Sunday 30 December 2012

Predictions for 2013?

Will JSB pass the Commons? (Yes)  Will HMG accept the Lords amendments (Hope so).

Will somebody do something to halt the abolition of the County Courts? (No)

Will HMG fully implement Leveson? (Yes- quickly please)

Will employment law get more bonkers? (Yes)

Will Assange leave the Ecudorian embassy? (No)

Will Jackson see a flury of CFA funded large group actions started on 31st March? (Yes)

Will the Chief Coroner carry on being a good thing? (Yes)

Will HMG damage JR by reform and do nothing about the immigration log jam? (Please no)

Keep an eye on Sumption JSC - he's had time to settle in - we may see some interesting judgments this year.....

Lots to look forward to...................

Congratulations to Dame Ursula Brennan, PUS at MOJ on her honour, to the Recorder of London on his CBE, to the Chief Crown Prosecutor for London on her CB, to Rustom Tata (solicitor) on his MVO, to Cherie Booth QC on her CBE, to Isobel Letwin (Solicitor Department of Health) for her CBE, to Marilyn Darg, chair of the bench of North Somerset Magistrates Court on her MBE and likewise to Mrs Jennifer Farmer MBE JP.


Wednesday 12 December 2012

Why shouldn't journalists be subject to statutory regulation?

There are lots of sacred rules that govern our society.  For example, we require lots of important classes of people to be independent, and crucially to be free from political interference.  For example -  Judges, Chief Constables, Barristers, Her Majesty's Inspectors, Doctors etc etc. None of them however, is free from statutory regulation.  Their powers, duties, conduct, ethics and the enforcement of these derive from statute, (or from common law which could easily be replaced or amended by statute).  The Lord Chief Justice (and to some extent the Lord Chancellor) disciplines and regulates the judiciary, pursuant to statutory powers.  Doctors are disciplined and regulated by an independent regulator created by statute and itself regulated by HMG via the Privy Council (that's the body which advises HMQ to grant Royal Charters - before anybody gets excited about using a Royal Charter to set up the new press regulator).  Barristers are about as fearlessly independent as professionals get, but are regulated by an independent body which finds its powers and its own regulation in statute.  Why has statute been used to regulate these important independent entities? Because it is important:  The role of law is primarily to facilitate a peaceful and cohesive society by rhetorically stating that bad things are bad and providing the State with coercive powers to prevent and punish bad things and those who do them.  The Leveson Report has catalogued lots of bad things which journalists (and others) have done. A lot of those bad things can already wind you up in a criminal court.  To that extent journalists are already subject to the statutory regulatory control of the criminal law.  It is clear that such minimal regulation is insufficient.  Some strong medicine is necessary.  Bad Judges, policemen, barristers, doctors etc are dangerous, they can kill people or at least destroy or damage lives, livelihoods and property. That's why statute permits independent regulators to investigate and expurgate such malefactors. Turns out that bad journalists can also do bad things with similar consequences.  Why shouldn't such bad journalists be investigated, adjuged and thrown out of their profession?  Why would such a statutory system inhibit the fundamental freedoms of the press any more than the ability to discipline a judge, strike off a doctor or hound a bad Chief Constable out of his job inhibits the freedoms and independence of such important lynch pins in our society.  The professional rule which prevents me from misleading the Court (lying) keeps me on the ethical straight and narrow - but it does not inhibit my treasured professional independence. An ethical rule which required journalists to have some shred of evidence before publishing, would not curtain their freedom to publish once they had some evidence on which to base their story.  We are talking about a basic code of ethics; something every profession should have and where the profession has an impact on society, the enforcement of that Code must be by a statutory mechanism. The claim to immunity from statutory regulation currently being made by journalists is unsustainable and unsupportable.  Their claim to freedom is of fundamental importance to our freedom, without them, our freedoms would wither.  But their freedom does not extend to a freedom to do bad things with impunity - they are as subject to law and to its regulation as the rest of us.  Journalists have a right to write and be free from censorship and from political interference; but they have no right be free from and to be above the law.  They would be the first to launch into a scathing headline on the front page if another profession claimed such an immunity; they have no privilege from such criticism.   

In short, Leveson needs implementing in full and quickly.

Wednesday 5 December 2012

Abolition of county courts goes through on the nod.....RIP

The abolition of county courts does not seem to have registered at Report stage in the House of Lords yesterday.  The Labour Justice spokesman and former partner of Beecham Peacock solicitors made some half-hearted comments (he seemed to be a little distracted by the Court of Protection), to which Lord McNally for HMG (non-lawyer career Labour politician turned SDP -Lib Dem defector and currently Lib Dem Justice Minister) briefly replied:
Another area of concern relates to some of the processes involved under the single court that now exists. We have county court buildings and we have a single county court. In principle, there is nothing wrong with that but, as I pointed out in Committee, the Government have not really followed the recommendations of Lord Justice Jackson, whose report, as we have noted on previous occasions, has been cherry picked in a variety of instances. In this case, the concern arises out of the problems of litigants and their legal representatives issuing proceedings. Lord Justice Jackson proposed that there should be regional court centres but, as he said clearly, it would,"be wrong to compel everyone to issue proceedings at regional centres. Litigants who wish to issue claims in person at their local county court and to pay fees at the counter should be free to do so".

That does not happen, which has serious consequences.
I referred in Committee to the problems at the Salford Centre in particular, which is where money claims are issued. The Minister replied, no doubt on the basis of advice tended to him, that things had started slowly but were getting better. Yet the Law Society Gazette on 25 October reported:

"Almost two-thirds of users of the Salford civil claims centre rate the service as poor",

and a third considered that it got worse rather than better over the past few months. One contributor in a comment to the Law Society Gazette said:

"Salford is a good example of the Government trying to deal with things in a very proficient and one stop shop way. In reality its a total disaster which needs overhauling urgently and made to be more accountable and efficient. Starting with the right staffing levels would help, as well as more dedicated phone staff and someone who even answers in a reasonable time".

Solicitors frequently complain about having to wait for two, three, weeks or perhaps more for their claims to be processed. That cannot be satisfactory.
We have a situation in which in its various component parts the system is under great pressure. That is exacerbated by some of the changes that the Government, for their own no doubt worthy reasons, have sought to bring into effect. I cannot agree with the answer given by the Minister on the last occasion that there was a system of reporting that in its component parts meets the requirements of a thoroughgoing review. That is particularly in relation to what is happening to access to justice for litigants of all types and the efficient processing of their claims, and in relation to the Court of Protection for the long-term arrangements for effective supervision of its substantial case load of vulnerable people.

Equally, we believe that a single county court will provide a more efficient civil justice system that is fit for the 21st century and where litigants can achieve a more efficient, proportionate and speedy resolution to their disputes. By removing the district boundaries that surround each individual court, the single county court will address restrictions that limit the way customers engage with the courts. Access to justice will be increased as it enables the Courts and Tribunals Service to introduce more modern means for citizens to engage with courts in the most cost-effective way.

