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NEWS 2008 Page 2
Patents case: Massive Costs Criticised by High Court Judge In the recent patents case of Research in Motion UK Ltd v Visto Corporation [2008] EWHC 819 (Pat) the judge (Floyd J) was critical of the very high costs incurred. He stated – “There is one very striking feature of this case. Visto's estimated costs for the whole of these proceedings are some £1.6 million. Yet RIM's costs are estimated at nearly £6 million. This is a quite staggering disparity but apart from the disparity, it is astonishing that a sum of the order of £6m can have been spent by RIM's advisors in fighting these disputes.” Is it not time for a thorough review of the costs being incurred in these types of case? The costs involved here related to a case described by the judge as “not a particularly heavy patent action.” The trial lasted 5 days. The Gowers Review of Intellectual Property (IP) referred to IP as “an obscure and distant domain – its laws shrouded in jargon and technical mystery.” Nevertheless, IP is everywhere around us. Even a simple coffee jar relies on a range of IP rights from patents to copyright, designs to trade marks. With regard to the costs involved in patent cases, Gowers (para 3.21) had this to say: “A key aspect of enforcing rights is the existence of credible legal sanctions. However, costs can be prohibitive, particularly for small firms. A firm challenging a patent can expect to pay £750,000 for a simple case, largely due to the costs of the adversarial system. Liability for the other side’s costs could double this to £1.5 million. Defending a European patent can mean multiple actions in several jurisdictions, as each European patent is a series of separate national patents subject to national jurisdictions. As well as increasing legal costs, it increases uncertainty, with different jurisdictions on occasion coming to different decisions on the same case.” The Gowers report made a number of recommendations relating to enforcement of IP rights including (Rec. 43) more encouragement for parties to go to mediation. However, the costs regime does not appear to have received the detailed consideration which appears to be needed given the massive costs currently being incurred. See also Gowers Review IP Office WSR: 073/08
Family Cases: Practice Directions: “Secrecy” Practice Directions are statements issued by the higher judiciary which are intended to regulate the manner in which certain matters are to be handled either in court or by the parties to a case. In the light of the growth of “litigants-in-person” in the Family Courts, there is an increasing need for so-called McKenzie friends. A McKenzie friend is somebody who accompanies a litigant in person to a court hearing for the purpose of assisting him in such matters as taking notes, helping to organise the documents, and quietly making suggestions – for example as to questions to put to a witness. Although usually a non-lawyer, the McKenzie friend should not be thought of as a species of lay advocate and has no right to address the court. The term arises from the case of McKenzie v McKenzie [1970] 3 WLR 472. On 14th April 2008, the President of the Family Division issued guidance relating to the use of McKenzie friends. Essentially, the guidance starts from the position that the McKenzie friend should be permitted to assist the litigant unless the judge is satisfied that fairness and the interests of justice do not require it. Family cases, particularly those involving children, are notorious for the use of various types of expert witness – e.g. child psychologists etc. Indeed, the social workers are also expert witnesses. The President of the Family Division issued guidance, effective from 1st April 2008, on the use of experts. This guidance seeks to provide the court with early information to determine whether expert evidence will assist the court to identify, narrow and, if possible, agree the issues between parties. An interesting article by Dr John Fox appeared in Family Law Week – “Are we guilty of trial by expert” Finally, it is interesting to note that the so-called “secrecy” of the family courts in Many people consider that the privacy of these proceedings is essential given the highly sensitive information which could be revealed by a public hearing. Nevertheless, the status quo has been repeatedly challenged by bodies such as “Fathers for Justice.” In June 2007, the Ministry of Justice issued a second consultation on openness in the family courts. WSR: 072/08
Conspiracy to commit a public nuisance In English law there is a considerable overlap between crime and tort (“Civil wrong”). For instance, if D hits V it is likely that D will be guilty of a criminal offence such as common assault and also D could be sued by V for damages. Another area where there is some overlap relates to “nuisance.” The tort of nuisance sets out to protect the right to use and enjoy land. There are basically three forms of nuisance: private, public and statutory. Private nuisance is a common law tort and is actionable in the civil courts (e.g. In a recent Crown Court case, the defendants were charged with conspiracy to commit a public nuisance: - R v White & Others, The prosecution case was that the defendants had agreed to suspend the banners from a motorway bridge and/or to lock themselves onto machinery and that the effect of such a protest would have been to endanger the safety of road users or to necessitate closure of the M1. No such protest had in fact taken place. Granting a defence application to dismiss the charge, His Honour Judge Robinson found that in order to obtain a conviction the prosecution would have had to prove that the defendants had agreed to do something which would either endanger life or prevent the public from using the M1. He rejected the prosecution argument that the display of banners on a motorway bridge or persons locking themselves on to machinery could endanger life by distracting drivers, and noted that although there was evidence that the closure of the M1 might be considered by the police if a ‘locking-on’ protest were to take place, this would be as a result of police intervention rather than a direct consequence of the ‘lock-on’. In any event, since the defendants were charged with conspiracy to commit a public nuisance, the prosecution had to prove that the defendants either intended or knew that either danger to life or the closure of the M1 would be the consequence of the action they agreed upon. The judge ruled that even if the prosecution could establish that there was an agreement for the defendants to display banners or lock themselves onto machinery, there was ‘not a jot of evidence’ to suggest that they intended or knew that their actions would cause either danger to life or the closure of the motorway. On the evidence ‘it would involve unacceptable speculation’ to conclude that the defendants intended anything other than ‘a peaceful protest at ground level’. As a result of the ruling all the defendants were discharged.
