Banking and the Anti-terrorism, Crime and Security Act 2001

 

The Anti-terrorism, Crime and Security Act 2001 section 4 permits the government (Treasury) to make a “freezing order” relating to the assets of individuals or organisations it believes to have acted in a way that is detrimental to the UK economy.  It appears that some Scottish MSPs are pressing for this power to be used against the personal assets of Sir Fred Goodwin.  It was used in 2008 to freeze all of the UK-held assets of Landsbanki, the collapsed Icelandic bank. See The Times 17^th March 2009 “Use Terrorism Law on Goodwin.”  However, perhaps those advocating such action should read the Act first.

Section 4(2)(a) refers to the Treasury reasonably believing that action to the detriment of the United Kingdom’s economy (or part of it) has been or is likely to be taken by a person or persons.  However, section 4(3) and 4(4) must also apply.  These refer to the person - (i.e. who is believed to have taken or to be likely to take the action) - being (a) the government of a country or territory outside the United Kingdom, or (b) a resident of a country or territory outside the United Kingdom.  Enough there one might have thought to make a freezing order against a person resident in the UK legally impossible.

The reference to terrorism law in the newspaper headline is unfortunate and arises from the “short title” to the 2001 Act.  There is little doubt that the use of a law referring to terrorism caused needless upset within Iceland – see, for example, The Independent 24^th October 2008.  However, the use of this Act against the Icelandic Bank shows that the Act is far from confined to terrorism.

 Explanatory Notes to the 2001 Act

WSR: 023/09

Action in the United States against RBS?

It has been reported that certain British Pension Funds are to sue Sir Fred Goodwin and the Royal Bank of Scotland in the United States courts.  The view about this of Lord Grabiner QC can be read at – “Times 17th March 2009 Pension funds face 'uphill task' against Sir Fred Goodwin and RBS.”

Lord Grabiner also raised the question as to why the class action was taking place in the American courts, if the pension funds felt that they had such a strong case in English law.

“The reason must be because they think they will get a more sympathetic hearing from a legal system that is more flexible than our own, and where the level of damages awarded by American juries is commonly higher than in England where juries have no role in civil commercial cases."

Certainly in English law, it is far from easy to establish matters such as fraud or misrepresentation and causation linking to actual loss has to be proved.  The bigger the institution which buys, the harder it is likely to be to establish such causation since large organisations (unlike small buyers) will usually have taken independent expert advice prior to purchasing.

• Pensioners hire Cherie Blair to sue RBS chiefs

Conduct of Summary Cases and Appeals

This relatively straightforward case in the Magistrates’ Court turned out to be a complete disaster - Brett v DPP [2009] EWHC 440 (Admin)

The appellant was charged with driving (on 4^th April 2006) with excess alcohol (Road Traffic Act 1988 s5) - namely 96 mgm in 100 ml of blood.  [Blood limit is 80 mgm].  After 10 appearances a trial was finally fixed for 13^th August 2007 but that did not take place and it finally came before a Deputy District Judge for trial on 3^rd December 2007.

With regard to this inordinate delay, Lord Justice Leveson said that it was “utterly unacceptable” and he stated that parties who cause delay ought to be penalised by cost orders.

Leveson LJ also indicated that the case ought to have been appealed to the Crown Court rather than using judicial review (which is essentially intended to deal with disputed or doubtful legal points).  He stamped firmly on any idea that judicial review should be used “to improve the prospect of the case not being tried at all” – “the sooner that those advising defendants are disabused of the merit of such an approach the better.”

The court also ruled that the District Judge at trial was not bound by an earlier decision of the magistrates relating to the admissibility of the hearsay statement of the blood sample analyst.  Pre-trial rulings are binding (unless there has been a change of circumstances) but here the administrative court stated that there were different circumstances to those at the time of the earlier ruling.

This case demonstrates, yet again, the desire in the judiciary to get summary trials held speedily and to discourage judicial review where an appeal to the Crown Court against conviction would have sufficed.

WSR: 021/09

United Nations Report condemns the United Kingdom

The Guardian Monday 9^th March 2009 has drawn attention to a report produced for the United Nations which condemns the United Kingdom for its role in breaching basic human rights and "trying to conceal illegal acts" in the fight against terrorism.  Our country now stands charged with, at least, assisting others to breach human rights and turning a blind eye to breaches committed by others.

