Wednesday, 23 May 2018

Rendition ~ Will we ever know the full truth?


Earlier this month, the Attorney-General informed the House of Commons that litigation concerning alleged British involvement in extraordinary rendition had been finalised by agreement.  The claimants were Mr Abdel Hakim Belhaj and his wife Fatima Boudchar.  The litigation was hard fought by the British government but, in early 2017,  the government lost its eventual appeal to the Supreme Court.  Even then, it took over a year – and with the help of mediation – to reach a finalisation of the litigation and that was without any admission of legal liability.  Mrs Belhaj was paid a sum of £500,000 and received an apology.  Mr Belhaj sought only an apology which he received.  This post looks at these lamentable events.

Tuesday, 22 May 2018

GDPR comes on 25th May

GDPR is the General Data Protection Regulation 2016/679 of the European Parliament and Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.  The Regulation will be applicable as of May 25th, 2018 in all member states to harmonise data privacy laws across Europe.

The GDPR has direct effect across all EU member states and, as such, would apply in the UK without the need for additional legislation.   Nevertheless,

Monday, 21 May 2018

UK Supreme Court: Questions of Divorce and Civil Partnership

"Hypocrisy and lack of intellectual honesty which is so characteristic a feature of the current law ...." - Sir James Munby.

The appeal to the Supreme Court in Owens v Owens concerned a defended divorce petition.  See HERE for further details and links to video of the appeal hearings).

Defended divorce cases are nowadays relatively rare.

Friday, 18 May 2018

Contract ~ an interesting case


 English law of contract generally requires that the person seeking to enforce a contract has to have provided "consideration"  The requirement for consideration has been criticised but it remains a key element in the creation of most contracts.  The word "consideration" is a term of art and can be defined as - "An act or forbearance of one party, or the promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable" - Pollock on Contracts - approved by the House of Lords in - Dunlop v Selfridge [1915] AC 847. 

On 16th May the Supreme Court gave judgment in Rock Advertising Ltd v MWB Business Exchange Centres [2018] UKSC 24 - Lady Hale, Lord Wilson, Lord Sumption, Lord Lloyd-Jones, Lord Briggs. Watch the court handing down judgment.

Thursday, 17 May 2018

European Union (Withdrawal) Bill passes the House of Lords

The Third Reading of the European Union (Withdrawal) Bill took place on 16th May and the Bill, as amended, now returns to the House of Commons.

The Lords agreed further amendments, mostly of a technical nature, to the Bill.  One particularly notable amendment was to insert a new clause dealing with Maintenance of EU environmental principles and standards.  This will require the Secretary of State to take steps designed to ensure that the United Kingdom’s withdrawal from the EU does not result in the removal or diminution of any rights, powers, liabilities, obligations, restrictions, remedies and procedures that contribute to the protection and improvement of the environment.  This amendment passed by 294 to 244.

Wednesday, 16 May 2018

Scotland refuses consent to EU (Withdrawal) Bill but Wales consents

On Tuesday 15th May, the Scottish Parliament refused (93 votes to 30) legislative consent to the European Union (Withdrawal) Bill currently passing through the UK Parliament - Holyrood 15th May.  The Welsh Assembly gave its consent (46 votes to 9) - BBC 15th May.

The issue centres on how EU powers in devolved areas such as agriculture and fishing are repatriated to the UK.  The UK government has said the vast majority of such powers should go straight to the devolved institutions apart from some in 24 policy areas where they want to develop “common frameworks” across the UK.   The UK government has proposed that Westminster should temporarily have control over those 24 areas for a few years so that those frameworks can be developed.  The 24 areas include agriculture, fisheries, food labelling and public procurement.

Tuesday, 15 May 2018

Press regulation ~ Further inquiry?

Remember the Leveson Inquiry?  Its website was archived in 2014 - HERE.   The 4 Volume Report (29th November 2012) is HERE.

Eseentially, the Leveson Report recommended a system of self-regulation for the press underpinned by legislation.

The outcome of the events that followed was the creation - by Royal Charter - of the Press Recognition Panel (PRP) and the enactment of some sections in the Crime and Courts Act 2013 - notably section 40. Section 40 has not been brought into force.

Saturday, 12 May 2018

Electoral Commission ~ Leave.EU Group Ltd

Leave.EU has been fined £70,000 by the Electoral Commission for breaches of electoral law during the 2016 EU referendum campaign.  The investigation concluded that Leave.EU incorrectly reported what it spent at the EU referendum. It exceeded its statutory spending limit (£700,000) and delivered incomplete and inaccurate spending and transaction returns.

