Stop Press

Joining Lord Sumption will also be Lord Reed to replace Lord Rodger and Lord Carnwarth to replace Lord Brown....it has been announced today...both of whom I tipped for appointment here...http://ofinteresttolwayers.blogspot.com/2011/08/have-been-busyin-supreme-court.html

Tuesday 20 December 2011

    

New Justices of the Supreme Court

The Queen has been pleased to approve the appointment of the Rt Hon Lord Reed as a Justice of the Supreme Court following the death of the Rt Hon Lord Rodger of Earlsferry with effect from a date to be agreed with the President of the Court.

The Queen has also been pleased to approve the appointment of The Rt Hon Lord Justice Carnwath CVO, Senior President of Tribunals as a Justice of the Supreme Court upon the retirement of The Rt Hon the Lord Brown of Eaton-under-Heywood in April 2012 with effect from a date to be agreed with the President of the Court.
Note for Editors

Biographical Notes

Lord Reed has been a senior judge in Scotland for 13 years being a Senator of the College of Justice since 1998.  He was admitted to the Faculty of Advocates in July 1983 where he did a wide range of civil work.  He was appointed to the Bench in 1998.  He was promoted to the Inner House in January 2008.  During 1999 he sat as an ad hoc judge of the European Court of Human Rights, and has sat in both the Judicial Committee of the Privy Council and, more recently, as an Acting Judge of the Supreme Court. 

Lord Justice Carnwath has, since 2007 been the Senior President of Tribunals and has led the planning an implementation of the reforms of the tribunal system following the Leggatt report.  He has sat as a Lord Justice in the Court of Appeal (Civil) since 2002, was a judge of the Chancery Division from 1994 to 2002 during which time (1998 to 2002) he was Chairman of the Law Commission. 

Lord Sumption

Have been busy with a Supreme Court case again and therefore not blogging....  Speaking of which, their latest member to be, Lord to be Sumption has been giving us an early insight into his views in a lecture he gave recently in the Inns of Court - seems he wants to judges to be honest about when they are being political, indeed seems to suggest that they should not be political at all.  Wants to get back to good old fashioned black letter law......looks like his judicial career is going to be interesting...lecture here.

Merry Christmas!

CHIEF CORONER REPRIEVED...

Of all the results of the bonfire of the quangos, the strangest abolition was to be that of the office of Chief Coroner, which  had been created by statute, but had not been filled.  The Royal British Legion has managed to persuade the Lord Chancellor to perform a partial volte face by restoring the office as a leader and standard setter for Coroners, but Mr Clarke will not bring into force the proposed role as court of appeal against decisions made by Coroners (judicial review and AG's fiat will remain the appeal route).  Having appeared in front of a constellation of different Coroners, I can personally testify to the urgent need to introduce measures to standardise service and standards.  At the moment it is a ridiculous post code lottery, with some Coroners investigating particular types of death, whilst others ignore whole swathes of deaths which need an inquest.  Well done RBL!

A Riot of Sentencing Approved by CACD...

The Criminal Division of the Court of Appeal (LCJ, Thomas P and Leveson LJ) has handed down a composite judgment on appeals from sentences handed down during the August Riots.  In my view the LCJ has got this spot on.  Law does not exist in a vacuum - it must respond to events as they unfold and guidelines and principles must be adapted to the needs of society - many find this notion unpalatable and say that it is rule by unelected judges who should sentence according to set formulae established by Parliament -but in a democracy these hard judgments in individual cases are vested in the independent judiciary -they are there to sentence on behalf of society and they have the hard task of working out what society requires by way of protection and deterrent in each individual case- it is not perfect but it is our tried and tested system and I have yet to hear of a viable alternative.  This an excellent judgment which will stand the test of time:

