The draft guidance gives prosecutors clarity on what is expected of them in supporting victims and witnesses at court. You can also download the consultation document - Draft CPS Guidance on Speaking to Witnesses at Court from this site. Comments may be submitted by 16th March 2015.

See also
The Guardian 19th January 2015 where it is reported that the consultation comes after two suicides linked to rape trials: the suicide last year of Tracy Shelvey, just days after a man was cleared of raping her, prompted the police to call for “root and branch” changes to the way vulnerable witnesses are dealt with in court. Shelvey’s death followed that of violinist Frances Andrade, who took her life in 2013 during the trial of choirmaster Michael Brewer after telling friends she felt as though she had been “raped all over again” after undergoing a gruelling cross-examination in court.

An article by Rupert Myers in The Telegraph 19th January offers serious criticism of these proposals - The CPS wants to stack the deck against the defence. To my mind, the proposals come perilous close to "coaching" of prosecution witnesses so that they are better prepared to answer defence questions. This may help to make the giving of evidence less of an ordeal but it will also play into the hands of the dishonest.

For coaching of witnesses see the Court of Appeal judgment in R v Momodou and Limani [2005] EWCA Crim 177

Notes:

Frances Andrade - see post of 11th February 2013 - Special Measures in Criminal Proceedings

An inquest into the death of Tracy Shelvey is to commence in February 2015 - Manchester Evening News 11th Augsut 2014

National Association of Child Contact Centres - Awareness Campaign

The Children Act 1989 (CA89) came fully into force in October 1991 and it remains, albeit with subsequent changes, the principal statutory framework for dealing in the Family Court with cases involving children. The court is empowered to make various orders such as a Child Arrangements Order under section 8 of the CA89 when the court will specify arrangements concerning with whom a child is to live, spend time or otherwise have contact. Following the breakdown of the relationship between a child's parents, there is normally a need to enable contact between the child and the parent who is no longer in the family home. It is here where the network of Contact Centres plays such a vital role.

A contact centre provides
a neutral venue for children to meet with their non-resident parent, or other family members, after a breakdown in a relationship. They are child-centred environments that put the needs of children first. A contact centre provides a safe environment where the relationship between adult and child can be developed.

It is disturbing to read that some 40 contact centres have closed over the last 18 months. This seems to be due to the fact that legal aid has been removed from many family cases. When legal aid was available, solicitors would often advise use of a contact centre as a means of enabling both parents to have contact with their child(ren). The Guardian explains the situation very well in an article published on 17th January - Contact Centres are disappearing as legal aid cuts take effect. Further loss of such centres could prove to be highly problematic.

It is perfectly possible for parents to approach a contact centre without any referral from professionals such as social workers, solicitors or the court. Please see, as an example, how the Withington Contact Centre in Manchester explains this.

What is a Contact Centre

National Association of Child Contact Centres and also see Find a Centre

Please read this link if you wish to become involved in Contact Centre activity

Court Orders and Pre-Proceedings - Dept. for Education April 2014

Children and Families Act 2014 - replaced residence and contact orders with Child Arrangements Orders.

Head of Legal Blog - Post by John Cooper QC - Global Law Summit - By going there we are tacitly accepting what Grayling is doing

The Global Law Summit 2015 is heading for London. The importance of London as a centre of legal excellence cannot be denied though other locations keen to have the business of commercial disputes are developing such as Singapore. This stellar event - with several high profile speakers - seeks to exploit the fact that 2015 is the 800th anniversary of the signing of Magna Carta by King John. This document is generally seen as one of the foundation stones of the rule of law. It effectively asserts that those who rule must comply with the law. The Charter contains the famous statement - "We will sell to no man, we will not deny or defer to any man either Justice or Right." Before looking a little closer at the Law Summit, we should remind ourselves of some of the reality of the government's justice policies seen from the worm's-eye viewpoint of the citizen as opposed to the immensely wealthy world of international commercial business.

