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.

Thursday 20 September 2012

Personal morality, lawyers and the law

Lots of civil Barristers spend lots of their time as very junior members of Chambers seeking the eviction of people from their homes on behalf of landlords and mortgagees.  Occasionally one would come across a case where you were asked to make a single parent and a collection of young children homeless because of local authority housing benefit maladministration.  It is at that point that the cab rank rule, professionalism and your trust in the law would overtake your personal moral feelings and you would do your job according to the Code of Conduct of the Bar of England and Wales.  Personal moral feelings, religious convictions and other unprofessional notions have nothing to do with the practice of the law nor have they anything to do with the administration of the law by Judges.

Lady Cosgrove,  the Scottish judge, was accused of bias against a Palestinian asylum seeker because she was a member of International Association of Jewish Lawyers and Jurists.  The House of Lords rejected that submission, because she had not said or done anything to betray her bias and because she was required to set aside her personal views when deciding cases according to her judicial oath to do right by all manner of people, after the law and usages of this realm, without fear or favour, affection or ill will.

As the late Lord Roger said:

In assessing the position, the observer would take into account the fact that Lady Cosgrove was a professional judge. Even lay people acting as jurors are expected to be able to put aside any prejudices they may have. Judges have the advantage of years of relevant training and experience. Like jurors, they swear an oath to decide impartially. While these factors do not, of course, guarantee impartiality, they are undoubtedly relevant when considering whether there is a real possibility that the decision of a professional judge was biased. Taking all these matters into account, I am satisfied that the fair-minded observer would not consider that there had been any real possibility of bias in Lady Cosgrove’s case.
Cooke J may be judged by the C of A on some later occasion to have strayed from this path by making remarks in sentencing a woman who procured the abortion of her own child which appear to betray his personal opinion about how abortion is administered in this country (Obiter J has further and better particulars here):

"There is no mitigation available by reference to the Abortion Act, whatever view one takes of its provisions which are wrongly, liberally construed in practice so as to make abortion available essentially on demand prior to 24 weeks with the approval of registered medical practitioners."

Whatever your personal view you hold as a Judge, they should not appear in your judgments or sentencing remarks.  Cooke J's allegation that doctors are routinely unlawfully carrying out abortions has no place in these sentencing remarks.

I will leave the length of the sentence to the Court of Appeal (Criminal Division) save to recall that I once sat in Court to watch a High Court Judge sentence a set of parents guilty of gross negligence manslaughter in permitting their children and children from another family to play on a live railway line during a picnic, to a suspended term of imprisonment, because he held that they had been sentenced to a life term of watching those children die before their very eyes as a result of their gross stupidity.  Sarah Catt will probably live under a similar life sentence, something I do not see taken into consideration in this case.

Sunday 16 September 2012

Easing an employee out of employment....a new easy way....or will it be just as hard?

Sometimes an employer really wants an employee to leave.... sometimes that feeling is reciprocated by the employee - but the law makes it very difficult for the two to have any conversations on the topic of a mutual termination because the law only protects those conversations under the without prejudice rule if the parties are negotiating  over a pre-existing dispute.  This often forces the employer to use formal disciplinary or redundancy measures which end up in the Tribunal in order to force a situation where without prejudice negotiations can take place.  Or the tactical employee commences unfair dismissal proceedings merely to force a settlement negotiation process.  That all wastes time and money and crucially bungs up the Tribunal system with unnecessary litigation.  So BIS wants to insert the following into the Employment Rights Act 1996:

“111AConfidentiality of negotiations before termination of employment

(1)In determining any matter arising on a complaint under section 111, an
employment tribunal may not take account of any offer made or
discussions held, before the termination of the employment in
question, with a view to it being terminated on terms agreed between
the employer and the employee.

This is subject to the following provisions of this section.

(2)Subsection (1) does not apply where, according to the complainant’s
case, the circumstances are such that a provision (whenever made)
contained in, or made under, this or any other Act requires the
complainant to be regarded for the purposes of this Part as unfairly

(3)In relation to anything said or done which in the tribunal’s opinion was
improper, or was connected with improper behaviour, subsection (1)
applies only to the extent that the tribunal considers just.

(4)The reference in subsection (1) to a matter arising on a complaint under
section 111 includes any question as to costs, except in relation to an
offer made on the basis that the right to refer to it on any such question
is reserved.

(5)Subsection (1) does not prevent the tribunal from taking account of a
determination made in any other proceedings between the employer
and the employee in which account was taken of an offer or discussions
of the kind m
entioned in that subsection. 

That all sounds marvellous and is an excellent idea - save for sub-section (3).   I know Employment Tribunals quite well and I know that they can make random decisions and can interpret the ERA in many different ways and it can take some time for the EAT or the C of A to get them back on the straight and narrow.  Hence giving them a free-wheeling discretion to take into account without prejudice negotiations whenever they thing them 'improper' could cause problems.  I have done several cases where the employee's constructive unfair dismissal claim has rested on an allegation that they were made an 'insulting' offer to mutually terminate their employment.  Would such an offer be improper?  I suspect that employers are going to worry so much about whether they are being proper or improper that the apparently safe space to negotiate created by this clause will not be quite as safe as they think - so long as the Tribunal has the power to pierce the without prejudice veil.  Absent very bad behaviour (fraud, shams, discrimination etc) without prejudice communications must remain outside the Tribunal door until the question of costs arises.  "Improper" is too broad a concept with a myriad of interpretations possible such that this apparently laudable safe space to negotiate an exit from employment will become as unintendedly complicated and as fraught with difficulty as all the other employment provisions that Governments brought in to simplify and assist.  This needs re-thinking.  Thoughts to the Minister via the consultation

Thursday 13 September 2012


As a young teenage Liverpool FC supporter I watched Hillsborough unfold on a TV set located in a Yorkshire town not so far up the M1 from the ground, until my parents averted my eyes.

