New Year Honours for Lawyers....

Happy New Year to all...especially to those lawyers and others involved with justice honoured by HM Queen...


Sir Stephen Laws KCB, QC, First Parliamentary Counsel.

Mike Watson CBE, Area manager, Central London Tribunals Service.

Colin Gibbs OBE of the CPS Counter-Terrorism section.


Ms Melanie Field OBE, Head, Discrimination Law Review, Government Equalities Office, midwife to the Equality Act 2010.


Miss Kathleen Bailey MBE, Formerly Judges' Lodgings manager and Chef, HM Courts Service, West Midlands, Ministry of Justice


Stephen Burrows MBE, Head of Security, Royal Courts of Justice, HM Courts Service, Ministry of Justice

SEASONAL GREETINGS TO ALL....

TWO WEEKS OFF FOR ME...

THIS BLOG IS NOW OFFICIALLY ONE YEAR OLD!

THANKS FOR ALL YOUR SUPPORT

BACK IN 2011.

Mr Assange is Innocent until proven guilty.....

I entirely support Charon QC on the Assange case.

The charges against him are serious and need to be tested in the justice system of Sweden.  He is innocent until proven guilty.

Instead of speculating about his innocence or guilt, we should be applauding our own justice system which has provided him with swift access to justice at first instance and appellate level and has procured him his qualified liberty whilst ensuring, in so far as is fair and reasonable, that he does not become a fugitive.  Few other legal systems would have performed this quickly or this fairly.  Whatever pressure the US Govt have put on foreign states to apprehend Assange (if any, who actually knows?) it is clear that the Senior District Judge of the Metropolis and the Honourable Mr Justice Ouseley are as robustly independent of anybody and everybody as their judicial duty requires.

Frankly I am quite proud of our performance so far..................

Hurrah!!! Mayor's & City is saved.........

Mayor's and City Court has been saved.  It was due for abolition as part of the Coalition's Court Closure programme, but it has been saved.


The civil court which has sat for the longest will sit some more.  


After demanding on this blog that Sir John Dyson be made a Lord and that happening yesterday, I am feeling chuffed that I made a plea to save M and CC and it has been saved today.


Previous blog entry here.


Press statement here.


See here for M and CC's history taken from Hansard in 1920 when the Bill which formed the modern Court was being debated:


Note that FE Smith (as Lord Birkenhead LC) said this:


I trust also, in the revival of the ancient glories of the old and famous Courts of the City of London


Here Here!

ARISE LORD DYSON...

I know there are bigger things to think about in this turbulent world....but I have blogged before about the silliness of having some Supreme Court Justices being Lords and Ladies and some being Sirs and Dames.  Well it has been announced that HM Queen has decided to confer courtesy Lords and Ladyships on all new Justices of the Supreme Court so that all will be equal and all will be as it should have been all along.......



Press notice here.

Previous posts here and here and here.

Oh dear - there will be emergency legislation to deal with this loop hole...

The Supreme Court has held today that HMG cannot reclaim monies paid in error to benefit recipients.  £1.1 Billion is apparently paid in error every year.  Statute provides that the Secretary of State can recover overpayments where the claimant has misled him or has not made full disclosure - but not where it is his own mistake.  Apparently in 2007-8 the S of S did threaten claimants in receipt of overpayments in error with a common law restitutionary claim and without actually suing anybody and just by making that threat, recovered £4 Million (should HMG now give that money back for demanding it without any legal justification?).

Anyway given the £1.1 Billion lost per year and the widening hole in the benefits budget, I suspect there will be an emergency legislative amendment to reverse this judgment in the not too distant future.....

Have been very busy.....

Apologies - but that occupational hazard for the blogging-barrister arose - actually having to do some real work...have actually been in Court etc....will return to blogging soon....

Victory for Dame Heather (Round 1 at least)

It is being reported that the Home Secretary has lost her judicial review (rarely a Divisional Court of 2 Court of Appeal judges - Maurice Kay and Stanley Burnton LJJ) against the decision of Dame Heather Hallett not to exclude the interested parties from hearings of her 7/7 inquest when sensitive intelligence evidence is to be heard.  More when the judgment is released  & the Home Secretary could of course, appeal to the Court of Appeal...................

ERMINE FOR THE LAWYERS

Fiona Shackleton, solicitor to Royals and Beatles and of the Mills soaking to be a Tory Baroness.

David Gold, formerly senior partner Herbert Smith to join her as a Baron with Jonathan Marks QC of the family Bar joining the Noble Liberal Democrat benches.

I am sure the House of Lords will be enriched by them all, until the Dep PM turns it into a dreary Senate.....

Can a jury undermine the rule of law?

