Lawyer bloger: September 2016

Thursday, September 29, 2016

A glance at the new British government

Updates 16th and 17th July - further appointments

Full list of government appointments

On 13th July, David Cameron's time as Prime Minister ended with his visit to Buckingham Palace. HM The Queen invited Theresa May to form a government and she accepted. The apparently seamless transition from one government to another had occurred. Here is a brief look at some of the changes that will have the most impact on Brexit and on legal matters.

Following the result of the EU referendum held on 23rd June, the country is about to embark on a process of leaving the EU. In these difficult moments, it is crucial that this process is in accordance with legal and constitutional requirements. The constitutional framework governing Brexit needs to be laid out clearly, and with precision, for the benefit of both the people and government officials.

The Supreme Court of the United Kingdom was created by the Constitutional Reform Act 2005 (CRA).

The appointment of judges to the court is a complex process set out in the CRA and amended by the Crime and Courts Act 2013 section 20. One of the aims of the 2013 Act was to "facilitate greater diversity." A helpful summary of the appointments process is here.

Forthcoming retirements:

A) Two weeks after the 52% to 48% referendum result in favour of the UK leaving the EU, the legal debate continues apace. I have argued - and still do so - in favour of Parliamentary involvement in the process. The UK is a parliamentary democracy and the referendum decision is NOT legally a decision taken by the United Kingdom as a State to withdraw. It could certainly become a decision of the UK if it were to be formally endorsed by Parliament by way of an Act - please see the earlier post - It is Brexit (3). Others have strongly argued that Parliament does not have to be involved in the process of giving notice under Article 50 since Ministers already have the prerogative power, in foreign affairs, to do this - (there are links in It is Brexit 3).

The Iraq Inquiry report was issued today (6th July). The report has an Executive Summary and 12 Volumes. The Inquiry Chairman - Sir John Chilcot - made this statement immediately prior to the publication of the report.

The Inquiry did not express a view on whether military action was legal - (previous post). Sir John noted that this could only be resolved by a properly constituted and internationally recognised court but the inquiry did conclude that "the circumstances in which it was decided that there was a legal basis for UK military action were far from satisfactory."

The question of what role Parliament should play in relation to the United Kingdom making a "decision" to withdraw from the EU was discussed in an earlier post - It is Brexit (3) - where I both advanced the view that an Act of Parliament was required and also included a list of links to arguments for and against that proposition. It has been announced that legal steps are being taken to try to secure the involvement of Parliament - see Mishcon de Reya - Article 50 process on Brexit faces legal challange to ensure parliamentary approval. The Mishcon de Reya statement informs us that the action is being taken 'on behalf of a group of clients' but they are not named.

Update 26th July:

A week has elapsed since the result of the referendum was declared. Rarely has there been greater proof of the statement that "a week is a long time in politics." These documents issued by Parliament will be of interest :

a) Brexit: what happens next? - This Commons Library briefing paper looks at the immediate consequences of the vote and some of the longer term implications. This paper considers various questions about UK withdrawal from the EU and what is likely to happen in the coming weeks and months. The issues include the method of leaving the EU, continuing parliamentary scrutiny of EU business and the withdrawal negotiations, and the implications of Brexit for Scotland and Gibraltar.

The Civil Litigation Brief website has numerous articles on Brexit: The Legal Consequences. Several subject areas are addressed including Article 50 and legal arguments about the process of Brexit.

On Wednesday 29th June the Supreme Court will hand down judgment in R (Bancoult - No.2 v Secretary of State for Foreign and Commonwealth Affairs) - (2015 UKSC 0021). The appellant, Mr Louis Olivier Bancoult, seeks to overturn a 2008 judicial decision of the House of Lords.

The United Kingdom referendum on EU membership resulted in a LEAVE vote of 17,410,742 (51.9%) and a Remain vote of 16,141,241 (48.1%) - see Electoral Commission and Telegraph for full details. The turnout was 72.2%

Scotland and Northern Ireland both voted overwhelmingly for the UK to Remain in the EU. The implications of this will become apparent over the next few weeks. Even though the question put to voters was whether the UNITED KINGDOM should remain or leave, there can be no doubt that voters in Scotland and Northern Ireland would have been voting for what they perceived to be in the best interests of those nations.

