News 2009

China carried out the execution. Whatever the arguments about the use of the death penalty (see, for example, the Reprieve website), the mental state of Akmal Shaikh at the time of the offence was said to be such that, as a basic matter of common humanity, it was incumbent on China to demonstrate to world opinion that they had given the matter adequate and detailed consideration. If any State is to command and receive respect then its judicial process must stand up to scrutiny and be seen to be fair. This is even more the case when the accused person faces the death penalty. It seems (as reported in the British media )that Shaikh’s body will not be returned to the UK. After some earlier uncertainty as to the method fo execution it seems lethal injection may have been used. [Many executions are carried out by shooting]. The views of Sam Zarifi of Amnesty International are also worth noting.

In November 2009, the EU condemned a number of Chinese executions – see Chinapost – and the Chinese retaliated by attacking interference in China’s internal affairs. The EU also condemned executions of two Tibetans in October 2009. In Shaikh's case it is highly likely that China will again resent what it sees as interference.

It seems particularly regrettable that, on certain newpaper websites, many members of the British public have commented favourably about China's actions. Even allowing for the fact that drug trafficking/smuggling is a serious crime, it is difficult to believe that the British people are truly for the use of a death penalty in such cases.

It is also interesting to note that the British government protested to China and used Shaikh's mental condition as their reasoning. It is the same British government which is prepared to extradite Gary MacKinnon - a man with Asperger's Syndrome - to the USA to stand trial for "computer hacking."

China is now a mighty world power and perhaps fails to see any need to adhere to recognised standards of judicial independence and due process (including fairness). Other power blocks such as the EU will need to assert greater influence in the future if matters are to change.

The number of executions carried out in China is treated as a State secret but there are grounds to believe that the number has reduced since the power to review all death sentences was restored to the Supreme People’s Court in 2007. It may be that the progress being made by China is failing to be recognised internationally because of this secrecy.

The international community has long urged China for greater transparency in the area of capital punishment—and, especially, annual figures for the number of executions. The recommendation was made again by a number of governments during China’s Universal Periodic Review session before the UN Human Rights Council in February, during which China once again did not provide the information requested.

Nearly three years after this death penalty reform was put in place, much remains murky about the procedure by which the Supreme People’s Court reviews capital cases. And the total number of people executed remains a top-level state secret, one that is closely guarded by the few officials who are in a position to know.

The Dui Hua Foundation was granted "special consultative status" by the Economic and Social Council of the United Nations in 2005, and is the only independent, non-governmental organization (NGO) focused on human rights in China to have such status.

It continues to look likely that China will carry out the execution of Akmal Shaikh on 29th December 2009. On behalf of Akmal Shaikh it is argued that he suffers from bipolar disorder and ought not to be held fully responsible for his actions.

Bipolar disorder

The estimable organisation REPRIEVE has for long campaigned against the use of the Death Penalty. It is understood that the British Government as well as a United Nations Envoy (Professor Philip Aston) have made representations to China with a view to asking the authorities there to exercise clemency. In the particular circumstances of this case, it is to be hoped that they do so.

The Independent 28th December 2009 in a very thought-provoking article said – “The crime of which he is convicted, smuggling hard drugs, is grave. But it is a poor reflection on Chinese justice that their courts have neither accepted as an extenuating circumstance, nor apparently even investigated, what appears to be sound evidence that Mr Shaikh suffers from the delusions that often accompany bipolar disorder. His execution would be a terrible stain on China's reputation.”

Michaelmas Law term ran from1st October 2009 to 21st December 2009. It is one of the historical survivals of English law that the “legal year” divides into 4 terms: Michaelmas; Hilary; Easter; Trinity. Here is a website to help people find out when the terms are. The legal year commences in October.

China to execute a British man – According to The Times 22nd December, China is standing by the decision of its legal system to execute a British man, Akmal Shaikh, found guilty of smuggling drugs. It is said that Gordon Brown has requested China to exercise clemency since Shaikh reportedly suffers from mental health problems. Mr Shaikh was arrested in September 2007 on arrival in Urumqi, the capital of the far western Xinjiang region, in possession of four kg (8.8lb) of heroin. Campaigners said that he was duped into carrying the drugs for a criminal gang.

The many executions carried out annually in China ought to be the subject of international outrage and condemnation – see this disturbing Sky News Report. As almost any Google search will reveal, the internet is replete with coverage of Capital Punishment in China. As long ago as May 2004, Amnesty International Canada published this and see this.

Hillsborough - An Independent Panel is being set up to oversee release of documents relating to the Hillsbrough Football Tragedy of April 1989. The Bishop of Liverpool will chair the panel. See Home Office for details of the panel and also see Lawobserver Topical Page where the legal legacy of Hillsborough is discussed.

Violence causing death – The Attorney-General has welcomed the Court of Appeal’s decision in Appleby, Bryan and Roberts [2009] EWCA Crim 2693. The Attorney had referred two cases, one from Rhyl, North Wales, the other from Middlesbrough, Teesside, asking the Court to review how these kinds of cases are sentenced and, in particular, to invite the Court to consider whether the guidelines, based on historic cases, are still applicable. Offenders in both cases had their sentences increased as a result of the referral by the Attorney. This was a welcome and very necessary decision.

Low template DNA Evidence – the Court of Appeal (Criminal Division) has given judgment in R v Reed and R v Garmson [2009] EWCA Crim 2698. This is a very important decision dealing with a challenge to the reliability of Low Copy Number (LCN) DNA as employed by the Forensic Science Service. The very careful case management required in such cases is also addressed.