How will citizens engage with the County Court if their local court has been abolished?  If there is to be a National County Court - there should be at least a minimum number of hearing centres in each circuit/region/county or even town/city?  The bill would allow HMG to reduce the county court to no hearing centres at all - just online and telephone - that sounds ridiculous - but is it out of the question?????  

Lord Pannick and Lady Butler-Sloss were in the House, but did not intervene on this subject.  

Given that the House of Commons is unlikely to get excited about this issue - that's probably it for the county court as we know it.  


Monday 3 December 2012


This may be a sentimental.  It may not be as exciting and as fundamental as the Justice and Security Bill.  It has nothing to do with Leverson.  Tomorrow the House of Lords should get round, at report stage, to considering whether to abolish all the little local county courts in England and Wales (a long lost old favourite - West London pictured here) and replace them with one national monolith - at the moment HMG is under a duty to provide a county court for every district:

1 County courts to be held for districts

(1) For the purposes of this Act, England and Wales shall be divided into districts, and a court shall be held under this Act for each district at one or more places in it; and [each court] shall have such jurisdiction and powers as are conferred by this Act and any other enactment for the time being in force.

(2) Every court so held shall be called a county court and shall be a court of record and shall have a seal.

Look at the new version of section 1, County Courts Act 1984 - clause 16 of the Crime and Court Bill:

A1 Establishment of a single county court
(1) There is to be a court in England and Wales, called the county court, for
the purpose of exercising the jurisdiction and powers conferred on it—
(a) by or under this or any other Act, or
(b) by or under any Act, or Measure, of the National Assembly for
(2) The county court is to be a court of record and have a seal.”
(2) Sections 1 and 2 of that Act (county courts to be held for districts) are repealed.

HMG have cut back on Courts -  see here from 2010 - but this is bit more radical than closing down a few old buildings and little used courts - this is wholesale abolition.  Of course the new national court will need local hearing centres which no doubt will use the existing county court estate - but there will no long be any legal binding obligation to hold a county court in particular place.  There will be no need to consult or lay a statutory instrument before Parliament - that is the current set of hoops which HMG must go through before shutting a county court - in future there will be no such bar.  I suspect that The County Court will sit with employment tribunals, magistrates, social security, immigration and other tribunals in one big rush for ever decreasing resources.  Is that really a good idea?  Can the system cope?  Shouldn't there be some sort of obligation to hold a local court in large cities and towns????

I have successfully campaigned to keep the oldest civil court in the land open - Mayors and City - see here for previous success - 

Para 24, Sch 9 of the Bill?

Omit section 42(2) and (3) of the Courts Act 1971 (City of London to be a
county court district, and the county court for that district to be known as the Mayor’s and City of London Court).

That got me quite cross.

Come on House of Lords - when you debate this tomorrow - someone propose an amendment to prevent HMG having carte blanche to mess around with county courts as they see fit.  I am all for closing underused inefficient courts - but there needs to be some process for closing courts,  some scrutiny and  some guarantee of some service somewhere?

I look forward to reading Hansard on Wednesday....

Friday 30 November 2012

Justice and Security Bill ...baton passed to Commons......

The Justice and Security Bill has passed the Lords and has been sent to the Commons - without HMG committing to adopt the amendments made at Report - just a promise to carefully consider etc.....I can see some legislative ping pong coming up....

Justice and Security Bill [HL]
Third Reading
3.39 pm
The Advocate-General for Scotland (Lord Wallace
of Tankerness): My Lords, 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 Justice and Security Bill, has consented to place
her prerogative and interest, so far as they are affected
by the Bill, at the disposal of Parliament for the
purposes of the Bill.
A privilege amendment was made.
Moved by Lord Wallace of Tankerness
That the Bill do now pass.
Lord Beecham: My Lords, I apologise for my rush
to the Dispatch Box. Have the Government reached
any conclusions about the amendments passed by
your Lordships’ House last week in respect of which
the Deputy Prime Minister and the noble and learned
Lord expressed a good deal of sympathy? Is that
sympathy now to be translated into an acceptance of
the amendments passed—or, indeed, in the form of
fresh amendments to be moved by the Government in
the House of Commons; and, if so, on what lines will
they be?
LordWallace of Tankerness: My Lords, I think that
I indicated last week that the Government want to give
very careful consideration to amendments that were
passed by considerable majorities in your Lordships’
House on Report. The Government will address them,
give them serious consideration and no doubt make
their position plain in the other place, bearing in mind
that the amendmentswere based on the recommendations
of the report of the Joint Committee on Human
Rights. It is certainly the Government’s intention to
respond to that report in a timely way.
Bill passed and sent to the Commons.

Friday 23 November 2012

Justice & Security Bill.....Count yourself lucky....

that you live in a country where the immediate past President of the Supreme Court can give the legislature the benefit of his experience and wisdom on a controversial and important Bill - and I find myself in total agreement with everything he says.  The wise amendments proposed mainly by the Joint Committee on Human Rights, and led by Lord Pannick QC, went through at Report Stage on Wednesday and HMG was defeated on all such points.  The amendment attempting to kill CMPs was roundly and rightly defeated.  Joining Lord Phillips in support of the wise amendments were Lord Brown (former JSC), Lady Butler-Sloss (former P of Fam D). Lord Goldsmith (former AG) Lord Irvine (former LC) Lord MacDonald (former DPP) Lord Scott (former Law Lord and VC) and Lord Woolf (former LCJ, MR and Law Lord).  Voting for the Coalition was Lord Lloyd (former Law Lord) and Lord Mayhew (former AG).  What a night....and what a night it would have been if the Coalition had abolished the right of these wise heads to sit in our Parliament...just think if this had been left entirely to the Commons and some facsimile elected politicians in an elected Senate.  It does not bear thinking about.  We now just have to hope that HMG accepts most of these amendments and that the elected Commons do not mess this up...