Judicial review at bay -

The Criminal Justice and Courts Bill has been at the so-called "ping pong" stage for some time - see post - Judicial Review at Bay   The House of Lords "ping pong" session took place on 9th December and the House remained opposed to the government's plans to make access to judicial review more difficult. The debate may be read here. The matter returned to the House of Commons om 13th January when, as expected, the Secretary of State for Justice asked the House to reinstate the restrictions on judicial review. He successfully did so albeit with certain concessions - see Legal Business. The debate may be read here. The Commons also voted to extend to 30th March the time allowed for this Bill (known as a Carry Over Motion).

See the Public Law Project Parliamentary Briefing Paper on this topic.

Legal Aid axed - Under the coalition government, legal aid for the citizen has been severely curtailed. Austerity is the stated excuse but political ideology the more likely reason. This has resulted in a considerable increase in the number of litigants in person who, quite understandably, often struggle with difficult law and procedure.

Global Law Summit - the government is keen, for economic reasons, to attract high profile legal business into London and Ministers are clearly delighted that the Global Law Summit is to be held at the Queen Elizabeth II Conference Centre in February. The Summit's website notes that the event is being held in February to mark 800 years since the sealing of Magna Carta. "It is a unique opportunity to commemorate, celebrate and embrace 800 years of legal history which have inspired lawyers and non-lawyers alike for generations."

In a highly outspoken article in The Telegraph 8th January - The hypocrites have jumped aboard the Magna Carta bandwagon - Peter Oborne points out that the government has launched a systematic attack on the legal aid system which gives poor people access to the justice system. "The government changes ... run flatly contrary to Magna Carta." "So does the latest Criminal Justice Bill, with its vicious attack on judicial review, the main way in which arbitrary government decisions are held to account through the courts." "Most important of all, Mr Cameron is close to committing Britain to withdraw altogether from the European Convention on Human Rights, a document which entrenches the principles of Magna Carta in international law."   The article summarises - " ... Mr Cameron's government has launched something close to an out-and-out attack on the rule of law. The idea that either he or his ministers give a damn for the principles that underlie Magna Carta is preposterous."

The Cameron government's "justice" policies are a disgrace in what should be a modern democracy. For my part, I see little chance of any different government reversing the cuts though some changes may be made.    It is saddening to note that the sickening hypocrisy surrounding Global law Summit. For all but the wealthy, justice in England and Wales is no longer in a good place and the consequences of the governmental attack on the rule of law will be felt for many years to come.

--- ooo ---

Post revised 16th January

Updated 13th January

The Joint Committee on Human Rights has issued its report on the Counter Terrorism and Security Bill and has called for better safeguards in a number of areas. The Committee's Conclusions and Recommendations are HERE.

There are indications that if a Conservative government is
elected it will seek greater powers relating to electronic communications - The Guardian 12th January - What new snooping powers do PM and MI5 want and what are the concerns? and Telegraph 9th January - Osborne hints at bringing back Snooper's Charter after Paris attack. The Communications Data Bill, known as the Snooper's Charter, would have allowed security services to access records of every website people visit and social media communication people send. The Bill was abandoned due to political disagreement within the coalition government. This article in The Independent (12th January) puts forward seven reasons why a snoopers charter would be a travesty.

See also The Guardian 12th January where Joshua Rozenberg looks at Police plans for a new Code of Ethics and, on the question of encryption, see Wikpedia Crypto Wars.

Earlier posts:

14th June 2012 - Draft Communications Data Bill introduced

14th July 2014 - Data Retention and Investigatory Powers

Code of Practice on Acquisition and Disclosure of Communications Data:

If you care about investigative journalism and the public sector sources ("whistleblowers") who make much of it possible please take a moment to respond to the consultation on the RIPA code of practice which closes on 20 January 2015.

Confidential journalistic sources impossible with UK Govt plans Only 8 days to protest @pressgazette http://t.co/YeePrA8ejw
— alan rusbridger (@arusbridger) January 12, 2015

Just a reminder that the Counter-Terrorism and Security Bill is racing along its fast-track through Parliament. The Bill (as introduced) is considered in this earlier post. Please also see this post by Angela Patrick on the UK Human Rights Blog.

The Bill has now cleared the House of Commons and the second reading in the House of Lords is on 13th January. A Joint Committee on Human Rights report about the Bill is due to be released on 12th January. A JUSTICE briefing on the Bill is available, here.