The prohibition against torture is an absolute and peremptory norm of nternational law.  States must not aid or assist in the commission of acts of torture, or recognize such practices as lawful, including by relying on intelligence information obtained through torture.  States must introduce safeguards preventing intelligence agencies from making use of such intelligence.

The report points out that the United States of America created a “comprehensive system of extraordinary renditions, prolonged and secret detention, and practices that violate the prohibition against torture and other forms of ill-treatment.”

“This system required an international web of exchange of information and has created a corrupted body of information which was shared systematically with partners in the war on terror through intelligence cooperation, thereby corrupting the institutional culture of the legal and institutional systems of recipient States.”

While this system was devised and put in place by the United States, it was only possible through collaboration from many other States. There exist consistent, credible reports suggesting that at least until May 2007 a number of States facilitated extraordinary renditions in various ways. States such as Bosnia and Herzegovina, Canada, Croatia, Georgia, Indonesia, Kenya, the

former Yugoslav Republic of Macedonia, Pakistan and the United Kingdom of Great Britain and Northern Ireland have provided intelligence or have conducted the initial seizure of an individual before he was transferred to (mostly unacknowledged) detention centres in Afghanistan, Egypt, Ethiopia, Jordan, Pakistan, Morocco, Saudi Arabia, Yemen, Syria, Thailand, Uzbekistan, or to one of the CIA covert detention centres, often referred to as “black sites”. In many cases, the receiving States reportedly engaged in torture and other forms of ill-treatment of these detainees.”

There can be little remaining doubt that Ministers in the present British government were well aware of these events.  They have demeaned our country and should be called to account.

WSR: 020/09

Lloyds and HBOS – Competition

The Treasury has been asked to explain an alleged secret dossier at the heart of the Lloyds takeover of Halifax Bank of Scotland – (Sky News 1^st March 2009).  To enable this takeover to happen, the government decided not to refer the matter to the Competition Commission.  A legal challenge to that decision failed – see Merger Action Group v Secretary of State for Business, Enterprise and Regulatory Reform – [2008] CAT 36 - Competition Appeal Tribunal 10^th December 2008.  The legal challenge was mounted under section 120 of the Enterprise Act 2002.  The reasoning within government for deciding against a referral to the Commission needs to be brought into the public domain.

WSR: 019/09

? Bank Regulation ?

The United Kingdom is now enduring the largest financial catastrophe since the 1930s.  There has been failure of monetary policy, extreme risk-taking and imprudent lending within various banks and a clear failure to achieve effective regulation of the financial industry – see The Times 6^th March 2009 “The Politics of Printing Money” where it is argued that the need to expand money supply by some £75 billion is the result of failure of financial policy at all levels.

The UK currently has a tripartite system of regulation.  This system is largely the creation of the government and of Gordon Brown in particular.  Regulatory responsibility is divided between the HM Treasury; Bank of England and the Financial Services Authority.

There has been no acknowledgment that this tripartite system has failed the general public.  Meanwhile, perhaps to deflect criticism from governmental failures, there have been arguments about the remuneration received by various bankers.

HM Treasury is the United Kingdom's economics and finance ministry. The Treasury website informs us that – “It is responsible for formulating and implementing the Government's financial and economic policy. Its aim is to raise the rate of sustainable growth, and achieve rising prosperity and a better quality of life with economic and employment opportunities for all.”

The Bank of England is the central bank of the United Kingdom – founded in 1694, nationalised on 1 March 1946 gained its independence in 1997. The Bank’s website informs us that the Bank is committed to promoting and maintaining monetary and financial stability as its contribution to a healthy economy.  The bank’s website contains a tremendous degree of detail about its responsibilities and activities.

The Banking Act 2009 (Explanatory Note) has now increased the responsibilities, powers and role of the Bank.  A key part of the Act is the creation of the Special Resolution Regime to provide the tripartite authorities - HM Treasury, Bank and Financial Services Authority - with a framework to deal with distressed banks. 

The Banking Act 2009 is already bringing about enormous complexity in the law.  A large number of Statutory Instruments have already been issued under the Act.  (Section 259 summarises the considerable number of statutory instrument making powers).  A particular concern about the 2009 Act is that it has exempted certain decision-making from the Freedom of Information Act – see BBC.

