Saturday 21 December 2013

What's in your stocking this Christmas? A judicial appointment

Have been quiet, because have been busy, the Barrister's boon and the Blogger's curse.

Spotted a High Court appointment:

The Queen has been pleased to approve the appointment of Ms. Alison Hunter Russell, Q.C., to be a Justice of the High Court with effect from 13 January 2014.

The Lord Chief Justice will assign Ms. Russell to the Family Division.

Miss Russell, 55, was called to the Bar by Gray’s Inn in 1983 and took Silk in 2008. She was appointed a Recorder in 2004 and is approved to sit as a deputy High Court Judge.

Sunday 24 November 2013

Goodbye McMullen Hello Eady

There's been a shuffling around of the Old Square seats at the Employment Appeal Tribunal as Jeremy McMullen QC late of those Chambers retires and Jennifer Eady QC of Old Square and oft to be found as Jeremy's junior takes his place as a Circuit Judge of the EAT.  Jennifer was last in the spot light unsuccessfully representing John McCririck at London Central.  She is a ACAS Council member and was once standing council to the NUJ and NUM.  McMullen spent 11 year working for the GMB.  Both have been heavily involved in the Industrial Law Society (both Vice Presidents) and both were part time Employment Judges.  Eady in other words, is a good replacement for McMullen.  I only hope I get on better with her than I did with him.

Sunday 17 November 2013

This will get the Europsceptics going....

Some Swedish chap did not like being tried twice for some domestic VAT offence.  So off he popped to the ECJ in Luxembourg who ruled that he could have the benefit of Protocol 7 of the European Convention of Human Rights because it is mirrored in article 50 of Charter of Fundamental Rights of the European Union which states

‘No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.’

How can the ECJ effectively alter a democratically passed piece of legislation which allowed you to be tried twice in Sweden for a VAT offence? Quite a few Govts intervened to make this point to the Court (although not the UK):

The Swedish, Czech and Danish Governments, Ireland, the Netherlands Government and the European Commission dispute the admissibility of the questions referred for a preliminary ruling. In their submission, the Court would have jurisdiction to answer them only if the tax penalties imposed on Mr Ã…kerberg Fransson and the criminal proceedings brought against him that are the subject-matter of the main proceedings arose from implementation of European Union law. However, that is not so in the case of either the national legislation on whose basis the tax penalties were ordered to be paid or the national legislation upon which the criminal proceedings are founded. In accordance with Article 51(1) of the Charter, those penalties and proceedings therefore do not come under the ne bis in idem principle secured by Article 50 of the Charter.

The Court held that the underlying criminal law did not have to be based upon EU Law - it just had to be in a field in which EU Law operates:

The Court’s settled case-law indeed states, in essence, that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by European Union law, but not outside such situations. In this respect the Court has already observed that it has no power to examine the compatibility with the Charter of national legislation lying outside the scope of European Union law. On the other hand, if such legislation falls within the scope of European Union law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures

So, in other words, if you can squeeze your case into are area of law in which the EU has an interest, then you can rely on lots of rights under the EU Charter which your national legislature has not enacted.  For example Protocol 7, in use here, has not been 'brought home' under Human Rights Act 1998 which would be just as well as you can in certain circumstances be tried twice under our domestic law (Part 0, CJA 2003) -  although if the prosecution could possibly come within some piece of EU Law, then think again prosecutors....

Mostyn J has just realised what is going on in a recent judgment:

& the usual suspects are warming up:

Bill Cash, Tory chairman of Parliament’s EU scrutiny committee, said: ‘We are in a position where the ECJ has effectively struck down an act of Parliament. If they can do it to this, they can do it to anything.’

Watch this space...........

Monday 11 November 2013

Surprise Welsh Appointment

Surprise appointment in Cardiff as 4NS announce that Leigh-Ann Mulcahy QC has been appointed First Counsel to the Welsh Government, a position previously held by (Clive) Lewis J.  Have to say I had rather assumed you had to be linked to Wales in some way -  Rhodhri Williams QC had been tipped by me as the only really serious public law silk in Wales - but there you go - there is nothing that requires them to only look in Wales.

Leigh-Ann looks like she has had some pre-QC A Panel experience in E&W and can probably brush up on some Welsh should it arise.

The 4NS tweet:

Congratulations to 's Leigh-Ann Mulcahy QC on her appointment as First Counsel to the Welsh Government:

Sunday 20 October 2013

Keep private law out of public war.

Lots in the press of late (drummed up by this interesting paper) about how judges should not judge acts of war by the standards of the common law tort of negligence or the requirements of article 2 ECHR.  I agree that personal injuries sustained in war should be the subject of no-fault compensation (as they are via AFCS) and should be non-justiciable such that the commander on the ground should not worry about the MOD being sued depending on his tactical and strategic choices and commands.  The Supreme Court (by a thin majority) have refused to strike out claims for personal injuries suffered in battle conditions because they wanted a trial judge to make findings of fact before the courts come to a final view.  In particular these findings are to assist in the teasing out of the question of whether a procurement decision made many moons before the war (i.e. to buy some snatch land rovers) can be held negligent and/or a breach of article 2 such as to justify an award of damages for an injury suffered because it is alleged that insufficient armoured protection was offered by the said land rovers in battle.