The Colin Norris Murder cases – Colin Norris has lost his appeal against conviction in 4 murder cases and 1 attempted murder case. These events occurred in Leeds during 2002. Norris is to serve a minimum term of 30 years. See R v Norris [2009] EWCA Crim 2697 See also The Times 3rd March 2008. The Court of Appeal referred to the trial judge’s (Griffith Williams J) summing up to the jury as a “tour de force.” Praise indeed.

In the Bleak Midwinter – this came as snow fell over most of the country in the period from 18th December onwards. There was the ever predictable chaos on the roads and Councils have been accused of being unprepared – see The Times 22/12/09. Some years ago the House of Lords ruled in Goodes v East Sussex County Council [2000] UKHL 34 that Highway Authorities were not under a duty to keep roads clear of snow/ice. Parliament reversed this decision by passing the Railways and Transport Safety Act 2003 s111 which inserted section 41(1A) into the Highways Act 1980. Section 41(1A) requires a Highway Authority to “ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice.”

1. School admission policy held to be unlawful - A Jewish School has been found by the Supreme Court to have an admissions policy which breaches the Race Relations Act 1976 s.1. This decision is by a majority of 5 to 4.

Was the decision of the School actually based on racial considerations as the majority of their court held? At least on a commonsense view, that must surely be doubtful. They were concerned not with the country of origin of the child’s mother but with the point that she was not accepted by the Chief Rabbi as being Jewish – a purely religious issue.

2. Registrar Ladele’s Case – A Registrar (Ms Ladele) has lost her case in the Court of Appeal (Civil Division). She argued that her employer (Islington Council) discriminated against her by insisting that she become a Civil Partnership Registrar when the Civil Partnership Act 2004 came into being. She had informed the employer of her objections but they chose not to permit her to refuse to undertake civil partnership ceremonies.

“However, the fact that some registration authorities have (as I understand to be the case) decided not to designate registrars who shared Ms Ladele’s beliefs as civil partnership registrars, and the fact that such decisions may well be lawful certainly do not undermine the conclusions reached by the EAT (with which I agree) that Ms Ladele was neither directly nor indirectly discriminated against, nor harassed, contrary to the 2003 Regulations, whether by being designated a civil partnership registrar, by being required to officiate at civil partnerships, or by any other aspect of her treatment by Islington (albeit that it is only right to record that many people may feel sympathy for the position in which she finds herself, and that, in some respects – most notably the unjustifiable characterisation of her letter of 18 April 2006 as "gross misconduct" and the unwarranted breach of her confidence in Mr Lynch's letter of 15 November 2006 – Islington did not treat her fairly).”

One wonders whether, as a perhaps unintended result of this litigation, those registrars who have been allowed to “opt out” might now be forced to either “opt in” or resign?

The website of Garden Court Chambers in Manchester has highlighted the tragic story of Mr Sonny Lodge who died in the segregation unit at HMP Manchester on 28th August 1998. A public inquiry into his death has now produced its final report.

This has been a very long haul for the family of Mr Lodge. “Justice delayed is justice denied?” Maybe but at least the truth has been finally brought into the open.

The archaic Coroner system is set to be overhauled under the Coroners and Justice Act 2009 though this Act is not without potential problems particularly where certain “governmentally sensitive” inquests are concerned.

The European Convention on Human Rights has played a significant role in forcing English law to change where inquests into deaths in custody are concerned. The Coroner’s court must determine “how, when and where the deceased came by his death.” The “how” requires that the circumstances of the death be investigated: R (Middleton) v West Somerset Coroner [2004] UKHL 10 and R (Sacker) v West Yorkshire Coroner [2004] UKHL 11

4. Criminal Procedure Rules and The Law Society – Criminal Procedure Rules (which divide into 76 Parts) have been with us for some time. They apply to all levels of criminal proceeding. It seems that lay magistrates have been told that they are personally responsible for ensuring that the rules are applied in their courts. That may well be technically right but few lay magistrates will have received adequate training in these rules which can only be properly understood if one has knowledge of the law relating to criminal process. Lay Magistrates have to depend very much on their legal advisers when it comes to such matters. The Law Society has issued an important document which looks at the impact of the rules on the duties of a solicitor to his client – see Law Society 3rd December 2009. It is also regrettable to note that many people are unable to obtain a legal representation order in the magistrates’ courts but those unrepresented people are still required to abide by the procedure rules.

5. War crimes warrants – It was interesting to note that London Magistrates’ Court issued a warrant for the arrest of Tzipi Livni – a former Israeli foreign Minister. The warrant, which related to alleged war crimes in Gaza, was later withdrawn. It was no surprise that this caused a diplomatic row – see BBC. It now appears that the government wish to change the law so that the Attorney-General may have a right of veto over any such warrants – see The Guardian 16th December. Much has been said in recent years about the supposed ability of Attorneys-General to act independently of the executive which appointed them. Surely, a preferable approach would be to require that such warrants could only be issued by a High Court Judge? At least that would retain to the independent judiciary the decision to issue the warrant. See also Jewish Community Online – (Marcus Dysch 15th December). The article on the Jewish Community Website refers to a spokesman for Her Majesty’s Court Service stating that “the circumstances surrounding the issuing of the warrant are being investigated.” It does not state who is conducting the investigation. Is the investigation being conducted by HMCS itself? One would hope not since HMCS (an administrative body) is not empowered to look into judicial decision-making.

Hamas is said to be using English law to try to obtain arrests of Israeli leaders for alleged war crimes – The Times 21st December 2009.

The Horncastle case – Conviction based on hearsay - Supreme Court of the U.K.

Should a person be convicted when the evidence against him consists solely or mainly of hearsay evidence from a witness who is not available to attend the trial – e.g. due to death or fear of testifying?