Just listening to Moral Maze - Radio 4 and Melanie Phillips has just said that the jury in the Hawk jet case undermined the rule of law when it acquitted 4 women of criminal damage after they had smashed up the jets believing them to be destined for supply to Indonesia, who they thought would use them to commit alleged genocide in East Timor.


Whatever you think of their verdict, the Jury were not undermining the rule of law; they were carrying it out.

The jury is the lamp which shows that freedom lives (Lord Devlin).  It is the jewel in the crown of our liberal state is the jury which can ignore the prosecution, ignore the Judge, ignore the law and acquit where they see fit.  The jury is independent and truly free.  Since Bushel’s Case (1670) 124 E.R. 1006, even if it is directed by a Judge to convict or acquit (and few lawyers believe it can be directed to do the former), it has the right to do as it sees fit.  It can even return no verdict and be discharged.  If the jury acquitted then it used to be the final word.  That right has been eroded; as has the right to always have a jury in a trial on indictment.  Juries are expensive.  They are to some extent at risk (see previous post).  This is not the time to be accusing them of undermining the rule of law; this is the time to demanding their preservation in defence of the rule of law.

What Duchy for happy couple?

The constitutional anoraks are out in force wondering at what Royal Duchy, Prince and Princess William of Wales will get upon marriage.  There is little precedent.  There has not been a male second in line to the throne in William's position since Prince Albert Victor of Wales was the eldest son of the Prince of Wales (future Edward VII) and was created Duke of Clarence and Avondale from 1890 until his early death in 1892 (his brother became George V, after being Duke of York).
 
There are other past Royal Dukedoms for consideration:

Albany
Albemarle
Bedford
Cambridge
Connaught
Cumberland
Hereford
Kendal
Ross
Sussex
Windsor

Albany and Cumberland are probably out because they could be revived on the application of heirs whose predecessors had their royal titles suspended in 1919 for being on the wrong side of World War I.

The Duchy of Cambridge is popular with the pundits and many thought that the Earl of Wessex would get this title, they have therefore deduced that he did not get it because it was being saved for William.

The last Duke of Cambridge was the eldest son of the 7th son of George III and he died in 1904.  He was C in C of the Army for 39 years and you can find his august statue in Whitehall:

Lots of extra work for Judges

Have you noticed that lots of judges/QCs are being Coroners or chairing Public Inquires at the moment?

• Sir William Gage is dealing with the Baha Mousa Inquiry
• Sir Peter Gibson is going to make a start on the Torture Inquiry.
• Dame Heather Hallett is doing the 7/7 Inquest
• Judge Peter Thornton QC is going to be Assistant Deputy Coroner for Ian Tomlinson's Inquest.
• Judge Baker QC finished the Potters Bar Inquest just before the Summer vacation.
• Robert Francis QC is doing the Mid Staffs hospital inquiry
• Sir Michael Redfern QC's Inquiry into human tissue use in the Nuclear industry reported today

The only judge/QC free zone is the Chilcot Inquiry - but that is another story......

BIG CIVIL FUNDING CHANGES

The Govt has published a Green Paper on reforming legal funding.  On the civil side legal aid will no longer be available for:

• General Tort actions
• Clinical negligence (general personal injury is already out of scope)
• Consumer and general contract
• Welfare benefits
• Criminal injuries compensation
• Debt where home not at risk
• Insolvency
• Education
• Employment Appeal Tribunal (Employment Tribunals were always out of scope)
• Housing save where home at risk, or homelessness appeals or disrepair
• Cash Forfeiture under POCA

Plus expert evidence legal fees are to be re-structured and cut.

In lieu of legal aid there will be more CFAs plus the Govt is consulting on seizing the interest on solicitors' client accounts in order to build up an alternative legal aid fund.  

This paper also heralds accepting Sir Rupert Jackson's reform to abolish the recoverability of success fees in CFAs (the uplift on fees  - usually 100% - which the losing litigant has to pay) and instead to allow lawyers to steal up to 25% of damages recovered by a client to pay their fees (coupled with a 10% increase in general damages).  These are the contingent fees beloved of American Plaintiff Trial Attorneys and which we traditionally considered to be criminally abhorrent and deeply unprofessional.  But times are hard and needs must and now a Court of Appeal judge thinks they are faute de mieux.  The Govt have realised that if they implement that reform it would actually be better to be on legal aid - because then you get to keep all your damages.  So they say that the Govt would also seize 25% of damages from a legally aided litigant and use this to fund other legally aided cases - the Supplementary Legal Aid Scheme (SLAS which would need some public money to start up - the privatised system which would use private start up money (and which is promoted by the Bar) is called CLAF which is also being considered).  