On 28th October 2013, Ellie Butler (age 6) was murdered by her father Ben Butler - BBC News 22nd June 2016.

On 21st June, Ellie's parents - Ben Butler and Jennie Gray - were sentenced at the Central Criminal Court - see the Sentencing Remarks of Mr Justice Wilkie. Ben Butler was sentenced to life imprisonment for murder and the judge fixed his minimum term at 23 years (less days on remand). He also received 5 years for Child Cruelty. Those sentences will run concurrently. Jennie Gray was sentenced to 18 months imprisonment for Child Cruelty and 24 months for Perverting the Course of Justice. Her sentences are consecutive.

UK and the EU (12) - Final post of this series

On Thursday 23rd June, the United Kingdom will make its decision in the EU Referendum: Remain or Leave. This series of 12 posts and an earlier post (Brexit ~ referendum ~ a few points) are an attempt to present factual information to assist with what is undoubtedly a most difficult decision about the future of our nation.

An amendment to the Policing and Crime Bill aimed at getting parity of representation for families at inquests failed in the House of Commons on 13th June.

At the end of the debate Mr Andy Burnham MP said - "It is disappointing that the Government were not even able to accept the principle that we should have equal funding. It would have been a step forward if they had been able to do so. I understand that they are asking Bishop James Jones to look at these matters, but of course, this issue goes much broader than Hillsborough. It is about fairness in our criminal justice system, and I believe that the Government are missing an opportunity by not acting on it quickly. Quite frankly, it is obscene for police forces to continue to spend large amounts of money on hiring aggressive lawyers to challenge families in the way that they do at inquests. This scandal should not be allowed to continue, and we in the Opposition will continue to fight against it until there is real change."

Event Horizon

Suppose that the outcome of the EU Referendum is Leave. The UK will then start its journey along Brexit Road - a road without any detailed road map. This post takes a somewhat speculative look at some of the matters that might arise along the way. First of all, a couple of points of law:

General Election 2015 ~ Thanet South and allegations of unlawful electoral expenses

The General Election 2015 resulted in a Conservative government and it has a working majority in the House of Commons of 17 - (State of Parties). This was rather a surprise at the time since the majority of political commentators expected the outcome to be a "hung Parliament" with the possibility of a further coalition government. As with all General Elections there were some notable political casualties including the UK Independence Party Leader Mr Nigel Farage who lost his seat to Conservative Mr Craig Mackinlay.

Whilst the impending EU referendum is dominating the news, here are some other items of interest.

1) Excellent BBC Law in Action on history of crimes against humanity and genocide as international crimes. By Joshua Rozenberg.

2) Julie Hambleton - The Justice Gap - The hierarchy of justice: why Yewtree but not the Birmingham bombings? .... and, it seems, New Inquests have been ordered. Video - Birmingham pub bombings: Inquests reopened. For a view that this can only lead to heartache see the article by Chris Mullin - The Guardian 1st June 2016

The monumental EU Referendum on 23rd June is undoubtedly the most important decision the British electorate will ever make. It is also a very complex matter. The outcome will determine the UK's future for many years (perhaps decades) to come. Several vital questions lie at the heart of the issue. The economy is the central question: will it prosper more within the EU than outside?

The House of Lords Constitution Committee has published its 10th report of session 2015-16 - The Union and Devolution (pdf - 144 pages). Underlying the report is concern for the future stability of the United Kingdom as a UNION in the light of devolution of power. At the start of the report is this assertion: "The four nations of the United Kingdom are stronger united than apart. The Union has brought stability, peace and prosperity to the United Kingdom."

Devolution

Today, the Supreme Court considered whether to give permission for an appeal in the EU Referendum Voting Rights case of R (Shindler and another) v Chancellor of the Duchy of Lancaster and another. Permission to appeal was refused and these brief reasons handed down.

Section 2 of the EU Referendum Act 2015 deals with who may vote in the referendum - principally they are those who would be entitled to vote as electors at a parliamentary election in any constituency.