The difficulty for English criminal law arises from the decision of the Fourth Section of the European Court of Human Rights ("the Chamber"), delivered on 20 January 2009, in the cases of Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1. That case concerned statements, admitted in evidence at a criminal trial, of a witness who was not called to give evidence. The Strasbourg Court held that, in each case, the statement was "the sole or, at least, the decisive basis" for the applicant's conviction. The Court reviewed its own jurisprudence and concluded that this established that the rights of each applicant under articles 6(1) and 6(3)(d) had not been respected.

The Supreme Court of the U.K. has decided an appeal from the Court of Appeal (Criminal Division) on this point - R v Horncastle. The Court of Appeal judgment is discussed at Lawobserver News Item 069/09 on News 2009 Page 2 under the heading “Hearsay – Strasbourg and the Court of Appeal.” The Supreme Court took an immensely detailed look at the Strasbourg jurisprudence in this area and dismissed the appeals.

The appellants’ trials were fair notwithstanding the decision in Al-Khawaja for the following reasons:

(i) The common law hearsay rule addressed the aspect of a fair trial covered by article 6(3)(d). Parliament had enacted exceptions to the hearsay rule in a regime which contained safeguards that rendered the ‘sole or decisive’ rule unnecessary.

(ii) The Strasbourg Court had recognised that exceptions to article 6(3)(d) were required in the interests of justice but the jurisprudence on the exceptions lacked clarity and had introduced a ‘sole or decisive’ rule without discussion of the principle underlying it or full consideration of whether it was justified to impose it equally on common law and continental jurisdictions

(iii) The sole or decisive rule would create severe practical difficulties if applied to English criminal procedure. In almost all cases English law would reach the same result without it. Al-Khawaja did not establish that it was necessary to apply the rule in this jurisdiction.

This may not be the very last word on this point. On 16 April 2009 the United Kingdom requested that the decision of the Chamber in Al-Khawaja be referred to the Grand Chamber. On 5 June 2009 the Panel of the Grand Chamber adjourned consideration of that request pending judgment from the U.K. Supreme Court.

Judicial Review, the Special Immigrations Appeal Commission (SIAC) and the Upper Tribunal

Laws LJ delivered a lengthy judgment of 113 paragraphs with which Owen J stated – “I agree.”

The claimants referred to as U and XC challenged the legal merits of decisions (relating to bail) of SIAC whereas Mr Rex Cart challenged the legal merits of a decision (relating to Child Maintenance) of the Upper Tribunal.

By statute, both SIAC and the UT are “superior courts of record.” See Special Immigration Appeals Act 1997 s1(3) as amended by the Anti-Terrorism Crime and Security Act 2001 and, for the UT, see the Tribunals Courts and Enforcement Act 2007 s3(5). As such, it was argued for the government, that these courts are both NOT amenable to judicial review. Over many years there have been numerous judicial statements which could be read that way.

1. – (Laws LJ at paras.28-42) - That the statutory provisions did not exclude the possibility of judicial review whatever the historical scope of the expression “superior court of record.” Laws LJ noted the court’s reluctance to find that judicial review was excluded (para 34) because judicial review is “a principal engine of the rule of law.”

2. – The designation of a court as a “superior court of record” did not necessarily prevent judicial review. Laws LJ (paras. 44 – 50) referred to the primacy of the former Court of King’s (Queen’s) Bench whose jurisdiction had merged in to the modern High Court of Justice upon the creation of the High Court in 1873. He went on (paras. 54 – 71) to consider 3 distinctions between superior and inferior courts.

3. – SIAC is a court of limited jurisdiction and is reviewable in order to keep it within its jurisdiction. However, where there is an appeal from SIAC (e.g. to the Court of Appeal) that would be the avenue which should be followed rather than judicial review. The decisions by SIAC to revoke bail (U) and to refuse bail (XC) were not subject to appeal and so they were proper subjects for judicial review.

4. – The UT was in a different position to SIAC and could only be judicially reviewed by the High Court to a limited extent (described by Laws LJ at paras. 96 -100). The UT stands a the apex of a new and comprehensive judicial structure designed to rationalise and reorganise in a single system the means of deciding many claims previously decided by a variety of disparate tribunals which had no common appeal mechanism. The UT does not have unlimited jurisdiction but its jurisdiction is very wide. In addition, by legislation, the UT has a jurisdiction itself to grant judicial review. Laws LJ concluded that the UT was an “alter ego” of the High Court offering an authoritative, impartial and independent source for the interpretation and application of the relevant statutes which give jurisdiction to tribunals.

5. – The court considered the rights of U and XC under the European Convention on Human Rights Articles 5(4) and 6(1). The decisions relating to bail were “wholly based on closed evidence.” “In neither case … had the evidence been “gisted” (to use the barbarism apparently in vogue) to the claimant.” Following the House of Lords decision in Home Secretary v AF and others (No 3) [2009] 3 WLR 74 ( a non-derogating control order case in which closed evidence had not been “gisted”) the court held that both U and XC had not been given adequate information and this violated their right to a fair hearing.

Thus, the application by Mr Cart against the UT was dismissed whereas the applications of U and XC succeeded.

The decision of the Administrative Court is to be welcomed. The idea that judicial review could be excluded by merely designating some body a “superior court of record” did not have merit and ought not to succeed. Almost inevitably this will go to appeal and it is to be hoped that the Court of Appeal uphold this decision.

Either the misinformed or those who wish to misinform might present this decision as showing that “human rights” favour the suspected terrorist and do not favour the decent man fighting a child maintenance case. A proper reading of the judgment would not support that kind of viewpoint.

It seems that Home Secretary Alan Johnson called the ruling "unhelpful" and will seek to appeal. He stated, as government Ministers are prone to do, that "My sole objective is protecting the public … He added - “We will do everything possible to keep this country safe …..” The problem is that Ministers are overplaying this “public safety” mantra and are using it as a reason to severely limit the basic rights of individuals.

