Wednesday 27 June 2012

New Euro Judges...

To the ECtHR to replace Sir Nicholas Bratza (current President)  - the unknown Paul J. Mahoney (83 votes), who was the Court's registrar 2001-2005 and indeed has worked at the Court after spending only 4 years as a Barrister in London 1972-1974.  He beat Ben Emmerson QC of Matrix (48 votes) (would not have done well with the Torries) and Rachel Agnello QC of 11SB (looks very boring and no HR experience? - 27 votes) in the elections (voted by members of the Parliamentary Assembly drawn from the member states).  No doubt a knighthood is on its way....

To the ECJ to replace Sir Konrad Schiemann, Christopher Vajda QC  of Monckton Chambers (looks spot on to me)- who will take up office in October 2012....another knighthood pending?

Tuesday 26 June 2012

Should Wales be a separate jurisdiction?

Ever Since the Law in Wales Act 1535 (good old Thomas Cromwell) Wales has not had its own law - but has been subject to the same law as England:

....... the Dominion, Principality and Country of Wales justly and righteously is, and ever hath been incorporated, annexed, united and subject to and under the Imperial Crown of this Realm, as a very Member and Joint of the same, wherefore the King's most Royal Majesty of meer Droit, and very Right, is very Head, King, Lord and Ruler;'
 (2) and that the Laws, Ordinances and Statutes of this Realm of England, for ever, and none other Laws, Ordinances, and Statutes, from after the said Feast of All-Saints next coming, shall be had, used, practised and executed in the said Country or Dominion of Wales, and every Part thereof, in like Manner, Form and Order, as they be and shall be had, used, practised, and executed in this Realm, and in such like Manner and Form as hereafter by this Act shall be further established and ordained; any Act, Statute, Usage, Custom, Precedent, Liberty, Privilege, or other Thing had, made, used, granted or suffered to the contrary in any wise notwithstanding.

This all changed when the Welsh Assembly got these powers following a 2011 referendum (Government of Wales Act 2006):
107  Acts of the Assembly
(1)     The Assembly may make laws, to be known as Acts of the National Assembly for Wales or Deddfau Cynulliad Cenedlaethol Cymru (referred to in this Act as “Acts of the Assembly”).
(2)     Proposed Acts of the Assembly are to be known as Bills; and a Bill becomes an Act of the Assembly when it has been passed by the Assembly and has received Royal Assent.
(3)     The validity of an Act of the Assembly is not affected by any invalidity in the Assembly proceedings leading to its enactment.
(4)     Every Act of the Assembly is to be judicially noticed.
(5)     This Part does not affect the power of the Parliament of the United Kingdom to make laws for Wales.

Now that Wales will have its own primary legislation (hasn't actually passed any yet) it would like to have its own legal jurisdiction - divorced from England. There is a consultation -

This raises all sorts of problems, raised by the consultation paper:

-Separate courts?
-New judges?
-Rights of appeal?
-Separate criminal law - what happens when criminals cross the border?
-Enforcement of judgments in England/Scotland/NI?
-Separate legal professions?

A lot of these issues are already dealt with between Scotland and England - although they do cause a lot of trouble when dealing with cross-border cases -there is a real cost to business. 

All sounds a bit expensive to me.... Lord Morris of Aberavon KG, OC, QC (Blair's first AG) agrees.  The law has been slightly different in Wales for awhile - I remember going to Cardiff to get an ASBO for a Bristol based Housing Association only to find that the Welsh Assembly had yet to bring them into force - really didn't need a Welsh Barrister and a Welsh Judge to sort it out...and in these times of economic woe -  is this really necessary?  

Friday 22 June 2012

What is Assange's plan?

So if Ecuador grant Assange asylum - what next?  
How does he get from the front door of the Embassy to an airport?  Those with asylum do not have freedom from criminal arrest in the UK.  He is liable for arrest under section 7(3) Bail Act 1976 - A person who has been released on bail in criminal proceedings and is under a duty to surrender into the custody of a court may be arrested without warrant by a constable—if the constable has reasonable grounds for ...... suspecting that that person has broken any of those conditions.  

He could become immune from arrest if he is appointed as a diplomatic agent by Ecuador as article 29 of the Vienna Convention (which is binding in English Law via Diplomatic Privileges Act 1964) states that The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention  and this applies from the moment "his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed" (article 39) - i.e. from the moment he is accredited to the Court of St James....

