Friday 17 August 2012

Tis the vacation.....

Back in two weeks...

Will Julian still be in Knightsbridge?  Wonder what happened to his bail sureties?

Will the Senior Presiding Judge have revoked his no judicial blogging ban?

Will all the candidates for Police and Crime Commissioners have withdraw because of previous convictions?

Will Nick Clegg have thought of a constitutional reform he can get through Parliament?

Will Parliamentarians notice that the Crime and Courts Bill abolishes local county courts?

Whither JSB?  Report stage in the Lords in October........

Thursday 16 August 2012

No Get out of the Embassy Card for Assange!

So he's got his Ecudorian 'diplomatic asylum', but that is not the same as a Get out of Jail card in Monopoly.  See my earlier post here and here and the excellent Obiter J here and Head of Legal here.

Diplomatic asylum is a concept created by a Convention signed by members of the Organisation of American States, which includes Ecuador but not the USA which has never signed or ratified, and not UK or Sweden which are not members.  The text is here.  Basically it allows states to grant asylum outside of their borders, and the Government of the territory in which the grant takes place then has to grant safe passage out of their territory.  Article III is quite interesting, it prevents the granting of asylum to those under trial for common offences (which means an offence in both the granting and the host nation) - presumably rape is an offence in Ecuador - is Assange 'under trial' in terms of international law - probably not, he is under extradition  - not trial?

Anyway  -  the UK does not recognise diplomatic asylum, so it is not going to do Assange much good!

In reality this is a diplomatic issue which Ecuador, Sweden and HMG have to sort out between themselves.

It is very unlikely that HMG will remove the inviolability of the Embassy as that is one or two steps away from declaring war in diplomatic terms and would need to be justified by evidence of terrorism or drug running or equivalent taking place on the premises - see this useful article here.

HMG is under an absolute duty to remove Assange to Sweden, but cannot be blamed for refusing to invade the little piece of Knightsbridge which is the sovereign territory of Ecuador.  HMG will just have to wait until Assange leaves......

Wednesday 15 August 2012

Hot Topic - Ban on Judicial Blogging

This really has got the juices flowing on other blogs:

Law and Lawyers

Pink Tape

Legal Cheek

Nearly Legal

Plus this US blog has picked it up- also see this from across the Atlantic.  Judge Richard Posner blogs with impunity in the US -  There is also an interesting article here

and all eyes remain on Bystander..... who is seeking further and better.......and also see the Justice of the Peace and this other blogging JP.

Is any of this allowed now?

This former Australian judge would be appalled

Read all about it here and here......will the Judicial Office make a pronouncement?

Sunday 12 August 2012

Do Judges have a right to freedom of expression (article 10 ECHR)?

This was something considered by the Privy Council when advising HMQ on whether HM should remove the Chief Justice of Gibraltar from office.

Lord Phillips's view is set out below and I agree with it.  Judges' freedom of expression is limited: "So far as any judge is concerned, the proper exercise of judicial office necessarily circumscribes the freedom of expression open to those who do not have to ensure that they are seen to be acting without fear or favour, affection or ill will." 

Article 10 itself says:
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary  

I suspect the draftsman had contempt of court in mind, but the highlighted phrase would equally apply to the restriction of a Judge's right to freedom of expression.  Having said that, any restriction on an article 10 right must be proportionate.  Article 10 cannot take away a Judge's right to freedom of expression in its entirety - it can only be restricted to the extent necessary to uphold judicial standards.  That's why you cannot impose a blanket ban on Judicial blogging-  you can only ban judicial blogging which undermines confidence in the blogging judge or the judiciary in general - all other judicial blogging should be permitted, if not encouraged.  Any other policy may be contrary to article 10 and thus unlawful.

Lord Phillips:

30. A summary of the standard of behaviour to be expected from a judge was given by Gonthier J when delivering the judgment of the Supreme Court of Canada in Therrien v Canada (Ministry of Justice) and another [2001] 2 SCR 3:
“The public will therefore demand virtually irreproachable conduct from anyone performing a judicial function. It will at least demand that they give the appearance of that kind of
conduct. They must be and must give the appearance of being an example of impartiality, independence and integrity. What is demanded of them is something far above what is demanded of
their fellow citizens.”

31. While the highest standards are expected of a judge, failure to meet those standards will not of itself be enough to justify removal of a judge. So important is judicial independence that removal of a judge can only be justified where the shortcomings of the  judge are so serious as to destroy confidence in the judge’s ability properly to perform the judicial function. As Gonthier J put it at paragraph 147 of the same case:

“…before making a recommendation that a judge be removed, the question to be asked is whether the conduct for which he or she is blamed is so manifestly and totally contrary to the impartiality, integrity and independence of the judiciary that the confidence of individuals appearing before the judge, or of the public in its justice system, would be undermined, rendering the judge incapable of performing the duties of his office.”