Liberty welcomed the judgment and noted (as did Laws LJ) that in June 2009 the House of Lords (with a panel of 9 “Law Lords”) ruled that suspects under control orders must be told a ‘core irreducible minimum’ of information of the case against them. This judgment (Home Secretary v AF and others) can be found here.

It is interesting that the Scots lawyer Jonathan Mitchell QC has written extensively about this matter – see “Judicial Review of the Upper Tribunal.” Mitchell is concerned with whether the Scottish Court of Session might be able to judicially review the Upper Tribunal. Of the phrase “Superior Court of Record”, Mitchell points out that – “This phrase has, since the Leggatt Report, become fashionable with recently-created tribunals. Examples include the Special Immigration Appeals Commission and the Upper Tribunal, both of which are now declared to be such a court; the latter is becoming an increasingly important, if overlooked, part of the judicial firmament.”

There are many Law Blogs on the internet. In particular, the Jack of Kent blog has been following an interesting and very important case of libel – British Chiropractic Association v Simon Singh. In October 2009, Laws LJ granted permission to Mr Singh to appeal to the Court of Appeal (Civil Division) an earlier ruling (May 2009) by Eady J. According to Jack of Kent, a “strong” Court of Appeal is being assembled to hear the case.

In a very interesting article, Mr Singh describes the situation he now faces on Sense About Science.

Criticisms of the way in which the law of defamation operates in the courts have been with us for a long time. (1) there is no legal aid (though an action might sometimes be funded by a conditional fee agreement ("no win: no fee"). (2) the costs are massive (and conditional fee agreements inflate the costs if the defendant loses). (3) the law is having a chilling effect on publication of material which might properly be regarded as fair comment. In this case, Mr Singh commented about the claims made by chiropractors that this treatment can cure conditions other than back problems.

Addition at 12th December 2009: The “strong” Court of Appeal is to be – The Lord Chief Justice; The Master of the Rolls and Lord Justice Sedley – see HMCS.

In the Magistrates’ Courts, reforms to legal representation orders were made in 2006 as a result of the Criminal Defence Service Act 2006. The outcome is that, to obtain a legal representation order, the defendant must pass BOTH a means test AND and interests of justice test. Prior to those reforms, only the interests of justice test applied. The overriding governmental purpose of the new means test was to identify if a defendant can genuinely afford to pay defence costs, and to grant legal aid only to those who cannot. Criminal eligibility of Legal Aid has become a residual right chiefly for those in households where little or no paid work is being done. One unintended outcome of the change in the Magistrates’ Courts was that some defendants charged with an either-way offence elected for trial before the Crown Court because they would then obtain legal aid for their case.

In the present economic times it was perhaps inevitable that, as a next step, the government would seek to drive down the money spent on legal representation in the Crown Court. From January 2010, initially in five “early adopter areas”, legal representation in the Crown Court will be means tested. From June 2010, the new rules will extend to all Crown Courts. The detail may be seen at Legal Services Commission and see Means Testing in the Crown Court.

Defendants with a monthly household income above a certain (low) threshold will pay a number of fixed monthly payments towards the cost of their defence. Essential expenditure will be taken into account when calculating the household income. Convicted defendants with £30,000 or more of assets such as savings, equity in property or shares, may be asked to make a further contribution to their defence costs. Those found not guilty will have their payments refunded, with interest.

In June 2009, the Law Society stated that it had some sympathy with the idea that those who could afford to pay a contribution ought to do so. However, their view was that the income limits are set too low – see Law Society Media. The Institute of Legal Executives also had some very pertinent views – see ILEX Crown Court Means Testing. In particular, it should be noted that some defendants might well be forced to sell their homes and rendered homeless to pay for legal representation.

Another objectionable feature of all this, is that contributions are required as the case proceeds. In the event of acquittal the contributions are returned with interest. 90% of a defendant’s monthly income is taken for 5 months from the time the case reaches the Crown Court. Thus, a person on annual disposable income of £4200 would have to pay £315 month for 5 months or until the case ends whichever is earliest. The first payment would be due within 28 days of the case being committed, sent or transferred to the Crown Court.

Overall, the scheme is harsh and will be bound to cause injustice and considerable hardship amounting, in some instances, to a severe de facto additional punishment. There could also be an increase in defendants trying to defend themselves before a Judge and Jury with the State represented by lawyers – perhaps even a QC. That would hardly look like "equality of arms." This scheme is not justice.

A case on sentencing for causing death by dangerous driving contrary to the Road Traffic Act 1988 s2B has reached the Court of Appeal (Criminal Division) – see Karl Campbell v R [2009] EWCA Crim 2459

This became a specific offence in August 2008 as a result of the Road Safety Act 2006.

The facts were that the appellant’s car emerged from a side road into the path of a motorcycle driven by the deceased. There was unresolved dispute about the speed of the approaching motorcycle. The appellant had pleaded guilty to the offence but, for certain reasons, it was a late guilty plea.

Both the trial judge and the Court of Appeal found this to be a difficult sentencing exercise. They stated that they did not find it easy to assess the case against the Guidelines (see pages 118/118A) set down by the Sentencing Guidelines Council. As Lawobserver has noted previously, it is surprising that these offences are either-way though, possibly, an offence involving momentary inattention with no aggravating features and a guilty plea might be suitable for the magistrates’ court and the structure of the sentencing guidelines would appear to support this view. If any such cases are retained in the Magistrates’ Courts – (this one was dealt with by the Crown Court) - it is submitted that they need the attention of a very experienced sentencer who would probably come from the ranks of the District Judges (Magistrates’ Courts).