The Financial Services Authority operates within the terms of the Financial Services and Markets Act 2000 – (Explanatory Notes).  The FSA has a Board appointed by HM Treasury and it has 4 regulatory objectives (2000 Act section 2):

(a) market confidence; (b) public awareness; (c) the protection of consumers; and (d) the reduction of financial crime.

It is hard to accept that this regulatory regime is either efficient or effective.  The whole appearance is one of regulatory failure; unwillingness to intervene and willingness to allow those who have been undoubtedly responsible for management of banks to escape with rewards way beyond the dreams of the vast majority of people.

See also Banking Act 2009 – Special Resolution Regime – Code of Practice

Additional Items:

Government acquires majority shareholding in Lloyds Bank – Times 7^th March 2009 and BBC 7^th March - It was the January takeover of HBOS - a move that was supported by the government - that has caused the problems at Lloyds.

Also Telegraph 7^th March 2009 – an article which suggests that the futures of Sir Victor Blank (Lloyds Chairman) and Mr Daniels (Chief Executive) look “increasingly shaky” but it appears that Sir Victor may have the support of “senior Government figures” since they believe that he will help push through difficult decisions. It is also stated that Mr Daniels “has become very frustrated with the Government's mounting interference over issues such as bonuses.”

This blog (Parliamentary Connections) argues that Gordon Brown has lost the debate over the future of financial regulation.  Within the European Union, as a result of the Larosiere Report - (full report) - there is now a move to set up three new agencies: European Banking Authority, the European Securities Authority and the European Insurance Authority.  These would be supra-national regulatory bodies.  It appears that the present British government, thinking that it has all the answers, is giving this report a rather lukewarm reception.

WSR: 018/09

Use of Community Orders and Suspended Sentence Orders

An interesting report entitled “The Community Order and the Suspended

Sentence order three years on: The views and experiences of probation

officers and offenders” has been published by the Centre for Crime and Justice Studies.

The report argues that government attempts to slow a rapidly rising prison population by a reformed, and credible, community sentences framework have largely failed.   Indeed there is evidence that the Community Orders and Suspended Sentence Orders, which came into effect in April 2005, are contributing to the rise in prison numbers, rather than helping to arrest its growth.  See Crime and Justice Studies

WSR: 017/09

Freedom of Information – Ministerial Veto

On 27^th January 2009, The Information Tribunal (by a majority) ruled that formal Cabinet Minutes of 13^th and 17^th March 2003 should be disclosed.  In this “exceptional case” there were “very powerful public interest reasons why disclosure was in the public interest.”  Read the Tribunal’ decision here.

On 23^rd February 2009, Mr Jack Straw (Secretary of State for Justice and Lord Chancellor) issued a certificate under section 53 of the Freedom of Information Act 2000 which, in effect, prevents publication of those Minutes (even in redacted form).

It appears that, on 13^th and 17^th March 2003, the Attorney-General’s advice concerning military action against Iraq was at least referred to in Cabinet.  Of course, we do not know how detailed the discussions were. 

The Ministry of Justice website provides links to the Certificate issued by Straw and also to his reasons (which, as required by the Act, have been placed before Parliament).  Essentially, Straw justifies his certificate on the basis of Cabinet Collective Responsibility – i.e. that Ministers can speak frankly in private though they are supposed to maintain a united front when decisions have been made. Robin Cook resigned

Straw argued that there was already considerable information in the public domain - The Butler Report, the Hutton Inquiry, the Intelligence and Security Committee and repeated investigation by both the Defence and Foreign Affairs Select Committees of the House of Commons.  Also, the Government released the Attorney General’s legal advice.  [The advice was released only as a result of considerable public and political pressure].

Straw states – “The Government is committed to ensuring public participation in its decision-making: it exposes its thinking to Parliament and public via parliamentary debate, public consultation, and engagement with the media. It has opened itself to scrutiny in relation to the decision to use armed force in Iraq: it broke with precedent in putting that question before the House of Commons for debate and a vote.”

Much of what he says about respecting public opinion is somewhat unconvincing.  The massive protests against going to war in Iraq were ignored.  Also, the fact that Parliament “was allowed” to vote shows a major problem with the British Constitution as it actually operates as opposed to how many consider that it ought to operate.  In any event, the Parliamentary vote was not held until 27^th February 2003 (BBC) – a long time after it appears that Ministers had taken the decision to engage in military action.  Straw was one of those Ministers – see The Times 1^st May 2005.