Sir Rupert also wants to abolish After The Event Insurance (ATE) - insurance that CFA funded litigants take out to pay the other side's costs when they loose.  The problem is that the other side has to pay enormous premiums (£3.5 Million in one group action alone - which was paid by a government defendant - if the Govt had given the claimants legal aid then the Govt's costs on losing would have been much lower!) if they lose - Sir Rupert would cure this by ending 2 way cost shifting - the Defendant would usually pay their own costs if they won (if they lost they would continue to pay their own and the other side's costs).  Interestingly enough The Green Paper also pushes Before the Event (BTE) insurance -which lots of people have bolted on to their household and motoring insurance policies and which seems to be being promoted as the middle-class alternative to legal aid and CFAs.  

The Govt will still provide legal aid in exceptional cases in order to maintain article 2 and 6 compliance:

Significant public interest will be required for representation at inquests.

It's all here to read in full.

AMENDMENT TO MY LAST POST

Thanks to Obiter J (see his excellent blog here - http://obiterj.blogspot.com/) I have discovered article 50 of the Treaty of EU which was introduced by the Lisbon Treaty and which provides a mechanism by which a member state may withdraw from the Union.  Therefore I was wrong to suggest that a new treaty would be necessary for the UK to leave the EU - instead agreement would be necessary pursuant to article 50(2):

Article 50

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

That'll go down well in Brussels and Luxembourg

So the Coalition have entered the fray of the battle for British Parliamentary Sovereignty.

Law Students are taught that Parliament is supreme. Some are then taught that there is an exception - the Law of the European Union is superior to the Common Law and Statute Law passed by Parliament. Some are then further taught that that exception only exists at Parliament's pleasure - i.e. that the European Communities Act 1972 provides for the that supremacy - but that Parliament could repeal that Act and take away that supremacy. Others argue differently - the European Court of Justice for example in Costa v ENEL said:

It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question

In Van Gend en Loos v. Nederlandse Administratie der Belastingen the ECJ stated: 

"...the community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights."

In Factortame the ECJ said that English Courts should overide primary legislation where it conflicted with EU Law. The House of Lords duly obeyed - but were careful to say that they were obeying Parliament and the 1972 Act and were not directly applying EU Law, unmediated by the 1972 Act. In the end they could not bring themselves to assert that as Judges they had a duty to obey the EU and not Parliament.  They only had a duty to obey EU Law because Parliament had told them to do so.

The Treaty of Lisbon says this:

17. Declaration concerning primacy
The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.
The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):


‘Opinion of the Council Legal Service
of 22 June 2007
It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL,15 July 1964, Case 6/641 (1) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.
So our international obligation is to permit EU Law to be Supreme over domestic law, whether made by Parliament or otherwise.

The last word, however, from the English Courts was - Thoburn v Sunderland City Council in which Laws J said:

"there is nothing in the [European Communities Act] which allows the Court of Justice, or any other institutions of the EU, to touch or qualify the conditions of Parliament's legislative supremacy in the United Kingdom. Not because the legislature chose not to allow it; because by our law it could not allow it."

In other words Parliament itself has no jurisdiction to confer it's un-repealable supremacy on another body - such as the European Court of Justice.

It is Thoburn that William Hague is repeating in the Coalition's new European Union Bill which states 

It is only by virtue of an Act of Parliament that directly applicable or directly 
effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, 
remedies and procedures referred to in section 2(1) of the European 
Communities Act 1972) falls to be recognised and available in law in the United
Kingdom.

This clause only really makes sense if there is a real possibility of withdrawal from our membership of the EU.  Such withdrawal without a Treaty to authorise it would be contrary to international law and EU members could take aggressive steps to hold us to our obligations (sanctions for example - freezing our assets in the EU).  In other words and realistically and saving war with our EU partners, Parliament is only ever going to be in position to repeal the 1972 Act if we agreed a Treaty with EU members to permit us to withdraw from the EU or at least from its legal order - in other words if they consented to the supremacy of EU Law no longer reigning in the UK.  To put it another way it is simply fantastical to put a clause in a Bill of Parliament in 2010 which seeks to proclaim a medieval version of Parliamentary Soverignty as a sop to Euro-sceptics and which declares a theoretical power to repeal EU legal sovereignty, but a power which most sensible people realise will never be used.  

Why can't we grow up and accept that we have joined the EU for good, that its laws are here to stay and that we might as well work at making the EU legislative process as democratic as possible rather than asserting medieval constitutional notions for the purpose of taking national pride in the theoretical possibility that we might just up sticks and leave.  It very much reminds me of Charles I proclaiming his constitutionally entrenched and perfectly lawful divine right to rule in the face of a House of Commons which ended his power by some its leaders taking the practical step of decapitation.  Practical reality - Realpolitik -always overrides constitutional theory.  Instead of being as uselessly belligerent as Charles I, why don't we just realise that our Constitution has changed and accept the supremacy of EU Law.  