Re B (A Child) [2009] UKSC 5. [Summary]. The Supreme Court has allowed the appeal by a grandmother (GB) who had cared for her grandson (referred to as Harry) since his birth. Initially, GB had a residence order and there was a contact order in favour of Harry’s father. In May 2008 the father applied to the Family Proceedings Court for a residence order but (in May 2009) the magistrates refused to grant it. The father appealed to the High Court which ordered residence in his favour. On an appeal to the Court of Appeal it was stated that the magistrates had got the case wrong by giving disproportionate weight to the status quo (i.e. child settled with GB). The Supreme Court unanimously decided that the magistrates had NOT got the case “plainly wrong.” They had recognised that H’s welfare was the paramount consideration and had carefully evaluated the evidence before them, correctly weighing up the various competing factors. For this reason, both the judge and the Court of Appeal had erred in overturning the justices’ decision which was comfortably within the range of decisions available to the magistrates.

The Supreme Court judgment also contains comments about the reasons given by family proceedings courts.

Reasons are prepared by the magistrates who are assisted by a legal adviser. The reasons are completed using a proforma which is normally prepared immediately after a hearing and delivered to the parties before they leave the court. In such an exercise, there is clearly not a vast amount of time for careful and detailed analysis of the precise wording to be used. It is apparent that the High Court and Court of Appeal took an “overly fastidious approach” to reading and interpreting the reasons. The Supreme Court Justices clearly took a reasonable and commonsense approach to reading what the magistrates had said and could be confident that the magistrates had properly applied the law.

A report by Human Rights Watch condemns Britain’s role in the treatment of a number of detainees in Pakistan. Human Rights Watch found that while there is no evidence of UK officials directly participating in torture, UK complicity is clear. See “Cruel Britannia.” See also The Guardian 25th November 2009.

Mr Jack Straw (Secretary of State for Justice and Lord Chancellor) delivered a speech at the Magna Carta Institute, Brunel University – “Constitutional Change and the future of Parliamentary Democracy.” Mr Straw surveyed the undoubted constitutional changes which have been brought about in the last 12 years.

The 2009 Denning Lecture entitled “Rights and Responsibilities: Civic Duty and the Rule of Law.” This is an interesting speech which shows how modern human rights have developed from common law principles and looks at how rights and perhaps responsibilities might develop in the future.

The case actually concerned a point of interpretation of the Unfair Contract Terms in Consumer Contracts Regulations 1999, which implemented European Council Directive 93/13/EEC. The Supreme Court had to decide not whether the banks’ charges for unauthorised overdrafts were fair but whether the OFT could launch an investigation into whether they were fair. The ruling was in favour of the banks.

The case is also interesting in that the court did not make a reference to the Court of Justice of the EU with regard to interpretation of the European Directive.

After centuries the Bar is on the verge of changing its working methods – see Bar Standards Board website for this news. It seems that barristers will be permitted to become managers of Legal Disciplinary Practices (or LDPs), regulated by the Solicitors Regulatory Authority, without having to requalify as solicitors.

Ultimately, change was inevitable given the Legal Services Act 2007 and the Bar set up an Alternative Business Structures Working Group in 2007 to consider matters.

The press release of the Bar Standards Board describes the various changes which are on the way and it may be read here.

The Belgian politician Herman Van Rompuy becomes President of the European Council – and NOT as the media inaccurately state “President of Europe.”

The British politician, Baroness Ashton of Upholland becomes the first High Representative for Foreign and Security Policy.

The President of the European Council is appointed by the Heads of Government who, together, form the European Council.

The Special Immigrations Appeals Commission Act 1997 created the Commission of that name – abbreviated to SIAC. Section 6 of the 1997 Act permitted the appointment of persons who would represent the interests of the appellant in any proceedings before SIAC from which the appellant and any legal representative of his are excluded. Such appointed persons have become known as “Special Advocates.”

The use of “Special Advocates” has, since 1997, expanded into other areas but this has usually been done without specific statutory authority. For example, in Secretary of State for the Home Department v Rehman [2003] 1 AC 153 the court of appeal permitted the use of Special Advocates on an appeal from SIAC even though the 1997 Act did not specifically permit their use on such appeals. [In effect, the Court of Appeal closed a lacuna in the legislation]. In Roberts v Parole Board and Another [2005] 2 AC 738 the House of Lords (by a majority) upheld the use of Special Advocates at Parole Board hearings. There was no specific statutory authority permitting their use. A further extension can be seen in the case of Shiv Malik v Manchester Crown Court [2008] EWHC 1362; [2008] 4 ALL ER 403.

The latest twist in this growing trend is Al Rawi and others v Security Service [2009] EWHC 2959 (QB) where, in a civil case, the High Court (Silber J) accepted government submissions that a Special Advocate could be used to represent the claimants in a civil case brought against the government for damages arising from a number of alleged causes of action (for the various causes see Silber J’s judgment at paras. 7-9). All the claimants had been held at Guantanamo Bay, Cuba but allege British complicity in the events which happened to them.

It was argued for the claimants that the law of public interest immunity ought to be used so that the trial judge could rule on any immunity claims raised by government. However, in such cases, if the judge rules against disclosure then the material is immune from production. This is not so with the use of special advocates who are entitled to see the sensitive material but, once they have seen it, their ability to communicate with the appellant is severely curtailed. However, in such cases, the courts have tended to ensure that Article 6 (Fair trial) rights are observed by ensuring that the person is given sufficient information to enable him to give effective instructions to his lawyers. There is also emphasis in the cases that the use of special advocates should be exceptional.