In issuing this certificate, Straw has acted a judge in his own cause – a point argued by Professor Slapper (Times).  However, it is perfectly arguable that Straw is right to maintain the confidentiality of Cabinet – see, for example, Martin Kettle in The Guardian 24^th February.  Whilst the Tribunal described this is an “exceptional case” it would not be long before other “exceptional cases” arose – e.g. about 42 day detention; the Heathrow Airport expansion etc.

In Lawobserver’s view, there is much force in an argument expressed on the “Head of Legal” blog to the effect that the structure of the Freedom of Information Act is seriously flawed.  There should not be a section 53 veto at all.  The legislation should, subject to certain defined exceptions, specifically protect Cabinet Minutes from disclosure.  [Defined exceptions would allow for disclosure if, for example, the Minutes might reasonably reveal that Parliament may have been misled or if they may reveal possible illegality].  It should be for a judge to rule on whether any exception applied (with appeals permitted).

The failure of the Act to protect Cabinet Minutes means that the Information Tribunal has to consider whether “the public interest in maintaining the exemption outweighs the public interest in disclosing the information.”  This is a rather vague test which leads to the Tribunal making subjective (and maybe arbitrary) decisions.

It is time that Parliament did its job of defining when Cabinet Minutes should be released.  The very existence of a “ministerial veto” is a sign that legislation is dictated by the executive.

The Tribunal’s reasoning is also bizarre.  The Tribunal saw the minutes in “closed session” and stated that the decision in favour of disclosure was not based on the contents of the minutes (see para 82 of the Tribunals’ decision).  If not based on the contents of the minutes then what else could it be based on?  Surely, the decision can only sensibly be made as a result of the contents.  Anything else appears to be arbitrary decision-making.

WSR: 016/09

Child Support – another move toward executive powers

The Government is taking away centuries-old rights to have disputes adjudicated impartially by a court.  See The Times 26^th February 2009 – “Child Support Agency: tough new line leaves parents few appeal rights.”

WSR: 015/09

Age Discrimination in Employment

National Air Traffic Services is a major provider of air traffic control services in the United Kingdom.  An employment tribunal has found against NATS in relation to the company having an upper age limit of 35 on recruitment of trainee air traffic controllers – see Personneltoday.com  The relevant law is in The Employment Equality (Age) Regulations 2006 which came into force on 1^st October 2006.

WSR: 014/09

Coroners and Justice Bill No. 5 - Sentencing Council

Clause 100 of the Coroners and Justice Bill states that “There is to be a Sentencing Council for England and Wales.”  Schedule 13 makes provision about this Council.  This new Council will replace the existing Sentencing Guidelines Council set up under the Criminal Justice Act 2003 s.167.

The purpose of the Sentencing Council will be to make guidelines for sentencing of offenders and the matters to be taken into account by the Council are set out in Clause 102(11): (a) the sentences imposed by courts in England and Wales for offences; (b) the need to promote consistency in sentencing; (c) the need to promote public confidence in the criminal justice system; (d) the cost of different sentences and their relative effectiveness in preventing re-offending; (e) the results of the monitoring carried out under section 110.

By Clause 107 – Every court will have a duty, in sentencing an offender, to follow any sentencing guidelines which are relevant to the offender’s case, and must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so.

This is a very prescriptive form of words and is worded differently to the Criminal Justice Act 2003 s.172 which currently requires a court to “have regard to” guidelines though there is a duty on a court to give reasons if departing from guidelines (CJA 2003 s.174).

It is of concern that the mechanism in the Bill will, if enacted, considerably reduce the scope of the exercise of judicial discretion in sentencing and it appears that the Magistrates’ Association is raising this issue – The Times 26^th February 2009.

WSR: 013/09

Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46

This interesting case was brought by Lisa Ferguson who was thoroughly fed up with the conduct of British Gas.  She brought an action against them for harassment contrary to the Protection from Harassment Act 1997.

WSR: 012/09

Guantanamo Bay: Torture: Binyam Mohamed

Here is a link to the High Court’s ruling in R (Binyam Mohamed) v Foreign Secretary [2009] EWHC 152 (Admin).