Ecuador is free to appoint who they want as diplomats and accreditation could not be refused by the UK - the sending State may freely appoint the members of the staff of the mission (article 7) but the UK could declare Assange persona non grata under article 9 - The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission  

If Ecuador 'recalled' Assange then he would be able to get to the Heathrow without being arrested and he would be on his way to he would only loose his immunity from arrest if Ecuador did not recall him:
 If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this article, the receiving State may refuse to recognize the person concerned as a member of the mission  

So is that the plan?  It would cause a massive diplomatic row between Sweden, UK and Ecuador - and Ecuador's presentation of Assange as a diplomatic agent would be viewed as an abuse of international law - but it does not sound like Ecuador's Govt is that bothered by those sorts of allegations......I bet there are quite a few worried civil servants in the FCO today.....

Thursday 21 June 2012

Thoughts from the Second Reading of the Justice and Security Bill.....

An excellent 2nd reading of the Justice and Security Bill on Tuesday afternoon and evening.  The session was excellent evidence in support of the points I made about House of Lords reform here as it featured contributions from former heads of the security agencies, leading silks of all political persuasions and none, former Lord Chancellors as well as former Minister who have wrestled with these issues in the past - We abolish the fountain of knowledge at our peril::  As Baroness Smith of Basildon (former Labour Minister) said:

If I may digress slightly, noble Lords may recall that in making the case for an elected House with 15-year terms, the Deputy Prime Minister Nick Clegg described your Lordships’ House as having a “veneer of expertise”. That is hardly the case today. We have not seen a veneer of expertise; we have seen very strong expertise, not just from the lawyers that I have mentioned and senior members of the Bar and the judiciary, but members and former members of the Intelligence and Security Committee and the Constitution
Committee, those with professional experience of security agencies, those with experience of government, former Ministers, journalists and those with a record of standing up for the protection of civil liberties and human rights. I think that the Deputy Prime Minister also said that the knowledge in the Lords was 40 years out of date. The collective knowledge in this House goes back well beyond 40 years but it is also up-to-date, and that will be very valuable as we progress to Committee.

Interestingly the Govt Minister opening the debate - Lord Wallace of Tankerness, the Adovcate-General (Lib Dem Scottish QC and former Dep Leader of the Scottish Executive) made the point I had made in an earlier post that it is not realistic to think that HMG will claim PII where it suits it to withold damaging evidence and elect to apply for CMP where it wishes to rely on helpful secret evidence as Judges would not tolerate that form of manipulation and in the first scenario would refuse PII and pressurise HMG to apply for CMPs:

Some suggest that the Government may choose between claiming PII and applying for a closed material procedure opportunistically. Some say that the Government would apply for a closed material procedure where the material was helpful to the Government on the basis that the material could be considered by the court and that the Government would claim PII where the material was unhelpful so that, if successful, the PII claim would exclude that material from consideration. It is not a realistic concern. The intention behind the closed material procedure proposals is precisely so that allegations made against the Government are investigated and scrutinised by the courts. The intention is that all relevant material—helpful or unhelpful—will be before the courts. It is hard to see that a judge assessing a PII claim would conclude that material should be excluded if the Government were seeking cynically to use PII to exclude material that undermined its case when a closed material procedure was available as an alternative

Lord Mackay of Clashfern (Scottish QC and former Lord Chancellor), Lord Thomas of Gresford (Lib Dem QC and Dep High Court Judge), Lord Pannick (cross-bencher QC and brainbox), Lord Macdonald of River Glaven (Lib Dem QC, former DPP and Warden of Wadham, Oxford - elect) all want to strengthen the obligation on HMG to consider PII before applying for CMP.  At the moment the Bill requires HMG to consider whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application would be based rather than being forced to make that application first.  This appears to be because the Noble Lords are concerned that other solutions to national security evidence currently deployed on PII applications - redaction, gisting and rings of confidentiality will be unavailable to the Court if HMG applies for CMP rather than PII.  This is the model that Lord Macdonald set out:

