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The Supreme Court has been especially busy lately what with the appeal against the government's intention to trigger Art 50 Gina Miller v Secretary of State for exiting the EU 2016 (see also Article 50 Brexit Appeal - The Supreme Court) and the term-time holiday case as well as its normal case-load. These cases and other high profile disputes highlight the growing importance of the Court and its judicial independence. You may also be expected to comment on other legal systems which allows the executive, in the form of the president, being able to put forward appointees of judges to their Supreme Court. The US Supreme Court is such a legal system but there are other countries and these include Brazil and Russia. As always this activity will produce even more reading and note making for law students.
Bearing in mind we are at the beginning of a new year you should have sorted out your computing needs for your law course by now. Law courses are known for producing notes, research on the internet as well as writing essays. Being a student you may also want to store photos, make presentations, watch films as well as play the odd game. So if this means a new notebook to meet your requirements don't put things off any longer.
The following scored well for courses:
You may also need to think about accessories such as a wireless laptop mouse, memory stick and, if your serious about producing work at home, a reliable all-one-printer. Anti-virus software is also a must these days.
Law students are now required to take note of how the independence and work of the judiciary has been reformed by the Constitutional Reform Act 2005 and Crime and Courts Act 2013. The aim of the legislation was to answer criticisms to the effect that there was an overlap between the executive, the legislature and the executive in that the Lord Chancellor had too much influence in the selection of judges and was also able to sit as a judge in the Supreme Court. As a result of the Constitutional Reform Act 2005 and the Courts and Crimes Act 2013 the Lord Chancellor now has only a very limited role in the selection of judges and does not sit as a judge in the Supreme Court. The 2005 Act is said to have strengthened the independence of the judiciary.
The selection of Judges is now conducted by the Judicial Appointments Commission so is independent of government influence although the Lord Chancellor still exerts ‘some’ influence.
Prior to these reforms there was also an overlap between the the judges sitting in the then House of Lords (the Law Lords) and the legislature as they sat in the House of Lords in Parliament. Now newly appointed supreme court judges are not permitted to be members of the House of Lords as this would mean that they had a foot in the camp of the judiciary as well as being part of the legislature.
Section 3 of the Constitutional Reform Act 2005 specifically provides “The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.”
Section 3 subsection (6) also states “The Lord Chancellor must have regard to—
a) the need to defend that independence;
b) the need for the judiciary to have the support necessary to enable them to exercise their functions;
c) the need for the public interest in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters.”
Many legal writers have questioned whether Liz Truss, the current Lord Chancellor has done enough to demonstrate her support for the independence of the judiciary.
The three arms of state must be kept independent of each other under the theory of the separation of powers first put forward by Montesquieu. The theory is supposed to prevent too much power being exercised by any one arm of the state as each arm is subject to scrutiny by the other two arms of state. Judges are after all expected to carry out their role impartially and without fear or favour.
As well as the High court's decision in Miller as being held out as an example of why it is important that judges are able to arrive at decisions which are based upon the rule of law and may go against the government's wishes you may be expected to describe or discuss other examples of issues relating to judicial independence. Such examples might include for instance the USA , Brazil or Russia where a selection process operates involving the president and one of the houses of the legislature. America's constitution allows the executive in the form of the president being able to put forward appointees of judges to their Supreme Court which as one might expect is their highest court. We perceive that it is the responsibility of the judiciary to protect citizens against unlawful acts of government and consequently the need for the judiciary to be independent of government and this is mentioned on the government's website dealing with the judiciary but the system in America seems to politicise the role of their Supreme Court.
Nominations by their elected President are given constitutional status in America's written constitution and such nominations are not without pitfalls in that the Senate can reject such nominations. Needless to say such a system seems completely alien to us as we have gone to some lengths to progress from the days when judges were commonly removed by a monarch if they did not like the decisions being handed down. This led to some security and a measure of independence from sovereign interference as long ago as the Act of Settlement of 1701.
