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??