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 relevant material sought to be withheld could properly be withheld on public interest grounds. Having made that ruling, the court would then go on to consider, again on conventional PII principles, the extent to which a redacted form of the material, or a summary, could safely be disclosed consistent with the public interest. Finally, if at the conclusion of this conventional PII process a party wished to go on to apply that the court should go into closed session to hear any remaining material permitted to be withheld under PII, only then would the court be empowered to accede to that application to the extent that it felt a fair trial would be impossible in the absence of factoring that material into its consideration of the issues in the case. The scheme would be: first, consider the relevance of the material to issues in the case-normal PII; secondly, consider the extent to which its disclosure might damage national security-normal PII; thirdly, consider the extent to which redaction or summary can cure the problem-normal PII; fourthly, in appropriate cases after that process, rule that the material may be withheld on grounds of public interest; and only then, fifthly, upon an application by one of the parties, rule that the material withheld can be considered by a court in closed session because, in the view of the court, a failure to do so would render the proceedings as a whole unfair. It would be a strong PII system as we understand it today, with the possibility in a small number of cases, once that process had been exhausted, for the court to go into closed session. Such a scheme would encourage a focus throughout the process on the important principles to be decided. It would very strongly discourage abuse or inappropriate, overhasty recourse to the CMP procedure, which is, I fear, a real danger under the current proposals

This model in fact reflects what happens in CMPs at the moment.  In Control Order proceedings it was known as the Rule 29 procedure (it is to be found in Rule 76.29 of the CPR - replicated for TPIMs at 80.25).  Essentially the Special Advocates would do their best to negotiate as much of the secret evidence into the open and have it communicated to the controllee and his legal representatives via gisting and redaction - the Judge would rule on those issues where the Special Advocate and HMG's Counsel disagreed.  If the Judge ordered disclosure of evidence or gisting to the controllee and HMG refused, then the Judge has the power to prevent HMG from relying on issues or material which it refuses to disclose or gist (see 76.29(7)) - this is precisely the power set out at clauses 7(2) and (3) of the Bill - although the Bill goes further than the present safeguards as it includes the power to order concessions from HMG:

The court must be authorised—
(a) if it considers that the material or anything that is required to be
summarised might adversely affect the relevant person’s case or
support the case of another party to the proceedings, to direct that the
relevant person—
(i) is not to rely on such points in that person’s case, or
(ii) is to make such concessions or take such other steps as the court
may specify, or
(b) in any other case, to ensure that the relevant person does not rely on the
material or (as the case may be) on that which is required to be
In other words - Lord Macdonald's model is already in the Bill. I am attracted to the idea that the Bill could be improved by setting this whole process in a PII application rather than a separate CMP context - as then the whole range of options could be available to the Court without having to cajole HMG into making a CMP application if the Court thinks that CMP is better than PII and I look forward to seeing the amendments but forward by this distinguished bevy of QCs.
Finally we must not lose sight of what is in issue in this Bill - justice is a fine things; but survival comes first: The Right Honourable 13th Marquess of Lothian and Chief of Clan Kerr - or Michael Ancram as he used to be known:
National security is not just about the general safety of our nation-which of course is paramount-it is also about protecting the lives of innocent citizens threatened by terrorism. Frequently that protection is achieved through secret intelligence from both home and abroad, intelligence which must be protected; and therefore sometimes the price of that protection is a curtailment of long-standing rights. I have long believed that the freedom of the individual, enshrined within these rights, is paramount. However, the greatest of these rights is the right to life itself. Protecting life from existential threat must be the priority, even at the cost of some restriction on other rights. I have seen for myself the carnage of terrorist outrages. No rights can take precedence over the means that can prevent them. In the end it is a question of a delicate balance, and in my view, this Bill gets it just about right.

Wednesday 20 June 2012

The bizarre story of Assange....

So now Assange is under the protection of article 22 of the Vienna Convention on Diplomatic Relations within the verge of the Ecudorian Embassy in London:

Article 22
1.The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.
2.The receiving State is under a special duty to take all appropriate steps to protect the premises
of the mission against any intrusion or damage and to prevent any disturbance of the peace of the
mission or impairment of its dignity.
3.The premises of the mission, their furnishings and other property thereon and the means of
transport of the mission shall be immune from search, requisition, attachment or execution.

He reminds me of Baron Ripperda, a Roman Catholic turned Dutch Calvinist who went to be Dutch Ambassador to Spain in 1715 where he converted back to the Church of Rome and went to Vienna in 1725 as Ambassador of the Spanish Crown where he exceeded his authority such that after the shortest possible spell as Spanish Prime Minister he came under threat of arrest in Madrid and in return for spilling the beans about his Government's plans for Gibraltar he obtained asylum in the British embassy from where he was forcibly removed under protest from the British Ambassador (the case is cited as the genesis of Article 22) and then escaped to Morocco where he converted to Islam and became a General to the Sultan.  He then seems to have got back to Western Europe in time to lead a bid for Corsican independence after being promised its Crown - that ended in his imprisonment.  Or he may just have died in Morocco in 1737 -His son became Governor of Texas.