Choosing a new Lord Chief Justice It has been announced that the present Lord Chief Justice of The process is now governed by the Constitutional Reform Act 2005. The choice of person to fill this great office is a matter of crucial importance since the Lord Chief Justice is now President of the Courts of England and Part 3 of the 2005 Act deals with the establishment of the Supreme Court of the An interesting House of Lords decision The case was Ashley v Chief Constable of Sussex [2008] UKHL 25. The case arose out of the death of James Ashley who was shot by PC Christopher Sherwood of the Sussex Police. This occurred in 1998 during an armed raid on Mr Ashley’s home. The raid formed part of police investigations into drug trafficking and into the stabbing of a man in a bar by an alleged associate of Mr Ashley. A forcible entry was made to the property and PC Sherwood proceeded to a bedroom. There was no light on in the bedroom as the officer entered. Within seconds of entry to the bedroom, Mr Ashley was shot with a single bullet to his neck. He was unarmed. He died some time afterwards. Following inquiries, PC Sherwood was charged with murder. At his trial, the judge accepted a plea that there was no case to answer and PC Sherwood was acquitted. The trial judge (Mrs Justice Rafferty) told the jury that there was no evidence to “negative the assertion of self-defence in all the circumstances..." The judge’s direction to the jury was given on the basis that, in a criminal trial, the burden was on the prosecution to prove that the defendant intended to apply unlawful force and that involved satisfying the jury that the defendant did not act in self-defence. Subsequently, members of the Ashley family brought civil actions against the Police for, amongst other things, assault and battery. By the time the litigation reached the House of Lords one of the issues to be decided was: For the purposes of the criminal law, it was held in R v Williams (Gladstone) [1987] 3 All ER 411 that even if the mistake made was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely on it. The Police argued that this same rule should apply for civil actions. The Court of Appeal – (having identified three possible ways of assessing the necessity for self-defence) - preferred the view that necessity to take action in response to an attack or imminent attack must be judged on the facts as the defendant honestly believed them to be, whether or not he was mistaken, but, if he made a mistake of fact, he can rely on that fact only if the mistake was a reasonable one for him to have made. This view, which differs from the criminal law position, was adopted by the House of Lords. A close reading of this case indicates that it might be possible, in some future case, to argue for a different rule – i.e. that in order to establish the relevant necessity the defendant must establish that there was in fact an imminent and real risk of attack. However, there was disagreement on this (see the speeches of Lords Scott and Carswell). Thus, for now, the position relating to self-defence based on mistake of fact can be taken to be:
WSR: 069/08
Family Law – Concerns The new “Public Law Outline” was introduced on 1st March 2008. Please see these previous News Links: WSR: 023/08; 024/08; 025/08 and 044/08. It seems that there is also going to be a considerable increase in the fees payable by local authorities in order to issue proceedings. The Ministry of Justice conducted a consultation on the proposal to increase fees and their position is stated at “Ministry of Justice – Care Case Fees.” In fairness, an additional £40m has been provided to local authorities but, it seems, this money has not been “ring-fenced” for child protection purposes. Will this result in local authorities being more reluctant to issue proceedings? This worry certainly exists but only time will tell. The Ministry points out that local authorities are under a duty to protect children at risk of significant harm. The Ministry stated – “Both the Local Government Association and the Association of Directors of Children's Services, in their responses to the consultation, confirmed that local authorities are not influenced by cost considerations in their approach to initiating proceedings or in their decisions about appropriate pre-proceedings work. The practical effect of the statutory duty in this instance is to require authorities to ensure that adequate budgetary provision is made to pay the necessary court fees, and to ensure that individual decisions are not affected by budgetary considerations.” An article in The Law Society Gazette expressed considerable concern that there will be cases where court proceedings are not commenced when they ought to be – Law Society Gazette 17th April 2008 “Huge fee hike raises fear of more child deaths.” See also the article “Getting Left Behind” – Law Gazette 17th April 2008. When care proceedings are finalised by the courts there may be one of several orders – e.g. adoption orders or special guardianship orders etc. The Special Guardianship Order was introduced by the Adoption and Children Act 2002 and, for some children, offers a suitable alternative to adoption. However, there are many instances where considerable support is necessary to enable the special guardian to cope adequately. Indeed, there would be cases where, without adequate financial (and