Poor old plod

They go in hard to tackle the G20 protesters and get it seriously wrong....so they go very soft on the apparently non-threatening students and they get it seriously wrong again.

What are they to do?

UPDATE - I think this picture sums it all up - minority student or anarchist or whomever doing criminal damage, witnessed by Plod in the background- but more seriously - criminal damage for the clear purpose of obtaining media coverage - count the number of photo/video journalists - which came first?  The criminal damage or the prurient press interest?

DAME HEATHER WANTS FAMILIES TO HEAR MI5 EVIDENCE

Coroners can exclude the public from hearings on the ground of national security.  But can they exclude interested parties from an Inquest?  If they did so then technically they would be hearing evidence on their own (or possibly with a jury or possibly only with lawyers instructed to assist them - like Counsel to the Inquest).

This was the issue facing Dame Heather Hallett in the 7/7 Inquest (and which I trailed here).  She has decided that she cannot hear evidence in the absence of the interested parties - including the bereaved families.  Accordingly any evidence which MI5 might give to the inquest will have to be given in the presence of the bereaved families if not in the presence of the public at large.  The Coroner rightly requires MI5 and the Home Secretary to find a way of putting evidence before her which can be heard in public or at least by the families.  There is always a way - redaction, gisting, inspection protocols or in camera sessions, of protecting national security and these methods should be tried first before relevant evidence is withheld on public interest immunity grounds.  It is always right that national security is a prime concern; but rarely right that this trumps open justice; or at least justice in the presence of those most concerned with its outcome: In this case the families of those who died.

Dame Heather is to be commended on a magisterial and wise judgment which I hope survives any appeal; here is just one of many fine extracts:


I do not accept that my ruling will amount to an abrogation of the inquisitorial function.
On the contrary, I am satisfied my ruling is entirely consistent with that function as presently regulated by Parliament.  I am still hopeful that, with full cooperation on all sides, most, if not all, of the relevant material can and will be put before me in such a way that national security is not threatened.


I am all too aware, given the events of the weekend, of the unenviable task facing the Security Services.  I repeat, sources may be withheld, redactions made. I do not intend to endanger the lives of anyone.  I do not intend to allow questions which might do so.  I do not intend to allow questions which I know to be based on a false premise or which I know to be misleading.


There may be times when the parties will simply have to accept my ruling without demur. I may have to forbid certain questions. I may have to rephrase them. Finally, I wish to emphasise I do not intend to make findings adverse to the Security Services which I know to be false.


STOP PRESS

The Home Secretary is apparently judicially reviewing this ruling.

IMAGINE I AM ACCUSED OF STEALING A BIKE

Imagine someone has accused me of stealing a bike.

If I am convicted of this offence of dishonesty, in addition to the sentence of the Court, the Bar Standards Board will take disciplinary proceedings against me, and I could be struck off as a Barrister.  Indeed I may be rendered incapable of practising as a lawyer at all.  My job prospects (in any profession or sector) with such a conviction would be slim.  I could not pay my mortgage or provide for my children.

I understand that Louise Casey, the first Commissioner for Victims and Witnesses (for England and Wales) allegedly said this


"We should not view the right to a jury trial as being so sacrosanct that its exercise should be at the cost of victims of serious crimes.

"Defendants should not have the right to choose to be tried by a jury over something such as the theft of a bicycle or stealing from a parking meter."

I am very sorry that the person from whom I might have stolen the bicycle feels aggrieved at the delay in obtaining justice; but I should be even more sorry for myself if that delay were to be avoided by me losing my right to place my future and my family's future in the hands of 12 of my Peers.  That's why article 29 of Magna Carta is still in force today:

nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers


 Sorry Louise, but whether it be bicycle or parking meter, and however long it takes, justice requires a right to trial by jury whenever dishonesty is alleged.

LOOKS LIKE AN INTERESTING DAY TOMORROW AT THE 7/7 INQUEST

From this procedural order and the timetable below it looks like the Home Secretary is squaring up tomorrow to try to force Assistant Deputy Coroner, Dame Heather Hallett to hold her 7/7 inquest in camera to hear some sensitive evidence.  Should be an interesting dual.  It will be interesting to see what will happen if she holds that the current state of Coronial law actually prevents her from going into camera - which is what a lot of lawyers in this area think.  Will that mean that she forces MI5 to give evidence in public or will that evidence not be heard at all or will she find a way of protecting national security whilst keeping the inquest as open as possible?  Watch this space.