EU leaders to discuss terrorism at February Summit

Independent Reviewer of Terrorism Legislation

The murders of 7th January 2015 in Paris are profoundly shocking - BBC New Europe "Charlie Hebdo: Gun attack on French magazine kills 12." Charlie Hebdo is a French satirical newspaper noted for satire and irreverence on many topics including all forms of religion. In particular, it has published cartoons lampooning aspects of how certain Muslims behave though Islam is by no means the only religion to have been singled out by the magazine. As The Telegraph 7th January wrote - the magazine has paid a terrible price for freedom of speech.

Freedom of Expression is a right recognised to be of fundamental importance in democratic society. The right for individuals and the media to be allowed to express forthright and critical opinion must be protected. The right appears in many international and national documents:

A] Universal Declaration of Human Rights - Art. 19

"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

B] International Covenant on Civil and Political Rights - Art. 19

Article 19
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.

The reference to "special duties and responsibilities" is particularly interesting and perhaps suggests that freedom of expression, important as it is, should perhaps be exercised with proper thought for the sensibilities of others. That would take us into the contentious area of what is or is not socially or morally acceptable. However that may be, so far as the law is concerned, the article permits restrictions on freedom of expression for the purposes mentioned in 3(a) and 3(b). Article 20 of the ICCPR is also worth noting:

Article 20
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

C] European Convention on Human Rights - woven into English law by the Human Rights Act 1998 - states in Art 10:

Freedom of expression

1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Again, we see a reference to "duties and responsibilities" (whatever they are) and then the article goes on to state when the right of freedom of expression may be limited (e.g. to prevent disorder etc).

Human Rights Act 1998 section 12

When a court in the United Kingdom is faced with a case involving freedom of expression, the Human Rights Act 1998 section 12 may apply. For one case where Section 12 was considered see Imutran Ltd v Uncaged Campaigns Ltd [2001] EWHC 31 (Ch).

Importance in democracy of freedom of expression

Without freedom of expression, ideas could not be publicly tested. By subjecting ideas to public debate, the ridiculous is shown for what it is. Iniquity, illegality, cruelty, unfairness and unconscionable conduct can be revealed. Other ideas are improved or replaced. The utilitarian philosopher John Stuart Mill wrote that the fullest liberty of expression is required to push arguments to their logical limits, rather than the limits of social embarrassment. Mill argued that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." [On Liberty 1869]. George Washington encapsulated the importance to democracy of freedom of speech by saying

"If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter."

We must retain the importance of freedom of expression and ask that legislators be very careful before enacting restrictions on it. Similarly, the vital need for freedom of expression - even if it sometimes offends - must carry great weight in any law enforcement.

Restrictions on freedom of expression

The law in England has several enactments restricting freedom of expression. For example, certain enactments deal with what may be placed on social media. I am not going to consider them all here but see Crown Prosecution Service Guidelines on prosecuting cases involving communications sent via social media

In Scotland, the Crown Office and Procurator Fiscal has recently published similar guidance.

Following the murder at Charlie Hebdo, the debate on where freedom of expression should be limited will no doubt intensify but nothing - including any religion - must be allowed to become totally protected against the well reasoned and perhaps outspoken criticism of sensible people and, as Alan Dershowitz stated:

"Being offended by freedom of speech should never be regarded as a justification for violence."

Addendum:

March in Paris Sunday 11th January

We're delighted to share that we raised a remarkable £13,776.91 in 2014 for the Marine Conservation Society, our nominated charity of the year.

The money was raised through the annual cricket match between Helpful Holidays and neighbouring Gidleigh Park Hotel and the generosity of Helpful Holidays’ customers who have chosen to donate when booking their holidays.

Moray Bowater and Helen Hayes, the Managing Director and PR Manager of Helpful Holidays, met Monty Hall, the BBC wildlife presenter and marine biologist who avidly supports the MCS, at the Marina Hotel in Dartmouth to present the cheque.

Helen said, “We’re privileged to live and work in the wonderful West Country, surrounded by magnificent coastline, so it’s been a pleasure to work closely with the MCS this year. They do a fabulous job in drawing attention to the wonderful creatures living in these waters. They also have a vital role in raising awareness of important issues affecting our coastline. Most of the money raised was through the generosity of holidaymakers who’ve booked cottages with Helpful Holidays and we’d like to express our sincere thanks for their generosity.”