There are other systems of appointment employed by some countries and this includes a legislature-centred approach where each house of the parliament is able to appoint an equal number of judges which has a reciprocal effect on the judiciary. Germany uses this approach.
Some countries cannot resist the temptation to blame their judiciary when decisions go against them and Zimbabwe and Dr Robert Mugabe's regime is often cited as an example of what not to do in terms of judicial interference. There are countless articles and accounts of interference with such entitlements to demonstrate and protest peaceably as well as wholesale land seizures from white farmers which started in 2000. Needless to say this highlights that judicial independence is not just about appointment but actually extends to the work of judges and how they may be held to account and disciplined.
In accounts by the Zimbabwe Independent the Law Society of Zimbabwe is said to have condemned Mugabe’s attempts to intimidate judges, saying his utterances “bode ill for the independence of the judiciary”.
The Economist- Judicial independence Only in America http://www.economist.com/node/13185314
United States Institute of Peace Judicial Appointments and Judicial Independence 2009 http://www.usip.org/sites/default/files/Judicial-Appointments-EN.pdf
Supreme court judge hints at legal hitch that could seriously delay Brexit https://www.theguardian.com/politics/2016/nov/15/supreme-court-judges-views-on-article-50-legislation-anger-leave-campaigners
Following a number of high profile cases in which there were alleged to be long delays before persons waiting on police bail were told whether they would be charged or not, and a joint inspection report in May 20105, by Her Majesty's Crown Prosecution Service Inspectorate (HMCSPI) and Her Majesty's Inspectorate of Constabulary (HMIC), the report amongst other things also found that while decisions on pre-charge bail are being better managed by the police, some cases were taking too long.
The Queen's Speech in 2015 promised to improve the criminal justice system by implementing the Policing and Crime Bill, which would create a presumption that suspects will be released without bail unless it was necessary to detain them, and limit pre-charge bail to 28 days. The clear intention is that decisions on pre-charge bail should come under scrutiny.
At present, if a police investigation is continuing, the police can bail you without charge to return to the police station at a fixed time and date. Failure to do so could be a separate offence.
Once charged, the police must release you on bail unless the custody officer reasonably believes that:
There is doubt about your name or address; or
Detention is necessary to protect you or somebody else; or
You will fail to attend court or will interfere with witnesses or the administration of justice.
Like the courts, the police are now able to attach conditions to your bail, such as living at a fixed address, reporting to a local police station, obeying a curfew, avoiding named people or places, or providing a financial guarantee for your attendance at court.
If you fail to attend court without reasonable excuse when on bail, you commit a separate offence under the Bail Act 1976. If you break any of the conditions of your bail, you can be arrested and brought in custody to the next sitting of the local Magistrates' Court, who may then take away your bail.
Most recently the College of Policing have raised concerns over the impact that the proposed restrictions on police bail will have on police operations and the sharing of information between forces and issues to do with waiting for the Crown Prosecution Service and forensics have also featured in the consultation process but at the end of the day the government seems intent upon introducing limitations.
The Policing and Crime Bill is due to start it's Committee Stage in the House of Lords on the 26 October 2016.
The Judicial Committee of the Privy Council is the highest court of appeal for many Commonwealth countries, as well as the United Kingdom’s overseas territories, Crown dependencies, and military sovereign base areas.
The18th February 2016 will be remembered as the day the Judicial Committee of the Privy Council handed down their judgment in Ruddock (Appellant) v The Queen (Respondent) (Jamaica) and the Supreme Court of the UK handed down their judgment in R v Jogee (Appellant). At the time you probably did not dwell on the fact that one of the cases concerned an appeal from Jamaica as you will have been more interested in what was being said about joint enterprise liability.