other) support, a person might be deterred from becoming special guardian in a case where that is the best course for the child’s welfare. The question of support has been the subject of a High Court decision: B v London Borough of Lewisham [2008] EWHC 738 (Admin). In this case, a “Special Guardian Allowance Scheme” produced by the Council was declared unlawful by the High Court. WSR: 068/08 Doli Incapax In R v T [2008] EWCA Crim 815 the Court of Appeal Criminal Division has ruled that the defence of “doli incapax” was abolished by the Crime and Disorder Act 1998 section 34 which stated: "The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished." That there was any doubt over this matter was first raised in an academic article by Professor Walker “The End of an Old Song” (1999) 149 NLJ 64. In P [2007] EWHC 946 Admin, Smith LJ expressed the view that section 34 had merely abolished the presumption, leaving the concept, and therefore the defence, of doli incapax intact. The views of Smith LJ were obiter dicta and therefore not binding precedent. The Court of Appeal considered that the defence had no separate existence from the presumption and, for that reason, the 1998 Act had abolished the defence. WSR: 067/08 Magistrates’ Courts and Designated Case Workers In News Item WSR: 037/08 the view was expressed that the Magistrates’ Courts are being “dumbed down” by the use of personnel who are not professionally qualified as barristers or solicitors. This ought not to be accepted by Parliament and this view is shared by the Bar Council and The Law Society – see Times Online 21st April 2008. The lack of “legal representation orders” in those courts is resulting in too many people having to try to defend themselves against charges which can have devastating personal consequences (e.g. loss of reputation, employment etc). WSR: 066/08 Domestic Violence Courts The Home Office has issued an interesting report – (pdf format) – into Specialist Domestic Violence Courts (SDVCs) which commenced work in 2007 – see Crime Reduction Home Office Domestic Violence. Specialist Domestic Violence Courts represent a partnership approach to domestic violence by the police, prosecutors, court staff, the probation service and specialist support services for victims. Magistrates sitting in these courts are fully aware of the approach and have received additional training. These court systems provide a specialised way of dealing with domestic violence cases in magistrates’ courts. They refer to the approach of a whole system, rather than simply a court building or jurisdiction. Agencies work together to identify, track and risk assess domestic violence cases, support victims of domestic violence and share information better so that more offenders are brought to justice. WSR: 065/08 Shoplifting and Sentencing The Solicitor’s Journal 15th April 2008 carried an interesting article about sentencing of “shoplifters.” See “Sentencing Shop Theft” by Paul Tain (Circuit Judge). The article discusses advice issued by the Sentencing Advisory Panel (SAP) which has to be adopted by the Sentencing Guidelines Council (SGC). However, the net effect of the proposals would be to reduce even further the use of custodial sentences for these offences. Unfortunately, a point not mentioned in the article is that an increase in the use of fines will result in more fine defaulters. This is particularly so since many of these offenders are persons of limited means. WSR: 064/08 Appeal by the Serious Fraud Office It seems that the SFO is to appeal the “Corner House” decision which criticised the SFO for dropping its investigation into the arms deals with WSR: 063/08
Torture
The Court of Appeal gave judgment in Othman (Jordan) v Secretary of State for the Home Department to the effect that a trial using evidence based on torture would contravene Article 6 of the European Convention. See The Times 15th April 2008 The British Government considered it acceptable to enter into memoranda of understanding with certain countries that persons returned to those countries would not be tortured. This matter was considered by the European Court of Human Rights in Saadi v The Guardian 19th April 2008 carried the article “Top Bush Aides pushed for Guantanamo Bay torture” and The Times 19th April 2008 reported “Guantanamo Britons to sue MI5 over illegal interrogation.” Professor Phillipe Sands QC – [Professor of International Law at University College London] –uncovers details of interrogation techniques in a new book – see The Guardian 19th April 2008. This link contains an interview with Sands in which it is alleged that the Bush adminstration imposed "top down" the use of interrogation techniques such as "water-boarding." Sands describes this as a "historic and very marked change of direction" by the U.S. military which, since the days of President Lincoln, had been opposed to the use of cruelty. Sands further alleges that President Bush, on 7th February 2002, stated that the Geneva Convention did not apply to Guantanamo Bay. This interview is far from being a mere advertisement for Professor Sands' book. It is a serious indictment of the Bush administration and its alleged disrespect for the human rights of those it held (and holds) in captivity. The interview does not touch upon the extent, if any, to which the British government were either involved in or condoned this process.