"... The level of lawlessness was utterly shocking and wholly inexcusable...... the imposition of severe sentences, intended to provide both punishment and deterrence, must follow. It is very simple. Those who deliberately participate in disturbances of this magnitude, causing injury and damage and fear to even the most stout‐hearted of citizens, and who individually commit further crimes during the course of the riots are committing aggravated crimes. They must be punished accordingly, and the sentences should be designed to deter others from similar criminal activity....... the context hugely aggravates the seriousness of each individual offence. None of these crimes was committed in isolation. Eight of them were intrinsic to or arose from the widespread lawlessness and two more were intended to contribute to or aggravate it at a time when the disorders were at their most disruptive and alarming.... The reality is that the offenders were deriving support and comfort and encouragement from being together with other offenders, and offering comfort support and encouragement to the offenders around them. Perhaps, too, the sheer numbers involved may have led some of the offenders to believe that they were untouchable and would escape detection. That leads us to address the suggestion that perhaps this level of public disorder should be treated as "mindless" activity. It was undoubtedly stupid and irresponsible and dangerous. However none of these appeals involves children or young offenders (where different sentencing considerations arise) nor indeed offenders with significant mental health problems. None of the offenders before us was "mindless". The actions were deliberate, and each knew exactly what he (and in one case, she) was doing." 

Did the Earth move?

So apparently from today Waitrose can invest in my mean lean Barrister legal machine.  Save that I am quite happy in independent practice offering my low overhead relatively cheap service to the public.....so actually I don't care.  Alternative Business Structures (ABS) have arrived.  I am looking forward to my first instructions from M&S or perhaps if I am lucky, even Fortnam and Masons, I suspect my Chief Clerk would not allow Tesco inside the building.  ASDA and Lidl would not get inside the Temple Bar.  Sainsburys might just be allowed to sit on the second best chairs in the waiting room. What we will certainly not being doing is shacking up with solicitors....over the collective dead bodies of the bewigged sister/brotherhood....bring on Ocado Law.....let the good times roll.....

Eviction grounds to be widened?

Further to my post on obtaining possession of properties occupied by social tenants convicted of rioting offences - it would seem that the Government do not think the power wide or draconian enough (see extract from Lords Hansard below) - it appears the current ground which requires the conviction to relate to an offence committed in, or in the locality of, the dwelling-house - might be widened to include offences committed anywhere? This would seem far to wide and possibly contrary to article 8???

Public Disorder: Eviction from Social Housing

Question

11.16 am

Asked By Lord Dubs

To ask Her Majesty's Government what discussions they have had with local authorities about the eviction from social housing of families with members involved in rioting or looting.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham): My Lords, during and since the riots, a number of discussions have taken place between Ministers and local authorities, and eviction was one of many issues discussed. The Department for Communities and Local Government is currently consulting on proposals to extend the existing discretionary ground for possession for anti-social behaviour to include tenants or family members who have been convicted of the sort of criminality witnessed during the recent riots, wherever that criminality took place.

Pulling no punches

Sir William Gage has pulled no punches re Baha Mousa - nor should he:

My judgment is that they constituted an appalling episode of serious, gratuitous violence on civilians, which resulted in the death of one man and injuries to others. They represented a very serious breach of  discipline by a number of members of 1 QLR.

Evicting those convicted of Riot Crimes from social housing?

If the landlord is a registered social landlord and the tenancy is assured - then its Ground 14, Schedule 2, Housing Act 1988.  If the landlord is a local authority and the tenancy is secure - then its Ground 2, Schedule 2, Housing Act 1985 - both Grounds 2 and 14 say this -

The tenant or a person residing in or visiting the dwelling-house—

(a)has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or

(b)has been convicted of—

(i)using the dwelling-house or allowing it to be used for immoral or illegal purposes, or

(ii)an [indictable] offence committed in, or in the locality of, the dwelling-house.

The Court then has to go on to consider whether it is reasonable to make a possession order and must take into account the following:

The court must consider, in particular—

(a)the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought;

(b)any continuing effect the nuisance or annoyance is likely to have on such persons;

(c)the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated.

If any public sector employees are convicted of Riot Crimes....

Any public sector employee convicted of an offence arising out of the recent public disturbances should be considered for dismissal or some other disciplinary sanction (a fair procedure of investigation and disciplinary process must be followed - see the ACAS Code). Our teachers and youth workers are in loco parentis, medical professionals have duties to save our lives and civil servants have duties to uphold and enforce the law.  Any of these convicted of offences of dishonesty or public order cannot be trusted in these important public positions of trust.  Any convicted should face the prospect of potential penalties at work. Dismissal for misconduct can include dismissal for offences committed away from work: in Singh v London Country Bus Services Ltd [1976] IRLR 176 the EAT held that ‘conduct’ in this context: “does not have to be something which occurs in the course of the actual work, or at the actual place of work, or even be connected with the work, so long as in some respect or other it affects the employee, or could be thought to be likely to affect the employee, when he is doing his work”. Or the dismissal could be for for some other substantial reason - in the case of Harper v NCB [1980] IRLR 260 the EAT that confirmed that a reason is substantial if “the employer can show that he had a fair reason in his mind at the time when he decided on dismissal and that he genuinely believed this to be fair” so long as the reason is not “whimsical or capricious…which no person of ordinary sense would entertain…” (para 8).