A copy of the Ouseley J judgement on Assange's bail conditions can be found here 

Tuesday 19 June 2012

Justice and Security Bill is getting the full second reading treatment in the H of L .....

Excellent debate happening now in the House of Lords on the Justice and Security Bill - watch it here

Plus the Constitution Committee have produced a good report -although it is wrong in one or two places:

1.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 nobody else.

2. The Wiley balancing test for PII should be applied to the Court's decision to grant CMP

As I argued before - the necessity test and the Wiley test are likely to be applied by the Court in the same way. I would not object to the Wiley test being put in the Bill for the avoidance of all doubt.

3.In our view, the court should be required, for example, to consider whether the material could be disclosed to parties' legal representatives in confidence and whether the material could be disclosed in redacted form.

As I argued here - this would required legal representatives to withold that evidence from their own clients - which many would consider to be just as bad if not worse than CMPs...

4. We welcome the fact that the Bill preserves the PII process in cases involving national security where, in the Government's words, "it is more appropriate."[30] Reserving the matter to the exclusive discretion of the Secretary of State is however inherently unfair. Determining which of PII or CMP is the more appropriate route to adopt in any particular litigation is essentially a case-management issue and so, constitutionally, is the proper preserve of the court.

I think the Committee has misunderstood the way CMPs and PII will work - the Court will be able to refuse PII if a CMP is more appropriate and the HMG will have to decide whether to apply for a CMP or not - it will be rare for the HMG to ignore the Court - see here

5. The House may wish to ascertain whether the Government consider that the power in clause 11(2) could be used to add inquests to the definition of "relevant civil proceedings" for the purposes of clause 6.

I agree- interesting question

6. The House may also wish to consider whether the Government should report annually to Parliament on the use made of CMP under the Bill and whether the Bill should be independently reviewed five years after it comes into force.


Previous posts on this topic:

Wednesday 13 June 2012

Robert Jay QC and the Miilibands

Robert Jay QC is joint head of 39 Essex Street, where the wife of the Leader of HM Loyal Opposition holds a tenancy.    A Head of Chambers has the duties set out in the Bar Code of Conduct (404).

Mr Jay therefore, broadly, has to make sure that his tenants:

(1) have a practising certificate
(2) are insured
(3) don't discriminate
(3) report solicitors who don't pay promptly so that credit is withdrawn from them

The rest of his obligations relate to pupils, staff and administration -not tenants- who are self-employed and independent.  That's why he can examine his fellow tenant's husband at a public inquiry without a problem  -

As he said yesterday in answer to some on the internet, who got the wrong end of the stick:

(A short break)
10 (3.23 pm)
11 MR JAY: Mr Miliband, I owe you an apology. I mentioned to
12 you beforehand that I would raise this at the start of
13 your evidence but I then omitted to. As many have
14 already correctly observed, your wife is a member of the
15 set of chambers where I am joint head. We have not,
16 however, previously met outside the circumstances of
17 this Inquiry.
18 A. Correct.
19 LORD JUSTICE LEVESON: I ought to make it clear that I've
20 known that for some time.
21 MR JAY: Yes. There's a misunderstanding about it. We are,
22 of course, self-employed in independent practice. We
23 are not partners and people perhaps need to understand
24 that.
25 A. She and I were partners at one point, but we're now
Page 48
1 married, actually.

Sweet of Ed to say that he was once his wife's (life) partner, as opposed to Robert Jay QC who is not and was not a partner to Ed's wife in any sense.....

Sunday 10 June 2012

More on Justice and Security.......

One of my learned friends, Tom Hickman of Blackstone, has been analysing the JSB here.

I have one or two observations to make:

1. This is the test for PII:

"It is true that the public interest which demands that the evidence be
withheld has to be weighed against the public interest in the
administration of justice that courts should have the fullest possible
access to all relevant material (Rex v. Hardy (1794) 24 State Tr. 199,
808; Marks v. Beyfus (1890) 25 Q.B.D. 494: Conway v. Rimmer[1968] AC 910); but once the former public interest is held to outweigh the latter, the evidence cannot in any circumstances be admitted. It is not a privilege which may be waived by the Crown
(see Marks v. Beyfus at p. 500) or by anyone else."