Also, it has been reported that legal action may take place against the British Government. Actions are being considered by a eight men who were incarcerated at WSR: 062/08 Prisoner release The changing status of the Parole Board was considered in Item WSR: 016/08 on News Page 1. Following a High Court decision Wayne Thomas Black the Secretary of State for Justice has now lost his right to refuse to release certain prisoners. See The Times 16th April 2008. The decision in Black relates to a small and diminishing category of long term prisoners who were sentenced under the Criminal Justice Act 1991. Section 35(1) of that Act states that – “After a long-term prisoner has served one-half of his sentence, the Secretary of State may, if recommended to do so by the Board, release him on licence.” The court concluded that section 35(1) provides for a procedure which leaves the decision as to release in the hands of the executive and can therefore be applied arbitrarily. As a result the section was declared incompatible with Article 5(4) of the European Convention on Human Rights. WSR: 061/08 Non-molestation orders and their enforcement In Item WSR: 053/08 below concern was expressed regarding a change to the law which is now reported to be making enforcement of non-molestation orders more difficult. This matter has become the subject of further comment from the judiciary – see The Times 14th April 2008. This is a situation requiring urgent action to revert to the previous position which was that Judges could attach a power of arrest to an order and deal with those who breached orders as a contempt of court. This whole episode smacks of Ministers trying to sound tough - (make it a criminal offence) - and it represents law reform at its incompetent worst. WSR: 060/08 The Serious Fraud Office and the Arms Dealing Investigation The High Court has held that the Director of the Serious Fraud Office (SFO) acted unlawfully in stopping the SFO investigation into arms deals with The claimants succeeded on the ground that the Director and Government failed to recognise that the rule of law required the decision to discontinue to be reached as an exercise of independent judgment, in pursuance of the power conferred by statute. To preserve the integrity and independence of that judgment demanded resistance to the pressure exerted by means of a specific threat. That threat was intended to prevent the Director from pursuing the course of investigation he had chosen to adopt. It achieved its purpose. The court has a responsibility to secure the rule of law. The Director was required to satisfy the court that all that could reasonably be done had been done to resist the threat. He has failed to do so. He submitted too readily because he, like the executive, concentrated on the effects which were feared should the threat be carried out and not on how the threat might be resisted. No-one, whether within this country or outside is entitled to interfere with the course of our justice. It is the failure of Government and the defendant to bear that essential principle in mind that justifies the intervention of this court. What action will the court require remains to be seen. Most probably there will be a requirement to reconsider the decision.
This case attracted considerable press attention – e.g. The Timesonline; Commentisfree in The Guardian and also The Independent.
P It is unsurprising to read that the court’s decision is unpopular in political circles – e.g. The Guardian. Certainly, the two main political parties appear united on the need for the government to be able to intervene and stop “inconvenient” investigations. Clause 12 of the recently published Constitutional Renewal Bill will enable the Attorney-General to issue a direction to stop investigations such as that which was being undertaken by the SFO. If the Attorney issues such as direction then a report will have to be made to Parliament (Clause 14). However, the reader will note that Clause 14 reports may be delayed on grounds of “national security” and the contents of reports may avoid inclusion of information where there would be prejudice to national security or serious prejudice to international relations. This seems likely to impede any true parliamentary scrutiny of such reports.
Sentencing – the future? The Ministry of Justice has published a consultation document which considers “A Structured Sentencing Framework and Sentencing Commission.” This document is an essential read for anyone with serious interest in sentencing of offenders. Of course, there is no doubt that the large prison population of Many factors contribute to the overall prison population. New penal legislation or amendments to existing legislation will impact on the use of imprisonment. Examples of this include the introduction of minimum sentences and a new sentencing regime for “dangerous offenders” (Criminal Justice Act 2003 Part 12 Chapter 5) and so on. Changes of policy will also have an effect. An example here - (referred to in the consultation) - is a policy change relating to recall to prison of those who breach licences. In a sensible system of governance there would be a thorough assessment of the likely impact of such changes since resources are needed to properly implement any form of sentence. The Views are therefore being sought on how a structured sentencing framework could be adapted for Comment: In the The more cynical reader might see this whole exercise as one of setting up a mechanism to protect Ministers from criticism relating to the impact of their own actions in relation to sentencing law and policy. Whether or not that is so, this idea merits very serious consideration since, at first sight, it appears to have considerable merit.