Lord Phillips of Worth Matravers: My Lords, I find myself in familiar territory, as I sat in a judicial capacity on a number of appeals dealing with closed material, including Al-Rawi. Closed material is anathema to any court, and the Supreme Court always managed to deal with issues relating to closed material without looking at the material itself. I am, however, reluctantly persuaded of the need, in the interests of justice, for a closed material procedure in exceptional cases where the Government would otherwise have no alternative but to submit to a civil claim for damages because to defend it would necessarily involve putting into the public domain material that would cause disproportionate harm to national security. It is for that reason that I support the batch of amendments tabled by the noble Lord, Lord Pannick, and other noble Lords in relation to Clauses 6 and 7.  I would expect the Government and those supporting Clauses 6 and 7 to welcome these amendments. Let me explain why. I draw attention to Clause 11(5)(c), which provides that, "Nothing in sections 6 to 10 ... is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention". That is a very significant provision. It means that a judge will be precluded from acceding to a closed material application unless satisfied that to do so will be compatible with the Article 6 right to a fair trial.  The use of closed material in civil litigation will undoubtedly be challenged as a matter of principle. That challenge will surely reach the Supreme Court and, if it fails, will be renewed before the Strasbourg Court. If it reaches that court, its decision is likely to be critical. If it holds that the use of closed material in civil proceedings is incompatible with Article 6, the English judges are likely to follow that ruling; and Clauses 6 and 7 will become a dead letter.  The Bill as it stands makes no provision for the application of a test of proportionality. The test is simply: would disclosure be damaging to the interests of national security? If the answer is yes, the court is mandated to accede to the application that the material in question be not disclosed. Clause 7 then leaves it in the discretion of the court as to the extent to which, if at all, the closed material can be deployed in support of the Government's case. The amendments proposed by the noble Lord, Lord Pannick, and other noble Lords introduce a test of proportionality. They also make it plain that a closed material order can be made only as a last resort when there is no other way of having a trial that is fair to both parties. The amendments also require a gist of the closed material to be given to the other party.  These amendments will, it seems to me, significantly increase the chances that the provisions in relation to closed material are held to be compatible with Article 6 by the Strasbourg Court. That court has made it plain that it considered that gisting was an essential feature of a closed material procedure in the context of control orders, and the court is likely to take the same view in relation to civil litigation. If and when this issue reaches Strasbourg, it is important to appreciate that the court is not likely to have access to the closed material that has weighed with the courts of this country, nor to the closed judgments relating to that material. It seems to me likely that the Strasbourg Court will require to be persuaded that the English courts have applied a test of proportionality before allowing closed material to influence their decisions, that a gist of the closed material which is sufficiently specific to enable the other party to meet the case made against him has been provided to him, and that closed material has been admitted because there was no other way of procuring a fair trial. That is what these amendments set out to achieve.  If these amendments are made, it does not mean that the Government are going to be forced on occasion to disclose material that they consider to be adverse to the interests of national security. It means that where the court does not consider that the use of closed material will be proportionate, the Government may have to litigate without the benefit of that material if they remain unprepared to disclose it, or even to settle the claim made against them. The same will be true if the Government are not prepared to gist the closed material. As the noble Lord, Lord Pannick, has observed, the debate on Clauses 6 and 7 is not concerned with the protection of national security; it is concerned with the requirements of a fair trial.  It is for these reasons that I support the amendments in question.

Wednesday 21 November 2012

JR reforms over-hyped.....JSB at report stage in Lords

I have seen some comments relating to the announcement that JR is going to be reviewed which would have you believe that the Defence of the Realm Act is going to be reintroduced and all left wing JR abusing lawyers shipped off to a concentration camp on the Isle of Wight (I am currently reading the new CJ Samson counter-factual novel).  In fact the Secretary of State said this:

I am today announcing a review of the judicial review process. Judicial review is a critical means of holding the Executive to account, ensuring that decisions are lawful. However there has been a huge growth in the use of judicial review,which has expanded far beyond what was originally intended. In 1975 there were 160 applications for judicial review, but by 1998 this had grown to around 4,500 applications, and to around 11,000 by 2011. In 2011, for every application for permission to bring a judicial review that was granted, five were refused (a higher proportion was refused in immigration and asylum cases). In those cases where permission was granted, an even smaller proportion was successful. Much of this growth is the result of an increase in applications to review decisions in immigration and asylum cases, but judicial review is also used as a means of challenging other types of decisions, for example, in planning matters, in large infrastructure projects, in procurement exercises and in other key reform programmes.  The Government are concerned about the burdens that this growth has placed on stretched public services.  This can lead to unnecessary costs and lengthy delays, and may in some cases stifle innovation and frustrate much needed reforms, including those aimed at stimulating growth and promoting economic recovery. The Government therefore intend to seek views on a package of options designed to tackle these problems. This package will include shortening time limits in certain cases, restricting the opportunities for an oral reconsideration of the application for permission in certain circumstances, and introducing new fees. The purpose of this is not to deny or restrict access to justice, but to provide for a more balanced and practicable approach, ensuring that weak, frivolous and unmeritorious cases are identified early, and that legitimate claims are brought quickly and efficiently to a resolution. In this way, we can ensure that the right balance is struck between reducing the burdens on public services, and protecting access to justice and the rule of law.

Now if one ignore some absolute howlers, for which the relevant civil servant or SPAD should be sacked (e.g. the statistics - plus things like - procurement decision are not challenged by way of JR - they have their own statutory challenge procedure which preludes JR)  - there is in fact a problem - the Admin Ct literally cannot cope with the numbers of JRs.  The backlog is caused however, by immigration.  There is a direct correlation between aggressive immigration policies and the number of JRs.  Aggressive attempts to deport illegal immigrants generates vexatious (and some genuine) challenges to deportation orders.

The P of QBD is not happy:

These late, meritless applications by people who face removal or deportation are an intolerable waste of public money, a great strain on the resources of this court and an abuse of a service this court offers. The court therefore intends to take the most vigorous action against any legal representatives who fail to comply with its rules. If people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority.

He later named and shamed some solicitors but stopped short of referring them for disciplinary action -  here is an example:

  1. The first case does involve the very same case of Hamid. On this occasion we shall name the solicitor as MQ Hassan. After the rejection of the application referred to in the earlier judgment of the court, an application was made again to this court on virtually the same points. However the application contained no disclosure whatsoever of the previous application and its failure. There was without any doubt a gross breach of the obligation of disclosure that arises on an ex parte application. Mr Hassan has appeared here today and apologised. He said that his firm is in the process of tightening its procedures so this would not happen again.

  2. We consider that the appropriate course of action to take in this case is for Mr Hassan to report to the Solicitors Regulation Authority what steps he is taking to ensure that all those who work in his firm are properly trained in particular in the obligation incumbent upon a solicitor to make full and proper disclosure of all material facts to the courts. The court will communicate itself with the Solicitors Regulation Authority to say that it has required that. The Solicitors Regulation Authority can consider whether there is a proper training programme in hand. However, we will add that if this happens again in this firm, we shall refer the matter for consideration by the disciplinary branch of the Solicitors Regulation Authority.

  3. Mr Hassan, this is your last chance and you must put your house in order.

The Court, with HMG's help, needs some new tools to weed out crazy JRs without them reaching the oral permission stage when too much time and money is wasted.  Such a reform does not involve the end of the rule of law, merely its enhancement....

JSB - that draft legislation about which I have written not a little - past ramblings here - is in report stage before the Lords - they went through Part 1 2 days ago and will resume today when we might get to some of the interesting bits.

To assist, the Joint Committee on Human Rights has made some useful suggestions, mostly made to it in turn by David Anderson QC, the Independent Reviewer of Terrorism Legislation.  On the whole, I fully support these proposed amendments and hope that HMG takes them up.  I will post further once the Report stage is fully underway on the juicy bits of the Bill.

Saturday 17 November 2012

Man expresses himself on Facebook. Man loses job.