Leave.EU is not a political party but it was a registered campaigner, though not the designated lead,  in the Referendum campaign.  The designated lead was Vote Leave.

The Commission found that:

Thursday, 10 May 2018

Lords amendments to the EU Withdrawal Bill

The European Union (Withdrawal) Bill will soon complete its journey through the House of Lords.  At the time of writing there are 14 significant amendments and they have been tracked by the UCL Constitution Unit - see Numbers 16 to 29.  Another useful summary of the amendments may be also be read at Brexit Central.

For those who like statistics - see Government defeats in Lord since 1975.

From the outset, Brexit has been controversial (51.9% leave / 48.1% remain) and divisive (Scotland 62% remain, Northern Ireland 55.8% remain).  The House of Lords has a key role in the constitution - explained here (pdf) - but its very existence is likely to be called into question in some quarters - see discussion at The Week.  This is because the Lords have introduced what some politicians are portraying as anti-Brexit amendments.  An alternative view is that the Lords has now called upon the elected House to properly address certain vital issues involved in achieving Brexit.

Tuesday, 8 May 2018

Is Injustice piled upon injustice? New evidence cases and compensation.

Compensation (or the lack of it) for miscarriage of justice is again in the news.  Legal analysis begins with the International Covenant on Civil and Political Rights (ICCPR) Article 14(6)  which was made effective in English law by the Criminal Justice Act 1988 section 133 (as amended by the Anti-social Behaviour, Crime and Policing Act 2014 section 175 ).  The law gives a right to compensation for miscarriage of justice only in cases where a new or newly discovered fact shows conclusively that there has been a miscarriage of justice but even this compensation is very difficult to obtain.  This post looks at two such cases which are currently before the Supreme Court of the UK.

Victor Nealon served 17 years in prison for attempted rape.  He was released in 2014 after the Court of Appeal (Criminal Division) quashed his conviction because fresh DNA evidence showed that someone else was the attacker.  (Judgment 28th March 2014).  Also, there were some serious questions about the identification evidence but the DNA evidence led the Court of Appeal to conclude that, although the prosecution case was not demolished (para 35), a jury might reasonably have reached a different verdict.

Sam Hallam was 17 at the time of his conviction for murder and was "detained at Her Majesty's pleasure".  He served 7 years and was released in 2012 when his conviction was quashed.  (Judgment 17th May 2012).   Identification evidence was at the heart of the case against Mr Hallam.  The appeal arose principally on the basis of fresh evidence - (see para 47).

Wednesday, 2 May 2018

EU Withdrawal Agreement ~ Parliament taking control

There has been much fuss and palaver over the House of Lords voting to amend the European Union (Withdrawal) Bill.  The Lords are perfectly entitled to do so.  The House of Commons is also perfectly entitled to reverse any or all of the amendments.

Brief Background:

The UK will leave the European Union on 29th March 2019.  This is the effect of the notification given to the EU, in March 2017, under Article 50 of the Treaty on European Union.

Monday, 30 April 2018

Deciding not to sustain life - a note on the system in Texas, USA.

Cases such as Charlie Gard and Alfie Evans highlight to the general public the fact that, where caring parents and doctors disagree over appropriate treatment for a child, the judges of the Family Division of the High Court are the ones entrusted with making the decision about what is in the child's "best interests."   The "best interests" test has recently been described by the Supreme Court as the "gold standard" and the court commented that, in this type of case, the test "needs to apply to them without qualification."

These very difficult situations raise numerous legal and ethical questions.  This post takes a brief look at one alternative and controversial process for making such decisions although I do not advocate its adoption here.

Sunday, 29 April 2018

Lay Magistrates at bay / The dire legal aid system

Cambridge Magistrates' Court
"Lay justice is a powerful expression of community participation in the regulation of society."

This week Criminal Law and Justice Weekly ceased publication.  For the last 182 years this "quiet" publication has recorded changes in the criminal justice arena.   It is noted for "quality" articles - e.g. Modern Slavery Act: Who bears the burden of proof? - and will be missed.

John Cooper QC commented about the closure by saying- "The final demise of CL and J is perhaps a salutary lesson for many of us. I will predict that in some years time, may be even sooner, practitioners will ask “why isn’t there a weekly publication devoted to crime and the criminal justice system?” And comparisons will be made with other legal disciplines who have their own titles. Well let me answer that question now, before you ask it...... “ you had one, and you lost it."