Katherine Stephenson for the Marine Conservation Society said “The Helpful Holidays team truly live up to their name and have got involved in raising funds for our work through cricket matches, cake sales, beach cleans and more. We’ve had a fantastic year with them and their customers, and their support will make such a difference to the conservation of our seas, shores and wildlife in the South West.”

Re K and H (Children: unrepresented father: cross-examination of child [2015] EWFC 1 is an important family court decision. His Honour Judge Bellamy (sitting as a Deputy High Court Judge) has held that Her Majesty's Courts and Tribunals Service (HMCTS) must pay for a father's legal representation given that the father is alleged to have sexually abused his daughter referred to as Y. There is a need in the case to establish - as a question of fact -whether the allegations against the father are proved. In order to do that Y must give evidence and be cross-examined and it is in relation to the cross-examination that the father requires legal representation. It should be noted that the father does not actually seek to cross-examine Y himself but has sought and been denied legal representation to do so. This judgment merits careful reading in full.

Whether the Ministry of Justice will seek to use taxpayer's funds to appeal this remains to be seen. It certainly seems ironic that the Lord Chancellor briefs a Queen's Counsel to argue that a litigant in person should not have legal aid but the denial of legal aid is an unjust consequence of the cuts imposed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. However, as a reading of the judgment shows, the court is itself a public authority and under a Human Rights Act duty to ensure a fair trial of the case.

Of course this is not a criminal case but the allegations against the father are clearly serious. In a criminal case, the accused is now prevented from personally cross-examining the complainant of a sexual offence - Youth Justice and Criminal Evidence Act 1999 s.34

Related post: October 2014 - Family Court and (lack of) legal aid

See also Q v Q [2014] EWFC 31

Here's wishing all readers a very Happy New Year 2015. As 2014 petered out I could not help but think that the year saw the continuation of the relentless attack by the elected government on access to justice for the average citizen. The severe cuts to legal aid brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 Part 1 came fully into force from 1st April 2013 but the cuts really began to be felt in 2014 with many courts having to deal with numerous litigants-in-person who, quite understandably, have little or no knowledge of law or the processes of the court. "The State" is, of course, always adequately represented.

The government also sought - and continues to seek - restrictions on judicial review which is a last resort but absolutely vital method of ensuring that government and other public bodies operate in a lawful manner. On these topics please see The Justice Gap 1st January - Democracy, Legal Aid and the Election. As for the future, the nation's relationship with the European Convention on Human Rights is also under threat at least from the Conservative Party. Here is my view of the Conservative proposals with links to many other views.

A while ago,
I blogged about the Magistrates' Courts - Reforming the Role of Magistrates 18th November. It may be that no reform will take place from the dying embers of the present Parliament / Coalition government. However, Transform Justice has produced - Fit for Purpose: do magistrates get the training and development they need? The simple answer to that must surely be that, since cuts to funding began to bite, they do not. Minimal basic training can hardly be adequate several years down the line! This is somewhat worrying given the plans in the Criminal Justice and Courts Bill Part 3 to permit justices (JPs) to sit alone and to try "on the papers" certain types of "straightforward" case. Recruitment for the magistracy has been severely curtailed in most areas and the number of serving justices has markedly declined over the last 5 years. The future of "lay justice" in England and Wales will inevitably be on the justice agenda of any future government.

2015 is the time when candidates in the forthcoming election should be pressed for answers as to what they would do about all of these matters: access to justice and legal aid; judicial review; human rights etc. In a democratic society these are vital matters. As things stand. the next Parliament will be basically locked in for 5 years by the unsatisfactory Fixed-Term Parliaments Act 2011 so that the election after 2015 will be on the first Thursday in May 2020. If a week is a long time in politics, that is an age. The choice of government is therefore going to be the biggest issue of 2015.

What's hot in 2015? – Our guide to the top 5 Italian destinations to go to this year

Life is all about adventure and Italy has plenty of that to offer. Let 2015 be a year of discovery and try a destination that you may not have considered in Italy. Whatever you are planning for your holidays, Italy offers a classic blend of natural, cultural and historical attractions.