Amid splendid and colourful pageantry, HM The Queen delivered the Queen's Speech 18th May 2016 . Background Briefing Notes were issued by the Cabinet Office and see Briefing material for the House of Lords debate on the Queen's Speech - Home, Legal. Constitutional and Devolved Affairs 12th May 2016

Earlier post 12th April 2016

The Supreme Court has ruled that the "celebrity" injunction in PJS v News Group Newspapers Ltd [2016] UKSC 26 is to remain in place - Supreme Court UK Judgments. The Supreme Court held that the Court of Appeal erred in law and therefore substituted its own decision.

Remember the Tax Credits row and how it was blown up into a constitutional crisis when the House of Lords voted for a DELAY in implementing the Tax Credits (Income Thresholds and Determination of Rates)(Amendment) Regulations 2015 The government had claimed that cuts to tax credits were crucial to its plans for public finances but the cuts were abandoned in the Autumn Statement

Filey (see here)

The Parliamentary Session 2015-16 ended on Thursday 12th May. Parliament is "prorogued" until the Queen's Speech on 18th May. Certain Bills received Royal Assent and became Acts of Parliament on Thursday 12 May 2016:

Parliament's Joint Committee on Human Rights has called upon the government to clarify the legal basis on which it contributes to the use of lethal force abroad outside armed conflict by other countries such as the US - Government must clarify legal case for lethal drone strikes outside armed conflict

Iraq Inquiry

The report of the Iraq Inquiry is to be issued - without redactions - on 6th July 2016. See the letter from the Prime Minister to Sir John Chilcot (the Inquiry Chairman).

Earlier posts 14th August 2015 and 1st September 2015.

Update: Orgreave inquiry calls grow after damning Hillsborough verdict for police - The Guardian 16th May.

New Zealand judge Peter Mahon (1923-86) conducted an inquiry into the crash of a DC10 aircraft near Mount Erebus, Antarctica on 28th November 1979. Referring to Air New Zealand he said that he had been presented with "an orchestrated litany of lies." Mahon's statement was itself the subject of litigation - The Honourable Peter Mahon v Air New Zealand 1983 - where the Judicial Committee of the Privy Council held that Mahon had not given Air New Zealand a proper opportunity to answer that criticism.

Updated 12th May

The House of Lords EU Committee has issued an important report - The UK, the EU and a British Bill of Rights - 12th Report of Session 2015-16 - 9th May 2016.

The committee held eight evidence sessions with academic legal experts, legal practitioners, two former Attorneys General, a former Lord Chief Justice and a former UK judge in the Court of Justice of the EU. The final evidence session was with the Secretary of State for Justice and Dominic Raab MP, Parliamentary Under Secretary of State and Minister for Human Rights at the Ministry of Justice.

Update: Let's be honest: Inquests often are adversarial - Nigel Poole QC (Learned Friend blog 6th May). Also, New Law Journal 5th May - The long road to justice - Patrick Roche (barrister).

After the experience of Hillsborough, is it possible to pretend that Coroners Courts continue to be satisfactory? The system received severe criticism in an article in The Guardian 29th April The other villain of Hillsborough saga: legal system that left families in torment - " .... over 27 years, the whole Hillsborough ordeal has sadly also illustrated why too many people who go to court do not find justice, but only the next phase of the nightmare which sent them there in the first place."

Update 1: PCC Election results 2016

Update 2: Essential Law and Practical Guidance for Police and Crime Commissioners- 5 Essex Court.

Following the end of the Hillsborough Inquest, the Chief Constable of South Yorkshire (Mr David Crompton) was suspended by the Police and Crime Commissioner for South Yorkshire (Dr Alan Billings) - Announcement by the Commissioner. It is an interesting question as to whether the Police and Crime Commissioner should also carry some responsibility for the way in which the South Yorkshire Police conducted themselves at the inquest. The answer is not entirely clear.

The Home Secretary (Rt. Hon. Theresa May MP) wants the UK out of the European Convention on Human Rights - The Guardian 25th April. The full speech is here. As far as the EU is concerned, she wishes the UK to remain a member.

The Secretary of State for Justice (Rt. Hon. Michael Gove MP) wants the UK to remain in the European Convention on Human Rights - The Telegraph 26th April. He wishes the UK to leave the EU. Mr Gove spoke to Parliament about human rights recently - post of 2nd February. In December 2015 Mr Gove attended the House of Lords Constitution Committee - previous post.