This is the fourth judgment generated by the detention of Binyam Mohamed.  The issue in this case was whether the Administrative Court (part of the High Court) should restore a short summary of certain reports which had been omitted from the first judgment.  The reports has been supplied to the UK by the USA.  The Foreign Secretary claimed that the summary should not be restored since it would damage intelligence sharing arrangements between the two countries.

Comment:

The case contains much fine language about abhorrence of torture and the importance of open and public administration of justice.  However, an argument that public interest immunity must not be allowed to hide iniquity was rejected. It is difficult to see how the obscene and hideous practice of torture can be eliminated if States are enabled to keep any possible State involvement from the public.  Regrettably, the whole matter has a worrying ambience and justice and the public's "right to know" seems to be the loser.

1^st Judgment

2^nd Judgment

3^rd Judgment

4^th Judgment

WSR: 011/09

Coroners and Justice Bill – No 4

Bail in Murder Cases

The Coroners and Justice Bill contains Clauses 97 and 98 which seek to amend the law (in the Bail Act 1976) relating to bail in murder cases.  Where a person is charged with murder he may not be bailed unless the court is of the opinion that there is no significant risk of the defendant committing, while on bail, an offence that would, or would be likely to, cause physical or mental injury to any person other than the defendant.  It seems that it will be for the prosecution to show that there is such a significant risk as opposed to a defendant having to show that there is no such significant risk.

A person charged with murder may not be granted bail except by order of a judge of the Crown Court and, if granted bail, any breach of bail proceedings must be heard by a Crown Court judge.

A further amendment to the Bail Act 1976 will require a court when considering bail for any indictable offence, to have regard to whether further offending is likely to cause injury.

These changes arise from a Consultation carried out by the Ministry of Justice during the summer of 2008.  Responses to the consultation have been published.  This amendment to the law arises from public concern over a number of cases.  The cases of Garry Weddell and Anthony Peart are referred to in the Consultation document. 

Garry Weddell, who was on bail awaiting trial for the murder of his wife, killed his mother-in-law before taking his own life.  On 27 July 2007 His Honour Judge Bevan QC granted Weddell conditional bail after hearing evidence from a psychiatrist that he did not think the defendant was a suicide risk. 

Anthony Peart had a poor record of adherence to bail conditions though at the time he killed Richard Whelan he was not on bail.

A further case is that of Adam Swellings – a young person with a poor record of offending including convictions for violent offences.  He attacked a Mr Collinson and appeared before Warrington Magistrates’ Court and pleaded guilty to assault.  The court bailed him pending sentence.  Whilst on this bail he killed Mr Garry Newlove.

See Ministry of Justice 2^nd February 2009

WSR: 010/09

Coroners and Justice Bill – No. 3

Part 2 Chapter 1 (Clauses 39-43) of the Coroners and Justice Bill deals with reform of the law relating to the partial defences to murder of diminished responsibility and "provocation." In fact, the Bill seeks to abolish "provocation" as a partial defence to murder and replace it with a new partial defence "loss of control".  The proposed reforms contain controversial elements.  The Bill also seeks to amend the law relating to infanticide (Clauses 44 and 45) and assisting or encouraging suicide (Clauses 46-48). 

WSR: 009/09

Responding to Human Rights Judgments

The Ministry of Justice has published a response to the parliamentary Joint Committee on Human Rights Report – No.31 of Session 2007-08.

See “Responding to Human Rights Judgments” and “Response”

Also “Joint Committee Report – No.31 of Session 2007-08”

It is clear from the government’s response that they do not accept criticism of the Inquiries Act 2005.  In particular, this is discussed in relation to inquiries into certain deaths in Northern Ireland – cases of McKerr, Jordan, Finucane, Kelly, Shanaghan and McShane v UK.  The 2005 Act gives Ministers significant powers in relation to inquiries and, for this reason, is seen by many as failing to guarantee true independence.

The Annex to the Response gives information about each of the 26 cases in which UK higher courts have made Declarations of Incompatibility since 2^nd October 2000 when the Human Rights Act 1998 came into force.  Some of those cases have had highly significant impact on the law – for example:

R (on the application of Anderson) v Secretary of State for the Home Department House of Lords; [2002] UKHL 46; 25 November 2002 The case involved a challenge to the Home Secretary’s powers to set the minimum period that must be served by a mandatory life sentence prisoner.  Law amended by the Criminal Justice Act 2003.

