Thursday, 23 March 2017

Criminal justice ~ Pre Recorded Cross-Examination and Re-Examination.

The Youth Justice and Criminal Evidence Act 1999 Part 2 Chapter 1 (YJCEA) introduced into English law a range of "special measures" which may be applied when "vulnerable and intimidated witnesses" give evidence at a trial.   Changes were made by the Coroners and Justice Act 2009 sections 98-103 which came into force on 27th June 2011.   The law is summarised on the Crown Prosecution Service website.
There is no doubt that for many witnesses attendance at court is a highly daunting and even frightening experience.  "Special measures" are intended to assist vulnerable and intimidated witnesses to give their best evidence in court by relieving some of the stress associated with giving evidence in the public arena of the courtroom.  Special measures apply to witnesses (whether prosecution or defence) but they do not apply to defendants.
Possible measures are -

Lord Chancellor was "completely and utterly wrong"

On Wednesday 22nd March, the Lord Chief Justice - (Lord Thomas) - gave evidence to the House of Lords Constitution Committee.  The session may be viewed via this link, lasts approximately one hour and looks at a considerable number of problems facing the legal system and the judiciary.

The session covered, among other things, the need for the Lord Chancellor to uphold the independence of the judiciary.  Lord Thomas was of the view that the present Lord Chancellor was "completely and utterly wrong" in the view she took at the time of the infamous Daily Mail "Enemies of the People" headline.  I wrote about it at the time - A Jewel Beyond Price 5th November 2016.  Lord Thomas said that judges can be criticised and he welcomed constructive criticism of decisions but there was a difference between criticism and abuse.  According to Lord Thomas, the headline has resulted in some litigants in person saying that circuit judges are enemies of the people.

Friday, 17 March 2017

European Union (Notification of Withdrawal) Act 2017

Update 20th March 2017 - Article 50 will be triggered on 29th March - see this statement.  The European Council President stated that draft guidelines for the subsequent negotiations will be issued within 48 hours of the Brexit notification.

The European Union (Notification of Withdrawal) Act 2017 is in force.  Royal Assent was given on 16th March.  The legislative journey began on 26th January, after the Supreme Court’s judgment in the Miller case.

The Act gives the Prime Minister the power to notify the European Council of the United Kingdom's intention to withdraw from the EU. This will commence the 2 year period referred to in Article 50 of the Treaty on European Union.  During that time, negotiations will take place with a view to concluding an agreement with the UK, setting out the arrangements for withdrawal, taking account of the framework for the UK's future relationship with the Union.   Article 50 requires the negotiations to be conducted "in the light of the guidelines provided by the European Council."  At present, no such guidelines have been published.  The 2 year period can be extended as provided by Article 50.

Thursday, 16 March 2017

R v Alexander Wayne Blackman ~ Conviction reduced to manslaughter

In September 2011, Royal Marine Sergeant Blackman and his unit were operating in Helmand Province, Afghanistan.  They came across an insurgent who had been severely wounded by helicopter fire.  Sergeant Blackman killed the insurgent.

At a trial by Court Martial, Sergeant Blackman was convicted of murder, sentenced to life imprisonment with a minimum term to serve of 10 years.  He was also reduced to the ranks and dismissed with disgrace from the Armed Forces.  His defence at trial was that the insurgent was already dead. but this was rejected by the Court Martial.  No defence of diminished responsibility was raised and no psychiatric evidence was called at trial.  A psychiatric report was obtained for sentencing purposes.   On an appeal in 2014 to the Court Martial Appeals Court, the conviction for murder was upheld but the minimum term was reduced to 8 years.

Tuesday, 14 March 2017

Mental Health - Law Commission proposes replacing Deprivation of Liberty Safeguards (DoLs)

In 2014, the Supreme Court decided the Cheshire West case - [2014] UKSC 19.   The case was about the criteria for judging whether living arrangements made for a mentally incapacitated person amounted to a deprivation of liberty.  If they do, then, then the deprivation has to be authorised, either by a court or by the procedures known as the Deprivation of Liberty Safeguards (DoLs), set out in the Mental Capacity Act 2005.  