The raw end of the Rule of Law

There is an very unfashionable philosophical school of jurisprudence which sees Law as merely the rhetorical expression of the power of the state.  Law merely sets down in words the directives of the State, telling the citizens what to do and what not to do. Usually the words are enough - people comprehend them (or at least the basics) and obey them.  Sometimes, like Monday night in London and last night in the West Midlands and North West, the words are not enough.  There is required a physical manifestation of the words to enforce their meaning.  We rely on the Police forces of this country to provide that physical manifestation - to enforce the law.  Sometimes that physical manifestration has to get very physical - if people are smashing windows, stealing goods, setting fires and threatening and taking life then the Police have to appear, intervene and apprehend.  If the perpetrators fight back and resist arrest, then the Police must move in and fight back.  Many lawyers prefer to see Law as merely existing in the abstract (positivism is the posh name for this) and like to think that it has nothing to do with a police officer in riot gear banging a rioting teenager on the head in the lawful exercise of his power to remedy breaches of the peace.  The events of this week (so far) are one of those thankfully rare reminders that at the end of the day, after all of the pontificating in the Supreme Court is over, the ultimate expression of the rule of law is its raw unmitigated enforcement, by force, when that rule is being flouted by so many and in such a flagrant way.  The preservation of a democracy sometimes, thankfully rarely in this country, requires the use of force - the quaint historic expression in our tradition is the preservation of the Queen's peace.  I should like to thank every one of the sworn Constables who kept the peace outside my front door last night and who protected my family from harm.  That they should have to intervene with the use of force against citizens is regrettable, but essential - and notwithstanding that sometimes some their number fail us, they should receive our overwhelming support.

MEMO TO COBRA

The Legal Authority to deploy troops on to the streets of London tonight..........

Civil Contingencies Act 2004 - 

Section 19

(1)     In this Part “emergency” means—

(a)     an event or situation which threatens serious damage to human welfare in the United Kingdom or in a Part or region,

................

(2)     For the purposes of subsection (1)(a) an event or situation threatens damage to human welfare only if it involves, causes or may cause—

(a)     loss of human life,

(b)     human illness or injury,

(c)     homelessness,

(d)     damage to property,

(e)     disruption of a supply of money, food, water, energy or fuel,

(f)     disruption of a system of communication,

(g)     disruption of facilities for transport, or

..................... 

20  Power to make emergency regulations

(1)     Her Majesty may by Order in Council make emergency regulations if satisfied that the conditions in section 21 are satisfied.

(2)     A senior Minister of the Crown may make emergency regulations if satisfied—

(a)     that the conditions in section 21 are satisfied, and

(b)     that it would not be possible, without serious delay, to arrange for an Order in Council under subsection (1).

(3)     In this Part “senior Minister of the Crown” means—

(a)     the First Lord of the Treasury (the Prime Minister),

(b)     any of Her Majesty's Principal Secretaries of State, and

(c)     the Commissioners of Her Majesty's Treasury.

(4)     In this Part “serious delay” means a delay that might—

(a)     cause serious damage, or

(b)     seriously obstruct the prevention, control or mitigation of serious damage.

21  Conditions for making emergency regulations

(1)     This section specifies the conditions mentioned in section 20.

(2)     The first condition is that an emergency has occurred, is occurring or is about to occur.

(3)     The second condition is that it is necessary to make provision for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency.

(4)     The third condition is that the need for provision referred to in subsection (3) is urgent.

22  Scope of emergency regulations

(1)     Emergency regulations may make any provision which the person making the regulations is satisfied is appropriate for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency in respect of which the regulations are made.

(2)     In particular, emergency regulations may make any provision which the person making the regulations is satisfied is appropriate for the purpose of—

.............