One Sunday morning an employee of a registered social landlord exercised his right to freedom of expression by referring, on Facebook, to gay marriages in Churches as an 'equality too far'.   Responding to a fellow employee's request as to whether his statement was an expression of disapproval of the proposal, the employee (the Claimant) said  "no not really, I don't understand why people who have no faith and don't believe in Christ would want to get hitched in church the bible is quite specific that marriage is for men and women if the state wants to offer civil marriage to same sex then that is up to the state; but the state shouldn't impose it's rules on places of faith and conscience."  No offensive language, no discriminatory words - mere and pure expression of personal opinion.  His employers had a different idea, and on the Monday they suspended him and later demoted him for gross-misconduct on the basis that he had expressed homophobic views.  

Briggs J is to be congratulated for his judgment

In my judgment Mr Smith's postings about gay marriage in church are not, viewed objectively, judgmental, disrespectful or liable to cause upset or offence. As to their content, they are widely held views frequently to be heard on radio and television, or read in the newspapers. The question remains whether the manner or language in which Mr Smith expressed his views about gay marriage in church can fairly or objectively be described as judgmental, disrespectful or liable to cause discomfort, embarrassment or upset. Again, it seems to me that it was not. He was mainly responding to an enquiry as to his views, and doing so in moderate language.

Briggs J held the Claimant's demotion to have amounted to wrongful dismissal and awarded him damages, limited as the Judge regretted, to just under £100:

I must admit to real disquiet about the financial outcome of this case. Mr Smith was taken to task for doing nothing wrong, suspended and subjected to a disciplinary procedure which wrongly found him guilty of gross misconduct, and then demoted to a non-managerial post with an eventual 40 per cent reduction in salary. The breach of contract which the Trust thereby committed was serious and repudiatory. A conclusion that his damages are limited to less than £100 leaves the uncomfortable feeling that justice has not been done to him in the circumstances. All that can be said is that, had he applied in time, there is every reason to suppose that the Employment Tribunal would have been able (if it thought fit) to award him substantial compensation for the unfair way in which I consider that he was treated. If, about which I can make no finding of fact (since I was merely informed about it on counsel's instructions), financial stringency made it practically impossible for Mr Smith to bring proceedings in the Employment Tribunal in time, then the injustice he has suffered, although very real, is unfortunately something which this court is unable to alleviate by an award of substantial damages.  Mr Tomlinson expressed the hope that, if Mr Smith's case in breach of contract was well-founded, the Trust might find a way to reinstate him. I was however told by Mr Short, again on instructions, that there is no such prospect.

The Defendant, a body in receipt of public funds, if not a public body per se, should be investigated immediately by its regulator, the Homes and Communities Agency.  If the governance of the Defendant has failed to such a degree so as to cause or permit the unlawful action taken against this Claimant, and has failed to such a low level that it could not act to remedy the wrong by reinstating the Claimant, then its Board may not be considered fit to hold office.  If the HCA is not interested, may be Eric Pickles, the responsible Secretary of State will be....................section 47 Housing and Regeneration Act 2008 might assist:

Directions by the Secretary of State

(1)The Secretary of State may give the HCA general or specific directions as to the exercise of any of its functions.

(2)The Secretary of State must publish any directions given by the Secretary of State under this Part as soon as reasonably practicable after giving them.

(3)The Secretary of State—

(a)may revoke any directions given by the Secretary of State under this Part, and

(b)must publish the fact that the directions have been revoked as soon as reasonably practicable after the revocation.

(4)The HCA must comply with any directions of the Secretary of State in force under this Part.

(5)Subsections (2) and (3)(b) do not apply to directions given under section 22 or paragraph 7 of Schedule 1; and this section does not apply to directions given under Schedule 4.

(6)References in this Part to the Secretary of State giving directions include references to the Secretary of State giving directions by varying existing directions.

Monday 12 November 2012

What's this SIAC all about?

The Abu Qatada case got me wondering about who sat on the Special Immigration Appeals Commission.  The statute sets this much out

The Commission shall be deemed to be duly constituted if it consists of three members of whom—

(a) at least one holds or has held high judicial office (within the meaning of [Part 3 of the Constitutional Reform Act 2005) or is or has been a member of the Judicial Committee of the Privy Council], and

[(b) at least one is or has been [a judge of the First-tier Tribunal, or of the Upper Tribunal, who is assigned to a chamber with responsibility for immigration and asylum matters]].

Mitting J was (a) and Judge Peter Lane was (b) in Abu Qatada.  Dame Denise Holt DCMG was the third member of the Commission in Abu Qatada.  Who's she? Well she is a former Ambassador to Spain and Mexico.  She now holds lots of Non-Execs positions and other sinecures.  The MOJ website says that The third member will usually be someone who has experience of national security matters  so that must be Dame Denise.  She doesn't sound that independent given her career?  Still one presumes she has taken the judicial oath like her co-commission members?  Who else sits on the Commission in a similar capacity -  apparently there are 12 other lay members?  It is a bit hard to tell.  Looking at past judgments,Sir Brian Donnelly, KBE, CMG our former man in Zimbabwe appears to be one.  Sir Paul Lever, our former man in Berlin also appear to be a lay member.  I think we have got the flavour of the independent lay members of the Commission.  A knighthood and Ambassadorial rank appear to be prerequisites.  Our former man in all sort of places Sir Brian Barder had this to say on the subject, shortly after resigning as such a lay member:

The chairman of each SIAC hearing is a high court judge. The second member is drawn from a panel of judges with experience in hearing appeals on ordinary immigration matters. The third member, a layperson, is someone with experience of analysing and assessing secret intelligence and with high security clearance. When SIAC was first established, only three lay members were appointed. Since then, as its role has expanded, many more lay members have joined the panel. Most are retired senior civil servants, diplomats, or ex-members of the armed forces and the intelligence and security services. The lay member is there to advise his judicial colleagues on how much weight should be given to the various kinds of secret information submitted in evidence: how to allow for the possibility that intercepted communications may have been deliberately planted, that informers may have embellished their reports in order to please their paymasters, or that raw intelligence may have been misunderstood and misinterpreted by the agent providing it or by the intelligence and security officers who receive and process it. This is an area of which few serving judges have much, if any, direct knowledge. (The recently retired Lord Hutton may be an exception, though his past experience of the intelligence world seems to have had a questionable effect on his findings.)
My experience suggests that the lay member’s views on legal questions, though diffidently expressed, can also sometimes be helpful. It is fair to ask, however, whether intelligence experts ought to be full members of the commission, rather than act as advisers to a panel of three fully-fledged judges. Former senior civil servants and diplomats have necessarily been closely identified for most of their working lives with the Whitehall and Westminster establishment, and may be more reluctant than judges to question the wisdom of the intelligence community, ministers and their officials. But this, sadly, is the least of SIAC’s problems.

Wednesday 7 November 2012

His Honour Sir Frank White RIP

Sad news that His Honour Sir Frank White has died (23rd October 2012, 85 years of age). He was behind much of what you see around today in the civil justice system - a civil trial centre for London (he was the first DCJ at Central London County Court), Court based mediation, training of judges (he authored "Bench Notes") and Civil Procedural Rules.  He was given a rare knighthood (for a Circuit Judge) on retirement in recognition of his great achievements (dubbed by the Prince of Wales alongside Sir Tom Stoppard).  He was President of the Council of HM Circuit Judges in 1990 and was made a Bencher of Gray's Inn and Fellow of KCL in 1997 when he retired.