The inquest Court at Warrington

Update 1 - Statement in the House of Commons by the Home Secretary.

Update 2 - South Yorkshire Police and Crime Commissioner - Suspension of Chief Constable

Update 3 - The Guardian 28th April - Hillsborough Families commence legal action

UPDATED 1200 hrs - Answers to General Questionnaire

UPDATED 1445 hrs - Individual determinations

Official Inquest Website

As a result of the events at Hillsborough Stadium, Sheffield on 15 April 1989, 96 men, women and children lost their lives. Following an application by the Attorney-General, the High Court quashed the verdicts in the original inquests and ordered fresh inquests to be held. The Rt Hon Sir John Goldring was appointed as Assistant Coroner for South Yorkshire (East) and West Yorkshire (West) to conduct those inquests with a jury. (By the end of the inquest the jury had reduced, for medical reasons, from 11 to 9). The inquest hearings started on Monday 31 March 2014. Previous post 20th December 2012 - Hillsborough - New inquests to be held.

Coroners - Some basic points:

The Treaty on European Union expresses a desire for an “ever closer union” among the peoples of Europe and for integration of economic and monetary policy. The EU has legal personality but only has those competencies conferred on it by the Treaties. The EU issues its own currency: the EURO (€). A Common Foreign and Security Policy (CFSP) has also developed and this has a Defence dimension. It is hardly surprising that many see the EU as going well beyond a mere trading arrangement between States. Certain characteristics of Statehood undoubtedly exist. This post looks, albeit very briefly, at "Ever Closer Union", Criminal Justice; Foreign Policy; Defence and Monetary Union. The UK has only partially embraced some of the common policies (e.g. defence) and has not entered into monetary union ("the Eurozone").

Legal aid axemanship:

Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was brutal axemanship by uncaring Ministers on the essential principle of access to justice. Whole swathes of cases were removed from eligibility for legal aid and thousands of "litigants-in-person" have struggled to present their cases before the courts and tribunals. (See, for example, Bar Council - LASPO One Year On: Final Report). As far as I can see, there is still almost no political will to reverse these cuts or, for that matter, to even commission a thorough review of their impact. The legislation contains provision for "exceptional funding and it appears that the number of applications being granted has risen gradually since 2013 although only around 45% of applications seem to be succeeding at the moment - Ministry of Justice Statistics July 2015-December 2015.

A residence test?

The EU Referendum on 23rd June is very much bound up with YOUR RIGHTS as a citizen and it is vital that the voter considers the possible impact of Brexit on these rights. Would rights guaranteed or underpinned by the law of the European Union continue to have the same protection? Is there a possibility that some of those rights could be lost?

Update - The Supreme Court has ruled that the injunction is to remain in place - Supreme Court UK Judgments.

Updated - On 18th April the Court of Appeal held that the interim injunction should be removed but it remains in force pending the decision of the Supreme Court - see HERE.
-----------------------------------------------------

Compensation for Miscarriage of Justice

The Court of Appeal (Civil Division) - Lord Dyson MR; Sir Brian Leveson P and Hamblen LJ - has dismissed appeals of Sam Hallam and Victor Nealon - R (Hallam and Nealon) v Secretary of State for Justice [2016] EWCA Civ 355. The appeals were concerned with whether the two men should be paid compensation for miscarriage of justice following the quashing of their convictions.

The Supreme Court, after receiving submissions from the parties, has ordered a retrial in the "Joint enterprise" Jogee case - see the Court's announcement 7th April.

The Supreme Court's judgment in R v Jogee and also the Judicial Committee of the Privy Council decision in Ruddock were discussed in this earlier post.

British Bill of Rights:

Things have gone quiet on the government's plans for a British Bill of Rights. This may be due to the impending referendum on the United Kingdom's membership of the European Union. Regular readers will no doubt recall that, back in February 2016, the Secretary of State for Justice told Parliament's EU Justice Sub-Committee that something would appear "soon." Mr Gove added that he was "at the mercy of the Prime Minister" but we would not have "too long to wait" - Post of 2nd February 2016 (see the end of the recorded session where Mr Gove responded to a question by Baroness Kennedy).

Concerns about Foreign Affairs:

The European Court of Human Rights has handed down judgment in the case of Da Silva v United Kingdom.