The State's decision about what tanks to buy and how armoured they should be is no more justiciable than a company commander's decision about who to send into battle with what weapons in the heat of the action.  The Courts have no business asking independent experts to offer them opinion evidence in order to decide whether HMG should have bought and deployed the big tanks rather than the small tanks.  These are questions absolutely vested in the Executive supervised by the Legislature.  These are not questions of law, but of competing priorities for the public purse and fine judgments about what military equipment works best in different environments.

Who knew before Bushs Snr and Jnr had their bright ideas that our Cold War trained and armed military would spend 20 years in the Iraqi and Afghan deserts?  Judicial hindsight can often be a dangerous thing, but it will utterly overreach itself if it starts to judge procurement decisions made in the late 1980s against the actual events of the next 20-30 years.

The Rule of Law requires Judges to oversee the Executive.  Judicial Review is a marvellous thing which is reduced or undermined at our peril.  But Judges deciding whether to give the State's foot soldiers compensation based on their master's decisions many moons ago is a step too far.  That is a matter for political oversight in the select committee and for the no-fault compensation scheme which exists for members of the armed forces (which should dish out common law damages in return for immunity for the Crown) and not for the court room.

The Lawyers have had a good war so far,  the counter-terrorism measures, the immigration strictures, rendition, secret prisons and the never ending public inquiries have been a boon for our human rights legal sector.  But let us not get carried away.  Their are limits to the judicial power and it is time to start applying them.  Best the Judges get in first to limit their own role using common law immunity or else they may find Parliament intervening with a statute. Our constitution requires harmony between its component parts and this is just the sort of issue over which a war of words could break out.

Judges take heed, the politicians (and the Chiefs of Staff) are speaking.

Wednesday 2 October 2013

New Justice of Supreme Court, from Scotland.

Lord Hodge, 'stolen from Scotland' for the Supreme Court to replace Lord Hope VP (replaced as VP by Lady Hale).  Might be one of the last Scottish appointments before secession?  Hope not (on both fronts).

Then off they processed for the Abbey Service and LC's breakfast, P and VP in the lead:

Sunday 29 September 2013

Shuffling around at the top in time for the start of another Legal Year

Tuesday marks the start of another Legal Year and this year the start of the term of office of the new LCJ -

Sir Roger John Laugharne Thomas - raised to the peerage for the occasion it has been announced (in
line with previous practice!)  

His successor as P of the QBD is to be a frontrunner for the LCJ'ship itself and a man who needs no introduction to the masses - Leveson LJ - a well earned promotion!

Here he is in his other new role as Chancellor of Liverpool John Moores University:

Bit of a move around in the provinces as well following the elevation of the Recorder of Greenwich to head up the Old Bailey, and the criminal Resident Judge and DCJ in Manchester's elevations to the High Court - they have all now been replaced:

25-09-2013 01:09 AM BST

The Queen has appointed His Honour Judge Christopher Anthony Kinch QC as a Senior Circuit Judge, Resident Judge for Woolwich on the advice of the Lord Chancellor, the Right Honourable Chris Grayling MP.
24-09-2013 01:09 AM BST

The Lord Chancellor, the Right Honourable Chris Grayling MP, has appointed His Honour Judge David Andrew Stockdale QC as Senior Circuit Judge, Resident Judge for Manchester.
24-09-2013 01:09 AM BST

The Lord Chancellor, the Right Honourable Chris Grayling MP, has appointed His Honour Judge Allan Peter Gore QC to be a Senior Circuit Judge, Designated Civil Judge for Manchester.

Thursday 26 September 2013

What is Grayling talking about?

Apparently the Lord High Chancellor of Great Britain, the second most important Great Office of State,  Lord Keeper of the Great Seal  and Keeper of the Queen's Conscience has said he wants

 "to see our Supreme Court being supreme again"

If he means the Supreme Court of the United Kingdom - it has never been supreme but has always been subject to the jurisdiction of the European Court of Justice and must take into account the judgments of the European Court of Human Rights. If he means the Supreme Court of Judicature which was renamed the Senior Courts when the new Supreme Court came into being, well that was always subject to an appeal the House of Lords, which itself, since 1972, has been bound by the ECJ and since 1998, taking notice of the ECtHR. In short, he is talking nonsense. Again. 

Remind me.  Why was it good idea to appoint a lawyer to this great office of state, even when it ceased to be at the apex of the judiciary?

Sunday 15 September 2013

The - No legal aid until you get permission to claim Judicial Review - Volte Face

Sometimes I am drawn into the odd judicial review - although it is not my central field of practice.  I have noticed that the key phase of such a claim is the application for permission - once a Claimant is through that tough judicial filter then the prospects of the Defendant giving up and compromising is high.  Many claims end at that stage saving money (both the Court's and the public law defendant's resources as well as any public funding being used by the Claimant).

I understand that the MoJ wanted to reduce the number of JR claims by only providing public funding once the claim has permission to proceed.  That's about as bonkers as it gets because that's no funding at all - how does the impecunious claimant get permission without funding and without permission how does he make a claim??  It would actually be better only to provide funding up to the grant of permission - because usually if permission is granted the other side will fold or the claimants' lawyers might take a CFA risk given that the Court thinks that they have prospects of success.  Indeed a CFA post permission with a protective costs order would be a good way of funding JRs post-permission.