Lord Simon of Glaisdale in Reg. v. Lewes Justices, Ex parte
Secretary of State for the Home Department
[1973] A.C. 388 at p. 407

2. 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 test as PII - damage to national security always outweighs all other factors.  No Court has the power to damage national security.  

3. HMG is going to elect for PII rather than CMP where it does not want to reveal the evidence to a Special Advocate - that is the only extra person who is going to see the evidence in a CMP as opposed to a PII application.  It is going to be very rare for the evidence to be so sensitive that it can be seen by a High Court Judge (who has no security clearance and is just trusted by reason of his office) and a Special Advocate who has the highest levels of security clearance.  There might be circumstances where evidence sourced from a foreign intelligence agency has been obtained pursuant to an agreement which permits it to be seen by a Judge but not by a Special Advocate.  There will also be one other scenario where HMG may chose PII over CMP:  If a PII application is refused then usually the Claimant wins his case as HMG would otherwise be in breach of the disclosure order and liable to be struck out on a Unless Order.  If a CMP application fails and HMG refuses to disclose then the Court has the power to order that damaging concessions are made by HMG - that power does not exist on a PII application. Accordingly PII may be claimed where HMG fears the consequences of failure of a CMP application.  That however, will be a rare circumstance, and one which will still result in HMG conceding the claim and paying compensation and therefore justice will still be served to that degree.

4. If HMG made a PII application which failed because the Court thought the evidence could be used within a CMP - and therefore did not need to be witheld via PII, it would be a very brave Govt which did not go on to apply for a CMP.  Ultimately - if HMG thought a CMP was not appropriate for some  reason it would have to concede the claim - again against its interests.

5. Criticism is made that the Court cannot of its own motion, nor can the other party to the proceedings invoke the CMP procedure - the only applicant can be the possessor of the evidence.  This must be correct - only the disclosing party will be a position to know or be advised of the damage to national security - not the Court nor the other party.  

6. It is suggested that the disclosing party will seek a CMP where the sensitive evidence is in its favour and seek PII where it is not.  If the procedures were abused in that way - the Court would very likely refuse PII and put pressure on HMG to seek a CMP - it would be a very brave Govt who would go head to head with  a High Court judge in those circumstances - and a CMP would be the most likely outcome every time.

7. Some of these points flow from the fact that with national security, most of the cards are in HMG's hands - it is very difficult for the Court or the other party to challenge HMG's assertion of the likely damage to national security if evidence were to be released openly.  The ball is in HMG's court as to whether to apply for PII or CMPs.  This is how it should be - national security is a matter for the Executive (with Parliamentary oversight - see Part 1 of the Bill) and not the judiciary; as Lord Diplock held in CCSU:

National security is the responsibility of the executive government; what action is needed to protect its interests is, as the cases cited by my learned friend, Lord Roskill, establish and common sense itself dictates, a matter upon which those upon whom the responsibility rests, and not the courts of justice, must have the last word. It is par excellence a non-justiciable question. The judicial process is totally inept to deal with the sort of problems which it involves.

That may not seem fair or just - but it is the reality and this Bill has to deal with that reality - PII is an unjust blunt instrument - and this Bill gives a more just and more intelligent device to HMG, by which it can release more classified evidence to the Court - that must benefit the administration of justice - even if it still means that the whole picture - the whole truth may from time to time be withheld - because the interests of the State come before the interests of the litigating citizen and the administration of justice.  If HMG abuse these powers, it is up to Parliament to expose them; not the Courts.   

Tuesday 5 June 2012

Completely missed this...Chief Coroner has bee appointed

This has completely passed me by...despite me bleating on about the delay whilst we waited for the appointment...note he will not have any legal powers until 2013 and the power to hear appeals will not be brought into force (although looks like the Chief Coroner will hear the equivalent judicial reviews)....still a move in the right direction........