Italy is a very beautiful and diverse country with plenty to explore from rolling countryside to endless beaches and fantastic historical towns.

At Holiday Homes in Italy, we obviously love the country in all its entirety and selecting 5 destinations is always difficult but here are our predictions for the hottest locations in Italy this season;

1. Puglia

You can’t keep this region down. It’s been a favourite of ours for many years now. Despite the huge amount of media coverage, it has not quite driven the expected amount of tourists down in the ‘heel of Italy’. This is not a bad thing! Undiscovered towns and villages, beautiful and uncrowded coastline with kilometres of sandy beaches and wonderful rugged countryside with orange soil and olive trees, reminiscent of Greece. That’s without mentioning the food, the wine and the people…. Polignano and Monopoli are beautiful coastal towns in the north, Alberobello is a heritage site with fantastic countryside and a myriad of Trulli houses and Otranto and Gallipoli in the south offer a mixture of great architecture and fabulous coast. Puglia offers a refreshingly different and affordable holiday destination.

View our holiday accommodation in Puglia

- Read our Puglia blog

- Alberobello blog

- Polignano a mare blog

- Otranto blog

- Our top 10 villas in Puglia blog

2. Lake Como

In comparison to its famous sister Garda, Como is a more tranquil and wooded lake with beautiful surrounding countryside. With lots of activities taking place around the lake in 2015, this is really a great year to visit Como. With renaissance villas, castles and beautiful gardens, the lake offers a calm and magical destination. Bellagio in the south is most definitely the prettiest town on the lake with cobbled streets, pretty piazza's and lovely views but the lake is awash with great resorts such as Menaggio and Como. Great food, a relaxed lifestyle, warm summers and autumns make it a perfect destination for holidays in 2015.

View our holiday accommodation in Lake Como

- Read our Lake Como blog

- Bellagio blog

- 5 of the best villas on Lake Como blog

3. Lake Garda

It’s all about the lakes this season and not hard to see why. The largest lake offers a more active and family orientated slant to its sister lake Como. The beautiful towns around the lake are buzzing with life and international tourists and the shores are pretty, dominated by vines, olive trees and lemon trees. Garda offers a great temperate climate and a wealth of outdoor activities such as cycling, windsurfing and walking. On its doorstep are vineyards, the beautiful city of Verona and Gardaland for the children. Lake Garda is the place to go if you are looking for a combination of a relaxing and active holiday – a great all-rounder!

View our holiday accommodation in Lake Garda

- Read our Lake Garda blog

- Top 10 things to do in Garda blog

- Lago vista apartment on Lake Garda

- Salo’ blog

- Riva del Garda blog

4. Sicily

Sicily is quite simply stunning! It is so much more than a beach destination, although it is home to kilometres of heavenly beaches. The sunny island combines awe-inspiring coastlines with wonderful architecture, fabulous food and Europe's greatest natural wonder, Mount Etna. It really is an island of contrasts – chic resorts like Taormina, picture perfect coastal towns such as Cefalu and the Baroque town of Ragusa, you will be spoilt for choice!

View our holiday accommodation in Sicily

- Read our Sicily blog

- Cefalu blog

- Taormina blog

- Trapani blog

- 10 things you must do in Sicily blog

- Top 10 villas in Sicily blog

- Holiday apartments in Taormina blog

5. Tuscany

Its back again in our list and it’s not hard to see why; sun-soaked landscape and glorious, peaceful scenery, the region is home to some of Italy's greatest artistic treasures. The most well-known part of Tuscany has to be the Chianti region, perfect in its beauty with rolling hills dotted with vines and silvery olive groves and with dozens of pretty villages. However, the countryside around Lucca and Florence offer equally beautiful countryside, housing some great villas. Tuscan cities such as Florence, Siena and Pisa as well as towns such as Lucca, Cortona and Arezzo offer a great cultural day out to compliment a relaxing holiday. From City apartments to rustic village properties to farmhouses with pools, Tuscany is wonderful holiday destination that combines nature with medieval history.

View our holiday accommodation in Tuscany

- Chianti blog

- Cortona blog

- Autumn holidays in Tuscany blog

- Our top 10 villas in Tuscany blog