As we now know the Judicial Committee focused their attention on an earlier Privy Council appeal decision in Chan Wing Siu v R (1985). It had been held that for an accomplice to be guilty of murder it was sufficient for the prosecution to establish that he foresaw death or grievous bodily harm as a possible incident of the common design being carried out. The subsequent cases of R v Powell and another; R v English (1999) also came under scrutiny as they had also followed the decision in Chan Wing Siu. In so doing the Supreme Court called into question the decision in the case of Chan Wing Siu which is said to have taken a 'wrong turn' in blurring the distinction between foresight and intention, with the result that the courts, in following Chan Wing Siu, have not been faithfully applying the law as it stood at the time.
As far reaching as the decisions were, many law students may not go much further than mentioning the point that decisions of the JCPC are not binding on English courts but may have a persuasive effect on English courts. However, there are much wider issues involved and we need to go back to its origins if we are properly to understand the significance of the role of the JCPC.
The JCPC presently hears appeals from Jamaica's Court of Appeal and acts as a final court of appeal for Jamaica and a number of Commonwealth countries, Crown dependencies and United Kingdom overseas territories. If this were not the case we are unlikely to have heard of the local appeal to the Court of Appeal in Jamaica.
In May 2015 Jamaica, through its Minister of Justice Senator Mark Golding, tabled the three Bills seeking to replace the traditional Judicial Committee of the Privy Council (JCPC) in the United Kingdom, with the Caribbean Court of Justice (CCJ) established some 10 years ago. Having been passed in their House of Representatives just a few days earlier these constitutional changes now require a two-thirds majority in the Senate. Doubts have been raised about the necessary majority as the Government does not have a two-thirds majority and this has delayed the progress of the Bills.
Arguments for abolishment include sovereignty issues (sounds familiar), cost, bearing in mind hearings are ordinarily held in London and not usually in the Caribbean and lack of understanding of Caribbean culture. The most obvious cultural difference is that some Caribbean countries still have the death penalty and in recent times the JCPC has adopted an anti-death penalty position. This is understandable from our perspective but whilst this effectively puts an end to the death penalty in Caribbean countries it has not been brought about by statutory intervention by the countries themselves.
Whilst researching for this article I found an example of a death penalty appeal, Hernandez (Appellant) v The State ( Respondent) (Trinidad & Tobago), listed on the JCPC's own site. The facts of the appeal are that the Appellant was convicted on 29 November 2004 of the murders of Christine and Phillip Henry and sentenced to death. Although he originally confessed to the crime, at trial the Appellant recanted his confession. The Appellant has an IQ of 57. The issue being whether the death sentence imposed upon the Appellant was unlawful ab initio as a result of his intellectual disability and consequently that his sentence should be reduced.
Many may feel that as the death penalty has effectively ended in the Caribbean there is no longer a problem but the organisation Greater Caribbean for Life (GCL) reminds us that the last person hanged in the Caribbean was Charles La Place, of St Kitts and Nevis, who went to the gallows in 2008. However this does not alter the fact that Trinidad & Tobago is among 13 Caribbean countries that still retain the death penalty under their constitutions. GCL estimate that in 2015 between 59 and 80 prisoners were held on death row in eight Caribbean countries. Guyana had between 20 and 41 death row prisoners, with 11 in Barbados and Antigua and Barbuda and T&T each held seven.
Thirteen Commonwealth countries use the JCPC as their highest court of appeal and they include Antigua and Barbuda, the Bahamas, Grenada, Jamaica and Trinidad and Tobago.
Legislation enacted in New Zealand in October 2003 abolished appeals from New Zealand to the Privy Council in respect of all cases heard by the Court of Appeal of New Zealand after the end of 2003. This New Zealand legislation does not affect rights of appeal from the Cook Islands and Niue. Many other Commonwealth countries and former Commonwealth countries have abolished appeals to the JCPC and these include Canada, Hong Kong, India, Australia, Singapore and South Africa.
