Thursday 31 December 2009

Imagine This

Chinese national commits murder in London.
Chinese Government believe that under Chinese Law he would have a defence.
No defence under English Law. Convicted. Recieves life sentence.
Chinese Govt asks UK Government to pardon Chinese convict.
UK Govt refuses - 'no one interferes in British Justice'.

The death penalty is prohibited by the European Convention on Human Rights -but I don't think we ever persuaded China to sign that or any other international instrument banning the death penalty.

Isn't that what we should be doing - persuading them to enter into a international human rights obligation rather than interfering in the domestic legal system of a fellow sovereign state?

Tuesday 22 December 2009

Law Society doesn't like it!

Basically the Govt got rid of means testing in the Crown Court which meant that a lot more defendants will be 'privately paying'. Which means that if they are lucky enough to be acquitted they might get their privately paying costs out of central funds (i.e. the Govt) such that there was no point means testing the innocent in the first place. So the Govt have reduced the rates you can get out of central funds to legal aid rates only. And the Law Soc is not happy (not least because most legal aid firms are subsidised by every now and again winning a privately paying case and collecting proper rates from Central Funds):

Kingsley Napley has been instructed by the Law Society, with the support of the Police Federation, to begin proceedings against the Government with regard to a rule that took effect in October 2009 preventing acquitted defendants from recouping the full legal costs of defending themselves. Under the rule, those found not guilty can only claim back legal aid rates. The Society argues this will deter innocent people from seeking advice to clear their names and could lead to miscarriages of justice. It also accuses the Government of misusing "its powers for an improper purpose".

UPDATE - 11/1/10


Read it here

Of interest to lawyers who go to Inquests

The Court of Appeal have handed down a judgment in a case called Lewis which tries to determine the scope of the questions which should be left to a jury in an article 2 type inquest. Should the jury be left to work out all of the factual disputes or just the ones which relate to matters which might actually have caused the death? The Court of Appeal's answer is not straightforward: essentially their is no duty on the Coroner to leave potentially causative circumstances to the jury. He is only under a duty to leave factual matters where the evidence shows that they might actually have had causative effect. Unless the Coroner needs to steer from the jury for the purposes of a rule 43 report - then he has a power (but not a duty) to leave 'potentially causative matters' to the jury. Clear?

Thursday 17 December 2009


The Damages-Based Agreements Regulations 2010

These draft regulations should hopefully come into force next year. For reasons that pass all understanding contingency fee agreements (the sort of thing that New York Plaintiff attorneys use to extract payment for their services by way of a percentage of the damages recovered) have been lawful in employment tribunal proceedings notwithstanding that they are very much unlawful in normal civil litigation. It was something to do with the fantasy of employment tribunal proceedings being classified as non-contentious business. Anyway MOJ is going to regulate these agreements - most importantly putting a cap on the percentage that can be stolen from the compensation as costs by the representative - 25%. See for more info.

Standard of Proof in Care Proceedings

RE S-B (CHILDREN) [2009] UKSC 17

The Supreme Court has given clear guidance on the standard of proof in care proceedings where the Court is making findings of non-accidental injury.

It has confirmed that there is no such things as a sliding civil scale of proof. The common rubric of "the more serious the allegation, the more cogent the evidence needed to prove it" was rejected and the the Court said that the standard is simply just "the balance of probabilities", no more and no less.

The focus of these cases is the protection of the child; to be achieved by making findings of who most probably harmed the child so that that adult can be removed from caring for the child. It is not necessary to make findings akin to the establishment of criminal liability for the harm; that is for a jury in another Court.

Wednesday 16 December 2009

Parliament to ratify most treaties

The Constitutional Reform Bill now before Parliament will require certain Treaties to be ratified by Parliament rather than merely being agreed to using the Royal Prerogative. Save that the following clause is in the Bill:
(Where section 24 provides for the requirment for Parliament to ratify treaties):

26 Section 24 not to apply in exceptional cases

Section 24 does not apply to a treaty if a Minister of the Crown is of the opinion

that, exceptionally, the treaty should be ratified without the requirements of

that section having been met.

So all Treaties will be ratified by Parliament unless a Minister opines otherwise. The Bill is silent on what criteria the Minster should apply; save that the power can only be used in exceptional cases; or more properly on what are in the Minister's opinion exceptional cases.

It can only be in the United Kingdom that the elected dictatorship has the gall to arrogate to itself the power to withdraw a matter from the Sovereign legislature's consideration based upon the subjective opinion of one politician.
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