But removing funding pre-permission really just means removing JR from poor people, and given that poor people tend to interact with the state more than rich people, especially on key life sustaining topics like benefits (i.e. eating and living), housing (i.e. living) and immigration (not being sent to bad places) then it amounts to a Government decision to withdraw JR from those who need it most.

Which is what would make such a move quite important, if not of constitutional importance.

Sir Stephen Sedley got upset about it in the London Review of Books here  as did Treasury Counsel and lots of silks....and so on 5th Sept HMG dropped a stone:

“For payment for permission work in judicial review cases, in the light of responses to this proposal, we intend to consult further on an alternative option which will achieve our desired aim of preventing legal aid being used to fund weak cases which have little effect other than to cause delay and incur unnecessary cost.”

Didn't see that coming.


Friday 6 September 2013

Upholding the Rule of Law

The former Lord Chief Justice at the Annual Judges; Mansion House Speech in July before his retirement with some excellent words of warning for HMG:
So we must remain vigilant against the slightest encroachment on judicial independence, not because judicial independence represents some traditional flummery, some bauble, some meaningless superficiality, but because without an independent judiciary the rule of law would collapse.

A more mundane story of protecting the dignity of the judicial process:

Paul, of South Road, Luton was sitting in the public gallery of Luton Crown Court watching a friend’s sentencing for the robbery of an off-duty police officer, when he received a message on his BlackBerry phone from a girl asking where he was.
He thought he would take a snap of the courtroom to send to her, but sitting in front of him were the victim and other police officers involved in the case, who spotted what he had done.
The phone was seized and to his amazement the teen found himself arrested and taken down to the cells.
After his arrest, barrister John Livingston was appointed to represent the teenager.
An hour later he was brought back into the court to hear Mr Livingston say: “He told me he was being ‘a dick’, which I take to mean a stupid idiot.
“It was not a photograph of anyone in particular and he did not notice any signs forbidding this behaviour. This has been a very big shock for him.”
But Judge Mensah told Thompson: “There are notices all around the court building about not taking photographs in court. This is a serious offence and the message must go out that people cannot take
As she jailed him for two months he said: “That’s stupid man.”

Friday 9 August 2013


Celebrating a first successful flutter on a nice little CFA- although I don't think I'll try that again...never been so stressed about the result of a case...all seemed very seedy...back to earning regardless of result after a well earned rest...................

Tuesday 6 August 2013

Sir Alan Ward's Last Judgment.........

Sir Alan Ward has delivered his final judgment.  We will not see his like again.....

The idea that an Englishman’s home is his castle is firmly embedded in English folklore and it finds its counterpart in the common law of the realm which provides a remedy to enable the owner of the castle to secure the eviction of trespassers from it. But what if the invaders occupy for long enough to establish their home within the keep? Whose castle is it now? Whose home must the law now protect? That, in colloquial terms, is the issue in this appeal which is brought by squatters against the order made by Her Honour Judge Walden-Smith sitting at the Central London County Court on 19th July 2012 when she ordered that they give the claimant possession of his land to the north side of Vineries Close, West Draycott forthwith.The castle metaphor is quaint but outmoded: the correct legal question to be asked since the Human Rights Act 1998 came into force in October 2000 is how, if at all, if squatters have established homes on the land without the leave of the landowner, does the court, faced with a claim for possession by a private landowner against the trespassers, give effect to the squatters' right to respect for their homes guaranteed to them by Article 8 of the European Convention on Human Rights?


A footnote

As this is the last judgment I shall deliver, I want to add this footnote. Article 8 is often much criticised, surprisingly even by those in a position of authority, as if it has incorporated some undesirable foreign jurisprudence into our law. I do not intend to enter into that debate, but read the opening words of my judgment. What I do want to emphasise is that this case demonstrates one aspect of our way of doing things which does represent the very best of British. That is our procedure for extended oral advocacy in our courts, especially in the appellate courts. Here we had Mr Luba QC, a true expert in the field, marshalling his written and his oral submissions in his usual measured and compellingly persuasive way. He has commanded my admiration over the many years I have been listening to him. Miss Winston is less well known to me. She had a rather torrid time when subject to a penetrating but ever-courteous Socratic inquisition from my Lord, Lloyd LJ, deploying a typical and invaluable judicial technique to tease out the issues and the arguments. She recovered and advanced her case with determination. The result was, as often happens, that the oral argument swayed the Court this way and that. That is the great triumph of oral advocacy and if it gives us more to ponder it eventually makes our task easier. It also makes it a pleasure to be a member of the Court. As I say, this, if not every application of Article 8, is undeniably the best of British. I am sorry not to be enjoying more of it.



Friday 26 July 2013

CPS in trouble...again

I was dearly hoping that Stuart-Smith J fils was going to be as robust as his father.  He has been dealing with CPS incompetence - this is just a summary while we await the full blunderbuss of the judgment:  I love the idea that one of their excuses was that they were incompetent............Good luck to Alison Saunders CB, CCP for London, who takes over as DPP in November...........

The applicant CPS applied to commit the respondent (M) for contempt of court. 