Bellinger v Bellinger House of Lords; [2003] UKHL 21; 10 April 2003 A post-operative male to female transsexual appealed against a decision that she was not validly married to her husband, by virtue of the fact that at law she was a man. Law amended by the Gender Recognition Act 2004.

A and others v Secretary of State for the Home Department House of Lords; [2004] UKHL 56; 16 December 2004 The case concerned the detention under the Anti-terrorism, Crime and Security Act 2001 of foreign nationals who had been certified by the Secretary of State as suspected international terrorists, and who could not be deported without breaching Article 3. They were detained without charge or trial in accordance with a derogation from Article 5(1) provided by the Human Rights Act 1998 (Designated Derogation) Order 2001.  Law eventually amended by the Prevention of Terrorism Act 2005 which created “control orders.”

Smith v Scott Registration Appeal Court, Scotland; [2007] CSIH 9; 24 January 2007 This case concerned the incapacity of convicted prisoners to vote under section 3 of the Representation of the People Act 1983.  No change has been made as yet and the matter is under consideration by the government.

WSR: 008/09

Coroners and Justice Bill 2009 – No.2

The Coroners and Justice Bill (Part 1) seeks to radically reform the law relating to Coroners.  Certain aspects of the Bill are controversial.  In particular, these include the proposed ability for a government Minister to direct that an inquest be held in secret and without a jury.

See Coroners and Justice Bill

WSR: 007/09

International Trade is of fundamental importance to the overall economy and clarity as to the law which will govern a contract is essential.  The United Kingdom has now opted into what is referred to as the Rome 1 Regulation. 

The 1980 Rome Convention established uniform rules for choice of law between EU Member States and the 1980 Convention was implemented in the United Kingdom by the Contracts (Applicable Law) Act 1990.  In 2005, the European Commission published a proposal to replace the 1980 Convention with a Regulation.  However, the UK government initially decided to engage in the negotiations but did not adopt the proposal.  The stage has now been reached at which the U.K. has opted into the Regulation and it will come into legal force in all EU member States (except Denmark) on 17^th December 2009.  Further information on this can be seen on the Ministry of Justice website – “New rules provide confidence for cross border trade”

In overall terms, the Regulation is very similar to the Rome Convention. Both are built upon the same principles: a choice of applicable law for the parties in most circumstances, clear rules that apply in the absence of choice, a degree of flexibility for the courts, and appropriate protection for weaker parties such as consumers.

See also:

“European regulation on law applicable to contractual obligations (Rome I)”

WSR: 006/09

Obama: Executive Orders - Guantanamo etc

 The important “executive orders” issued by President Obama in his first two days in office can be seen here – “White House.”  These documents are very detailed and cannot have been drawn up quickly as soon as Mr Obama entered the White House.  A lot of preparatory work must have gone into them.

An executive order in the United States is a directive issued by the President, the head of the executive branch of the federal government.  U.S. Presidents have issued executive orders since 1789.

The orders relating to ensuring lawful interrogations and to order review of detention policy options and closure of detention facilities (including Guantanamo Bay) are particularly welcome.  They are principled decisions by the new President but should not be taken as a sign that America is becoming weak.

It is interesting to speculate whether the change of administration in the USA will now lead to a change in the stance of the British government in some areas of foreign policy.  The British government had considered it acceptable to enter into memoranda of understanding with certain countries to the effect that persons returned to those countries would not be tortured.  Such agreements were considered by the European Court of Human Rights in Saadi v Italy (a case in which the UK government intervened).  The court confirmed the absolute nature of Article 3 of the Convention. 

Released on 20^th July 2008 was an immensely important report by the House of Commons Foreign Affairs Committee – Foreign Affairs Ninth Report. The report examined a considerable number of issues relating to British Foreign Affairs including Human Rights, the Arms Trade, Cluster Munitions, International Criminal Law, Rendition, the US and Torture, UK Officials and Torture, Diplomatic assurances, Guantanamo Bay etc.  The report made a considerable number of observations and recommendations.

There is some suspicion that the UK government lowered its ethical standards as a result of its desire to be seen to support and stand “shoulder-to-shoulder” with the Bush administration.  Any such lowering of standards was not supported by the vast majority of right-thinking British people.