(l)     enable the Defence Council to authorise the deployment of Her Majesty's armed forces;

O! say can you see by the dawn’s early light,

O, to live in a country with a constitution which permits this sort of farce...........

Yes, Congress Is in Session (for a Few Seconds, Anyway)

Judicial Merrygoround

OK - are you sitting comfortably:

Sir Anthony May has retired and been replaced by Sir John Thomas as P of the QB (Hallett LJ to be his deputy).  Lord Wilson has left the C of A  to go to the Supreme Court. Smith LJ, Sedley LJ and Jacob LJ have all retired (all will be sadly missed).  They have therefore been replaced in the C of A by Rafferty J (QB), McFarlane J (Fam D), Davis J (QB), Lewison J (Chan D) and Kitchen J (Chan D). In addition David Steele J has retired.  Those vacancies have been filled by Andrew Popplewell QC,  Robert Hildyard QC,  Charles Haddon-Cave QC, HHJ Globe QC and Rabinder Singh QC - albeit there does not seem to be a replacement for McFarlane J in the Fam D (perhaps this will follow)......

Have been busy...in the Supreme Court

Not been posting for a while - have been a little detained in the Supreme Court.  Absolutely beautiful building with superb facilities -

Talking of which, I see that there are now two vacancies - a Scottish gap created by the untimely death of Lord Rodger and an anticipatory position vacant pending the retirement of Lord Brown.

 I understand that Lord Reed, of the First Dvision of the Inner House of the Court of Session is tipped to fill the Scots slot (he has been sitting temporarily in the SC for Lord Roger - most particularly in the fascinating pleural plaques appeal -) and has replaced Lord Roger as Visitor of Balliol College, Oxford.






As to the Lord Brown vacancy - how about Lady Justice Arden - about time for another Lady and would produce the first husband (Lord Mance) and wife team in the SC (or H of L)?  Or perhpas Mummery LJ (employment), Carnwarth LJ (as a reward for looking after Tribunals) or perhaps Moses LJ for a bit of public law experience?

Or will they go for another outsider - Lord Faulks QC?

LOTS OF LEGAL AID CHANGES ANNOUNCED TODAY

There are lots of legal aid changes announced today:

http://www.justice.gov.uk/downloads/consultations/legal-aid-reform-government-response.pdf

Will review in detail at some later date -

The one which immediately struck me was this one:


Having considered the responses to the consultation questions on 
alternative sources of funding, the Government has decided to introduce 
a Supplementary Legal Aid Scheme, under which 25% of all damages 
successfully claimed, other than damages for future care and loss, in 
cases funded by legal aid will be recovered by the legal aid fund. This will 
include cases funded through the exceptional funding mechanism. 


So in essence the Legal Aid position will mirror the new Contingent Fee position (which was announced in March when HMG accepted Jackson LJ's proposals) - whereby instead of the Defendant paying the lawyers, then the lawyers will be paid out of damages - in both cases fixed at 25% - with a 10% rise in general damages to compensate.

So both Contingent fee funded and legally aided lawyers will have a vested interest in increasing the level of damages because damages will now equal profit for lawyers.  How far we have fallen.......

Sentencing

The current dilemma over sentencing does not seem to come to much if analysed calmly and away from the tabloids -

Plead guilty at the earliest opportunity at the moment and 10 years might become 6.  Released after 1/2 time and 10 becomes 3.  Change to a 50% discount and that 3 becomes 2.5.  So not reforming means an extra 6 months in jail or circa £7,000 for the tax payer?

What's the big deal?

I agree with Sir Stephen Sedley

I rarely agree with Sir Stephen Sedley (Sedley LJ retired and sadly will not grace the SCUK) but he is spot on in his recent essay in the LRB - available free here - he is writing on superinjunctions - I particularly liked his parting shot -

The naming of Goodwin and Giggs is on a different plane from ministerial briefings against judges, inappropriate as these are, because it disrupts the historic equilibrium between the judiciary and the legislature. The media may present themselves as amused spectators, but it is they who have provoked and exploited the breakdown of an element in the democracy they themselves inhabit.

MP thinks that Judges legislate...

I was listening last night to the Commons debate on the second reading of the Terrorism Prevention and Investigative Measures Bill which is set to replace Control Orders with TPIMS - which are in fact more or less just like Control Orders but with a different name.