Here are links to just 3 of the USA Sentencing Commissions: North Carolina; Arkansas and Massachusetts.
WSR: 058/08 Does the European Convention on Human Rights Article 2 require the In R (on the application of Gentle (FC) and another (FC)) (Appellants) v The Prime Minister and others (Respondents) [2008] UKHL 20, the appellants, who are mothers of British soldiers killed in Iraq, contended that by virtue of sections 1 and 2 of the Human Rights Act 1998 and article 2 of the European Convention on Human Rights they have an enforceable legal right to require the government to set up an independent public enquiry into all the circumstances surrounding the invasion of Iraq by British forces in 2003, including in particular the steps taken by the Government to obtain timely legal advice on the legality of the invasion. The corollary of this right is a duty binding on the Government to establish such an enquiry. The House of Lords – sitting with 9 members – ruled that the Convention gives no such right. The speech of Baroness Hale is particularly interesting in that Her Ladyship considered the reasons why the Chief of Defence Staff asked for an assurance that the military intervention in “If he or she obeys the order and it is not in fact lawful, then he or she could in theory face prosecution for the illegal act. Under the International Criminal Court Statute, the more sceptical he or she is about the legality of the order, the less possible it might be to rely on a defence of superior orders: see article 33. If he or she disobeys the order and it is in fact lawful, then he or she will probably face a court martial for disobeying it. A state which expects its soldiers to obey their orders irrespective of their own views on the lawfulness of those orders should, it seems to me, owe a correlative duty to its soldiers to ensure that those orders are lawful. Operationally it is obvious that the burden should lie on the person giving rather than the person receiving the orders." Whether this matter will go on to the European Court of Human Rights – which is the final arbiter on the meaning of the Convention – remains to be seen. It is somewhat instructive to consider the form an Inquiry might take in the event that one is ever held. It would now be (presumably) set up under the Inquiries Act 2005. This link offers a fair and reasonable critique of the Act. The reader will be struck by the degree of control which Ministers have over what are usually referred to as “independent” inquiries.
Criminal Law: Important new legislation Sunday 6th April 2008 sees the commencement of several items of legislation affecting the criminal law. The Corporate Manslaughter and Corporate Homicide Act 2007 comes into force with the very important exceptions of sections 2(1)(d) and 20. Here is a link to the Commencement Order. The significance of these exceptions is that the new offence of corporate manslaughter will not apply (at this stage) to deaths in custody cases. A very useful commentary on this Act is available at Wikicrimeline. See also the Ministry of Justice news release. When this legislation was before Parliament, the government consistently argued that prisons and the police should be excluded from the offence of corporate manslaughter. Their view was that existing controls, such as inquiries and inquests, were sufficient. It was mainly through the House of Lords that the possibility of liability for such deaths was included in the legislation. According to the Ministry of Justice, a progress report on this matter will be made to Parliament in July. This Act deals only with the liability of certain “organisations” as opposed to the liability of individuals. The “organisations” to which the Act applies are (a) corporations; a department of body listed in Schedule 1; a police force; and a partnership, or trade union or employer’s association, that is an employer. Th establish liability, a “gross breach” of a “relevant duty of care” owed by the organisation to the deceased must be proved. The Act goes to considerable lengths to specify certain activities which will NOT amount to a “relevant duty of care.” See sections 2 to 7. This imposes considerable limitations on this form of liability. At common law, a corporation could only be convicted of corporate manslaughter if a “directing mind” (e.g. a director) was also personally liable. Under the Act it will be possible to convict a corporation where gross failures in the management of health and safety result in a death. Also coming into force is much of the Serious Crime Act 2007 which enables the High Court to make Serious Crime Prevention Orders. The High Court may make an order if (a) it is satisfied that a person has been involved in serious crime (whether in England and Wales or elsewhere); and (b) it has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales. An order may contain (a) such prohibitions, restrictions or requirements; and (b) such other terms; as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person concerned in serious crime in England and Wales or (as the case may be) Northern Ireland. This legislation is particularly convoluted and this will be very likely to lead to a great deal of litigation and ultimately may well limit its effectiveness. WSR: 056/08 Governance of The Secretary of State for Justice has made a statement to Parliament regarding the draft Constitutional Reform Bill. There is also a White Paper accompanying the Bill. These documents may be accessed via “Governance.” The Ministry of Justice website contains a News release and also the Statement to Parliament. The draft Bill is in five Parts which are concerned with:
There are further matters in the White Paper:
On reform of the House of Lords, a further White Paper is now expected before the summer recess. There will also be a Green Paper on a British Bill of Rights and Responsibilities and on the values which should bind us together as citizens. Finally, Professor Sir Kenneth Calman has agreed to serve as Chair of a Commission to Review the Scotland Act. More detailed analysis of aspects of these proposals will be necessary. WSR: 055/08 Why judges find ways to ignore the law in gun crime sentences
This is the headline in The Times 25th March 2008. It is a very misleading headline since the Judges are NOT ignoring the law. Quite the reverse, they are actually applying it though they apply it in the sense in which they interpret it. The issue here is a serious one. Parliament imposed a minimum sentence provision of 5 years imprisonment for adult offenders convicted of certain offences under the Firearms Act 1968. However, Parliament also enacted that the minimum sentence applied “unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender” – [Firearms Act 1968 s.51A as inserted by the Criminal Justice Act 2003]. Whatever the intended meaning of “exceptional circumstances” it is surely for Parliament to make its intentions clearer and this ought to be done by means of the legislation itself. The actual case referred to in The Times is a tragic one. A 16 year old male found a gun. His mother retained it. She appears to have done this following a request from her boyfriend – described in court as “a serious criminal” – to hide the gun. She had then told her son where it hidden and the accident occurred when he was playing with the weapon. Use of the gun resulted in the accidental death of the woman’s daughter. Whatever its meaning, given the massive concern about gun crime, many people will have considerable difficulty in seeing quite why these are “exceptional circumstances.” Action is required to clarify matters.
See also – The Times 25th March 2008 - Merseyside Chief Constable condemns judges on gun crime WSR: 054/08 More unintended consequences? The Times 25th March 2008 carried the headline “Family justice system is at risk, warns new chief judge.” District Judge Edwina Millward has become the leader of the Association of District Judges. She is highly concerned that a change to the law in July 2007 is having the adverse consequence of making enforcement of non-molestation orders more difficult. Before the change a woman could complain to the police, courts issue a non-molestation order with a power of arrest attached to it and, if the man was alleged to have breached it, he could be brought to court within 24 hours and dealt with. The reform removed that power of arrest and enforcement is now in the hands of the police and Crown Prosecution Service who, in line with the prosecutors’ code, only bring proceedings with a realistic prospect of conviction. “By its nature domestic violence happens in private and evidence of a breach is often the word of the victim against the perpetrator.” With the higher criminal standard of proof, and women reluctant to put partners on trial, anecdotal evidence suggests fewer cases are coming forward. This must surely be an unintended (or not thought about) consequence of changing the law. Judge Millward is also supportive of a “Unified Family Court.” This idea was put forward in 1974 by the late Sir Morris Finer – [Ref: The Finer Report - Report of the Committee for One-Parent Families - Cmnd 5629 & 5629-I]. Despite the present government’s undoubted activity in the area of family law, the Finer report has gone largely ignored. The time is right for this matter to be resurrected. WSR: 053/08
Another controversial Bill Currently before the House of Lords is the Human Fertilisation and Embryology Bill. Clause 4 of this Bill (Prohibitions in connection with genetic material not of human origin) is proving to be especially controversial. It has been condemned by Cardinal Keith O’Brien – see The Times 22nd March 2008. A useful summary of some of the issues raised by this Bill was published in The Times on 16th March 2008 – “An embryonic disaster?” The Independent 22nd March 2008 claimed that the Welsh Secretary (Mr. Murphy) might resign from government over this bill. There are also other Roman Catholics in Ministerial positions. It is far from clear as to the circumstances in which government whips permit a “free vote” in Parliament. However, it is disturbing that one is not being permitted on matters which go to the very core of our existence as human beings. The government really ought to justify imposing any controls on how members vote as opposed to placing them them in a position of having to decide between their ministerial posts and their religious beliefs. An argument supporting research can be seen at the Independent – “The argument for hybrids” – 6th September 2007. See also - Human Fertilisation and Embryology Authority.
Postscript: It appears that some of the worms might be turning ….