The Law Commission has examined the law in this area and, on 13th March, issued a report. 

Sunday, 12 March 2017

A Trilogy of Speeches

Lord Neuberger (President of the Supreme Court) delivered the Neill Lecture at Oxford on 10th February 2017.  He retires this year and the selection process for his successor is well underway.  The Supreme Court was created by the Constitutional Reform Act 2005 and replaced the Appellate Committee of the House of Lords.   Lord Neuberger was a Lord of Appeal in Ordinary from 2007 to 2009 and became Master of the Rolls on 1st October 2009.  In 2012 he was appointed President of the Supreme Court and, under his leadership, the Supreme Court has developed a remarkable degree of public acceptance largely because of the ways in which it communicates with the general public through televised hearings, prompt publication of judgments and press releases on the court website.  The handing down of judgments also appears on Facebook.  Additionally, members of the court are frequent guest speakers and the content of their speeches is always of considerable interest not only to lawyers but to the public.  Lord Neuberger's speech at Oxford is no exception and it may be read at - "20 years a judge: Reflections and Refractions" - Neill Lecture, Oxford Law Facility 10th February 2017.

Saturday, 11 March 2017

Two libel cases

The law of defamation developed at common law but has been modified in various ways by Parliament.  For example, the Defamation Act 2013 (fully in force 1st January 2014) introduced a "serious harm requirement."

Judgments in the two decided cases are available via the Courts and Tribunals Judiciary website:

Hourani v Thomson and others [2017] EWHC 432 (QB) Warby J 

Monroe v Hopkins [2017] EWHC 433 (QB) Warby J 

Tuesday, 7 March 2017

Another amendment to the Brexit Notification Bill

The European Union (Notification of Withdrawal) Bill has been amended by the House of Lords at Report Stage.  This is in addition to an amendment made at Committee Stage.

Here is the amended version.  The amendment is aimed at securing Parliamentary approval for the outcome of Article 50 TEU negotiations with the EU.  The prior approval of both Houses of Parliament shall also be required in relation to any decision by the Prime Minister that the United Kingdom shall leave the European Union without an agreement as to the applicable terms.

The Bill will return to the House of Commons which may or may not accept this amendment.  The government does not wish the amendment to be in the Bill because they claim it will harm the UK's negotiating position.  For a contrary view see Jolyon Maugham QC's blog Waiting for Godot.

It may be worth noting that Article 50(2) requires the European Parliament to consent to a Withdrawal Agreement. Without consent, the European Council cannot conclude such an agreement.

The question of whether the UK could unilaterally revoke an Article 50 notice has not (yet) been answered.  On this see The Three Knights Opinion.

Youth Justice Developments

Report December 2016:

In December 2016 a "final report" on Youth Justice was published - Review of the Youth Justice System in England and Wales (Cm 9298).  The report contains numerous recommendations (Annex A) but perhaps paragraph 179 of the report offers a succinct summary: "

Our aim should be to create a 21st century system that moves away from justice with some welfare, to a welfare system with justice."

The Martin Partington blog has also looked at the report.

The Great Repeal Bill ~ Constitution Committee Report

It was at the Conservative Party Conference 2016 that the idea first appeared of a "Great Repeal Bill" to take the UK out of the EU.  Some of the early reaction to the idea was noted in this previous post.  An obvious concern about such a Bill is that it is likely to hand enormous powers to Ministers to make secondary legislation as they seek, item by item, to remove from domestic law the influence of the EU.  Regrettably, Parliamentary control over the enactment of such legislation is not always as rigorous as it might be.

The House of Lords Constitution Committee has issued this report on the proposed Great Repeal Bill - Great Repeal Bill should not be used to avoid parliamentary scrutiny

Monday, 6 March 2017

A whacking huge bill to leave the EU ?