During the debate the MP named below said the following which I quote from Hansard:

8.37 pm

Mr Dominic Raab (Esher and Walton) (Con)

Control orders are not just of dwindling relevance; they constitute a distraction from robust law enforcement and are actually a negative. That is why I welcome the Home Secretary's renewed focus on the Prevent strategy. I would welcome further still measures to strengthen our deportation capacity, which has been undermined by judicial legislation resulting from article 8 of the European convention on human rights, via the Human Rights Act 1998. The massively inflated rights to family life now allow the majority of deportation orders to be frustrated. That has nothing to do with article 3 torture grounds, which I would stand up for


Have relations between Parliament and the Judges become so poisoned that this chap thinks that there really is such a thing as 'judicial legislation' in the UK which Judges make in order to actively undermine the Government's implementation of a deportation regime set out in an Act of Parliament.  At least he acknowledges that this 'judicial legislation'  is 'via' the HRA 1998.


Mr Raab - what you actually meant is that Parliament in 1998 compelled judges to apply article 8 of the European Court of Human Rights to the law of England and Wales, including that bit of the law which sets out when we can deport terrorists.  


The application of article 8 is not judicial legislation - it is merely what judges do - are compelled to do - applying the law as made by Parliament to the facts of a case.  


I am also unaware of any case where a judge has refused to deport a terrorist on article 8 grounds - this is mainly because article 8 rights to a family life can be infringed where the infringement (the deportation) is proportionate to the legitimate aim of the security of the UK.  So even if the Judges have been legislating - they have 'passed' no law which means that terrorists can hide behind article 8.   


True it is that terrorists can hide behind article 3 - we cannot deport them back to countries which will torture them, but then article 3 is an absolute right - I am glad that Mr Raab finds it in himself to stand up for terrorists not being tortured......


But who is going to stand up for the judges and explain to the average MP, that they, MPs, make law in a Sovereign Parliament - and Judges just apply it - if Judges interpret Acts of Parliament or introduce common law rules which MPs don't like - they (with the House of Lords) can pass an Act which better expresses the democratic will (see the Compensation Act and its overturning of a Supreme Court judgment etc.).....Mr Raab, please read a constitutional textbook before you next malign HM Judges....

Scots get tartans in a twist about SCUK....

The Scottish Government (as it now likes to call itself notwithstanding its statutory title) is getting all upset about the Supreme Court hearing human rights appeals in Scottish criminal cases.  Article 19 of the Act of Union stated that after the Union the Scottish court system would be the same as before the Union.  Before the Union in civil cases, the final court of appeal in Scotland was the independent Parliament of Scotland.  There was no such right of appeal in criminal matters and the High Court of Justiciary was the final court in all Scottish criminal cases.   In 1876, in the case of Mackintosh v. Lord Advocate (1876) 2 App. Cas. 41  the House of Lords (finally) decided that it did not have jurisdiction to hear a Scottish criminal appeal because whilst it had inherited the jurisdiction of the old pre-Union Scottish Parliament in civil matters, it had inherited nothing in respect of criminal matters.  This has now been recognised in Westminster pre-devolution legislation which still applies - section 124(2) of the Criminal Procedure (Scotland) Act 1995.

The Scotland Act 1998 limited the legislative competence of the Scottish Parliament and the executive competence of the Scottish Ministers and the Lord Advocate in many ways, including to only legislating and acting in accordance with the Convention rights protected by HRA 1998.  If complaint were made that the Parliament or the Executive had acted beyond their competence - a so called Devolution issue or minute - then the final court of appeal to determine such issues was the Judicial Committee of the Privy Council.

This body was chosen, instead of the House of Lords, precisely because it was recognised that one side wind of this new jurisdiction would be Scottish criminal cases being finally determined on human rights grounds in London.  It would cause political difficulty and constitutional problems if the House of Lords were to be vested with the final constitutional power to arbitrate on devolutional issues in Scottish criminal cases where the Law Lords had hitherto had no jurisdiction.  Plus the JCPC's flexible membership could be used to add Scottish Judges to the court to make it look less like English Judges deciding Scottish cases.  The JCPC heard a succession of Scottish criminal human rights appeals in this manner until the foundation of the new Supreme Court.