Postscipt 2:
Daily Mail 24th March 2008 – 12 Ministers set to resign The Times 24th March 2008 – Questions and Answers about the Bill The Independent 24th March 2008 – Breakthrough in treatment of Parkinson’s Disease
Postscript 3: 25th March 2008 - Compromise likely?
Sentencing guidelines on assault and Other offences against the person The Sentencing Guidelines Council (SGC) has published guidelines for sentencing of those offenders guilty of certain offences against the person – see “Assault and other offences against the person – Guidelines.” Where the victim of an assault is aged 15 years or less then additional principles come into play and these are addressed in a separate document – “Overarching Principles: assaults on children and cruelty to a child.” An interesting article by Paul Tain was published on 18th March 2008 in the Solicitors Journal.
Animal Defenders International is a company which aims to suppress, by lawful means, all forms of cruelty to animals. It campaigns against the use of animals in commerce, science and leisure and seeks to achieve changes in law and public policy and to influence public and parliamentary opinion. They wished to advertise one of their campaigns on television. Television advertisements have to be cleared via the Broadcast Advertising Clearance Centre which monitors proposed advertisements for compliance with the law and current notes of practice. The advertisement proposed by Animal Defenders was turned down on the basis that it would breach the prohibition on political advertising in the Communications Act 2003 section 321(2). Animal defenders applied for judicial review of this decision. They argued that the section 321(2) was incompatible with the European Convention for the Protection of Human Rights Article 10 (Freedom of Expression). The House of Lords has ruled that the section is compatible with the convention – see R (on the application of Animal defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15. An interesting aspect of this case is the difference of opinion between Lord Bingham of Cornhill and Lord Scott of Foscote. The difference of viewpoint concerned the relationship between the European Court of Human Rights and the House of Lords. Lord Scott was of the view that the decisions of the The very extensive ban on political advertising is quite remarkable. One might well think what problems would have occurred had this advertisement been allowed. The full reasons for the ban are set out in detail in Lord Bingham’s speech. However, it may be that the future will bring further challenges on the basis of Article 10. Lord Scott canvasses this possibility at para. 41 of his speech and he concludes that there MAY be some respects in which the section is incompatible with Article 10.
Extradition to the In News Item 020/08, this website referred to the Norris extradition hearing in the House of Lords. The “It is to be hoped that the House of Lords reverses the “legalistic” Court of Appeal decision which does little credit to the reputation for fairness of British justice.” This has now happened. The House of Lords has ruled that price-fixing was not an offence at the time of the allegations against Mr. Norris - see Norris (Appellant) v Judgments - Government of the United States of America and others (Respondent) (Criminal Appeal from Her Majesty’s High Court of Justice) [2008] UKHL 16. Naturally, this case has attracted enormous press coverage – see, for example, The Times 12th March 2008. Press Comment – the Attorney-General’s role – March 2008 According to an article in The Guardian 11th March 2008 the government is in retreat over plans to reform the Attorney-General’s role in relation to prosecutions. The Attorney’s power to halt prosecutions will be retained in cases where issues relating to national security or international relations arise. The Times carried an article “Britain can’t afford to be corrupt” which examines the Prevention of Corruption Act 1906 prosecution for which requires the Attorney’s consent. This article argues that the decision to stop the Serious Fraud investigation into the al-Yamamah deals raised “questions both about the rule of law and fairness in deciding which cases to prosecute.” Whilst the latter article suggests that reform of the Attorney’s role is needed, it is looking increasingly unlikely that it will actually occur.