Crown dependencies are self-governing territories which are not part of the United Kingdom and they have their own legal systems and courts of law. Three Crown dependencies use the JCPC as their highest court of appeal and they are Jersey, Guernsey and the Isle of Man.
In what was described as a landmark case at the time, and one that has featured in examination questions, the JCPC in Attorney General for Jersey v Holley (2005) raised issues regarding precedent. Ordinarily the Court of Appeal is bound to follow the decisions of the House of Lords/Supreme Court but the Court of Appeal preferred to take note of and follow Holley in R v James & Karimi (2006) rather than follow the House of Lords in R v Smith (Morgan) (2000) on the question of what could properly be considered as a factor when determining what amounted to provocation. (Note that the law of provocation was repealed by the Coroners and Justice Act 2009 and replaced with the defence of loss of control).
The JCPC also hear appeals from Independent republics within the Commonwealth, these include the Republic of Trinidad and Tobago, Kiribati and Mauritius. The Judicial Committee also hears appeals from fourteen overseas territories of the United Kingdom including Anguilla, Bermuda, British Virgin Islands, Falkland Islands and Turks and Caicos Islands.
Appeals are also heard from two sovereign base areas in Cyprus - Akrotiri and Dhekelia.
It may be early days to compare the new Justice Secretary's methods and policies with those of his predecessor but, in view of the controversy and concern that surrounded the reforms to the role of Lord Chancellor and some of the actions of the previous Lord Chancellor, it may be worth students discussing some of the policies that have emerged from the present Lord Chancellor.
The Rt Hon Michael Gove MP was appointed Lord Chancellor and Secretary of State for Justice on 10 May 2015. Gove declares himself a “liberal on criminal justice”. He replaced Chris Grayling MP as Justice Secretary following the General Elections in May 2015.
We start by looking at some of Gove's early decisions. Law students may have their own views about the decisions already made and about the way forward.
The Justice Secretary Michael Gove has scrapped a flagship policy of his predecessor Chris Grayling by abandoning plans to build a giant fortified school alongside the existing Young Offenders Institute in Tigers Road, Glen Parva. The school was to be a pilot project aimed at providing better education for 320 young offenders aged 12 to 17. It was hoped the approach would have cut re-offending rates.
The Ministry of Justice website still refers to plans to introduce a pathfinder Secure College, at Glen Parva in the East Midlands in 2017. The Proposal was the coalition's response to the re-offending rates amongst young offenders. The plans met with sustained opposition from various charitable organisations. They argued that such a scheme, which would put a large proportion of young offenders in one place, was misguided. The secure college plan was estimated to cost £100m.,The fall in the population figures of young persons in custody of some 26% between January 2013 and April 2015 seems to have made the decision to scrap the scheme all the more easier.
The Ministry of Justice has apparently not given up on rehabilitation though and is reported to be considering granting more powers to prison governors so that they can focus on education in prisons as a means of bringing about a reduction in re-offending. The plan also includes giving prisons a greater degree of independence.
It did not take the Justice Minister long to lift the book ban imposed by his predecessor, Chris Grayling, as a result prison inmates will be able to keep 12 books in their cells without permission following Michael Gove further easing the restrictions. The ban on friends and family sending books to prisoners, imposed by Gove’s predecessor Chris Grayling, was itself lifted earlier this year following a High Court ruling that restricting their access to books was unlawful and indicating that books were essential to a prisoner’s rehabilitation. Much has already been written about the book ban but is a pattern emerging here?
Continuing with the Justice Secretary's apparent willingness to to be more flexible Michael Gove responded to an application for judicial review made on behalf of victims of asbestos- related disease. In the summer of 2015 Michael Gove agreed to waive new civil court fees in claims cases involving asbestos-related disease. The previous Lord Chancellor, Chris Grayling, had a rather more antagonistic and limited view of the judicial review process.