Tuesday 22 May 2012
Appointment of the Chief Coroner
The Parliamentary Under-Secretary of State, Ministry of Justice (Jonathan
The Lord Chief Justice, following consultation with the Lord Chancellor, has
announced today that His Honour Judge Peter Thornton QC is to take up post as Chief Coroner in September 2012.
HHJ Thornton, a Senior Circuit Judge at the Central Criminal Court, was originally
appointed to the post in May 2010 but did not formally take up his duties while the
Government was reviewing the position.
As Chief Coroner HHJ Thornton will, for the first time, be responsible for providing
national leadership to coroners in England and Wales. He will also play a key role in
setting new national standards and developing a new statutory framework for coroners including rules and regulations, as well as guidance and practice directions, within which coroners will operate. This will help to bring about much greater consistency of practice between coroner areas and improved services to the bereaved. While HHJ Thornton will not formally commence his duties until September, he will in advance of that familiarise himself with issues facing the coroner system. He will also continue to sit in the Administrative Court to hear Judicial Reviews on coronial matters. Work is ongoing on implementation of the Chief Coroner’s statutory functions and other powers in Part 1 of the Coroners and Justice Act 2009, with a view to bringing them into force in 2013.

Who is the Chief Coroner?

His Honour Judge Peter Thornton QC has been appointed Chief Coroner and will take up his post in September 2012.
HHJ Peter Thornton QC is a Senior Circuit Judge at the Central Criminal Court (Old Bailey), having been appointed in 2007. Before then he was a practising Queen's Counsel and part-time judge as a Deputy High Court Judge and Recorder of the Crown Court. He was the coroner at the inquest in 2011 into the death of Ian Tomlinson.

The role of the Chief Coroner

The Chief Coroner has a number of roles but his main responsibilities will be to:
  • Provide support, leadership and guidance for coroners in England and Wales;
  • Set national standards for all coroners, including new inquest rules;
  • Oversee the implementation of the new provisions of the Coroners and Justice Act 2009;
  • Put in place suitable training arrangements for coroners and their staff;
  • Approve coroner appointments;
  • Keep a register of coroner investigations lasting more than 12 months and take steps to reduce unnecessary delays;
  • Monitor investigations into the deaths of service personnel;
  • Oversee transfers of cases between coroners and direct coroners to conduct investigations;
  • Provide an annual report on the coroner system to the Lord Chancellor, to be laid before Parliament;
  • Monitor the system where recommendations from inquests are reported to the appropriate authorities in order to prevent further deaths.

Appointment of Chief Coroner

Judicial Office news release

The Lord Chief Justice in consultation with the Lord Chancellor has appointed His Honour Judge Peter Thornton QC as the first Chief Coroner of England and Wales.
HHJ Peter Thornton QC will play a key role in setting new national standards in the coroner system. The Chief Coroner will develop a national framework within which coroners will operate, including rules and regulations, guidance and practice directions.
The Government wants to ensure inquests are timely and effective, and bereaved families are provided with the information and support they need throughout this emotionally difficult process.
The Lord Chancellor Kenneth Clarke, said:
“I am delighted that HHJ Peter Thornton QC has accepted the responsibility to become the first Chief Coroner, which is part of our commitment to reforming the coroner system.
“Everyone is agreed that the priority is to ensure coroners provide a high standard of service at what can be a difficult time for bereaved families.
“I am therefore giving the Chief Coroner the full range of powers to drive up standards, including thorough coroner training, and to tackle delays within the system."
HHJ Peter Thornton QC will now start to familiarise himself with the workings of the coroner system and will formally commence his duties in September. He will also continue to sit in the Administrative Court to hear Judicial Reviews on coronial matters.
Responding to his appointment, Judge Peter Thornton QC, said:
“I welcome the challenges of this new post. The coroner system is of vital importance, both in identifying causes of death and in preventing future deaths. But with any ancient and well-respected system there is room for improvement and development.
“I also welcome the opportunity to oversee the many changes made by the Coroners and Justice Act 2009 and to lead the coroner system into a positive future.
“I will aim to provide quality and uniformity in the coroner system, with a national consistency of approach and standards between coroner areas. Openness, inclusiveness, thoroughness and fairness must be at the heart of this process if it is to be effective and serve the needs of the public.
“I have huge respect for the work of coroners and their staff. I look forward to engaging with coroners and the Coroners’ Society in all parts of the country and to discussing with interested groups the delivery of an improved service for the bereaved.”
Notes to Editors
1. This appointment has been made under the provisions of the Coroners and Justice Act 2009.
2. HHJ Peter Thornton QC is a Senior Circuit Judge at the Central Criminal Court (Old Bailey). Before then he was a practising Queen’s Counsel and part-time judge as a Deputy High Court Judge and Recorder of the Crown Court. In 2011, as Assistant Deputy Coroner for the City of London, he conducted the inquest into the death of Ian Tomlinson who died at the time of the G20 protests in 2009.
3. HHJ Peter Thornton QC will take up the appointment on 17 September 2012.
4. A judge’s first name is used in his title where, as in this case, there is more than one judge with the same surname.
5. The Chief Coroner will not be available for interviews at this time. Interviews will be considered on a case by case basis in due course.
6. Photographs of HHJ Peter Thornton QC are available from
7. Media enquiries about the background, reform and policy of coroners (including the Chief Coroner) should be directed to the Ministry of Justice Press Office on 020 3334 3535.
8. Enquiries about the Chief Coroner, Judge Thornton should be directed to the Judicial Press Office on 020 7073 4852.