We will revert to this topic when considering the statutory criteria for removal of a judge under section 64 of the 2006 Order in the concluding section of this advice. There are,however, two matters that call for further comment at this stage.
Freedom of expression
32. Gibraltar is subject to the European Convention on Human Rights. Mr Beloff submitted that the Tribunal had wrongly held the Chief Justice at fault for public statements made by him or his wife that were no more than the exercise by them of the right of freedom of expression that is recognised by article 10 of the Convention. He argued that this freedom of expression could only lawfully be restricted by clear provisions of law that satisfied the requirements of article 10(2) and that none such had been demonstrated. We do not accept this argument. So far as any judge is concerned, the proper exercise of judicial office necessarily circumscribes the freedom of expression open to those who do not have to ensure that they are seen to be acting without fear or favour, affection or ill will. There is an abundance of jurisprudence, to some of which we have already referred, that defines the
requirements of judicial office in this respect.

Friday 10 August 2012

Should Judges blog?

It has been alleged that this guidance has been issued to the judiciary:

"Judicial office holders should be acutely aware of the need to conduct themselves, both in and out of court, in such a way as to maintain public confidence in the impartiality of the judiciary.

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. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.

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.

Judicial office holders who maintain blogs must adhere to this guidance and should remove any existing content which conflicts with it forthwith. Failure to do so could ultimately result in disciplinary action. It is also recommended that all judicial office holders familiarise themselves with the new IT and Information Security Guidance which will be available shortly."

All eyes are now on this renowned Magistrate's blog to see how he reacts........

So long as judges  "avoid expressing opinions which.... could damage public confidence in their own impartiality or in the judiciary in general" why can't they blog as judges.  They can give interviews, write books,  newspaper and magazine articles and lecture as judges so long as they do not compromise their impartiality - why can't they write on blogs as judges?  What is the difference? Sir Stephen Sedley recently published a whole set of writings he put into the public domain whilst also being a judge (mostly in the London Review of Books) - nobody complained (I assume). The late Lord Bingham did the same.

It is going to be interesting to see how this develops........

Tuesday 7 August 2012

House of Lords reform is dead! Long live the House of Lords!

The DPM and his merry band of Lid Dems have thrown the towel in and will withdraw the House of Lords Reform Bill.

As you can see from this post, I applaud this move.

STOP PRESS: I agree with LORD FAULKNER OF WORCESTER - see his proposal here -

In memoriam, I will repeat my earlier post by way of dyslogy:

LORDS REFORM, a different view....

It is inculcated into our modern psyche that if a legislative body is not directly elected by the people then it is a bad thing. This is why people want to reform the House of Lords. The truth that dare not speak its name is that the unelected Life Peers of the Lords are better at legislating than the elected members of the House of Commons. I see no problem with one Chamber representing the people, having full democratic legitimacy and ultimate legislative sovereignty, whilst the second Chamber is full of unelected wise heads skilled at legislating and representative of the community. It's just like when you form a new committee from elected persons and then notice that don't have a lawyer or an accountant or a surveyor and you need one - so you co-opt one onto the Committee, circumventing the need for an election because you need some specialist skills. That's what our Second chamber should be - one big co-opted fund of very specialist people representing all walks of life. Some parts of our community need to be better represented and some parts need to have a dramatic reduction in the numbers of their reprsentatives(Anglicans and lawyers). We are made to want to give up this wealthy fund of knowledge, skill and experience and replace it with a cloned underpowered ignorant chamber of yet more elected politicians because we feel the urge to modernise and reform - but we must always ask: will the result be any better? So long as the elected chamber remains ultimately sovereign and can win any legislative tussles (as now) then overall our Parliament will be democratic. Political nomination to the Lords should end and the appointment process needs widening and made fairer. Anybody should be able to apply and the whole House should elect its own members- starting with the current constitution as the electorate (less the residual hereditaries and most of the bishops). People will claim that it is self-selecting - but better that than selected by party leaders or dished out as reward for long service or political donation or appointed by some Govternment appointed or controlled quango. Years ago when I was at Bar School I went to a lecture by the old Earl of Halsbury who said that the Commons should give the people want they want and the Lords should give them what they need. Whilst I do not endorse such a patronising and paternalistic view of the 'people', I do think that politically driven (or media driven) legislation coming out of the Commons is often improved by proper and expert scrutiny in the Lords. I don't really care what it is called or whether its members are Lords. Whatever we do we must not throw the baby out with the bathwater. Let's have an appointed chamber of wise heads with enough power to warn, advise, opine and moderate, but never the power to prevail over the democratic will.