The CPS believed that M had been frustrating the purpose of a confiscation order against him by diverting rental income to bank accounts not previously disclosed. M's case had previously been dealt with by the Department for Work and Pensions Prosecution Division, which had merged with the CPS shortly before the contempt of court application was made. The application did not comply with the requirements of CPR r.81.10 and CPR PD 81 as it was not on the form prescribed by CPR Pt 23 and was not supported by the required evidence by affidavit. Directions were made for service of the correct form and supporting documents. A month after the date for service had expired, the CPS wrote to the court asking for the timetable to be varied, explaining that civil applications were outside the general expertise of the CPS staff who drafted the application and that the error had not been discovered until the writer had returned from leave. The court ordered that the hearing of the substantive application be treated as an application for an extension of time to comply with the directions.

HELD: There had been a number of errors by the CPS at every stage. It had failed to issue the proper form of application, provide evidence by affidavit, comply with the directions order, apply for an extension of time and attempt to agree a timetable with M. It had also failed to appreciate the seriousness for M of the consequences of the truncated timetable proposed and had not given a proper explanation for its failure to comply with the directions order. The starting point was the amended overriding objective in CPR r.1.1(2), which directed that dealing with cases justly included allocating an appropriate share of the court's resources and enforcing compliance with rules, practice directions and orders. In favour of an extension of time was that the draft notice and an affidavit were available and the court could give directions for the substantive hearing to take place in the autumn. The factors against were that there had been a clear breach of a court order without a satisfactory explanation, the letter had been sent after the time for compliance had expired and an application to commit for contempt could have serious consequences. Balancing the competing considerations, an extension of time would not be granted. There had been a lamentable lack of competence by the CPS which had continued in the face of the clearest possible directions order. There had been a complete failure to recognise the seriousness of an application for contempt of court and the importance of compliance with court rules. A day of court time had also been wasted. It was no answer for a lawyer to say that he was not competent to deal with an application. There had been an unforgivable display of incompetence and the CPS would be ordered to pay M's costs on the indemnity basis to show the court's disapproval

Sunday 14 July 2013

LCJ goes off piste in foray into The Constitution

HMG does not want the public to read letters written to it by the Prince of Wales because in so writing he is practising to be HMK and should be allowed to do so in private.  The Information Commissioner, the First Tier Tribunal and the Upper Tribunal disagreed and ordered disclosure of the letters.  HMG did not appeal to the Court of Appeal or even onwards to the Supreme Court and therefore must have concluded that there is no error of law in the Upper Tribunal's decision (we speculate).  Instead the AG on behalf of HMG has simply vetoed publication.  FOIA permits this (section 53).  HMG does not have the last word because the decision to veto can be judicially reviewed, although ultimately HMG could resist an order setting aside the veto because the High Court cannot commit a Govt Minister to prison (M v Home Office [1993] 3 WLR 433) and lacks any coercive power against the Crown (from whom all coercive power is derived - if the Crown is one singular corporation with many faces then the Warrant of Committal would involve the Crown calling on its Officers and Constables to drag itself to prison).  & why shouldn't HMG have the final word?

The Crown in Parliament is Sovereign and it has handed the final word, to override the judgment of a Tribunal or Court, to the Crown (or more prosaically HMG).  I can't really understand why the LCJ, in his judgment supporting the majority view that the JR against the veto in the Prince of Wales case should be dismissed, gets so anxious about the whole constitutional propriety of section 53 and the veto.  Here are some of the odder passages of the judgment:

Para 2 -  The possibility that a minister of the Crown may lawfully override the decision of a superior court of record involves what appears to be a constitutional aberration.    

Why is it an aberration if it is authorised by Parliament?

Para 8 - Section 53 has been described as an executive override: so it is. Notwithstanding the
unchallenged judgment of the Upper Tribunal, following an examination of the claim
for exemption based on the public interest, a member of the executive is empowered to set aside or nullify the decision. Accordingly, therefore, the disclosure obligation of the relevant public authority based on the decision of the court has been dispensed with by a member of the executive, or the Attorney General acting on behalf of a minister in the previous administration. The identical power is available for use even when the decision to be overridden was made by the Supreme Court of the United Kingdom

What has the Supreme Court got to do with it? It has the same duty as any other Court to comply with legislation as enacted by Parliament - why should its decision carry any more weight in this context than that of a lowly Tribunal Judge - HMG has to obey all Court/Tribunal judgments unless Parliament says otherwise - the Supreme Court has no special status - remember it does not have any special constitutional status such as 'Supreme Courts'  have elsewhere, most notably in the USA.  

Para 10  - We all understand that in our constitutional arrangements Parliament is sovereign. 
Decisions, even of the Supreme Court, may be set aside through the ordinary legislative processes. Thus, in the context of witness anonymity in the criminal courts, the Criminal Evidence (Witness Anonymity) Act 2008 in effect set aside the decision of the House of Lords to the contrary effect in R v Davis [2008] 1 AC 1128. That, however, is not what s.53 provides. It simply vests power in a cabinet minister to override the decision of a court without further recourse to the legislature. It is not quite a pernicious “Henry VIII clause”, which enables a minister to override statute but, unconstrained, it would have the same damaging effect on the rule of law. 

