I am so glad to not be French and to be allowed to wear my balaclava

The French have passed loi n°2010-1192 du 11 octobre 2010  which very simply 


says the following:


"Nul ne peut, dans l’espace public, porter une tenue destinée à dissimuler son visage".


Which basically means that you can't wear clothing in a public place which is designed to conceal your face.


There is an exception if you are wearing the clothing for health, professional, sporting or artistic reasons.  


If you are convicted then it is a fine (150 Euros) and possibly also enforced enrolment onto something called a citizenship course.


It comes into force in April 2011.


One might think that the land of liberty, fraternity and equality might have a constitutional bar on telling its citizens  what to wear in public but apparently not.  Because the legislature has determined that wearing such a covering is a threat to public safety and demeaning to women and because you can cover your face in private - at home or in a place of worship - then the Constitutional Court has said the law does not offend the Declaration of the Rights of Man.  This is a little surprising as article 4 of the great declaration says:


"Freedom is being able to do anything that does not harm others: thus, the exercise of natural rights each man has no limits except those which assure other members of the society the enjoyment of those rights. These limits can be determined by law "


 I bet the European Court of Human Rights will have a different view.

Vive La Republique!


I am very happy to live in our constitutional monarchy where I doubt a Government 
would dare pass a law telling us what to wear in public (save in times of war - gas masks - or banning dangerously made fibres etc or where a judge cannot judge the witness because his or her face is covered ) and I suspect the judiciary would be ready to declare such a law as incompatible with articles 8 and 10 ECHR if not a few more of our now treasured Convention of Human Rights.


Better not pack your Balaclava if you are going to Paris in the colder months - you might find yourself on a enforced course learning about French Citizenship, where no doubt they teach things like respect for another's religious views and cultural tolerance.


As the great man didn't say:

"Man is or was born free, and he is everywhere not with his face covered"

God save the Queen!

FREEZING TERRORIST ASSETS

I do not doubt for one moment that we should freeze the assets of terrorists.  On the other hand I cannot understand why this cannot be a judicial act.  Why can't HMG pop off to a Magistrates' Court and ask some JPs (or a High Court Judge if they are not to be trusted) to have a quick look at the evidence and to make the relevant order (ex parte and in camera of course).  This is the sort of thing that happens everyday for search warrants and a range of other authorised intrusions into a person's liberty.  Then the asset frozen alleged terrorist could apply back on the 'return date' to contest the matter if he or she so chose.  Instead under the current bill zooming through the House of Lords at the moment HMG freezes your assets and then the onus is on the alleged terrorist to appeal to the QBD to set the order aside.  I would feel  much better if HMG had to persuade the judiciary first before being able freeze assets even on a reasonable suspicion on reasonable grounds basis.  I think it does police men and civil servants (as well as spooky spooks) the power of good to have to explain themselves to a judge before freezing a person's assets, rather than the other way round.  Plus all sorts of criminal offences flow from assets being frozen (and which can be committed by people other than the alleged terrorist) like not making economic resources available to someone who has had their assets frozen - better if such criminal consequences were invoked by a judge rather than the executive.  The executive must have the powers to keep us safe, but such powers must be properly checked by the judiciary, who are equally capable of protecting national security.

MARK SAUNDERS VERDICT

I have read and heard several times in the media today that the inquest jury hearing the Mark Saunders case 'found' that his killing was lawful.  They fail to say that HM Coroner did not leave a verdict of unlawful killing to the jury and therefore in essence the Coroner found the killing lawful and directed the jury that they could not do otherwise.  Whilst legally possible, had the jury returned this verdict, against the Coroner's direction, their verdict would have been quashed (unless a High Court Judge disagreed with the Coroner's direction).  In any event if a man fires a weapon in a public place and then raises his weapon again and points it in the direction of armed police, the subsequent and obvious reaction of the armed police is very likely to be lawful (whether he be a fellow learned friend or not).  Having said that there are aspects of this case which worry me including this apparent and disturbing quote from the police operations room:  “He has let some off at Old Bill and that changes the rules.”  

I DID WARN THIS WOULD HAPPEN....

In this post I warned regulators to be ready to receive appellant justice from Mrs Justice Davies, the former Nicola Davies QC and former terror of healthcare regulators throughout the country.  Almost immediately she courted controversy in  quashing a decision of the Nursing and Midwifery Council to strike off a nurse instead of more properly remitting it back to the Council....the Court of Appeal have quashed Davies J on that point and remitted the case back to the Council....(EUNICE OGBONNA v NURSING & MIDWIFERY COUNCIL (2010) CA (Civ Div) (Pill LJ, Rimer LJ, Black LJ) 5/10/2010)        

The Court of Appeal will be kept busy by this former medical defence practitioner...I do think it odd that a QC who has famously spent most of her career defending medics against regulators should  immediately on appointment start hearing appeals from regulators by said medics on appointment to the High Court bench....surely there is other less controversial work she could be found to do in the QBD??