Despite all this, the growing use of special advocates in areas where there is not specific legislation permitting their use, is a cause for concern. Although the courts have an entitlement to regulate their own procedure, the extension of special advocates is looking more like "judicial legislation." The key issue is whether their use properly balances the rights of the citizen before the courts with the government’s embedded desire to keep many of its activities secret on security grounds. It will be of great interest to see how this matter develops.

Following ratification of the Lisbon Treaty by all the member states, the treaty will come into force on 1st December 2009.

A summary of the treaty may be seen here – and the FULL text of the treaty here.

The Lisbon Treaty actually amended the earlier Treaty on European Union and the Treaty establishing the Economic Community. The consolidated versions of those treaties, as amended by Lisbon, may be seen here and are referred to as The Treaty on European Union and The Treaty on the Functioning of the European Union.

The Coroners and Justice Bill received Royal Assent on 12th November and has become the

The Institute of Legal Executives website carries a useful article about the new Act. Their website is particularly informative on many aspects of the law.

The Act contains a “Commencement” section with the result that the various provisions of the Act will come into force at different times. Only a small number of the sections came into force immediately the Act was passed.

The Criminal Justice and Immigration Act 2008 is bringing about highly important changes to the Youth Justice System. Helpfully, the changes are explained in detail on the Youth Justice Board website.

Youth Justice: The Scaled Approach is a programme of work that, in developing a tiered approach to interventions based on risk of reoffending and risk of serious harm, supports the introduction of this new sentencing framework.

See Ministry of Justice Circular 2009/03 – “The Youth Rehabilitation Order and the Youth Justice Provisions in the Criminal Justice and Immigration Act 2008.”

The rather odd thing about implementation of this legislation is that section 9 has not yet been implemented. Section 9 sets out the purposes of sentencing in relation to those aged under 18. Suppsedly, section 9 was aimed at underpinning the new community sentencing structure brought about by the Act.

On 20th November 2009 the Sentencing Guidelines Council issued “Overarching Principles: Sentencing Youths” which will be applicable from 30th November 2009. This document is said to draw “together the principles relating to sentencing young offenders in a single authoritative document.”

Here is a link to the Coroners and Justice Bill which is now approaching its final stages in Parliament. The link connects you to the text of the Bill as it was when it reached the House of Lords. Since then there have been some amendments.

It is another large Bill of some 178 clauses and 23 Schedules. It makes very significant changes to the law.

Part 1 (clauses 1-49) is concerned with Coroners. Broadly speaking, the reforms to the organisation of the Coroner system have been welcomed. However, there are some important aspects which give rise to concern. Clause 9 sets out the times when a jury is required BUT the Chief Coroner may dispense with a jury if he thinks that there is “sufficient reason for doing so.” One suspects that this will reduce considerably the cases where a jury is summoned. The next problematic provision is the power to dispense with an inquest (Clause 13 and Schedule 1). Paragraph 3 of Schedule 1 will enable the “Lord Chancellor” to stop an inquest on the ground that the cause of death is likely to be adequately investigated by an inquiry under the Inquiries Act 2005 ….”

On its face that might not seem so bad BUT the real issue lies in the Inquiries Act 2005 which gives the Minister powers to control aspects of an inquiry including even directing that certain findings are not made public – see section 25 of the Inquiries Act.

Part 2 Chapter 1 of the Bill amends the law relating to the partial defences to murder of diminished responsibility and provocation and it also amends the Suicide Act 1961 section 2. A detailed analysis of this particular part of the Bill would be a lengthy exercise but there is some detailed discussion on the Liberty website.

A particular concern is that the government has ploughed ahead with further piecemeal reforms to the law of murder when what is really needed is a complete overhaul. The Law Commission described the law as a “mess” – the Law Commission’s report at para. 2.74

Part 2 Chapter 2 amends the law relating to images of children. Part 2 Chapter 3 amends the law relating to certain other offences.

Part 3 Chapter 1 introduces “Investigation Anonymity Orders” which can be made in respect of a murder/manslaughter investigations where a firearm or knife had been used in the commission of the offence. The aim is the laudable one of trying to protect the identity of those who are assisting with an investigation. Application for these orders is to be to a “justice of the peace” Interestingly, the Bill provides that if the magistrate is minded to refuse the order he must nevertheless make it where the applicant has indicated an intention to appeal a refusal to the Crown Court.

Part 3 Chapter 2 deals with Witness Anonymity Orders. This subject is already the subject of the Criminal Evidence (Witness Anonymity) Act 2008 which was hurried on to the statute book following the House of Lords decision in R v Davis (June 2008) where their Lordships held that a defendant had a right to know and see his accusers.

Part 3 Chapter 3 deals with Vulnerable and Intimidated Witnesses and amends the law relating to “special measures.” Part 3 Chapter 4 deals with “Live Links.”

Part 3 Chapter 5 deals with various matters. However, under clause 111, a person charged with murder may not be granted bail except by order of a judge of the Crown Court. This raises the questionable value of requiring anyone charged with murder to ever appear before the Magistrates’ Court. Under modern law their functions have are now minimal in such cases. Clause 111 is the government’s response to the Gary Weddell case.

Part 4 of the Bill deals with Sentencing and sets up a Sentencing Council for England and Wales. The Bill stipulates at some length and in detail what must be included in “Sentencing Guidelines.” As a result they are very likely to become detailed and prescriptive. The new Council will also publish “Allocation Guidelines” to enable a decision to be made about venue for trial of either-way offences. Clause 121 stipulates that a court MUST follow the guidelines “unless the court is satisfied that it would be contrary to the interests of justice to do so.” These provisions appear to be severely reducing judicial sentencing discretion.

The Bill also covers further topics such as the Commissioner for Victims and Witnesses; Legal Aid; Criminal Memoirs and amendment of the Data Protection Act 1998.