I suspect he would be horrified by the virtual abolition of the county court now before Parliament - see here.  I suppose that nobody has noticed or protested this 'reform' because in the current climate there are bigger things to save than the local county court.  I am particularly surprised that the housing lobby has not been more vocal as the CPR currently requires all possession claims to be listed at the tenant's or mortgagee's local court - how will that stand when there are no local courts......still given the legal aid cuts I don't suppose there is any money to represent people at local courts anyway....

Still it might be nice if Parliamentarians put up a bit of a fuss before this treasured local justice institution is marched before the bureaucratic firing squad.  

Thursday 1 November 2012

Hull gets medical Coroner before the ban takes effect....

As the Chief Coroner, in yet another excellent speech to the Howard League, points out:

Under our present law coroners are lawyers or doctors or both, although, as I said, there are not many doctor-only coroners left. The Coroners and Justice Act 2009 will require that all new coroners are lawyers and have the same legal judicial qualifications as all judges. I see that as a good thing. There is a good case for coroners being more judges than guardians of public health.  

Just before that reform is due to take effect Hull City Council has appointed Professor Paul Marks BA, LLM, MD, FRCS, MFFLM, ACI Arb, Consultant Neurosurgeon, to be HM Coroner for Hull and the East Riding of Yorkshire.  He may also be dual qualified as a legal practitioner, although I have found no evidence for that.  He is a serving Deputy Coroner for the Western District of West Yorkshire (effectively Bradford) and I don't doubt his eligibility for the role. I also note that he has an LLM, is an Arbitrator and is a Visiting Professor of Medical Law. It is curious however, to appoint such a Coroner at a time when the law is about to prohibit the appoint of medical Coroners.  And for good reason - legal practitioners make good judges and coroners.  The simple reason is that they can deal with evidence, witnesses, legal submissions and advocates, because that was their bread and butter.  The worst judges are those who have forgotten what is was like to be a practitioner.  Even worse, those who were never practitioners.  I wish Professor Marks well but, I, like the CC, welcome the no more new medical coroners reform.

Wednesday 31 October 2012

New Judges with the names of Old Judges...

Seem to have missed this - George Leggatt QC has been made a High Court Judge.  Formerly of Brick Court and son of Sir Andrew Leggatt (Leggatt LJ as was and author of the current Tribunal system). It's getting a bit hereditary over at the RCJ with Stuart-Smith J being appointed last month (see here).  Just like old times with a Stuart-Smith and a Leggatt on the bench - bring back the 80s.

Leggatt J has taken the place of McCombe J who has been elevated to the Court of Appeal, following his judgment in the Mau Mau claims.

The Queen has been pleased to approve the appointment of George Andrew Midsomer Leggatt, Esq., Q.C., to be a Justice of the High Court with effect from 26 October 2012 on the elevation of Mr. Justice McCombe to the Court of Appeal.

The Lord Chief Justice will assign Mr. Leggatt to the Queen’s Bench Division.
Mr. Leggatt, 54, was called to the Bar by the Middle Temple in 1983 and took Silk in 1997. He was appointed a Recorder in 2002 and is approved to sit as a deputy High Court Judge.

Mr. Justice McCombe was called to the Bar by Lincoln’s Inn in 1975 and took Silk in 1989. He was appointed a Recorder in 1993 and a judge of the Queen’s Bench Division of the High Court in 2001 and was Presiding Judge between 2004 and 2007.

Sunday 28 October 2012

The Treasury must be rolling in the miners lose out..

The Court of Appeal have upheld the defeat inflicted on aging miners seeking to sue HMG as successor to the nationalised coal employers for their dodgy knees, allegedly caused by years down pit.  If successful, this could have cost the Treasury millions - but it looks dead and buried now....unless the Supreme Court can ride to the rescue - but given that this limitation decision was decided in accordance with the Supreme Court judgment ending the Nuclear Test Veterans litigation (another win for the cash strapped Treasury) this seems unlikely.  The Court was particularly effusive about the trial judge: Grenfell, the old DCJ of Leeds and W.Yorks:

I cannot part with this case without paying tribute to the judge. It is I hope apparent from what I have already said in my judgment that I regard Judge Grenfell's judgment as a tour de force. Not only has he deployed to good advantage his own great experience in the field but he has also given extremely conscientious consideration to the mass of evidence placed before him insofar as it bore both on the generic issues and on the case of each lead Claimant individually. His careful and exhaustive judgment has made our own task immeasurably easier than it might otherwise have been.

Another amazing tour de force on the same topic is Swift J's amazing 250 page judgment in the Phurnacite group action litigation - again the Treasury come out saving some money, although they go down on some expensive issues - no doubt it will all end up in the C of A.  Have liked Swift J (AKA Lady Oppenshaw, for they are a High Court spousal double act) ever since she assisted her old pupil mistress, Dame Janet Smith, as Counsel to the Shipman Inquiry - she has the northern silk quality which money can't buy.......

Monday 22 October 2012

Reduction in Magistrates Appointed

I see there has been a marked reduction in Magistrates appointed:

As at 1 April to 31 March each year: Magistrates appointed
2002-03 1,410
2003-04 1,768
2004-05 1,766
2005-06 2,212
2006-07 2,412
2007-08 1,899
2008-09 1,773
2009-10 1,632
2010-11 1,012
2011-12 736

It is important that we keep this institution alive and be alive to the creep of DJs (MC) and the reduction in the number of offences being deal with out of Court.  Magistrates may be slower and less efficient, but they represent a crucial lay element within the criminal justice system.  A lay element we lose at our peril.

Tuesday 16 October 2012

More on judicial blogging, the AG has been busy......and the Home Secretary has been openly defying our closest ally....

The Deputy Senior Presiding Judge (DSPJ) Gross LJ has given a speech to Magistrates.  He said this about judicial blogging:

Blogging: Given the element of controversy about the blogging Guidance, I hope it will be helpful to explain the underlying thinking. To my mind, the position here is plain. No one is obliged to be a Magistrate or any other Judge. As a private individual, one can blog to one’s heart’s content. But appointment as a member of the 
Judiciary involves restraint in a variety of areas – and blogging is one of them, as made clear in the recent Guidance. 
In the Declaration and Undertaking signed on appointment as a Magistrate the appointee acknowledges and undertakes: 
“that I will be circumspect in my conduct and maintain the dignity, standing and 
good reputation of the Magistracy at all times in my private, working and public 
life”  In my view, any Magistrate who wishes to blog must ask himself whether his blog 
complies with this Declaration and Undertaking. Comments on cases tried or on Govt 
policy or other branches of the Judiciary tend to demean rather than enhance the 
office holder in question. Likewise, as the MA has recently emphasised, the Guidance 
seeks to maintain “public confidence in the impartiality of the judiciary”; blogging 
contrary to the Guidance carries the very real risk of undermining that public 
confidence. I make no apologies for speaking bluntly on this topic.