Parliament has authorised HMG to override a Court or Tribunal order without having to go back to Parliament to seek further authority - that is what the democratic legislature has done - why is the Court concerned with the propriety of this?  Then he seriously goes off piste:

Para 11: The provisions of s.53 must therefore be examined with these troublesome concerns in mind. Parliament created a right in members of the public to be granted a great deal of but not all the information held by public authorities. It provided, further, that the decisions of the public authorities adverse to disclosure should be subjected to a number of different methods of independent, and ultimately judicial, examination. Thereafter, on the basis that the final responsibility for deciding the public interest should remain with ministers, they were vested with the power to override the judicial 
decision. If that were the full extent of this legislative structure, then, while recognising that the relevant minister may have a particular insight into and a major contribution to make to the protection of the public interest, I should entertain the very gravest reservations whether this provision could fall within the constitutionality principle. Unconstrained by the internal legislative structure, rather than by  reference to the much vaguer good sense of or wise discretion of any individual minister, we should be addressing a remarkable provision which empowered the minister to set aside the decision of a court after litigation in which the department for which he is responsible was the unsuccessful party. 
12. It is fundamental to the constitutional separation of powers, the independence of the judiciary, and the rule of law itself that, although judicial decisions may be reversed by legislation (but very rarely with retrospective effect) ministers are bound by and cannot override judicial decisions: in our constitution that power is vested in Parliament. If ever the Government or any minister in the Cabinet could, without more, but in particular because of dissatisfaction with a judicial decision, not merely 
ignore it, but nullify it, the elementary entitlement of the citizen to effective recourse to independent courts would be extinguished.

What?  In enacting section 53 FOIA Parliament has authorised  the nullification of a judicial decision  -  the Judges just have to live with it - there is absolutely nothing they can do about it - their strict duty is to apply the law as made by Parliament - even if contrary to the ECHR - which includes any provision which conflicts with EU law - which they can strike down, but only because an Act of Parliament allows them to do so.  Otherwise - Judges must do as Parliament tells them.....whether they like it or not..................The  LCJ  appears to be hinting that if the Judges did not like the look of the veto power, they might declare it unconstitutional at common law and ignore it - NOW THAT WOULD BE A CONSTITUTIONAL ABERRATION.........

Tuesday 9 July 2013

Judicial Notices

New Fam D Judge:

The Queen has been pleased to approve the appointment of Anthony Paul Hayden, Esquire, Q.C., to be a Justice of the High Court with effect from 31 July 2013 on the elevation of Mrs. Justice Macur to the Court of Appeal.   The Lord Chief Justice will assign Mr. Hayden to the Family Division. Mr. Hayden, 52, was called to the Bar by the Middle Temple in 1987 and took Silk in 2002. He was appointed a Recorder in 2000 and is approved to sit as a deputy High Court Judge.
Well known family silk from St John's in Manchester....

District Judge Edwina Carole Millward retires from the District Bench with effect from 1 June 2013.District Judge Millward (69) was admitted as a Solicitor in 1972. She was appointed a Deputy District Judge in 1988 and a District Judge in 1995. She was President of the Association of Her Majesty’s District Judges between 2008 and 2009.  One of my favourite DJs - usually to be found at Maidstone - went from domestic science teacher to senior partner and President of the Kent Law Society as well as first female leader of the District Judges nationally.  A joy to appear before and will be sadly missed -always feisty and brilliant at case management....

Sunday 16 June 2013

Missed a couple of High Court Judges...

Two public law appointments on their way to the Admin Court.....

The Queen has been pleased to approve the appointment of Clive Buckland Lewis, Esquire, Q.C., to be a Justice of the High Court with effect from 13 June 2013 on the retirement of Mrs. Justice Dobbs.
The Lord Chief Justice will assign Mr. Lewis to the Queen’s Bench Division.
Mr. Lewis, 52, was called to the Bar by the Middle Temple in 1987 and took Silk in 2006. He was appointed a Recorder in 2003 and is approved to sit as a deputy High Court Judge.
Formerly of 11KBW and First Counsel to the Welsh Assembly Government.  Joins the two Williams JJs as a judge for the devolved principality - WAG will now be looking for a new First Counsel -how about Rhodhri Williams QC?

The Queen has been pleased to approve the appointment of Miss Frances Silvia Patterson, Q.C., to be a Justice of the High Court with effect from 1 October 2013 on the retirement of Mr. Justice Maddison.
The Lord Chief Justice will assign Miss Patterson to the Queen’s Bench Division.
Former Law Commissioner and Public Law QC from Manchester.

Saturday 15 June 2013


The Honourable Peter Richard Caruana, QC. Politician, barrister and former chief minister, Gibraltar. For services to Gibraltar.
Professor (Arthur) Alan Dashwood, CBE, QC. Emeritus professor, European law, University of Cambridge and professor, City University, London. For services to the development of European law.
Professor William Rodolph Cornish, QC. Emeritus professor of law, University of Cambridge. For services to promoting understanding of British law in central Europe.
Haim Judah Michael Levy, QC. Lawyer and Founder, Gibraltar Community Care Ltd, Gibraltar. For services to the economy and to the community in Gibraltar
Gareth Evans. Formerly deputy director, public finances and general team, Treasury Solicitor's Department. For services to financial stability. (London)
Mrs Elizabeth Anne Finlay Gardiner. Parliamentary counsel, Cabinet Office. For services to the preparation of legislation. (Bishop's Stortford, Hertfordshire)
Allan Deverell Roberts. Formerly counsel to the chairman of committees, House of Lords. For services to the House of Lords. (London)
Professor Rodney Brazier. For services to constitutional law.
Mrs Rhondalee Moreen Braithwaite-Knowles. Deputy attorney general, Turks and Caicos Islands. For services to the development and reform of the public service of the Turks and Caicos Islands.
Suraj Kumar Minocha. Crown advocate, national prosecution team, Crown Prosecution Service. For services to law and order particularly the early guilty plea scheme. (Ridgmont, Bedfordshire)
Mrs Charlotte Anne Triggs. Senior policy adviser, Crown Prosecution Service. For services to law and order especially prosecution of rape cases. (Weston Favell, Northamptonshire)

Sunday 9 June 2013

Victims' Justice

Victims of crimes have rights.  Nothing that appears below is intended to give the impression that I think anything to the contrary.