At this stage some bright spark had the brilliant idea to transfer the JCPC's devolution jurisdiction to the Supreme Court.  And this is where the error leading to the current complaints from Scotland occurred. We now have the position of a Court which inherited its jurisdiction from the House of Lords hearing cases which the House of Lords could not have heard - because of the historical and political sensitivity.  The Schedule 6 devolution minute/issue jurisdiction should have remained with the JCPC in order to preserve the nicecities (and to have allowed more Scottish Judges to have sat on cases - see Lord Kirkwood sitting with Lords Hope and Clyde in the JCPC in 2000 in this case).

The JCPC and Supreme Court usually use the same judges - but the JCPC's position outside the hierarchy of the English Legal System, allows it to be presented as less of an affront to Scotland's ancient independent legal system.  Such presentational issues matter and indeed the recent decision by the SCUK in Fraser has shown how upset the Scots can get when presentationally it looks like an English Court is usurping independence of the Scots judiciary (notwithstanding Lord Hope's and Lord Roger's (and indeed Lord Kerr's) presence on the Court which decided Fraser).  The jurisdiction should have stayed with the JCPC, I suspect it is now too late to turn back the clock.....

The main point is that our current constitutional arrangements are an absolute historical and asymmetrical mess and the sooner we have a written and rational Constitution - the better....

SCOTTISH INDEPENDENCE IS NOT A MATTER FOR THE SCOTTISH PARLIAMENT

Before Alex Salmond gets too excited he should recall that there are only two ways in which Scotland can obtain independence - UDI or an Act of the Westminster Parliament.  The Union between England and Scotland is a reserved matter under the Scotland Act 1998 and the Scottish Parliament cannot pass an Act severing the Union (not least because the Union was created by an Act of the Westminster Parliament).  Some might argue that a referendum of the whole UK population would be politically necessary before Westminster could pass such an Act.

Mr Salmond's referendum would only authorise him to open negotiations for such an Act to be passed by the UK Parliament (which would probably also be a Treaty between the two new states) and it would not automatically lead to independence (save for UDI, which would seem unlikely and would also breach international law and would probably lead to Scotland finding it difficult to join the EU, especially if Catalonia thought it could do likewise).  Once such terms for independence were agreed with the UK Government, especially relating to how much they would loose in subsidy, defence, foreign affairs, exports, oil revenues, gold reserves etc. etc. etc. it may well be that independence would not look quite so rosy.......

Schedule 5, Scotland Act 1998

The following aspects of the constitution are reserved matters, that is—

(a)the Crown, including succession to the Crown and a regency,

(b)the Union of the Kingdoms of Scotland and England,

(c)the Parliament of the United Kingdom,

(d)the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal,

(e)the continued existence of the Court of Session as a civil court of first instance and of appeal

Should a Coroner's Jury be permitted to indict?

A Coroner's Jury is the last remnant of the Grand Jury, the men of the County who used to report what crimes had been commited in the local area, since the last time the King's Justices visited on circuit.  Still used widely in the USA, but abolished here in 1933 (1984 in Nova Scotia!) prosecutors would have to convince the Grand Jury that there was sufficient evidence to indict the proposed defendant, before a trial could take place (now replaced by committal proceeding or 'sending the case to the Crown Court').  In the case of a death, it was for the Coroner's Jury to decide whether or not someone should face an indictment (a true bill) for an unlawful killing.  Coroner's Juries lost this power in 1977 and now they cannot frame their verdict so as to blame any named person for the death. Hence the Tomlinson Jury could not name PC Harwood.  Frankly (and I have done many jury inquests) I have long thought that the whole system, even with the improvements since the introduction of the Article 2 Middleton style inquest, is a waste of time.  The most which can result from an Inquest is (a) a critical report from the Coroner, which can be ignored (although must be responded to by the public bodies concerned) (b) the gathering of useful evidence for other proceedings and (c) some form of closure or catharsis for the family.  The Coroner's inquest does not guarantee a prosecution being launched or civil compensation.  I recognise that it is a form of investigation into a death and that positive things often come out of an inquest - but to what real tangible end?