The new fees arose because the Ministry of Justice imposed a 5% levy on all claims over £10,000. The effect of the levy scheme was that claimants can be charged up to £10,000 in up-front fees in claims valued up to £200,000 and claims for asbestos-related disease are regarded at the higher end of the scale. Justice Secretary Michael Gove has also agreed to exclude from the definition of ‘disposable capital’ compensation awards made to mesothelioma sufferers under the Pneumoconiosis Workers Compensation Act, the 2008 Scheme and the Diffuse Mesothelioma Payment Scheme. At one time the government took the view that claimants could use the awards to pay the court fees, a view which completely ignored the reality that victims were entitled to compensation and took no account of the predicaments that the victims found themselves in.
Finally the Justice Secretary offers to suspend the latest cut in Legal Aid fees during talks with criminal law solicitors' representatives. The current cuts amounted to some 8.75% and have been met with considerable opposition within the legal profession.
The Ministry of Justice said at the time “The Lord Chancellor recently met the leadership of the criminal solicitors’ profession. He explained that he is minded to suspend the latest 8.75% fee cut – introduced in July – for three months from 11 January 2016 in order to support firms as the new contracts are introduced. However, this suspension is contingent upon the profession continuing to engage constructively during the transition to the new contracting system.”
Time will tell but this pattern of constructivism seems markedly different from the methods of the previous Lord Chancellor.
How much of Michael Gove's vision for prisons and the criminal justice system will be effective in righting self-inflicted wrongs remains to be seen. In the meantime, you and your fellow law student colleagues may wish to discuss some of these proposals and the future of the justice system.
On the 20 May 2015 at the Police Federation Annual Conference Theresa May, Home Secretary, announced the government's intention to make greater use of police-led prosecutions in a drive for efficiency on the basis that this would mean that the police do not have to wait for the Crown Prosecution Service.
The police already have discretion to prosecute some high volume offences which cause serious harm to communities, quickly and efficiently through the criminal justice system. What is proposed is an extension of the use of police-led prosecutions. This means the Crown Prosecution Service is responsible for prosecuting crimes, while the police have the power to prosecute some uncontested, low-level traffic offences (like speeding, driving without insurance, or failing to produce a driving licence).
At present the police can only prosecute in specified cases where the defendant pleads guilty. Cases will continue to be handled by the Crown Prosecution Service if the defendant pleads not guilty.
This procedure was made possible by the The Prosecution of Offences Act 1985 and by a number of Statutory Instruments introduced by the Attorney General.
In 2012 a further 16 offences were added including careless and inconsiderate driving and failing to stop a motor vehicle when required to do so by the police and criminal damage where the value of the property involved is no more than £5,000 (not including arson).
In June 2014 an amendment came into force to extend police-led prosecutions to cover shop theft of goods worth £200 or less.
As a result, whilst the original list of offences were crimes which mainly related to driving or traffic offences and the failure to produce appropriate documentation, the list of offences has now been widened to extend to other forms of criminal behaviour including activity which would be seen as anti-social behaviour.
It seems as though the government intend to further extend the use of police-led prosecutions on the basis of efficiency. We know that on the 20 May 2015 the Home Secretary, Theresa May, at the Police Federation Annual Conference announced “We will extend the use of police-led prosecutions to cut the time you spend waiting for the Crown Prosecution Service”.
Students may wish to keep an eye on any forthcoming proposals laid before Parliament and see the extent of any additional offences for which the police can lead prosecutions.
High Down prison in Banstead may not be on the high seas but apparently it can be the scene of a mutiny. We understand now that, on land, mutiny relates to disorder in prisons and other correctional facilities.
A recent protest by eleven prisoners, all imprisoned at High Down Prison in Banstead, involved them barricading themselves in a cell and passing notes under the door of the cell. One such note declared “the reason for these capers is we are not getting enough food, exercise, showers or gym and we want to see the governor lively." another such note stated "If we get mackerel and dumplings we will come out." The protest, which took place over the course of two days, lasted seven and a half hours and led to the eleven men being accused of mutiny.
