Monday 22 November 2010

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

Friday 19 November 2010


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.....

Wednesday 17 November 2010

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 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:

Tuesday 16 November 2010

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......

Monday 15 November 2010


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.

Sunday 14 November 2010


Thanks to Obiter J (see his excellent blog here - 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.

Friday 12 November 2010

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

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.  

Thursday 11 November 2010

Poor old plod

They go in hard to tackle the G20 protesters and get it seriously 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?

Thursday 4 November 2010


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.


The Home Secretary is apparently judicially reviewing this ruling.


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.