But we have to recall that Regina does the prosecuting in the UK - not the victim (even a private prosecution is liable to being taken over or terminated by the Crown).  This is because in a civilised society the State does the punishing and not individuals - not vigilantes and not victims. The decision to prosecute must be based on an objective dispassionate assessment and the 'public interest' must be the central guiding light.

Thus formalising a right for victims to seek a review of the decision to prosecute - is to be welcomed (if only to cut the number of JRs) but not at the expense of watering down the central role of the public interest and the fact that the Crown does the prosecuting and not the victim.

A good example of the hierarchy of interests is this judgment from Mitting J where the interests of the victim came third to the interests of the Defendant (presumed innocent until convicted) which came second to the public interest in the due administration of justice.  Magistrates refused an adjournment of a domestic violence case because witnesses did not turn up at the right time due to CPS incompetence.  A prosecution JR failed.  Mitting J noted the outrage of the victim, but further noted that this was not a trump card

2. On any view, the facts of this case do not show the functioning of the criminal justice system in a good light. For reasons which they have explained in correspondence, the alleged victim of the offence and her parents have understandably been outraged by the course events have taken.

This is how the transcript of the judgment ends, the victim's father is addressing the Court directly:

But putting all of that aside, we just have not seen justice and our faith in the justice of this country, it's just evaporated, and so my daughter who was beaten -- I saw her with black eyes, bite marks in her arm, bruises over her body -- this is my daughter. If this has happened to your daughter, how do you think you would feel when these arguments of -- it's just semantics, you know.
41. I know -- I saw my daughter. She's -- you're crucifying her. You are just crucifying her and now we are almost 18 months or 16 months, whatever, beyond the date and she's not got no closure whatsoever knowing that a man has beaten her -- okay, and I know he hasn't been found been guilty -- he hasn't been brought to trial.
42. But she's been beaten. She's scarred. She can't put this behind her and I don't know where to go from here. Do we just lie down and just -- I know today is specifically about -- you know, the hearing here is not about the interested party abusing my daughter, but what I am experiencing isn't justice. I just -- I'm appalled.
43. MR JUSTICE MITTING: I know it will be no comfort to you or your daughter, but I began my judgment by expressing the view that your outrage was both understandable and justified. I am afraid I can do no more about it. I have to deal with the judicial review challenge that has been brought by the prosecution and I have rejected it for the reasons that I have given. I am afraid I cannot put right what has gone wrong.
44. UNKNOWN SPEAKER: So justice hasn't been served.

Thursday 23 May 2013

After Jay J, Dingemans J - new High Court Judge announced...

What do you get if you successfully serve as Counsel to a Public Inquiry:

Swift J (Shipman), Christopher Clarke J (Bloody Sunday), Jay J (Leveson) and now Hutton.

Of course they all deserve their elevation for the same reasons as they excelled in their role as Counsel to these Inquiries, still it is an interesting trend...........

Dingemans is a consummate QC of the old School.  A joy to watch in operation -

As the Daily Telegraph once said re Hutton:

Let us be grateful that the Hutton Inquiry is not being televised. Television tarnishes everything it touches. It vulgarises. It overexposes. And it would turn the exquisite James Dingemans QC, the 39-year-old Senior Counsel to the inquiry, into a "media personality". First would come the rent-a-quote legal opinions, then the chat shows, then the pilot for an "upmarket game show" set in a court room.
I suppose the reason that I find Mr Dingemans so impressive is that, having been neither a court reporter nor a villain, I have never had the chance to see a good QC in action before. Perhaps they are all like him. Perhaps they all have his poise, his wit, his beautiful manners. But I doubt it. One of my favourite Dingemans quotes came when John Scarlett, the chairman of the Joint Intelligence Committee, peevishly complained that he never called the dossier a dossier, he called it an "assessment". Dingemans apologised devastatingly: "I am sorry for the loose use of language."
Another reason Mr Dingemans seems so good is that he has been examining people who look so bad, the politicians and journalists who have merged into one pasty-looking, faintly mad professional class. Also, he reminds me of those urbane Army officers who answered impertinent questions from reporters during the war against Saddam. They were articulate and magnanimous and embodied decency and sang froid. They exhibited what the poet Keith Douglas called "that famous unconcern". One, a brigadier I think, had to shout above the whiz bangs and bullets when he referred to the "spot of bother" outside Basra.
Are they a dying breed, these gentleman officers, these silks? They certainly seem a little out of place in our public school-hating society. If Mr Dingemans became a television star there would soon come a backlash. The tabloids would realise that he is everything they despise: that his suits are made in Savile Row, that he is a rugby Blue, that his father is a rear admiral. They would turn him into a national laughing-stock and mock his plummy voice for their sport. James Dingeman's natural home is the courtroom, away from the cameras. It is his context, his battlefield. Long may he remain there.