28 October 2010

Submissions re RIPA and ability to have 'closed hearings'

10am-4.30pm

THE WHITE ROSE PARLIAMENT

I very rarely agree (if ever) with David Blunkett, but I too dream of a White Rose Parliament sitting in York, with HM Queen as our Head of State and Geoffrey Boycott as First Minister. Eh up, it would be grand.

Here is the relevant exchange at PMQs today:

Q2. [19519] Mr David Blunkett (Sheffield, Brightside and Hillsborough) (Lab): The Prime Minister sets great store by devolving decision making to ordinary people. That already exists, of course, with the Welsh Assembly—population 3 million and devolved budget of £14.5 billion—and the Scottish Parliament, with a population of 5 million and, even after the cuts, a budget, through the block grant, of £27.3 billion. Using the formula applied to Wales, the 5.2 million people of Yorkshire would be entitled to a devolved budget of £24 billion. Can he think of one single reason why the people of Yorkshire should not determine their own priorities and, mischievously, one reason why they should not have their own white rose Parliament?

The Prime Minister: I did not know that the right hon. Gentleman, for whom I have considerable respect, was making these arguments all through the past 13 years. This is a revelation. We are saying to councils in Yorkshire and up and down the country, “We’re getting rid of the ring-fences and giving you the power to spend your money in the way that you choose.” We have got rid of the bossy, centralising, interfering approach that I am afraid he was rather part of.

SCOTTISH POLICEMEN MUST ALLOW YOU TO SEE A SOLICITOR - SHOCK JUDGMENT FROM SUPREME COURT

It utterly beggars belief that there was until today a constituent of the United Kingdom where the law did not allow you to consult a solicitor when being questioned by the Police (for the first 6 hours of detention).  It is even more extraordinary that Parliament last confirmed this legal abomination in 1995 and that it has taken a Turkish case before the European Court of Human Rights to bring matters to a head in the Supreme Court.

It was 1984 when English criminals first obtained a statutory right to consult a solicitor in Police custody (in 1964 they gained a limited right to make a telephone call to a solicitor).  For the first 6 hours of police questioning, Scots criminals have had to wait until today, some 16 years later.

I particularly enjoyed this passage from the judgments today which reveal a typically phlegmatic proposition from the Scots law committee (which thought it was OK that you could not have access to a solicitor for the first 6 hours and indeed recommended keeping the system) that they thought (on what evidence?) that the Scottish public considered unlawful police practices to be fair:


para 2.03, the Thomson Committee elegantly referred to police
practices which were accepted by the public, including criminals, as fair “although
they may be technically illegal or at least of doubtful legality.”


The Supreme Court judgment is here.

WILL SOMEBODY PLEASE TELL THE MEDIA THAT PRENUPS ARE NOT BINDING!

Bad media reporting of the law drives me mad.

Radmacher v Granatino [2010] UKSC 42

is a very interesting case, out today from the Supreme Court - it does not however stand as authority for the proposition that pre-nups are binding - if you took your legal advice from the media - then you would be in trouble -


This is in the second paragraph of Lord Phillips P's judgment:

2. A court when considering the grant of ancillary relief is not obliged to give

effect to nuptial agreements – whether they are ante-nuptial or post-nuptial. The parties cannot, by agreement, oust the jurisdiction of the court. The court must, however, give appropriate weight to such an agreement. This appeal raises the question of the principles to be applied by the court when considering the weight that should be attached to an ante-nuptial agreement.

Please journalists - read read read!  There has been no change in the law today.  Prior to this judgment - the Courts were required to give great weight to pre-nups and to ignore them where they are unfair - that is what the Supreme Court re-confirmed today.

Given the facts of this case - 

9. The appellant (“the husband”) is a French national. The respondent (“the wife”) is a German national. They signed the ante-nuptial agreement in Germany on 1 August 1998. The husband was then aged 27 and the wife 29. They were married in London on 28 November 1998. They had two children, Chiara, born on 4 September 1999 and Chloe, born on 25 May 2002. In October 2006, after 8 years of marriage, they separated.

10. The wife petitioned for divorce in the Principal Registry of the Family Division that same month. The husband cross-petitioned in November. They agreed to proceed undefended on cross decrees and were divorced in July 2007. 