This is all very interesting and I like people who speak bluntly.  But has Gross LJ read the guidance - the guidance does not permit blogging at all - "blogging contrary to the guidance" makes no sense when the guidance does not allow any blogging at all.  The guidance says "Blogging by members of the judiciary is not prohibited. However, officer (sic) holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary....The above guidance also applies to blogs which purport to be anonymous. This is because it is impossible for somebody who blogs anonymously to guarantee that his or her identity cannot be discovered. "  So judicial blogging is not prohibited, but you must not identify yourself as a member of the judiciary - and also you cannot blog anonymously.....which leaves what exactly? Nothing!  This is a total ban on blogging by judges - whether they identify themselves as judges or blog anonymously.  

I utterly agree that judges must not blog in a way that demeans or undermines their office - but why can't they be trusted to blog in a way which does not affect their capacity to act as Judges? The guidance needs revisiting - see previous posts

Meanwhile the Attorney General (for England) has been very busy - he has decided to seek new inquests into the Hilsborough deaths - which must be the only option and has decided to veto the release of the Prince of Wales' correspondence with Ministers.  The Heir to the Throne will by definition (normally) become the Soverign and anything he says in letters to Ministers might undermind his future role as Soverign. The same essential constitutional ring of confidentiality which surrounds the Soverign must also surroung his or her heir.  The Upper Tribunal was wrong and the A-G  is right on this issue.  Will the Guardian JR his decision?

The Home Secretary has been openly defying US Attorneys over Gary McKinnon - but don't be fooled -   HMG would not take such a step without clearance from the White note that she does not actually propose any changes to our Extradition Treaty with the US.....


Monday 15 October 2012

Chief Coroner gets into his stride...

The Chief Coroner promised to sit, where possible, on all Coroners' appeals (thus implementing de facto one of the neglected reforms which is not to come into force) - and he is going great guns at present:

On the 11th he found (alongside Foskett J) that the Greater Manchester South Coroner was wrong leave death by dangerous/careless driving as a verdict to a jury. If a driver causes a death, it has to amount to manslaughter in order to be left to a jury as unlawful killing.  Case report here

They noted this, sagely, in passing:

We have reached the conclusion that we have for the reasons given and not for any wider policy reason. However, it has to be observed that, sadly, there are many deaths on the roads in England and Wales each year, all of which require an inquest to be held. The figures for England, Wales and Scotland were 2,222 such deaths in 2009 and 1,850 deaths in 2010. The prospect of hundreds of cases each year being considered, by a coroner or a jury, as potential cases of unlawful killing because of some possible careless driving is alarming, would involve a disproportionate amount of time and expense and would take into the inquest process something it is less well equipped to consider than either a criminal court or a civil court.

The CC was then out today (again with Foskett J) in order to quash the decision of the North West Kent Coroner to hold an article 2 Middleton inquest where it is alleged that Kent County Council could have done more to protect a minor, but where crucially it cannot be established that any failure caused his death.  Case report here.  They sagely noted the following, which Coroners have been saying ever since Middleton came out:

The extent to which the narrower form of inquest that will be required in the light of our decision would differ materially from a Middleton type inquest in this case is, perhaps, debateable. Mr Payne accepted in the course of argument that ultimately there may not be all that much difference in the scope of the inquest and which witnesses are called (albeit that he indicated that the focus of their evidence is likely to differ by reason of it being a Jamieson inquest). He conceded that, bearing in mind the coroner's Rule 43 responsibilities (which the coroner had referred to), the coroner would wish to hear evidence from the claimant local authority and other agencies.

All good stuff, which bodes well for a happy future where Coroners are properly supervised and brought to heal, when they go off-piste.

Thursday 11 October 2012

Should the Court of Appeal be legislating?

Jackson LJ recommended a 10% increase in general damages to compensate claimants for having to pay success fees when his reforms come into force in April 2013.  HMG agreed and said the Court would make the change necessary.  So the Court of Appeal highjacked an infant settlement in order to declare that the 10% increase will apply as from that date.  The Association of British Insurer spotted an obvious flaw, which was that the Court of Appeal did not say that it will apply only to those CFAs entered into after April 2013 where the success fee is irrecoverable from the Defendant.  In other words, for those old CFAs unaffected by the reforms, but where damages were agreed or assessed after April 2013, the insurer would have to pay both a 10% increase in generals and the success fee.  Insurers were not prepared to put up with that windfall, therefore they applied to re-open the Court of Appeal's 'judgment', which they successfully have done and the Court of Appeal has issued a new judgment which makes it clear that the 10% uplift only applies where the Claimant has to meet the success fee.  The new judgment is here.

One of the most startling aspects of this whole thing is that we make such big changes through the interesting legislative medium of some senior judges ram-raiding a private law action in order to make a declaration as to the common law.  Would any other system legislate in this way? The Court of Appeal has been the traditional guardian of general damages, but where wholesale reform is taking place, which includes legislation debated and passed in Parliament, why should one strand be left to be enacted in this bizarre way?  Perhaps given the horlicks the Court made of its legislative foray  it will leave such drafting to Parliamentary Counsel in future.  

Wednesday 10 October 2012

Lots going on....

HMG appears to have taken the interesting step of abolishing non-European Law based employment rights for those who are prepared to sell them to their employer for £2,000 (of shares in their employer).  Litigation will focus on whether the employee had a genuine choice as to whether to surrender their rights or not.

I asked before I went on holiday: What happened to Assange's bail sureties?  The Chief Magistrate has told us in ruling that they are all estreated in the following sums:

Tricia David £10,000

Caroline Evans £15,000
Joseph Farrell £3500
Sarah Harrison £3500
Phillip Knightley £15,000
Sarah Saunders £12,000
Vaughan Smith £12,000
John Sulston £15,000
Tracy Worcester £7500

McCombe J has waved the Mau Mau claims through to the next round following a limitation hearing.  HMG really ought to start stashing away some cash if Leigh Day and others are going to start trawling the former Empire for PI cases left behind after the Imperial flag was hauled down.  One can think of a few more fertile claims farming fields in the Commonwealth....

Meanwhile the Law Officers of the Kingdom are slugging it out in the Supreme Court over a constitutional crisis arising over some Welsh byelaws.  The question that everybody is asking - is Theodore wearing his new £5,000 insignia?

Sunday 7 October 2012

Imagine someone knocks you over the head...

and you make a criminal injuries compensation scheme claim in respect of your disabling brain injury.  The Criminal Injuries Compensation Authority (CICA) offers you quite a low amount of compensation.  You appeal with the help of solicitors to the First Tier Tribunal.  You obtain some interim payments from the Tribunal whilst you are waiting for the appeal to come on.  Your solicitor suggests that someone in their firm acts as your Deputy under the Mental Capacity Act in order to administer your interim payments.  You obtain a final award from the Tribunal.  The Tribunal has awarded you some compensation for your injury (according to a tariff), some loss of earnings and some money to cover some of the costs (but not all) of your Deputyship.  CICA pay the award to your solicitor who deducts over 1/2 in respect of your costs of appeal and a further 1/4 to pay for the Deputyship to administer your award, which now only amounts to the final 1/4 of your compensation.