Sunday 19 May 2013

Save UK Justice....or else...

Criminal barristers earn bugger all.  I know - I'm married to one and spend lots of time with them.  If you get into trouble - you will want one but if HMG gets its way either you'll have to pay lots to get one or you'll get a free one who does not want to do his or her best for you because of the way the State pays them.....

If citizens are not properly represented when the State accuses them of a crime, then society and civilisation breaks down because each innocent person incompetently represented and thereby unjustly convicted is another reason why the population might chose not to obey democratically enacted laws.  Without that obedience....remember the riots of 2 years ago......everything breaks down........You can cut the costs of the public purse, but not the irreducible minimum costs of civilisation itself.  Taxes are the price we pay for a civilised society (Oliver Wendell Holmes Jr, Justice of US Supreme Court), the Criminal Bar is one of things that has to be included in that price.

Sign this PETITION now

More here

Tuesday 14 May 2013

Tory Euro Referendum Bill - scary Henry VIII clause...

Tories have published their 'hoped to be' Private Members' Bill to provide for an In Out, shake it all about, referendum on EU membership.  You can tell they have thought through the detail by the scarily wide Henry VIII clause. I accept that any Order will have to be approved by a joint resolution - but even so... these clauses are the very height of the powers of our Elected Dictatorship:

Conduct of the referendum and further provisions
(1) The Secretary of State shall by order provide for the rules in accordance with which the referendum is to
be conducted.
(2) The Secretary of State may by order make further provisions about the referendum.
(3) An order under this section may make provision modifying or amending this Act or another enactment.
(4) An order under this section may not be made unless a draft of the order has been laid before, and approved
by a resolution of, each House of Parliament.

Wednesday 8 May 2013

A little bit of legal reform in HMQ' s Speech from The Throne...

The odd nugget of legal reform in the Queen's Speech:

  • Exempting from health and safety law those self-employed whose work activities pose no potential risk of harm to others.  Can't wait to see how they draft this one.....
  • Removing a power for employment tribunals to make wider recommendations in successful discrimination cases under the Equality Act 2010.  Stripping the Equality Act back to its bare EU law essentials....
  • Implementing the Unified Patent Court, part of which will be based in London. This would introduce a single patent system in almost all EU countries making it possible for British businesses to protect their inventions across countries in a single application. Any disputed applications would be held in the UK.  This is one is beyond my purview....
  • Consumer law: Provide clarity in areas where the law has not kept up with technological advances. For example, setting out clearer consumer rights for the quality of digital content like e-books and software.  Easier access to compensation where there have been breaches of consumer or competition law. For example, new powers for enforcers (such as Trading Standards) to seek a court to require compensation to be paid to consumers where consumer law is breached.  More powers for Trading Standards and other enforcement authorities to require traders, through the courts, to compensate consumers where they have breached consumer law.  About time somebody looked at this mish mash of law.
  • Mesothelioma - Scheme of last resort funded by a levy on the UK Employers’ Liability market to correct a market failure where insurers failed to keep adequate records of Employers’ Liability insurance during historic times when exposures to asbestos were taking place. I support this.
Not quite as hectic as in previous years...............

Yet more new High Court Judges - including the now famous Robert Jay QC

The Queen has been pleased to approve the appointment of Miss Susan Lascelles Carr, Q.C., to be a Justice of the High Court with effect from 14 June 2013 on the retirement of Mr. Justice Stadlen. The Lord Chief Justice will assign Miss Carr to the Queen’s Bench Division. 
Leading Professional Negligence Silk, used to head the Professional Conduct Committee for the Bar and is a welcome common law addition to the QBD. From 4NS, had been their Head of Chambers, successor to Stuart-Smith J in fact.

The Queen has been pleased to approve the appointment of Robert Maurice Jay, Esquire, Q.C., to be a Justice of the High Court with effect from 4 June 2013 on the retirement of Mr. Justice Roderick Evans. The Lord Chief Justice will assign Mr. Jay to the Queen’s Bench Division.
Needs absolutely no introduction whatsoever: Leverson's Counsel, 2012 Barrister of the Year and usual choice for MOD and other bits of HMG in tricky cases.

The Queen has been pleased to approve the appointment of His Honour Judge Andrew James Gilbart, Q.C., to be a Justice of the High Court with effect from 29 July 2013 on the elevation of Mr. Justice Fulford to the Court of Appeal. The Lord Chief Justice will assign Judge Gilbart to the Queen’s Bench Division. 
This is part of the trend of promoting Senior Circuit Judges to the High Court bench. The Designated Civil Judge for Manchester, was appointed Stewart J last month. Gilbart J is his criminal counterpart in that City, being Hon. Recorder of Manchester and is in his special Recorder robes on the far right of the picture above (a ceremony for the new High Sheriff of that county).

STOP PRESS -see comments below - 

Is this Gilbart J in his Hon Recorder of Manchester robes?

Wednesday 1 May 2013

Making the Employment Justice System Pay - Fees and Penalties

The Employment Tribunal system has been very expensive to run.  Lots of claims have meant lots of Tribunals, staff and judges and the system has been free to use and therefore there has been no income stream to off-set the costs.  This led to some Tribunals like East London shutting their doors because they had run out of cash - i.e. HMG failed in its basic constitutional duty to provide a justice system.  HMG is having no more of that - Employment Tribunals are going to pay their way.