12. The ante-nuptial agreement was drawn up in Germany by a notary. It contained a choice of law clause that provided that the effects of their marriage, including the laws of matrimonial property and succession, were to be subject to the law of the Federal Republic of Germany.

the couple married on the basis of an agreement binding in Germany - the pre-nup was always going to be enforced - but that is not always going to be the case -  this is what Lord P went on to say:

83. So far as concerns the general approach of the court to ante-nuptial agreements, Wilson LJ at para 130 endorsed the following comments of Baron J at first instance

“111. I am certain that English courts are now much more ready to attribute the appropriate (and, in the right case, decisive) weight to an agreement as part of ‘all the circumstances of case’ [within the

meaning of section 25(1) of the Act of 1973] …

119. Upon divorce, when a party is seeking quantification of a claim for financial relief, it is the court that determines the result after applying the Act. The court grants the award and formulates the

order with the parties’ agreement being but one factor in the process and perhaps, in the right case, it being the most compelling factor …”

We also would endorse these comments.

That is what should have been reported!

Try harder journalists (if you want help and you will pay - then please leave your details in the comments box below)

FORGET THE FRENCH - THIS TAKES THINGS TO A DIFFERENT LEVEL

The Supreme Court of the United Arab Emirates has held that it is OK to beat your spouse/daughter so long as you leave no mark:


A man beat his wife and daughter, but the Court held that the wife was beaten too hard and the daughter (23) was too old to be beaten.


The Chief Justice (Falah al-Hajeri) apparently said:


"Although the [law] permits the husband to use his right [to discipline], he has to abide by the limits of this right,"  "If the husband abuses this right to discipline, he cannot be exempted from punishment."


The man was fined $130.  


Recently I complained about the French ban on covering one's face in public.  That form of secular illiberal-ism is intolerable, but pales into insignificance against this religious zealousness expressed as law.  I respect the existence of Islam and Sharia law but cannot respect any culture or religion which sanctions gratuitous and unjustified assault, especially when directed towards one sex alone.  

If the French were to repeal their law targetting Muslim women, would the UAE reciprocate by repealing which ever legal tenet permits women to be beaten?

THE BIG (ISH) BONFIRE

GOOD BYE (OR IS IT?) TO THE FOLLOWING:

• Administrative Justice and Tribunal Council (who cares about the Tribunals anyway?)
• Chief Coroner of England and Wales/Chief Coroner’s Office (although you never actually were appointed anyway) - big shame this -I had high hopes for this new office!
• Courts Boards (x 19) (What did they ever do?)
• Revenue and Customs Prosecutions Office (to merge with CPS)
• HM Inspectorate of Court Administration (that's an excellent idea - I image levels of service are now so low that there has long been no need for inspection)
• Legal Services Commission (LSC to become in house Executive Agency)
• Legal Services Ombudsman (although that has been re-born as the Legal Ombudsman - so not really good-bye)
• Magistrates’ Courts Rule Committee (who needs rules in the Mags Courts?)
• Victim's Advisory Panel (yes - victims are now not important again)
• Youth Justice Board for England and Wales (indeed - why do we need a Board to focus on justice for the most vulnerable alleged criminals?)
• Rent Assessment Panels / Residential Property Tribunal Service (to become part of Tribunal Service and then will be re-named - so more au revoir really - to become the Land, Property and Housing Chamber of the First Tier Tribunal )

THE FOLLOWING ARE GOING TO BE REDUCED:

• Advisory Committee on Justices of the Peace (x 101) - Merge and reduce number to 49 

• Equality and Human Rights Commission - Retain and substantially reform 

THESE ARE ON THE AT RISK REGISTER:

• Judicial Appointments Commission - Under consideration - Under consideration - but subject to Judicial Appointments Review (Barristers don't like the JAC - it keeps turning down their applications to be Recorders - hope it goes and gets replaced with something more amenable!)
• Judicial Appointments and Conduct Ombudsman - Under consideration - Under consideration - but subject to Judicial Appointments Review

AND I'VE ALWAYS WANTED TO APPEAR BEFORE THIS ONE - SO PLEASE DON'T GET RID OF IT BEFORE I GET THE CHANCE:

• Plant Varieties and Seeds Tribunal - Under consideration - Currently considering, by the end of 2010, scope to transfer jurisdiction of this tribunal into MoJ’s tribunal service.

I am so glad to not be French and to be allowed to wear my balaclava

The French have passed loi n°2010-1192 du 11 octobre 2010  which very simply 


says the following:


"Nul ne peut, dans l’espace public, porter une tenue destinée à dissimuler son visage".


Which basically means that you can't wear clothing in a public place which is designed to conceal your face.


There is an exception if you are wearing the clothing for health, professional, sporting or artistic reasons.  


If you are convicted then it is a fine (150 Euros) and possibly also enforced enrolment onto something called a citizenship course.


It comes into force in April 2011.