My eyes have not been averted from the shameful policing, pathologist and Coronial behaviour that has been found to have occurred after this tragedy.  Obiter J has set it all out in his usual excellent style.

The AG must use his fiat to have these inquests re-opened without delay and a Judge or judicial retiree should be sent to Sheffield to hear them, the families having legal aid to secure proper representation.  Dame Janet Smith has done the job of Coroner and inquiring judge before in Manchester following Shipman and she is now retired from the Court of Appeal (and is currently Treasurer of Lincoln's Inn).  She is from, is well known and is well respected in the North West.


Friday 7 September 2012

Electing Judges? & and some new (appointed) High Court judges announced...

Have been sunning myself in the States.  Imagine if a leader column like this appeared in The Times, rather than its New York cousin - or even in the Evening Standard commenting on the merits or lack of them of those who desired judicial office within the local county courts of London!  Vote to fill vacancies arising among the District and Circuit Judges of the Central London County Court, or the Clerkenwell and Shoreditch County Court! that would be a thing to behold....

In the meantime, we less democratic in our ways of appointing judges have sent a few more of our learned, leading and distinguished friends to the High Court bench:


Chancery specialist from 3 Stone Buildings and a welcome female addition to the Rolls Building.....

The Queen has been pleased to approve the appointment of Miss Sarah Jane Asplin, Q.C., to be a Justice of the High Court with effect from 1 October 2012 on the retirement of Mr Justice Calvert-Smith.

The Lord Chief Justice will assign Miss Asplin to the Chancery Division.
Miss Asplin, 53, was called to the Bar by the Gray’s Inn in 1984 and took Silk in 2002. She is approved to sit as a deputy High Court Judge.

Mr. Justice Calvert-Smith was called to the Bar by the Middle Temple in 1969 and took Silk in 1997. He was appointed a Recorder in 1986 and a judge of the Queen’s Bench Division of the High Court in 2002.
An old-fashioned common law commercial QC who did Trigger in the Supreme Court, and eldest son of the Stuart-Smith LJ deceased retired, married to the daughter of 2nd Viscount Montgomery of Alamein, who led 4 New Square through its recent difficult period....

The Queen has been pleased to approve the appointment of Jeremy Hugh Stuart-Smith, Esq., Q.C., to be a Justice of the High Court with effect from 2 October 2012 on the retirement of Mr. Justice Butterfield.

The Lord Chief Justice will assign Mr. Stuart-Smith to the Queen’s Bench Division.
Mr. Stuart-Smith, 57, was called to the Bar by Gray’s Inn in 1978 and took Silk in 1997. He was appointed a Recorder in 1999 and is approved to sit as a deputy High Court Judge.

Mr. Justice Butterfield was called to the Bar by the Inner Temple in 1965 and took Silk in 1985. He was appointed a Recorder in 1978 and a judge of the Queen’s Bench Division of the High Court in 1995.


Heavy commercial silk from 20 Essex Street....

The Queen has been pleased to approve the appointment of Stephen Martin Males, Esq., Q.C., to be a Justice of the High Court with effect from 1 October 2012 on the elevation of Mr Justice Treacy to the Court of Appeal.

The Lord Chief Justice will assign Mr. Males to the Queen’s Bench Division.
Mr. Males, 56, was called to the Bar by the Middle Temple in 1978 and took Silk in 1998. He was appointed a Recorder in 1999 and is approved to sit as a deputy High Court Judge.

Mr. Justice Treacy was called to the Bar by the Middle Temple in 1971 and took Silk in 1990. He was appointed a Recorder in 1991 and a judge of the Queen’s Bench Division of the High Court in 2002.


Sir Murray was replaced by Sir Paul Kennedy as P of C of A of Gibraltar in January - here is being sworn in by the Governor...

Wednesday 5 September 2012

Back from holiday.....

To find a new Lord Chancellor in office, who distinguishes himself from his very long line of predecessors by not being a Barrister (or any sort of lawyer...).  He will be assisted however by Jeremy Wright who was called to the degree of the utter bar in 1996.  Solicitor Helen Grant is also new to the Justice team.  Edward Garnier QC has departed his S-G berth being replaced by another Barrister who will need an honorary QC in due course, Oliver Heald.  Theresa Villiers is a Barrister and now S/S for NI.  Ken Clarke, Minister without Portfolio is apparently going to have JSB in his non-existent portfolio - which is interesting.....

All quiet on the Assange front - although those sureties I was wondering about before I left for the sun appear to have been properly forfeited.

Lord Dyson has been demoted from SC to replace Lord Neuberger as MR, who is to be PSC.

Which means another vacancy in the SC - time for another woman?  Arden LJ/Lady Mance?