NEW LEGAL YEAR...NEW FACES

A NEW LEGAL YEAR OPENS AND THERE WILL BE NEW BOYS AND GIRLS IN THE JUDICIAL RANKS........

Court of Appeal:

• Black J becomes Black LJ to replace Wall P in the Fam D
• Gross J becomes Gross LJ to replace Dyson SCJ in the Sup Ct
• Tomlinson J becomes Tomlinson LJ to replace Waller LJ, who retired last term

High Court

• Robin Spencer QC (criminal silk from Chester) becomes Spencer J (QBD) on the promotion of Tomlinson J (see above)
• Michael Supperstone QC (public law silk from 11 KBW) becomes Supperstone J (QBD & Admin Court) on the promotion of Gross J (see above)
• Peter Jackson QC (child law silk from 4 PB) becomes Jackson J (Fam D) on the promotion of Black J   - (see above)
• Keith Lindblom QC (planning silk at FTB) becomes Lindblom J (QBD) on the retirement of David Clarke J

County Court

• Colin Birss QC (IP silk from 3 NS) becomes HHJ Birss QC of the Patents County Court and Chairman, Copyright Tribunal on the retirement of HHJ Fysh QC
• District Judge Mark Gosnell (District Judge from Manchester - former solicitor  - this is quite a promotion - from one side of the Pennines to the other and presumably over the heads of the the resident existing circuit judges?!?)  is advanced to Senior Circuit Judge and Designated Civil Judge in Leeds on the retirement of HHJ Grenfell
• Allan Gore QC (PI silk from 12 KBW) becomes Senior Circuit Judge and Designated Civil Judge in Liverpool replacing HHJ Stephen Stewart QC.

I also see that Gloster J is the new J in charge of the Commercial Court and that Collins J is no longer in charge of the Admin Court - this has fallen to Sir Anthony May who is also P of the QBD (I don't know when that interesting change was made).  As has been widely reported Tugendhat J is taking control from Eady J of the trial lists in the QBD.  

JUDICIAL RECUSAL

What many people don't realise is that the justice system relies on a large number of part time judiciary.  The county courts, employment tribunals and even the High Court plug the gaps in the their judicial resources by deploying lots of judges who are still practising lawyers and sit part time.  Miss Recorder Cherie Booth QC is one such famed example.  The problem often with these judges is that they have wide ranging professional connections to lots of people which mean that they are sometimes conflicted out of hearing many cases.  I recall attending the Employment Tribunal at Truro presided over by a local employment law solicitor who who had acted for so many people in the small world of that corner of Cornwall that he had to constantly recuse himself due to a perception of bias.  We are reminded of all this because the Court of Appeal yesterday (Re A (CHILDREN) (2010) CA (Civ Div) (Thorpe LJ, Smith LJ, Patten LJ) 23/9/2010) had to set aside some findings of fact made against a father in a Children Act case because the Recorder had an ongoing professional relationship representing the Guardian of the Child (in a different case) who had supported the mother's version of events.  Difficult to understand why the Recorder did not recuse hereself - especially as she did withdraw at a later stage in the case.  The Court of Appeal gives the following good advice to judges:

 (2) (Per curiam) A judge would be wise to err on the side of caution and reveal at the outset anything that might lead to recusal. (3) (Per curiam) On an application for recusal it was incumbent on ajudge to explain in sufficient detail the professional or other relationship that was challenged.

PROBLEMS WITH FIXED TERM PARLIAMENTS

The Fixed Term Parliaments Bill had its second reading yesterday.  I have commented on this very bad Bill before.

My very small son would not go to sleep so I made him watch the second reading on the BBC.  He was as riveted as I was and the transcript is here for those seeking entertainment.


The following issues were raised:

• Most speakers complained about the lack of any pre-legislative scrutiny (no green or white papers or indeed any consultation at all) and the guillotined consideration of a constitutional bill in both Houses.
• Many MPs and lawyers consider that because the Bill permits the Prime Minister to order that an election can take place 2 months earlier or later than the 5th anniversary of the last election, the Bill is one which provides for the power to extend the term of a Parliament and is therefore not subject to the Parliament Acts and can be vetoed by the House of Lords. Wouldn't that be an interesting outcome - if the Lords vetoed the Bill to save the Commons from this constitutional folly.
• The Speaker could be involved in political and legal wrangles as he must certify that the relevant vote has taken place in the House and that an election could be called.  Imagine if the Speaker got it wrong and faced a challenge?
• The Bill does not take the power to call an election from the Prime Minister and hand it to the House of Commons.  If the Prime Minister and Whips ordered their majority of MPs to abstain or be absent from a vote on a general election...it would be lost by the Prime Minister and the Prime Minister would have the general election he wished for....

The Dep Prime Minister was pleased to tell the House that HM Queen had placed her power to dissolve Parliment into the hands of her Commons assembled.  I am not sure that was the wisest thing for Her Majesty to do...still she has no choice:

The Deputy Prime Minister (Mr Nick Clegg): I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Bill, has consented to place her prerogative, so far as it is affected by the Bill, at the disposal of Parliament for the purposes of the Bill.