One might think that the land of liberty, fraternity and equality might have a constitutional bar on telling its citizens  what to wear in public but apparently not.  Because the legislature has determined that wearing such a covering is a threat to public safety and demeaning to women and because you can cover your face in private - at home or in a place of worship - then the Constitutional Court has said the law does not offend the Declaration of the Rights of Man.  This is a little surprising as article 4 of the great declaration says:


"Freedom is being able to do anything that does not harm others: thus, the exercise of natural rights each man has no limits except those which assure other members of the society the enjoyment of those rights. These limits can be determined by law "


 I bet the European Court of Human Rights will have a different view.

Vive La Republique!


I am very happy to live in our constitutional monarchy where I doubt a Government 
would dare pass a law telling us what to wear in public (save in times of war - gas masks - or banning dangerously made fibres etc or where a judge cannot judge the witness because his or her face is covered ) and I suspect the judiciary would be ready to declare such a law as incompatible with articles 8 and 10 ECHR if not a few more of our now treasured Convention of Human Rights.


Better not pack your Balaclava if you are going to Paris in the colder months - you might find yourself on a enforced course learning about French Citizenship, where no doubt they teach things like respect for another's religious views and cultural tolerance.


As the great man didn't say:

"Man is or was born free, and he is everywhere not with his face covered"

God save the Queen!

FREEZING TERRORIST ASSETS

I do not doubt for one moment that we should freeze the assets of terrorists.  On the other hand I cannot understand why this cannot be a judicial act.  Why can't HMG pop off to a Magistrates' Court and ask some JPs (or a High Court Judge if they are not to be trusted) to have a quick look at the evidence and to make the relevant order (ex parte and in camera of course).  This is the sort of thing that happens everyday for search warrants and a range of other authorised intrusions into a person's liberty.  Then the asset frozen alleged terrorist could apply back on the 'return date' to contest the matter if he or she so chose.  Instead under the current bill zooming through the House of Lords at the moment HMG freezes your assets and then the onus is on the alleged terrorist to appeal to the QBD to set the order aside.  I would feel  much better if HMG had to persuade the judiciary first before being able freeze assets even on a reasonable suspicion on reasonable grounds basis.  I think it does police men and civil servants (as well as spooky spooks) the power of good to have to explain themselves to a judge before freezing a person's assets, rather than the other way round.  Plus all sorts of criminal offences flow from assets being frozen (and which can be committed by people other than the alleged terrorist) like not making economic resources available to someone who has had their assets frozen - better if such criminal consequences were invoked by a judge rather than the executive.  The executive must have the powers to keep us safe, but such powers must be properly checked by the judiciary, who are equally capable of protecting national security.

MARK SAUNDERS VERDICT

I have read and heard several times in the media today that the inquest jury hearing the Mark Saunders case 'found' that his killing was lawful.  They fail to say that HM Coroner did not leave a verdict of unlawful killing to the jury and therefore in essence the Coroner found the killing lawful and directed the jury that they could not do otherwise.  Whilst legally possible, had the jury returned this verdict, against the Coroner's direction, their verdict would have been quashed (unless a High Court Judge disagreed with the Coroner's direction).  In any event if a man fires a weapon in a public place and then raises his weapon again and points it in the direction of armed police, the subsequent and obvious reaction of the armed police is very likely to be lawful (whether he be a fellow learned friend or not).  Having said that there are aspects of this case which worry me including this apparent and disturbing quote from the police operations room:  “He has let some off at Old Bill and that changes the rules.”  

I DID WARN THIS WOULD HAPPEN....

In this post I warned regulators to be ready to receive appellant justice from Mrs Justice Davies, the former Nicola Davies QC and former terror of healthcare regulators throughout the country.  Almost immediately she courted controversy in  quashing a decision of the Nursing and Midwifery Council to strike off a nurse instead of more properly remitting it back to the Council....the Court of Appeal have quashed Davies J on that point and remitted the case back to the Council....(EUNICE OGBONNA v NURSING & MIDWIFERY COUNCIL (2010) CA (Civ Div) (Pill LJ, Rimer LJ, Black LJ) 5/10/2010)        

The Court of Appeal will be kept busy by this former medical defence practitioner...I do think it odd that a QC who has famously spent most of her career defending medics against regulators should  immediately on appointment start hearing appeals from regulators by said medics on appointment to the High Court bench....surely there is other less controversial work she could be found to do in the QBD??

NEW LEGAL YEAR...NEW FACES

A NEW LEGAL YEAR OPENS AND THERE WILL BE NEW BOYS AND GIRLS IN THE JUDICIAL RANKS........