It has been claimed that the European Union (EU) will "force" the UK to pay up to €60 billion when the UK leaves the EU - Business Insider UK 15th November 2016

On 4th March, the European Union Committee published "Brexit and the EU budget" - 15th Report of Session 2016-17 - House of Lords Paper 125.  The Report Summary notes that the budget will be a contentious issue during the UK's negotiations over leaving the EU.  The UK provides approximately 12% of the resources available to the EU budget, and is also a significant net contributor. The removal of the UK’s payments into the budget will require the other EU Member States to agree either to pay more into the budget, or draw less from it. Neither option is without difficulty, and those difficulties may colour the wider Brexit negotiations.   The UK government has stated that it is open to making payments towards specific programmes in order to cement a cooperative future relationship with the EU but there are already demands from the EU, for much wider contributions.

Friday, 3 March 2017

More on the Brexit Notification Bill

The House of Lords has amended the European Union (Notification of Withdrawal) Bill.   The amendment has become Clause 1(2) and is aimed at requiring Ministers to bring forward proposals to ensure that the "EU derived-rights" of European Union (or European Economic Area)  citizens in the UK are protected - see the Bill as amended.   Clause 1(2) reads:

"Within three months of exercising the power under subsection (1), Ministers of the Crown must bring forward proposals to ensure that citizens of another European Union or European Economic Area country and their family members, who are legally resident in the United Kingdom on the day on which this Act is passed, continue to be treated in the same way with regards to their EU derived-rights and, in the case of residency, their potential to acquire such rights in the future."

Tuesday, 28 February 2017

Trial Jury discharged ~ Judge completed the case

Mr Justice Goss
In the Crown Court at Leeds, Mr Justice Goss found it necessary to discharge the jury in the trial of Sabir Hussain, Raja Hussain and Shahrear Islam Miah.   The defendants were charged with manslaughter arising from a staged collision on the roads which caused the death of Betty Laird (aged 88).  The collision was staged for the purposes of making fraudulent claims against insurers.

The jury was discharged because it came to light that there had been a concerted attempt to tamper with the jury.  In such a situation the trial judge has a power to discharge the jury and continue with the trial - Criminal Justice Act 2003 section 46.  The judge has to be satisfied that jury tampering has occurred and that to continue with the trial would be fair to the defendant(s).

Friday, 24 February 2017

Advertisements for very senior judicial posts

There was a time when there were no advertisements for judicial posts.  Appointments were made by the Lord Chancellor following a secretive process. 

The Constitutional Reform Act 2005 has made a sea change in practice and now an advertisement for the vital role of Lord Chief Justice has appeared - Judicial Appointments Commission.  Interestingly, the advert states - "Notifications of intent to apply are invited from candidates who are able to serve for at least 4 years before retirement."  This 4 years requirement will certainly rule out one or two who might have been possible candidates.    In law there is no upper or lower age limit for candidates apart from the statutory retirement age of 70.  Nevertheless, the advert states - "Given the need to deliver significant Court reforms and to steer the judiciary through our exit from the EU, the successful candidate is expected to be able to serve for at least 4 years."

Wednesday, 22 February 2017

Civil Partnership ~ the future?

The Court of Appeal has upheld the ban on heterosexual civil partnerships.

" ... Rebecca Steinfeld and Charles Keidan, are a young couple in a committed long-term relationship. They wish to formalise their relationship, but they have deep-rooted and genuine ideological objections to marriage based upon what they consider to be its historically patriarchal nature. They consider that the status of civil partnership would reflect their values and give due recognition to the equal nature of their relationship. Ms Steinfeld and Mr Keidan in good faith consider that marriage does not reflect the way in which they understand their commitment to each other or wish their relationship to be seen. Ms Steinfeld states in her witness statement that it is very important to them to have a civil partnership as the legal framework within which to raise their child as a CP would give their child a stable environment in which to grow up. They want their child to see the relationship as one of total equality reflecting the equal independent contribution which both parties make. They also desire the financial benefits of marriage and civil partnership, for example the rights of inheritance and relief from inheritance tax on death.  This would protect their child in the case of their premature death.  Moreover, they want their relationship to have the public recognition that registration as a civil partnership would bring."