In the Tomlinson case, a jury found beyond reasonable doubt that a Police Constable had unlawfully killed a citizen.  They were directed by a Senior Old Bailey Criminal Judge.  Usually when a jury, directed by an Old Bailey Judge, return a verdict that somebody has been killed, beyond reasonable doubt, the defendant usually goes to prison.  It seems to me that to make Coroner's Inquests meaningful, in every case where an indictment might be on the cards, the Coroner should summon a jury and direct them to consider not only their verdict but also whether anybody should be indicted for the death - this could include corporate manslaughter or death by dangerous driving as well as the usual homicide offences.  The CPS could subsequently drop the prosecution if not convinced by the indictment or if a witness dropped out (although they would have to tread carefully so as not to seem to be dismissive of the Jury's decision to indict) and the Coroner would be able to direct the jury not to consider an indictment where there is insufficient evidence, just as a Coroner can direct that certain verdicts are not available on the evidence.  At least the Jury's hard work would be worthwhile, would result in something tangible and would give the family some hope that justice might be served in the future.

If the Police had already opened an criminal investigation - then I do not suggest that an inquest should supplant the usual criminal investigative and trial process - it should only be in cases where there has been no criminal investigation that the Jury has the power to indict.  But then a full inquest following a criminal trial is very very rare.  The Jury's power would only be useful where the CPS or Police had neglected to act or where the inquest had uncovered new evidence (happens more often than you might think where an alert and efficient Coroner is on the case). Often the HSE use inquests to flush out evidence to use in health and safety prosecutions - I suspect the jury's power to indict would be very useful to the HSE, likewise for the police in road traffic cases.  If an indictment was open to the jury, I would permit the advocates to address the jury and the Coroner on the facts and on whether an indictment should be preferred (presently and bizarrely - advocates can only ask questions of witnesses (which must not imply guilt or blame) and address the Coroner on the form of verdict to leave to the jury  - or if sitting without a jury, which he or she should consider).  

Inquests were to be improved by the Coroners and Justice Act 2009, but the Coalition has shelved most of that - most tragically the new office of Chief Coroner is going to be burnt in the bonfire of the quangos (HHJ Thornton QC of the Tomlinson inquest was going to have the job) unless the House of Lords can force a re-think - it is high time that a centralising force gives some focus and consistency to Coronial work and lets hope that the Coalition changes its mind......

Tomorrow sees the 7/7 Inquest Verdict................

Announced - Sumption and Wilson to go to Supreme Court

After months of speculation Downing Street has made the announcement.  There has been unfair criticism of Sumption delaying his appointment until he has completed his professional commitments; barristers do not return cases (indeed cannot) to fit in with their judicial careers and Sumption is right to complete his professional commitments before he takes his appointment.  His clients are entitled to their lawyer of choice and to hold Sumption to his professional duty. Note that Lord Collins is going to fill in in retirement whilst the Court waits for Lord Sumption (the first Barrister to straight go to the UK's highest court in 62 years - Viscount Radcliffe (as he ended his career) was the last.)

 Wilson LJ's appointment is also to be welcomed - he has handed down many excellent judgments and not just in his core field of family law.   

The Queen has been pleased to approve the appointment of the Right Honourable Sir Nicholas Allan Roy Wilson as a Justice of the Supreme Court with effect from 26 May 2011 following the retirement of The Right Honourable The Lord Saville of Newdigate in October 2010.

The Queen has also been pleased to approve the appointment of Jonathan Philip Chadwick Sumption OBE, QC as a Justice of the Supreme Court following the retirement of Lord Collins of Mapesbury in May 2011 with effect from a date to be agreed with the President of the Court.

Biographical Notes

Lord Justice Nicholas Allan Roy Wilson (65) was called to the Bar (Inner Temple) in 1967 and took Silk in 1987. He was appointed as a Recorder in 1987 and was made a Bencher in 1993. He was appointed to the High Court (Family Division) in 1993 and to the Court of Appeal in 2005.

Lord Justice Wilson was knighted in 1993.

Jonathan Philip Chadwick Sumption OBE, QC (62) was called to the Bar (Inner Temple) in 1975 and took Silk in 1986. He was appointed as a Deputy High Court Judge in 1992 and served as a Recorder between 1993 and 2001.  He was then appointed as a Judge of the Courts of Appeal of Jersey and Guernsey in 1995.

Additional Note for Editors

Jonathan Sumption OBE, QC will take up the appointment as soon as his existing professional commitments are completed, on a date to be agreed with the President of the Supreme Court.

Following his retirement Lord Collins of Mapesbury will sit as an additional Judge of the Supreme Court.