Court of Appeal:

• Black J becomes Black LJ to replace Wall P in the Fam D
• Gross J becomes Gross LJ to replace Dyson SCJ in the Sup Ct
• Tomlinson J becomes Tomlinson LJ to replace Waller LJ, who retired last term

High Court

• Robin Spencer QC (criminal silk from Chester) becomes Spencer J (QBD) on the promotion of Tomlinson J (see above)
• Michael Supperstone QC (public law silk from 11 KBW) becomes Supperstone J (QBD & Admin Court) on the promotion of Gross J (see above)
• Peter Jackson QC (child law silk from 4 PB) becomes Jackson J (Fam D) on the promotion of Black J   - (see above)
• Keith Lindblom QC (planning silk at FTB) becomes Lindblom J (QBD) on the retirement of David Clarke J

County Court

• Colin Birss QC (IP silk from 3 NS) becomes HHJ Birss QC of the Patents County Court and Chairman, Copyright Tribunal on the retirement of HHJ Fysh QC
• District Judge Mark Gosnell (District Judge from Manchester - former solicitor  - this is quite a promotion - from one side of the Pennines to the other and presumably over the heads of the the resident existing circuit judges?!?)  is advanced to Senior Circuit Judge and Designated Civil Judge in Leeds on the retirement of HHJ Grenfell
• Allan Gore QC (PI silk from 12 KBW) becomes Senior Circuit Judge and Designated Civil Judge in Liverpool replacing HHJ Stephen Stewart QC.

I also see that Gloster J is the new J in charge of the Commercial Court and that Collins J is no longer in charge of the Admin Court - this has fallen to Sir Anthony May who is also P of the QBD (I don't know when that interesting change was made).  As has been widely reported Tugendhat J is taking control from Eady J of the trial lists in the QBD.  

JUDICIAL RECUSAL

What many people don't realise is that the justice system relies on a large number of part time judiciary.  The county courts, employment tribunals and even the High Court plug the gaps in the their judicial resources by deploying lots of judges who are still practising lawyers and sit part time.  Miss Recorder Cherie Booth QC is one such famed example.  The problem often with these judges is that they have wide ranging professional connections to lots of people which mean that they are sometimes conflicted out of hearing many cases.  I recall attending the Employment Tribunal at Truro presided over by a local employment law solicitor who who had acted for so many people in the small world of that corner of Cornwall that he had to constantly recuse himself due to a perception of bias.  We are reminded of all this because the Court of Appeal yesterday (Re A (CHILDREN) (2010) CA (Civ Div) (Thorpe LJ, Smith LJ, Patten LJ) 23/9/2010) had to set aside some findings of fact made against a father in a Children Act case because the Recorder had an ongoing professional relationship representing the Guardian of the Child (in a different case) who had supported the mother's version of events.  Difficult to understand why the Recorder did not recuse hereself - especially as she did withdraw at a later stage in the case.  The Court of Appeal gives the following good advice to judges:

 (2) (Per curiam) A judge would be wise to err on the side of caution and reveal at the outset anything that might lead to recusal. (3) (Per curiam) On an application for recusal it was incumbent on ajudge to explain in sufficient detail the professional or other relationship that was challenged.

PROBLEMS WITH FIXED TERM PARLIAMENTS

The Fixed Term Parliaments Bill had its second reading yesterday.  I have commented on this very bad Bill before.

My very small son would not go to sleep so I made him watch the second reading on the BBC.  He was as riveted as I was and the transcript is here for those seeking entertainment.


The following issues were raised:

• Most speakers complained about the lack of any pre-legislative scrutiny (no green or white papers or indeed any consultation at all) and the guillotined consideration of a constitutional bill in both Houses.
• Many MPs and lawyers consider that because the Bill permits the Prime Minister to order that an election can take place 2 months earlier or later than the 5th anniversary of the last election, the Bill is one which provides for the power to extend the term of a Parliament and is therefore not subject to the Parliament Acts and can be vetoed by the House of Lords. Wouldn't that be an interesting outcome - if the Lords vetoed the Bill to save the Commons from this constitutional folly.
• The Speaker could be involved in political and legal wrangles as he must certify that the relevant vote has taken place in the House and that an election could be called.  Imagine if the Speaker got it wrong and faced a challenge?
• The Bill does not take the power to call an election from the Prime Minister and hand it to the House of Commons.  If the Prime Minister and Whips ordered their majority of MPs to abstain or be absent from a vote on a general election...it would be lost by the Prime Minister and the Prime Minister would have the general election he wished for....

The Dep Prime Minister was pleased to tell the House that HM Queen had placed her power to dissolve Parliment into the hands of her Commons assembled.  I am not sure that was the wisest thing for Her Majesty to do...still she has no choice:

The Deputy Prime Minister (Mr Nick Clegg): I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Bill, has consented to place her prerogative, so far as it is affected by the Bill, at the disposal of Parliament for the purposes of the Bill.