Friday 1 June 2012

Long to reign over us...

How it all began:

Whitehall, February 6, 1952.

Upon the intimation that our late Most Gracious Sovereign King George the Sixth had died in his sleep at Sandringham in the early hours of this morning the Lords of the Privy Council assembled this day at St. James's Palace, and gave orders for proclaiming Her present Majesty; 

Whereas it hath pleased Almighty God to call to His Mercy our late Sovereign Lord King George the Sixth of Blessed and Glorious Memory by whose Decease the Crown is solely and rightfully come to the High and Mighty Princess Elizabeth Alexandra Mary: We, therefore, the Lords Spiritual and Temporal of this Realm, being here assisted with these of His late Majesty's Privy Council, with representatives of other members of the Commonwealth, with other Principal Gentlemen of Quality, with the Lord Mayor, Aldermen and Citizens of London, do now hereby with one voice and Consent of Tongue and Heart publish and proclaim that the High and Mighty

Princess Elizabeth Alexandra Mary is now, by the Death of our late Sovereign of Happy Memory, become Queen Elizabeth the Second, by the Grace of God Queen of this Realm and of all Her other Realms and Territories, Head of the Commonwealth, Defender of the Faith, to whom Her lieges do acknowledge all Faith and constant Obedience, with hearty and humble Affection ; beseeching God, by whom Kings and Queens do reign, to bless

the Royal Princess Elizabeth the Second with long and happy Years to reign over us. 

Given at St. James's Palace this Sixth day of February in the year of our Lord one thousand -nine hundred and fifty-two.

You can see it read here

It will be noticed that the UK is described as '"this Realm" above - this is because they had not worked out how to include Ireland (following the declaration of the Republic in 1949) in the new Queen's title - in the end the Royal Style and Title Act 1953 declared the Queen to be Elizabeth II, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith  in May 1953.

Canada jumped the gun in 1952 and in-politically proclaimed the Queen to be "our only lawful and rightful Liege Lady Elizabeth the Second by the Grace of God, of Great Britain, Ireland and the British Dominions beyond the Seas QUEEN, Defender of the Faith, Supreme Liege Lady in and over Canada"   At least they left out India and France (last claimed 1801).  Thankfully Canada passed an Act in 1985 which styled the Queen as Elizabeth the Second, by the Grace of God of the United Kingdom, Canada and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith.

These are the signatories to the Proclamation - I have tried to identify them all in square brackets - quite an interesting random bunch of Privy Counsellors, beyond the obvious luminaries.  Despite what it says above they are all from the UK and none are from the Commonwealth (although those representatives might have been present but may not have signed).  The signatories appear to include the man who would become the legal legend - Lord Denning MR:

Simonds C. [Lord Chancellor]

Winston S. Churchill. [Prime Minister]

David Maxwell Fyfe. [Home Secretary]

Woolton. [Lord President of the Council]

W. S. Morrison. [Speaker]

C. R. Attlee.[Leader of the Opposition]

Waverley. [Former war time Cabinet Minister]

Samuel. [Leader of the Liberal Party in the House of Lords]

Harry Crookshank.[Leader of the House of Commons, Lord Privy Seal]

Leathers.[Minister for Coordination of Transport, Fuel and Power]

Selborne.[Former Minister of Economic Warfare and i/c SOE during the War]

Davidson.[Former Chancellor of the Duchy of Lancaster under Baldwin]

Norfolk, EM.[Lord Earl Marshal]

Ogmore.[President of the Liberal Party]

James Griffiths.[ Deputy Leader, Labour Party]