Charles de Menezes was shot dead at Stockwell underground station (London) on 22nd July 2005, soon after he had been mistakenly identified as a suicide bomber just 2 weeks after the 7 July London bombings in which 52 people died.

On 22nd March the House of Commons Justice Committee took evidence on the role of the magistracy. I am sure that many will find the session interesting - to say the least! You may have to wait a few seconds for the video playback to appear.

Crown Court ~ Bradford

Updated - with link to sentencing remarks

Former Sunderland professional footballer Adam Johnson will come before a judge at the Crown Court in Bradford today for sentencing on 3 counts: Two of sexual activity with a child (Sexual Offences Act 2003 section 9) and one offence of Meeting a child following sexual grooming (Sexual Offences Act 2003 section 15).

Pitchford LJ

Concerns about undercover policing have been rumbling on for some time - Guardian article by Helen Steel 23rd March 2016 "Under cover police spied on me. Who else did they do it to?"

An Inquiry - being held under the Inquiries Act 2005 - is underway under the chairmanship of Lord Justice Pitchford - Inquiry website. The Inquiry opened 28th July 2015 when the chairman made his Opening Remarks. More details of the Inquiry are available HERE and see the Terms of Reference.

Operation Midland, an investigation by the Metropolitan Police into allegations of a VIP paedophile ring, has been concluded without any charges being brought. See the BBC News report 21st March ; Telegraph "Operation Midland: The story behind the Met's controversial VIP paedophile ring investigation" and the Statement by the Metropolitan Police.

As at 4 March 2016, there are over 4,000 still in custody under a sentence of IPP (about 5% of the total prison population) and a significant further number who are subject to the licence terms of their IPP and therefore still subject to recall to continue to serve their sentence of IPP

The BBC's crime drama "Happy Valley" has just completed its second series. It was full of legal interest. Set in and around West Yorkshire's Calder Valley, this gritty and sometimes violent story line was centred on Police Sergeant Cawood played by Sarah Lancashire and the various people she encountered as part of her work including a young man - Tommy Lee Royce (James Norton) - who is the father of Cawood's grandson. Royce is a dangerous individual who copes with life by taking control of everything and everyone around him.

There will undoubtedly be many members of the public thinking that a BREXIT vote on 23rd June to leave the European Union (EU) will mean that the UK is out immediately. Nothing could be further from the truth since the legal process for withdrawal will be via Article 50 of the Treaty on European Union (TEU50) which was briefly looked at in BREXIT - Referendum - a few points (20th February 2016). This is, as yet, an untested process and the "smart money" is on things taking a long time given the very extensive impact that the EU has had on national law.

25 years ago today the "Birmingham Six" were released - BBC Home On this Day 14th March 1991- after their convictions for murder were quashed. There have been no subsequent arrests.

On 21st November 1974 two explosions in Birmingham wrecked the Mulberry Bush and the Tavern in the Town. 21 people were killed and 182 injured. A third explosive device failed to detonate. Six men - (Hugh Callaghan, Patrick Joseph Hill, Gerard Hunter, Richard McIlkenny, William Power and John Walker) - were arrested and subsequently tried in the Shire Hall of Lancaster Castle before Bridge J and a jury.

The European Union Referendum Act 2015 stipulates that the government must publish certain information prior to the referendum. This duty has been complied with:-

The Statement required by section 6 was announced by the Prime Minister on 22nd February - "The best of both worlds: the UK's special status in a reformed EU"

Statement required by section 7 - Alternatives to membership

Second statement under section 7 (April 2016) - Rights and obligations of EU membership.

Six men guilty of offences in connection with the Hatton Garden Safe Deposit vault burglary in April 2015 have been sentenced - read the Sentencing remarks of His Honour Judge Kinch QC

The offences:

The relevant offences were - Count 1 Conspiracy to commit burglary; Count 2 Conspiracy to conceal, convert or transfer criminal property and Count 3 Concealing, converting or transferring criminal property. Counts 1 and 2 are Statutory Conspiracies - see Criminal Law Act 1977 section 1 where conspiracy is defined.

Thursday, September 29, 2016

Wednesday, September 28, 2016

Tuesday, September 27, 2016

Monday, September 26, 2016