Those were the words of Lady Justice Arden in the Court of Appeal (Civil Division) in Steinfeld and Keidan v Secretary of State for Education [2017] EWCA Civ 81 (Arden, Beatson and Briggs LJJ).

Tuesday, 21 February 2017

House of Lords ~ EU (Notification of Withdrawal) Bill

On Monday 20th February the House of Lords commenced a two day second reading of the European Union (Notification of Withdrawal) Bill.  Proceedings may be seen via Parliament's website.  One notable matter was that the Prime Minister attended the debate and sat on the steps to the Throne.  Has that ever happened before?  It has attracted considerable comment and some criticism.  It appears that Privy Councillors have this right and that Mrs May attended in that capacity.  One lives and learns the quirks of our rather ancient constitution - see here!  One of the others sat there is Rt. Hon David Lidington MP - Leader of the House of Commons and Leader of the Council.  I don't know who the others are.

Update 22nd February:

Saturday, 18 February 2017

Thursday, 16 February 2017

Protecting Official Data (1)

The Law Commission, acting at the request of the Cabinet Office, has issued a detailed report on the Official Secrets Acts and has put forward provisional proposals for reforms. – Official Secrets Acts reviewed to meet the challenges of the 21st Century.    The report (Protection of Official Data) is available via the Commission’s website together with a summary and the Commission is consulting on the report.  The consultation period ends on 3rd April 2017.

The report has already met with considerable comment – for example -  International Business Times (Jason Murdock 2nd February), BBC News 2nd February,  The Guardian 13th February  (Shami Chakrabarti) and  Liberty 13th February.   Possibly in an attempt to distance itself from the proposals, the government commented that the proposals arose from a request by the previous government – The Guardian 13th February (Owen Bowcott and Rowena Mason) where it is reported that a No. 10 source said: “This is a consultation by an independent body instigated by a previous prime minister.” “It will never be our policy to restrict the freedom of investigative journalism or public service whistleblowing.”

Royal Wedding 2011 ~ Arrests held to be lawful

Almost 6 years after the events, the Supreme Court gave judgment in the case of Hicks and others v Commissioner of Police for the Metropolis  [2017] UKSC 9.   The case arose as a result of arrests made on the day of the Royal Wedding on 29th April 2011.  The arrests were based on prevention of public disorder.

The Supreme Court was concerned with Article 5 of the European Convention on Human Rights (ECHR).  Article 5 specifies the situations in which an individual may be deprived of liberty - see Article 5(1) and also note Article 5(3).  In particular, Article 5(1)(c) states:

"the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;"

For the purposes of the European Convention, a breach of the peace is considered to be an "offence" even though it is not classified as an offence under English law.

Tuesday, 14 February 2017

The future of Combat Immunity

On 1st December 2016, the Ministry of Defence commenced a consultation which runs until 23rd February 2017 - "Better Combat Compensation" -  "The MOD plans to introduce a new compensation scheme for injured armed forces personnel and families of those killed in combat. Compensation would be paid at levels which a court would award, and are often substantially greater than the current Armed Forces Compensation Scheme.  Our proposals would mean many more individuals and families would benefit from these larger awards, and unnecessary legal costs, delay and stress associated with litigation could be avoided. At the same time, the government intends to legislate to clarify the scope of the common law principle of Combat Immunity."

See the Consultation Document (13 pages pdf).  The government considers that it already has powers, under the Armed Forces (Pensions and Compensation Scheme) Act 2004, to set up the scheme and it said that the new scheme will work in parallel with the existing Armed Forces Compensation Scheme.  The way in which combat immunity will be defined is discussed in Section 2 of the Consultation Document.  The proposals would prevent courts from adjudicating on allegations that injury or death in the course of combat were the result of negligence.  Cases not arising from combat (as defined) will remain open to legal action in the courts.

The proposed scheme appears to be closely based on this article by Dr Jonathan Morgan (Cambridge University) - Military negligence: Reforming Tort Liability after Smith v Ministry of Defence.