Some references:

See Executive Orders and also the link to the orders made by President Obama - White House

House of Commons Foreign Affairs Committee – Foreign Affairs Ninth Report

WSR: 005/09

It’s a free country surely?

The Guardian is raising the profile of how liberty in the United Kingdom is being eroded under what Lord Phillips (now senior Law Lord) referred to as “the torrent of legislation” pouring out.  It is estimated that some 3600 new criminal offences have been created since Labour came to power in 1997.  Within the whole process there is a clear trend of centralising control over the population and giving powers to numerous officials who must be obeyed upon pain of possible fine or even imprisonment. 

See LibertyCentral

The new LibertyCentral website contains an A-Z of the legislation passed in recent years and is, for that reason alone, a worthwhile resource.  Acts are described and their salient features are pointed out.  However, it is not just the primary legislation which is in issue.  It is now very common for Acts to grant extensive powers to Ministers to fill in the detail.  The Act becomes little more than am enabling framework giving legal cover to what Ministers do.  The extent of such powers ought to be a major cause for concern – see Henry Porter in The Guardian “Labour’s attack on Parliament invokes Henry VIII”

WSR: 004/09

Burglary of Dwelling Houses - Sentencing

R v Saw and others [2009] EWCA Crim 1

Lord Judge LCJ said – “The starting point must always – we emphasise, always - be that burglary of a home is a serious criminal offence. The principle which must be grasped is that when we speak of dwelling house burglary, we are considering not only an offence against property, which it is, but also, and often more alarmingly and distressingly, an offence against the person. There is a longstanding, almost intuitive, belief that our homes should be our castles. The concept suggests impregnability and defiance against intrusion. In the phrase coined by Sir Edward Coke in 1628, when compiling his Third Institute of the Laws of England, our homes should be our "safest refuge", where above all we should enjoy secure tranquillity and untroubled peace. Something precious is violated by burglary of a home, and those who perpetrate this crime should be sentenced and punished accordingly.”

The court stated that burglary offences can vary considerably in seriousness and then went on to examine the sentencing framework; aggravating features and mitigation.  However, the overall impact of this judgment should be an increase in the sentences imposed on many burglars.  The case is to be welcomed and the passing of the previous guidance in the 2002 cases of R v McInerney and R v Keating should not be mourned.  Those cases were controversial and difficult to apply.

WSR: 003/09

The Coroners and Justice Bill

Yet another blockbuster Bill dealing with Criminal Justice and reform of the Coronial system has been put before Parliament – see Parliament.  The Bill, as presented to Parliament on 14^th January 2009, contains some 162 sections and 18 Schedules.  In addition, the Bill would give government numerous powers to create subordinate legislation.  The Bill deals with Coroners; the law relating to murder, infanticide and suicide; images of children; anonymity in investigation; anonymity of witnesses; vulnerable and intimidated witnesses; live links; sentencing; criminal memoirs and amends the Data Protection Act 1998.

The Ministry of Justice announcements about this Bill can be seen here: “New focus on victims of crime and the bereaved” and “Charter for the bereaved”

WSR: 002/09

Defiance of the European Court of Human Rights

In late 2008, Lawobserver reported on the handover by the British of two Iraqi men to the Iraqi authorities.  This handover was contrary to a ruling of the European Court of Human Rights.  It now appears that lawyers are challenging the actions of the British government – see The Guardian 12^th January 2009.  The Guardian reveals that a high court judge (Coulson J) also ruled that the men should remain in the custody of British troops in Basra pending a fresh hearing.  However, the judge rescinded his order when informed that the men had already been handed over at 2.20 pm on 31^st December 2009.

Just what the English courts can do about this is not particularly clear at this stage.  The men had been handed over before Coulson J made is ruling.  However, it is beyond doubt that the government knew of the European Court’s ruling.  The government claims that for them NOT to have handed the men over would have breached international law.  However, the UK had agreed with Iraq that British Forces could remain in Iraq until the end of July 2009.

Here is the decision in the Administrative Court – R(Al-Saadoon and Mufdhi) v Secretary of State for Defence [2008] EWHC 3098 (Admin) and here is the decision of the Court of Appeal -  

R (Al Saadoon and Mufdhi) v Secretary of State for Defence [2009] EWCA Civ 7

 WSR: 001/09