Arthur G. Bottomley.[Former junior minister under Clement Attlee - MP 1945-1983, died 1995]

Clement Davies.[Leader of the Liberal Party]

Wm. London. [Bishop of London]

J. Chuter Ede. [Home Secretary under Attlee]

Nathan. [Junior Minister under Attlee]

Mersey.[Privy Counsellor -son of the Judge who headed the Titanic Inquiry]

Goddard.[Lord Chief Justice]

A. T. Denning [Alfred Thompson Denning - i.e. Lord Denning MR as he would become - then Lord Justice Denning and Privy Counsellor, therefore eligible to sign the Proclamation]

Reid.[The Scottish Law Lord]

Hartley Shawcross.[Former Labour Attorney General and prosecutor at Nuremberg]

Macdonald of Gwaenysgor.[Paymaster-General under Attlee]

Shepherd.[Former House of Lords Chief Whip under Attlee]

HMQ was in Kenya for her accession, and so a second Accessional Council was held on her return so that she could swear to defend the Church of Scotland as required by the Acts of Union 1707:

And lastly that after the decease of Her present Majesty (whom God long preserve) the Soveraign succeeding to Her in the Royal Government of the Kingdom of Great Britain shall in all time coming at His or Her Accession to the Crown swear and subscribe that they shall inviolably maintain and preserve the foresaid Settlement of the true Protestant Religion with the Government Worship Discipline right and Privileges of this Church as above established by the Laws of this Kingdom in Prosecution of the Claim of Right[

At the first state opening of Parliament after the accession (4th November 1952) HMQ then had to give this oath and sign this as required by the Accession Declaration Act 1910, the Act of Settlement 1700 and the Bill of Rights 1688:

Until 1901 this Test Act oath designed to keep out Catholics was a bit more anti-Pope:

I, N, profess, testify, and declare, that I do believe that in the Sacrament of the Lord's Supper there is not any Transubstantiation of the elements of bread and wine into the Body and Blood of Christ at or after the consecration thereof by any person whatsoever: and that the invocation or adoration of the Virgin Mary or any other Saint, and the Sacrifice of the Mass, as they are now used in the Church of Rome, are superstitious and idolatrous. And I do solemnly in the presence of God profess, testify, and declare that I do make this declaration, and every part thereof, in the plain and ordinary sense of the words read unto me, as they are commonly understood by English Protestants, without any such dispensation from any person or authority or person whatsoever, or without thinking that I am or can be acquitted before God or man, or absolved of this declaration or any part thereof, although the Pope, or any other person or persons, or power whatsoever, should dispense with or annul the same or declare that it was null and void from the beginning.

At least we have moved on from that sort of rhetoric - although the ban on catholics being in the line of succession continues in section 2 Act of Settlement 1700:

Provided always and it is hereby enacted That all and every Person and Persons who shall or may take or inherit the said Crown by vertue of the Limitation of this present Act and is are or shall be reconciled to or shall hold Communion with the See or Church of Rome or shall profess the Popish Religion or shall marry a Papist shall be subject to such Incapacities as in such Case or Cases are by the said recited Act provided enacted and established

We await a Bill to be agreed with all the other Commonwealth realms (as required by the Statute of Westminster 1931: (And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom): to amend section 1 of the 1700 Act in so far as this provision ( the Crown and Regall Government of the said Kingdoms of England France and Ireland and of the Dominions thereunto belonging with the Royall State and Dignity of the said Realms and all Honours Stiles Titles Regalities Prerogatives Powers Jurisdictions and Authorities to the same belonging and appertaining shall be remain and continue to the said most Excellent Princess Sophia and the Heirs of Her Body being Protestants) permits the leapfrogging of male issue over first born females - just in case the Duchess of Cambridge is first delivered of a pave the way Parliament has already made financial provision for a female heir who cannot make a living from being the  Duke of Cornwall (because she is female) (section 9 Soverign Grant Act 2011):

Where the Duchy of Cornwall is vested in Her Majesty for any period (“the relevant period”) in a financial year (and Her Majesty is accordingly entitled to its income)—

(a)the amount of the Sovereign Grant for that year is reduced by an amount equal to the income account net surplus of the Duchy of Cornwall for the relevant period, and

(b)the Treasury is to pay a grant to any person who is the heir to the throne in the relevant period.

Until the happy day of celebration of the birth of a new Prince or Princess, 3rd in line to the throne, and in the meantime........