Friday 3 August 2012

The Jury - It is the lamp that shows that freedom lives

Lord Steyn said in R v Conner (albeit in the criminal context):

Lord Devlin observed "that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives": Trial by Jury, (1956), p 164. This was a reference to the candles that were lit in London in the windows of London houses following the acquittal of the seven Bishops in 1688: see Macaulay, The History of England from the Accession of James II, (1849) vol 2, at p 389.The jury is an integral and indispensable part of the criminal justice system. The system of trial by judge and jury is of constitutional significance. The jury is also, through its collective decision-making, an excellent fact finder. Not surprisingly, the public trust juries.

The Jury has been excelling as a fact-finder again.  This time in an inquest into the death of a male in police custody.  The Independent Police Complaints Commission  (IPCC) is alleged and reported by others to have botched its report and it is reported that the Coroner refused to leave unlawful killing or neglect to the inquest jury.

Nevertheless the jury have delivered a scathing narrative verdict which is available here

They found alongside other things:

Whilst Sean Rigg was in custody the Police failed to uphold his basic rights and omitted to deliver the appropriate care.

The restraint of Sean Rigg lasted approximately eight minutes whilst the hand cuffing took approximately thirty seconds.  Sean Rigg was in the prone position throughout the entire restraint.  The agreed view of the Jury is that Sean Rigg was struggling but not violently.  The length of restraint in the prone position was therefore unnecessary.  It is the majority view of the Jury that this more than minimally contributed to Sean’s death.  The majority view of the Jury is that at some point of the restraint unnecessary body weight was placed on Sean Rigg.

The IPCC said this:

The jury at the inquest of Sean Rigg has today (Wednesday, 1 August) returned a narrative verdict at Southwark Coroner’s Court.  The jury found that there were missed opportunities and a lack of appropriate care by both the police and the mental health services, and that the level and length of restraint used was unsuitable and unnecessary.
IPCC Commissioner Amerdeep Somal said:
“The death of Sean Rigg at Brixton Police Station on 21 August 2008 was a terrible tragedy for his family and many friends. It is clear from the many tributes to him that he lived a full and active life.
“Mr Rigg’s death is a symptom of a deeper problem: the link between mental illness and deaths in or following police custody. Sadly it remains the case that in 2011/2012, half of the deaths in police custody were of people with mental illness.  They represent a particularly vulnerable group, often, as in Mr Rigg’s case, failed by the people and systems that ought to protect them. As the IPCC has repeatedly stated, police stations are not, and cannot be, a ‘place of safety’ for people with mental health problems. 
“The IPCC is considering the jury’s narrative verdict and the further evidence which has emerged through the inquest process.
“I have no doubt there are lessons for the IPCC from the investigation into Mr Rigg’s tragic death. His family has demonstrated considerable determination and fortitude in seeking answers to the circumstances of his death and I acknowledge their sense of frustration with the IPCC investigation.
“We will ensure that the IPCC review of deaths which is due to begin in September takes into account the inquest findings and Mr Rigg’s family’s concerns to see what improvements we can make in our practices to ensure a greater level of public confidence in our work in this crucial area.” 

Lots more here and here and here.  I do not know whether the jury's verdict is a fair reflection of the evidence.  It is on any view brave, and that's what I like about jurys.

See my post on Tomlinson and whether Coroner's juries should get their powers to indict -

Wednesday 1 August 2012

NEWS -new judges, barristers to sue solicitors and a constitutional crisis in Wales...

New Judges for the Court of Appeal:

The Honourable Mr Justice Lloyd Jones

Mr Justice Lloyd Jones was called to the Bar (Middle Temple) in 1975. He was Junior Crown Counsel (Common Law) from 1997-99. He was appointed a Recorder in 1994 and a QC in 1999. In 2005 he was appointed a High Court Judge in the Queen’s Bench Division. Mr Justice Lloyd Jones is currently Deputy Chair of the Boundary Commission for Wales.  He will take up post as Chairman of the Law Commission on the 1 August 2012.
The Honourable Mr Justice McCombe
Mr Justice McCombe was called to the Bar (Lincolns Inn) in 1975.  He was a Recorder in 1993-2001, Assistant Recorder in 1993-1996 and a Deputy High Court Judge from 1996- 2001.  He was appointed to the High Court in the Queens Bench Division in 2001 and was a Presiding Judge between 2004 -07.
The Honourable Mr Justice Treacy
Mr Justice Treacy was called to the Bar (Middle Temple) in 1971. He was appointed Assistant Recorder in 1988 and Recorder in 1991 a post he retained until his appointment to the High Court in 2002 and being knighted by The Queen.  From 2006 -2009 he was the Presiding Judge of the Midland Circuit.  He is now a member of the Sentencing Council for England and Wales.
The Honourable Mr Justice Beatson
Mr Justice Beatson FBA was called to the Bar (Inner Temple) in 1972. He was a Law Commissioner for England and Wales between 1989 and 1994, a Competition Commissioner between 1995 and 2001, a Crown Court Recorder since 1994, and a Deputy High Court Judge between 1999 and his appointment as a judge in the Queens Bench Division of the High Court in April 2003.  His professional background was primarily as an academic lawyer, although after 1982 he undertook some practice, and was appointed Queen’s Counsel in 1998. He taught at the University of Bristol in 1972-73, and at Merton College, Oxford and the Oxford Law Faculty between 1973 and 1989. He was Rouse Ball Professor of English Law at Cambridge between 1994 and 2003, and the founding director of the Cambridge Centre for Public Law. He is a Fellow of the British Academy, an Honorary Fellow of Brasenose and Merton Colleges, Oxford, and of St John’s College, Cambridge, and a former President of the British Academy of Forensic Science.
The Merry-Go round continues with some new Presiding Judges:
Mr Justice Singh has been appointed to the South Eastern Circuit where he will succeed Mr Justice Saunders.
Mrs Justice Sharp has been appointed to Western Circuit where she will succeed Mr Justice Field.
Mr Justice Globe has been appointed to the North Eastern Circuit where he will succeed Mr Justice Openshaw.
PLUS - Barristers are going to be able to sue solicitors for the first time.  The Legal Service Board has approved a change to professional rules which will see contracts used between solicitors and their Barristers!  Can't wait!

AND the Attorney General has used his powers under section 112 Government of Wales Act 2006 to refer the question of whether a Welsh Assembly Bill is in accordance with the Assembly's legislative competence to the Supreme Court. The Local Government (Byelaws) Wales Bill passed the Assembly on 3rd July and was going to receive Royal Assent- it now can't until the Supreme Court has ruled on it.  It will be the first Bill to be passed by the Assembly and would be the first piece of truly Welsh law since 1535.  The Welsh are not happy:

spokesman for First Minister Carwyn Jones said it was a "ridiculous situation that has arisen on what is a totally uncontroversial piece of legislation".
"The primary policy objective of the Bill is to simplify and rationalise how local authorities make byelaws to deal with nuisances in their areas," he said.
"So why the UK government has decided to take this to the Supreme Court, at the last minute, is inexplicable.
"Last year, the people of Wales voted in a referendum for these powers to be devolved.
"Now the UK government, by this action, have decided to ignore that fact."

No doutbt Theodore Huckle  QC, Counsel General for Wales, will be renewing his call for a "Welsh" judge to sit with his NI and Scots brothers and sisters in the SCUK.  

“The composition of the Supreme Court should reflect squarely the whole devolution settlement.
“It is increasingly likely that the Supreme Court will have to consider devolution issues. In that context we think there should be a Welsh representative on the Supreme Court.
“They say that England and Wales is one jurisdiction and it’s difficult to identify what constitutes a Welsh judge. We say we know one when we see one. The government in Wales has consistently argued that the 2005 Constitutional Reform Act should be interpreted to mean that Wales is a separate part [of the UK].”
Lord Justice Lloyd-Jones, (see above swearing in the Welsh Assembly Government) might be a candidate - save that he is going to Chair the Law Commission.
Mr Justice Wyn-Wiiliams - my favourite judge of all time?  I would love to see him in the UKSC - although I am not sure what he would add (apart from his legendary common sense) - as he is a Judge who administers and applies English Law throughout his jurisdiction of England and Wales - unlike those judges from NI and Scotland.....


112 Scrutiny of Bills by Supreme Court

(1) The Counsel General or the Attorney General may refer the question whether a Bill, or any provision of a Bill, would be within the Assembly's legislative competence to the Supreme Court for decision.

(2)Subject to subsection (3), the Counsel General or the Attorney General may make a reference in relation to a Bill at any time during—

(a)the period of four weeks beginning with the passing of the Bill, and

(b)any period of four weeks beginning with any subsequent approval of the Bill in accordance with provision included in the standing orders in compliance with section 111(7).

(3)No reference may be made in relation to a Bill—

(a)by the Counsel General if the Counsel General has notified the Clerk that no reference is to be made in relation to it by the Counsel General, or

(b)by the Attorney General if the Attorney General has notified the Clerk that no reference is to be made in relation to it by the Attorney General.

(4)But subsection (3) does not apply if the Bill has been approved as mentioned in subsection (2)(b) since the notification.