Interestingly, CL and J sprang from an earlier publication "Justice of the Peace." 

Tuesday, 24 April 2018

Alfie Evans ~ a profoundly sad and difficult situation

The courts are called upon to make difficult decisions touching on all aspects of our human existence but the most profoundly difficult decisions are in those tragic cases where a child is in hospital with an incurable condition. 

Alfie Evans was born on 9th May 2016 and is on venitlatory support at Alder Hey NHS Foundation Trust Hospital.  The Hospital Trust sought a declaration from the High Court that continuing the support was no longer in Alfie's best interests and that in the circumstances it is not lawful that such treatment continue.

Monday, 23 April 2018

Windrush


In a House of Commons debate on the Immigration Bill held on 30th January 2014, Diane Abbott MP (Labour) said to the then Home Secretary (Theresa May MP):

" I accept the Home Secretary’s wish to clean up the system and discourage people from “playing” it - I deal with thousands of immigration cases every month - but has she given no thought to the effect that her measures that are designed to crack down on illegal immigrants could have on people who are British nationals, but appear as if they might be immigrants?"

Wednesday, 18 April 2018

In the face of Barbarism (2)

The previous post - In the face of Barbarism (1) - looked at the use of chemical weapons in Syria and the recent air strikes by the USA, UK and France.  The moral position is, to my mind, beyond doubt.  Action was needed to try to degrade the chemical weapon capability available to the Syrian government and, for the future, greater action is needed to resume the Geneva peace-process which was discontinued in December 2017.

The clarity of the moral position is not matched by international law.  The UN Charter requires collective action to deal with threats to peace rather than, as in the past, States deciding to "do their own thing" but a void exists in cases where a permanent member of the UN Security Council will not support proposed action.  Attempts to fill that void have led to States using alternative justifications for the use of force such as "humanitarian intervention."   This has been used by British governments on a number of occasions (e.g. Kosovo) but such alternative arguments are far from universally accepted.  This post looks at this further and then looks at the question of the role of Parliament regarding military action abroad by British Forces. 

Tuesday, 17 April 2018

In the face of barbarism (1)

Recent events in Syria have acutely raised the question of how the world is to deal with the barbarism of chemical weapons.  Gas as a weapon came to the forefront at the Second Battle of Ypres in April 1915 - (Youtube - video).  Today, its use is prohibited by the Chemical Weapons Convention which most nations (including Russia and Syria) have accepted as binding.

Syria and Chemical Weapons:

Monday, 16 April 2018

"Ant" McPartlin fined £86,000 for excess alcohol offence

On 18th March 2018, following a road traffic accident, Anthony David "Ant" McPartlin was arrested on suspicion of driving with excess alcohol contrary to the Road Traffic Act 1988 section 5.  On 16th April, at Wimbledon Magistrates' Court, Mr McPartlin pleaded guilty and was fined £86,000 and disqualified for 20 months - see The Telegraph 16th April.   Mr McPartlin's income was said to be around £130,000 per week.  The charge stated that he had 75 microgrammes of alcohol in 100 millilitres of breath - the legal limit is 35 microgrammes per 100 millilitres of breath.

For offences committed on or after 12th March 2015, a Level 5 fine in the Magistrates' Court is unlimited (in most cases) as opposed to the previous usual maximum of £5,000.  See the Regulations effecting the change.



Previous post.

Saturday, 14 April 2018

Syria - some links


The use of chemical weapons in Douma, Syria has, rightly, been met with disgust.  Fundamental human morality undoubtedly demands action against those responsible.  The governments of the USA, UK and France considered the Syrian government to be responsible and, in consequence, undertook air strikes against selected targets in Syria.  The United Nations Security Council failed to adopt three resolutions on the use of chemical weapons in Syria - UN News 10th April.


A difficult question is whether, as a matter of international law, the air strikes are lawful.

A further question is whether the UK government was entitled to act without the prior approval of Parliament.

The following links touch upon those difficult questions.  At this stage I offer the links without additional comment.  Many more links can be found.

Friday, 6 April 2018

A very disturbing - shocking - situation

3 points.  First, the criminal justice system is in crisis.  Secondly, Police numbers have been markedly reduced.  Thirdly, over 50 people have been killed - mostly by stabbing - in London alone this year.  On any view, this is a very disturbing and shocking picture.

Deaths in London:

i News 4th April published the terrible List of victims killed in the capital so far this year and noted that - "The Met Police is currently investigating 55 suspected murders since the start of 2018."   The list shows that most of the victims died as a result of stabbing.