The Secretary of State for Justice has announced that the Office for Criminal Justice Reform will review the use of cautions – see The Times 9th November.

At least there has been some reaction to what has clearly been a growing problem and one which has been the subject of many critical comments. The impression is given that the government were content to allow the process to develop until people started saying “enough is enough.” The outcome of the review will be awaited with interest.

The final signature (from the President of The Czech Republic) required for ratification of the Lisbon Treaty came today (3rd November 2009) – see The Times. In June 2009 Mr David Cameron MP (the British Conservative Party leader) promised the British people a referendum on Lisbon if he took office before all EU States ratified it. Particularly after the Republic Ireland “yes” vote in their referendum the scenario envisaged by Cameron was a highly unlikely one. Of course, in 2005, the British labour government had promised the British people a referendum on what was then referred to as the “European Constitution” but, after Lisbon, they reneged on that promise by arguing that Lisbon as a different document to the Constitution even though, as even a casual reading reveals, it contains many of the same things.

The Centre for Social Justice has published a report “Order in the Courts: Restoring trust through local justice.” The report considers many of the changes which have been made to the criminal justice system, particularly over the last 10 years. It is a valuable contribution to the debate about the future of many aspects of criminal justice. Although the Centre is headed by Mr Iain Duncan-Smith MP, the report should not be simply condemned out of hand as “party political.” The working group which produced the report was chaired by Martin Howe QC and the report, which makes some 40 proposals, appears to be a fair and balanced consideration of the serious issues which will have to be faced by any incoming government.

At the heart of the report is the point that the majority of crime and victimisation is associated with “deprived areas.” Also, the point is made (again) that the criminal justice system is, for many offenders, like a “revolving door” since the system is failing to prevent reoffending.

The report is critical of “Offences Brought to Justice” targets which count a caution and a conviction equally. Also, Crown Prosecution Service targets are criticised as encouraging charging in only relatively clear cases. However, as a comment, this may be as much due to the “realistic prospect of conviction” test applied by Crown prosecutors. It is also argued that the CPS are encouraged to charge people as late as possible so that the target of “charging to trial” is kept as low as possible. Whether this is true may well come to be refuted by the CPS. However, there is little doubt target cultures can have some unintended consequences.

The report points out that there are 12 possible “requirements” available to courts when imposing community sentences. However, in practice, many of these are not available locally – e.g. alcohol treatment requirements may not be possible if there is no readily accessible service. The result is that drug rehabilitation requirements and alcohol treatment requirements are not achieving their potential. The report is also keen to see greater use of so-called “Specialist Courts”. A number of these already operate within the general structure of the Magistrates’ Courts – e.g. specialist domestic violence courts. The report envisages specialist courts dealing with drugs/alcohol related offending and cases involving mental health issues. These ideas raise questions about the training which would be needed for judges/magistrates and legal advisers and about the quality of the information provided to sentencers by way of pre-sentence reports.

There is a proposal to give power to courts to review community sentences including a power to change the sentence if appropriate and a power to impose “interim sanctions” for breaches (e.g. up to one week in prison).

The use of “deferred sentences” is also considered. These are rarely imposed at the present day but might have potential to place an offender on particular programmes which, if successfully concluded, would then be considered by the court in making the final sentence.

Short term prison sentences are, predictably, criticised in the report. Such sentences, it is argued, frequently achieve nothing apart from making matters worse by disrupting family relationships and jeopardising employment. Those sentenced to less than 12 months receive no supervision upon release. Consequently, a number of proposals relate to such sentences. In particular, prison sentences of less than 2 months would be abolished as a “primary sentence” for an offence. Also, the judiciary would be given powers to mandate the structure of any short term prison sentences (exceeding 2 months) imposed. [Comment: There are some community requirements which, as the law stands, require the offencer to express "willingness to comply" - e.g. drug treatment requirement - see CJA 2003 s209(2)(d). What would happen if an offender refused and a short term prison sentence was no longer available?].

A welcome proposal is that there should be greater clarity in sentencing in that sentencers would have to make clear matters such as precisely how long a person would serve in prison. However, the report makes no particular proposals for altering the various “early release” rules and many are critical of the basic idea that someone sentenced to imprisonment should only serve (at most) half the sentence announced. It has to be remembered that the law is that a sentence of imprisonment should only be imposed if neither a fine alone nor a community sentence can be justified for the offence - (see CJA 2003 s.152). Properly applied, that requirement ought to be already keeping the use of custody at a low level.

In relation to mental health orders, the report envisages abolishing the power of hospital consultants to refuse or delay admission of those subject to these orders and also abolition of the power of a consultant to discharge such patients. The latter power would be transferred to a Review Panel.

Interestingly, the report notes that control over the criminal justice system has been centralised massively since 1997 when bodes such as Her Majesty’s Court Service (HMCS) etc. did not exist. The report proposes something of a return to more local control by having powerful Local Criminal Justice Boards each headed by a Crime and Justice Commissioner. The idea of this would be to make the criminal justice agencies more accountable locally and to enable the system to respond more effectively to local issues.

Whilst many of these ideas might be welcomed, the fact remains that many of them can only be achieved with considerable financial resources and qualified personnel to operate them. Will such resources be available to any incoming government given the enormous economic problems which the country now faces? The worst outcome would be a lot of new but badly resourced initiatives administered by an increasing bureaucracy.

The first judgments of the Supreme Court are now being reported via their website – Supreme Court Judgments. The court has also published a summary of the judgment for use by the media.

The very first judgment published related to a “procedural matter” about costs.

The second judgment is Re Sigma Finance [2009] UKSC 2 which was concerned with matters of distribution of the assets of a company.

