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....