Firstly there are going to be fees to pay to use them - for a bog standard unfair dismissal -  £250 to issue, £950 for a hearing, £650 payable by the Respondent if you fancy a bit of judicial mediation, £400 to issue your appeal in the EAT and £1200 for the Appeal Tribunal to hear your appeal   Fees remitted if you are on benefits.

Secondly, if an Employer been found by a Tribunal to have breach someone's Employment Law rights in a manner which can be described as 'aggravated' then they will order 50% the value of the damages up to £5000.  You get a 1/2 price deal if you pay the Treasury within 21 days.  See Enterprise and Regulatory Reform Act 2013 - awaiting official publication.

Thirdly, HMG would prefer it if you did not trouble the Tribunal at all -  so there will be enforced Conciliation by ACAS before you can actually issue your claim.  Again this is in the new 2013 Act, which is awaiting publication.

Fourthly, the 2013 Act will empower some claims to be determined not by Judges but by Legal Officers - who are cheaper....oh and more often the EAT will be composed of just a Judge - making it cheaper....

Oh and - the Tribunal will be able to make deposit orders on specific allegations and issues to try and stem the 'tide' of crap cases going forward - to save money....

Have you spotted the theme to these reforms yet...........

Friday 26 April 2013

La Reyne le veult

Forasmuch as We cannot at this time be present in the Higher House of Our said Parliament being the accustomed place for giving Our Royal Assent...HMQ sent her Commissioners to prorogue Parliament and to signify her Royal Assent to various Bills, Her Chancellor of the Duchy of Lancaster intoning ....My Lords, in obedience to Her Majesty's Commands, and by virtue of the Commission which has been now read, We do declare and notify to you, the Lords Spiritual and Temporal and Commons in Parliament assembled, that Her Majesty has given Her Royal Assent to the several Acts in the Commission mentioned

Those Assents Royal brought to an end legislative deliberation on some Bills which have filled much space on this Blog:

Justice and Security Act 2013 - much discussed here and elsewhere and now law - not palatable but necessary....

Crime and Courts Act 2013 - the abolition of the county courts as we know them....more on this blog here. Family Courts also get a thorough reform by this Act....

Enterprise and Regulatory Reform Act 2013 - brings reform to employment law, health and safety law and might facilitate press regulation...

There is also a Defamation Act 2013, which is a little beyond my field and a Succession to the Crown Act 2013 which ensures that a first born Princess of Cambridge will not be trumped by a younger Royal brother.

HMQ will read out the new legislative programme from the throne on May 8th:

My Lords and Members of the House of Commons, by virtue of Her Majesty's Commission which has been now read, we do, in Her Majesty's name, and in obedience to Her Majesty's Commands, prorogue this Parliament to the 8th day of May, to be then here holden, and this Parliament is accordingly prorogued to Wednesday, the 8th day of May.

Monday 22 April 2013

& to replace all those new Court of Appeal judges, here's some new High Court Judges:

The Queen has been pleased to approve the appointment of Michael Joseph Keehan, Esquire, Q.C., to be a Justice of the High Court with effect from 13 May 2013 on the elevation of Mr. Justice Ryder to the Court of Appeal.

Head of St Ives Chambers - Family law expert

The Queen has been pleased to approve the appointment of Miss Vivien Judith Rose to be a Justice of the High Court with effect from 13 May 2013 on the elevation of Mr. Justice Floyd to the Court of Appeal.

Chair of the Competition Appeal Tribunal and former Government Lawyer - this is a rare appointment of a civil servant to the High Court bench:

Vivien Rose was called to the Bar in 1984 and was a member of Monckton Chambers, London, for ten years specialising in domestic and EU competition law. In 1995 she left private practice and joined the Government Legal Service working for several years in HM Treasury advising on financial services regulation, at the Ministry of Defence advising on international humanitarian law and in the Legal Services Office of the House of Commons.  She joined the Tribunal as a chairman in 2005 and has chaired panels dealing with cases covering the whole range of the Tribunal's work including against findings of competition law infringement, appeals against penalty, telecoms cases and follow-on damages claims.
She was co-editor (with Mr Justice Roth) of the sixth edition of Bellamy & Child European Union Law of Competition (2008) and is co-editor (with David Bailey) of the forthcoming seventh edition of that work (Spring 2013).  She is a judge of the First-Tier Tribunal in the Charity and Environment jurisdictions. In 2009 she was appointed to be a Recorder on the South-Eastern Circuit and in April 2012 was appointed a Deputy High Court Judge, Chancery Division.

The Queen has been pleased to approve the appointment of His Honour Judge Stephen Paul Stewart., Q.C., to be a Justice of the High Court with effect from 7 May 2013 on the elevation of Mrs. Justice Gloster to the Court of Appeal.

Circuit Judge from Liverpool - commercial and TCC experience, who has been sitting in the High Court for some time (including tomorrow).

The Queen has been pleased to approve the appointment of His Honour Judge Colin Ian Birss, Q.C., to be a Justice of the High Court with effect from 13 May 2013 on the elevation of Mr. Justice Briggs to the Court of Appeal. 

Basically already a High Court Judge - sits in the Patents County Court.