The third judgment is R (on the application of L) v Metropolitan Police Commissioner [2009] UKSC 3 which is concerned with the Police Act 1997 s115(7) which deals with “enhanced” criminal record checks and the reports made to employers following such a check. The appellant (L) had applied for a job as a playground assistant and an enhanced check was required. The Police disclosed to the school that L had been accused of neglecting her child and non-cooperation with social services. L’s employment was terminated and L claimed that the disclosure had violated her right to private life under Article 8 of the European Convention on Human Rights. The Supreme Court held that the police must give due weight to a person’s Article 8 rights but, on the facts of the case, the disclosure was not disproportionate to the public interest in protecting vulnerable people. Nevertheless, the court has set out a two-stage test which the Police must apply and some of the factors to be considered have been highlighted. The approach of the Police had been that they had generally presumed that the public interest would always prevail. That approach should not be applied in the future.

As demonstrated by this actual case (L's appeal was dismissed), it is probably doubtful that the approach required by this judgment will have any major effect on disclosure.

In December 2008, Lawobserver carried a news item relating to the convictions of those involved in the murder of Rhys Jones – (see the shaded area below). The Times 28th October 2009 has reported that the Court of Appeal – presided over by the Lord Chief Justice – has increased the prison sentence on Yates (who supplied the gun) to a total of 12 years. This is a welcome move and is entirely justifiable. The Lord Chief Justice has emphasized that those who use guns will receive lengthy sentences (see R v Wilkinson 2009 – discussed in WSR:115/09 on Lawobserver). It is right that the court is now reflecting in sentencing the view about guns and gang warfare expressed by many including Lawobserver.

A number of individuals have been found guilty of offences in connection with the murder of Rhys Jones in August 2007. Sean Mercer, who was 16 at the time, was found guilty of the murder of Rhys. Other offenders: Yates (20), Quinn (18), Kays (25), Coy (25) were found guilty of assisting an offender which is an offence under the Criminal Law Act 1967 section 4. There are also two others (who are still under age 18) convicted of offences arising from the killing.

“Gang warfare” is an all too common feature in modern Britain. One of the purposes of sentencing is to express the displeasure of society at the conduct of the offender and all the defendants involved in this matter have behaved abysmally. Serious crime causes anger in society and, in primitive societies, this anger is assuaged by methods such as blood feuds etc. In modern society, punishment is left to the law but, in order to assuage anger and prevent self-help, the punishment has to be proportionate to the crime. Most right-thinking people would consider that the murder of a child demands particularly exemplary punishment. In these cases, as Lord Devlin once put it, the judiciary has to be the spokesman for the ordinary citizen.”

The Times (26th October 2009) highlighted a developing crisis in the timely hearing of “care proceedings” instituted (usually) by local authorities when a child is either suffering or at risk of suffering “significant harm” (Children Act 1989 s31).

It is said that “Court hearings on a child’s future and on whether they should be taken into care or fostered are taking an average of 14 months — with some taking much longer.”

There is a backlog of some 700 cases and it has become difficult, if not impossible, to assign an independent guardian to each and every case.

Meanwhile, the government continues apace with plans to cut legal aid in family cases. The plans entail cuts in fees by some 40% or more and it seems likely that many lawyers will simply opt out of this essential work.

One of the reasons for delay is said to be that there are not enough judges. The majority of these cases (over 70%) are heard in the County Courts though the magistrates’ family proceedings courts are empowered to hear these cases. However, the majority of the cases are now considered by lawyers to be too difficult for the magistrates. Under the so-called “Public Law Outline” introduced from 1st April 2008 the decision on difficulty is taken almost as soon as proceedings are issued. The family proceedings courts are underutilised in relation to “public law” work with the result that most individual magistrates have little recent exposure to this type of work. However, some recent changes have increased the work of FPCs in “private law” cases such as contact applications etc.

The Times 21st October 2009 published an article covering some views of the Lord Chief Justice about juries of the future and the need to consider the use of technology. It makes you think! Criminal courts “hear” the evidence of witnesses who are examined, cross-examined and re-examined. To be able to listen carefully – sometimes for a lengthy period – is obviously essential.

The government has conducted a survey of various powers which come under the heading of “Prerogative Powers.” It is a remarkable list of powers ranging over the civil service, the armed forces, the justice system, foreign affairs to archaic powers relating to sturgeon, swans and whales.

The Code is subject to regular review and it was last updated in 2004. It now needs to be updated again to take account of recent changes in law and practice and the merger with the Revenue and Customs Prosecutions Office.

Generally, the two stage process of an “evidential test” and a “public interest test” will continue to apply. However, there are some interesting elements to the document. For example, paragraph 4.7 points to there being no prosecution if it appears more appropriate in all the circumstances of the case to impose and out-of-court disposal. Similarly, paragraph 4.10 states that “in certain very limited situations” – (a phrase which is not defined) – “it is right to take into account whether a prosecution is a proportionate response.”

The offence, although not serious in itself, is widespread in the area where it was committed;

a community, be that either geographical, or of common characteristics, or of shared interests, has expressed concern about the prevalence of the offence.

Clearly some of those factors reflect the growing emphasis on “Community Justice”. A recent government paper “Engaging Communities in Criminal Justice” contained many ideas including the possibility of “Community Prosecutors.”

Factors against prosecution are set out in paragraph 4.13 and include cases where:

the defendant is elderly or is, or was at the time of the offence, suffering from significant mental or physical ill health, unless the offence is serious or there is a real possibility that it may be repeated. Prosecutors must balance the desirability of diverting a defendant who is suffering from significant mental or physical ill health with the need to safeguard the general public. The idea of “diverting” persons with mental illness away from the criminal courts is discussed in The Bradley Report.