The moral of the story - unless you can avoid it, don't use solicitors to appeal a CICA award unless they are prepared to do it pro bono or on a very low fixed fee or percentage.  Their fees will come out of the compensation.

Take out an Enduring Power of Attorney before you fall ill or appoint a family member as a Deputy (the Public Guardian or a Barrister instructed by the Bar Pro Bono Unit can help them).  Free Tribunal representation can be obtained from the Free Representation Unit.

Thursday 4 October 2012

London & SE get injection of new blood into District Bench

Welcome new District Judges to London and the SE Circuit.  I look forward to seeing you in Staines, Bow, Chelmsford, Southend, Hastings and Eastbourne in the near future...

03-10-2012 01:10 AM BST

The Queen has appointed Anthony John Edmund Rich to be a District Judge on the advice of the Lord Chancellor, the Right Honourable Chris Grayling MP. The Right Honourable The Lord Judge, Lord Chief Justice of England and Wales, has assigned him to the South Eastern Circuit, based at Staines County Court with effect from Monday 22 October 2012. Notes to editors Anthony John Edmund Rich, 55, will be known as District Judge Rich. He was admitted as a Solicitor in 1981 and was appointed as a Deputy District Judge in 1999. ...
03-10-2012 01:10 AM BST

The Queen has appointed Richard Thomas Edward Clarke to be a District Judge on the advice of the Lord Chancellor, the Right Honourable Chris Grayling MP. The Right Honourable The Lord Judge, Lord Chief Justice of England and Wales, has assigned him to the South Eastern Circuit, based at Bow County Court with effect from Friday 19 October 2012. Notes to editors Richard Thomas Edward Clarke, 44, will be known as District Judge Richard Clarke. He was admitted as a Solicitor in 1997 and was appointed as a Deputy District Judge in 2003. ...

03-10-2012 01:10 AM BST

The Queen has appointed Philippa Louise Roderick Smith to be a District Judge on the advice of the Lord Chancellor, the Right Honourable Chris Grayling MP. The Right Honourable The Lord Judge, Lord Chief Justice of England and Wales, has assigned her to the South Eastern Circuit, based at Chelmsford County Court and Southend County Court with effect from Friday 19 October 2012. Notes to editors Philippa Louise Roderick Smith, 55, will be known as District Judge Philippa Smith. She was admitted as a Solicitor in 1985 and was appointed as a Deputy District Judge in 2004. ...

03-10-2012 01:10 AM BST

The Queen has appointed Helen Judith Lusty to be a District Judge on the advice of the Lord Chancellor, the Right Honourable Chris Grayling MP. The Right Honourable The Lord Judge, Lord Chief Justice of England and Wales, has assigned her to the South Eastern Circuit, based at Hastings County Court and Eastbourne County Court with effect from Friday 19 October 2012. Notes to editors Helen Judith Lusty, 40, will be known as District Judge Lusty. She was admitted as a Solicitor in 1997 and was appointed as a Deputy District Judge in 2005. ...

Tuesday 2 October 2012

Lots of swearing (in) marks new legal year...

The new LC (Grayling), PSC (Neuberger) and MR (Dyson) were all sworn into office at the start of the new Legal Year yesterday.   There was also the usual service in the Abbey (and Red Mass in the Cathedral) and 'breakfast' in the Hall.
I see District Judges were invited to wear their little seen Star Trek robes.  Masters of the High Court wear something similar (save for the Senior Master who has a Tricorn hat etc) but with Pink tabs - I've never actually seen them in the Pink.

Wall P has announced his retirement as P of the Fam D and Morrit is going as Ch as Ch D.  So it will be all change at the top  - in addition to finding a replacement for Dyson in the SC.  Arden LJ is being tipped for both JSC and Ch - so she may have make a choice between the 2 jobs.  Black LJ might be elevated to P, although MacFarlane LJ may well be the favourite...

Thursday 27 September 2012


I utterly welcome the appointment of His Honour Judge Peter Thornton QC (a founder and former Head of Doughty Street Chambers) to the Office of Chief Coroner. I lament that he shall not have the full powers envisaged by the reforms enacted in the Coroners and Justice Act  2009..........but judging by his 10 point plan, I am optimistic about the future. I comment on some of the points below (full speech to the Coroners' Society with full 10 points here):

The Coroners and Justice Act 2009

I shall oversee the implementation of the relevant parts of the Coroners and Justice Act 2009. It is a pity that coroners could not have had an Act of their own (as they have had in many statutes, including those in 1843, 1844, 1860, 1887, 1926, 1955, 1980 and 1988.). But never mind. The coroner provisions of the 2009 Act (most of them at least) are expected to come into force in June 2013. Much of the Act consolidates earlier legislation. But there are a number of changes which are significant.

Coroner areas
Coroner districts will become coroner areas and the Lord Chancellor, after consultation, will be able to create larger or combined areas where appropriate. This will reduce the overall number of coroner areas, as was recommended in the Luce Review in 2003. In the short term 111 coroner areas will become 97 areas.  

The reduction in 'districts' is a good idea, although why the term 'district' will be replaced by 'area' is beyond me....

Coroner nomenclature
There will be three types of coroner under the Act: senior coroner, area coroner and assistant coroner. 

This is another bewildering change - basically each 'area' will have a Coroner, a Deputy and some fee-paid Assistants - as now.

Appointments, terms and conditions 

From commencement of the Act new appointments of coroners, of whichever rank, will be from lawyers only (under the strict five year judicial appointment condition) and all coroners will retire at 70. These provisions do not apply to existing coroners, although it does mean, for example, that an existing doctor assistant coroner could not in future step up to be a senior or deputy coroner without the necessary legal qualification.

Thank goodness - I have never met a good Doctor Coroner - it is a judicial job for a lawyer who needs to be assisted by good medics.

Area flexibility
The Act also provides an increased flexibility as between areas, but only to a limited extent. In England all coroners will be area based (although deputies and assistants may be attached to more than one area). As now (under the transfer provisions of Section 14 of the Coroners Act 1988) a coroner may
make a request for a coroner of another area to conduct the investigation into the death. The addition to this is that the Chief Coroner will have to be notified of every request and its outcome. And in any case the Chief Coroner can require any other coroner to conduct the investigation. In other words the Chief Coroner can direct in a particular case (or even types of cases) that the investigation will be carried out by a named coroner or a coroner taken from an approved list to deal with specific types of investigation. I shall return to this topic shortly.

Another good idea - cross-border disputes between Coroners has never been edifying and it is a good idea that the Chief Coroner will be able to act as referee where necessary

In the same way, I as Chief Coroner will have the power to step in and take over an investigation at any stage. I do not intend to do that frequently, only very occasionally. And I would prefer to do it by consent. Any senior coroner should feel free to ask - there is no stigma in doing so - for assistance from 
the Chief Coroner where appropriate. 