WSR: 048/08
Denial of Information The Bill of Rights 1689 has been in the news this week – see “This is London” and “The Daily Mail.” Requests for Information: The government is pressing forward with its controversial scheme for identity cards – (Identity Cards Act 2006). Requests for information were made by certain individuals to government departments. Certain individuals wished to see information relating to progress toward implementation of the ID card scheme and, under the Freedom of Information Act 2000, they made requests to government departments for the information. The requests were refused and the individuals appealed to the Information Commissioner who ruled in favour of disclosure. The government appealed the Commissioner’s decision to the Information Tribunal which also, subject to certain caveats, ruled in favour of disclosure. The matter has now reached the High Court and it is here where the point about the Bill of Rights 1689 was raised. Links: Information Commissioner’s Decision of 5th June 2006 relating to “The timescale and anticipated publication date for the feasibility study being undertaken by [the DWP] to establish the full impact, costs and benefits of the introduction of identity cards.” Information Tribunal Judgment relating to the 5th June 2006 Decision – Secretary of State for Work and Pensions v Information Commissioner Information Commissioner’s Decision of 31st July 2006 relating to “Gateway reviews” - “Please provide me with the two pre-Stage Zero and the actual Stage Zero Gateway Reviews of the Identity Cards Programme project being run by the Home Office” Information Tribunal Judgment relating to the 31st July 2006 Decision – Office of Government Commerce v Information Commissioner. The Bill of Rights 1689: It is generally a little-known fact that Parliament is still technically called “The High Court of Parliament” and both Parliament itself and individual members enjoy certain privileges which form part of the “law and custom of Parliament.” The courts of law have a limited role in relation to parliamentary privilege. Thus, the High Court is able to determine whether a privilege exists and, if so, the scope of the privilege. However, if the court decides that a disputed matter comes within a parliamentary privilege then the court must decline jurisdiction. One of the most important privileges is that of freedom of speech. Historically, the right of free speech in Parliament was wrested from monarchs such as Queen Eliazbeth I and James I. The latter argued that the privileges of Parliament were derived from the “grace and permission” of the King. This matter was not finally settled until a civil war had been fought (1642-48); the Glorious Revolution of 1688 and, finally, the Bill of Rights 1689. Article IX of the Bill of Rights states: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament” The whole question of privilege has recently been examined by a Joint Committee on Parliamentary Privilege which made recommendations for changes including clarification of the meaning of Article IX. The Committee’s report is a highly informative modern source of information about parliamentary privilege. The Bill of Rights has now been used as an argument to seek to prevent release of the “gateway reviews” of the identity card scheme. Unless and until the decision of the High Court is published it is not possible to know the exact reasoning which this argument entails. Certainly, there could be no doubt that the Joint Committee’s report is a “proceeding in parliament” and therefore it cannot be “questioned” in the courts. However, the privilege report is not being attacked (“impeached”) or questioned. The information requested lies within the bowels of government departments and not in parliament itself. The public interest in the Identity Card scheme is massive since this is a scheme which will affect everyone in the country and it may affect them in ways which are currently unknown. The government’s desire to keep these matters secret does nothing to raise either public confidence in the scheme or to raise the scheme’s acceptability. It is to be hoped that the government reconsiders its stance on these cases and adheres to the Information Tribunal decisions. Highest Paid Barristers
The Ministry of Justice has just published a report which tells us – see Highest Paid Barristers for the Year ending 31st March 2007. We see that 10 barristers each received in excess of £600,000 in that year for criminal defence work with the highest standing at £957,000. For civil work, the top 10 received from £272,000 to £508,000. The report on the Ministry’s website is at pains to tell us that these figures have to be interpreted carefully and do not represent the earnings of these lawyers in that year. Various other caveats have to be taken into account such as VAT and the professional expenses which these barristers incur. The report also reminds us that all applicants for criminal legal aid representation, whether appearing before the Crown Court or magistrates’ courts, must satisfy the ‘Interests of Justice’ test. In applying the ‘Interests of Justice’ test, a number of factors are considered. These include whether the charge is so serious that, if convicted, the defendant is likely to be imprisoned or suffer a loss of livelihood. The defendant’s inability to follow court proceedings if they have an inadequate knowledge of English may also be taken into account. Provided one or a combination of these factors can be shown to be sufficiently relevant, then it will be deemed in the ‘Interests of Justice’ for the applicant to receive legal aid. Then there is the big BUT … Implementation of provisions within the Criminal Defence Service Act 2006 means that since 2 October 2006 defendants appearing before the Magistrates’ Courts also have to pass a financial eligibility test in order to qualify for a grant of representation. The result is that for many who have to appear before magistrates, there is no possibility of a legal representation order. This is quite scandalous. Many such defendants face charges which can have serious consequences - e.g. loss of employment etc. Even allowing for all the carefully phrased caveats in this report, these barristers have received very substantial sums of money from public funds at a time when other areas of the criminal justice system, important to individuals, are denied the cash to provide legal representation.
A topical and related matter is the thorny issue of Very High Cost Criminal Cases. The Ministry of Justice is seeking to establish a panel of solicitors and barristers to represent defendants in major criminal cases – see Very High Cost Criminal Cases MoJ. Naturally, the government wishes to drive down the costs of these cases. On the other hand, the bar argues that the payment of substantial fees is necessary if the best barristers are to be attracted to this work. See also Legalweek and Rightsnet.
Postscript 1: Labour’s handling of legal aid was the subject of comment in The Guardian 10th March 2008 - Labour's handling of legal aid makes a mockery of its rhetoric on fairness in which it is argued that it's the poorest who suffer as new crimes, terrorism cases, and clampdowns on lawyers' fees eat into our legal budgetPostscript 2:
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