Another good idea - many inquests, especially with multiple interested parties all tooled up with City lawyers and QCs have swamped some local Coroners - now they can easily call in the cavalry.

If the investigation is not completed within a year from the day on which the coroner is made aware that the body is within the coroner’s area, the coroner must notify the Chief Coroner who must keep a register of notifications. The Act does not say so, but it is implied, that the notification must include reasons why the investigation has not been completed. Unreasonable delay (and I emphasise the word ‘unreasonable’) in completing investigations is bad justice. Those of you who are timely in your work will understand that. But I remind others that unreasonable delay may be a disciplinary offence. 

Excellent idea - we need start rooting out the bad apples from the Coronial jurisdiction...

Jury inquests
Is a jury required for an inquest? The simple answer is that the coroner still has a broad discretion, but more limited than before: a coroner may hold an inquest with a jury if he or she ‘thinks that there is sufficient reason for doing so’, as opposed to ‘any reason’ (the present wording). An inquest must be held with a jury in a limited number of circumstances. The main change is that there need no longer be a jury if the deceased was in custody or state detention and that death was from natural causes. 

I like a good jury inquest - they are an excellent thing, especially where the Coroner has become 'too close to the case' - see an earlier post here......removing the need for a jury in natural causes in state detention cases is a good idea, so long as it is only applied in cases which really are ones of death by natural causes - I see an area ripe for litigation ......

The training of coroners and coroners officers will be taken over by the Judicial College (formerly the Judicial Studies Board). I have a specific duty under the Act to make regulations about training and to make provision for the kind of training to be undertaken and the amount and frequency of training.

Please train them and make them competent - so many aren't at present....

As part of this ongoing process of legal guidance I shall also sit, as I have already been doing, in the High Court (the Administrative Court or the Divisional Court) giving decisions on claims for judicial review of coroner decisions, and giving guidance, where appropriate, on the practical application of the law. 

Indeed - one judgment out already - see here    - a good robust judgment which seems to suggest good things to come...

The groups could include a cadre of specially trained service death coroners who, if necessary, would travel to the area of the next of kin to investigate and hold the inquest. I shall consult, as I have already begun to, with, amongst others, the Ministry of Defence through the Defence Inquests Unit, the Royal British Legion and other service organizations and experienced coroners and local authorities who have worked in this field. Great value is placed upon expertise in this area. It is expected, and rightly expected, that bereaved families of military personnel who die on active service for their country should be afforded the greatest consideration in the investigation into every single death. I have a special duty under the Act to monitor investigations into service deaths and to ensure that coroners
conducting such investigations are suitably trained for the purpose. I intend to carry out that duty to the full. 

Another brilliant idea - Coroners need to understand the particular circumstances of a Service death - particularly on operation, and show sensitivity to the difficult combat scenarios in which our brave men and women have to operate and survive in.

Another group could include coroners specializing in deaths in custody or even particular types of deaths in custody such as asphyxia from restraint.

Specialist death in custody Coroners would be personally welcomed by me with open arms - so often I have laboured in vain with Coroners who just did not understand.....

The Coroners’ Courts Support Service
 Finally, I would like to be able to arrange permanent office space for two members of the very splendid Coroners’ Courts Support Service. Westminster has been very generous in the facilities provided, but at times of extreme temperature the portakabin is not exactly perfect. I have seen for myself how valuable their work is, so I shall do my best. 

Get them out of those portakabins and set them to their invaluable work in the comfort they deserve... 

Tuesday 25 September 2012

Lib Dems vote to oppose JSB....

The Lib-Dems have apparently passed this motion at their conference:

Conference calls for:

1. The Coalition Government to withdraw Part II of the Justice and Security Bill; and put in place instead a statutory scheme reflecting the current Public Interest Immunity system to be enacted which will retain judicial discretion, be a proportionate means of ensuring national security is not jeopardised by any litigation, and ensure the working successful democratic principle of open justice is retained.

2. All Liberal Democrats in parliament to press the government to do this and in any event to
press for the withdrawal or defeat of Part II of the Justice and Security Bill.

This could pose a problem for the sponsor of the Bill in the House of Lords - the Advocate-General for Scotland, Lib Dem Minister and peer.  He has released a press statement:

Liberal Democrats have made their unease about the justice and security bill clear in the past and have confirmed this today. They have welcomed the significant changes that Nick Clegg has already secured, for example removing inquests from scope and restricting it to national security cases only, but they have made clear that they still have deep concerns.

It has always been the government’s intention that closed courts should only ever be used as a last resort and in a very small minority of cases where the alternative is no justice at all. We will continue to work with parliamentarians from all sides, to ensure that the principles of open justice are protected.

It seems very odd to me that the Lib Dems prefer to support the Govt's right to withhold the disclosure of evidence through PII rather than disclosing it via a CMP.  As well as suppressing evidence they also now appear to support meritorious claims being struck out because they can't be heard without a statutory CMP:  Ouseley J and Mitting J have both said that they need the CMPs set out in JSB if they are going to be able to try proceedings now pending before them.  The Lib Dems therefore find themselves opposing the means by which those who claim to have been mishandled by the security services can have their cases heard.

Withholding evidence from one party in a civil trial is not a good idea, it may not even be just; but it is preferable to a strike out or an unjust settlement.  The current and former (another Lib Dem) Independent Reviewers of Terrorism Legislation, who have actually seen the relevant case files reluctantly say that these procedures are needed.

When are those opposed going to realise that it is better to have an imperfect justice than no justice at all.......

As David Anderson QC said:

"We are in a world of second-best solutions: but it does not seem to me that the level of injustice inherent in the use of a CMP in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought’.

See some of my previous posts on JSB:

13 Jul 2012
That a judge cannot refuse PII on the grounds that CMP is more suitable or indeed does not have the power to consider the whole suite of measures in a holitstic way - PII, CMP, gisting, rings of confidence and redaction - and ...
10 Jun 2012
The test for granting a CMP is the "court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security". This is the same ...
19 Jun 2012
The first flaw is that the scheme of CMP as presented in the Bill is one-sided in that it confers exclusive discretion on the Government. As I have argued on this blog before - national security is the sole concern of HMG and ...
29 May 2012
If the claim is not made or not accepted by the Court (i.e. S/S or other relevant person wants to rely on the disclosure or the Court thinks that the information should be disclosed under a CMP and not withheld completely) then ...
21 May 2012
'It is however apparent to me, after inspecting the files I have been shown and speaking to counsel involved, that under the current law there are liable to be cases that are settled ... which, had a CMP been available, would ...
21 Jun 2012
I also believe that it would strengthen the integrity of any CMP were it to be invoked only following a full PII process. In other words, the judge would be invited to rule, in accordance with traditional PII principles, that the ...
04 Mar 2012
You have put entirely far arguments here. BUT ... The fear is that CMP will not be limited to genuine "national security" cases but would be extended to many other types of case where there might be some government interest.