The reference to mackerel in their note led to the protest becoming known as the mackerel mutiny.
Their aim was to bring it to the attention of the public that they considered themselves to be hungry and in need of exercise and showers. They did not ask for more books, that may have been a step too far!
The case was heard at Blackfriars Crown Court and lasted three weeks. The defendants claimed they were protesting about Ministry of Justice cuts and denied trying to overthrow lawful authority . At the end of the trial the jury of twelve ordinary citizens found all eleven defendants not guilty.
Andrew Jefferies QC, one of the barristers representing the men, said "By its verdicts, the jury must have accepted that the defendants may have been legitimately protesting rather than intending to overthrow the prison authority."
Since cuts to the prison service had been implemented in September 2013 there had been a rise in complaints from within the prison.
Andrew Neilson, director of campaigns at the Howard League for Penal Reform, said: “This trial has highlighted the serious problems that can arise when overcrowded prisons are forced to implement major changes while struggling to overcome budget cuts.
“As the governor of High Down said during the hearing, the government has ‘got it wrong’. Prisons are in meltdown.
“It is unfortunate that so much money has been spent on this ultimately failed case when there are prisons across England and Wales crying out for more staff and resources.”
On hearing the verdict Crispin Blunt, MP for Banstead and a former Tory prisons minister, attacked Chris Grayling’s prison policy warning that the verdicts could spark unrest in other jails. He was not surprised at the acquittal bearing in mind the evidence from the prison's governor stating that the government had got it wrong and that the prisons were in meltdown.
Blunt, whose constituency the prison is in, went on to say;
"The failure to secure a conviction will shake prisons, which are now very tautly staffed, at greater risk of disorder, with some prisoners possibly misled into thinking they have some right of protest.
"They don’t and their interests will be best served by helping their prison regime help them make the best of their time in prison."
Chris Grayling's constituency of Epsom and Ewell is just down the road from Banstead. Grayling is the Lord Chancellor, Secretary of State for Justice and his role includes having responsibility for different parts of the justice system – the courts, prisons, probation services and attendance centres and he is leading the 'reform' of the criminal justice system.
There are instances from time to time of juries returning verdicts which appear to fly in the face of the law or the facts. This is not necessarily such a case exactly but it certainly signifies that the jury did not think the prisoners actions justified them being charged with mutiny and that there may have been some justification for the protest. Such 'perverse' decisions still have an air of fairness about them in that the jury seem to have a sense of what is right or fair in such situations. However, as the jury do not have to give the reasons for their verdict, we do not know for certain. What we do know is that such cases do signify the independence of the jury.
Mr Bogdanic, a lorry driver, had his vehicle searched in the immigration control zone at Dunkirk. Three stowaways (clandestine entrants) were found hiding in his vehicle. Mr Bogdanic and the owner of the transport company had fines imposed on them under Part II of the Immigration and Asylum Act 1999, as amended by the 2002 Act. The objective of the Act was to discourage lorry drivers from bringing clandestine entrant stowaways into the UK from abroad. Since the 1999 Act was brought into force in 2000 a number of UK border controls have been established outside of the United Kingdom territory in France including the immigration control zone at Dunkirk.
Bogdanic v The Secretary of State for The Home Department (2014) (QB) (British and Irish Legal Information) concerns the operation of the carriers' liability regime in relation to the immigration control zones in France. The penalties were imposed on the basis that Part II of the 1999 Act had been effectively amended by the 2002 Act both in relation to the application of Part II in the territory of the United Kingdom and in relation to its application in the immigration control zones in France. In other words the fines could still be imposed although the immigration control zones were not in the UK.
Mr Bogdanic appealed and on appeal a point of law was identified and the case was transferred to the High Court so that the point of law could be determined.
The point of law in question related to the effect of the Commencement Order which brought the 2002 Act amendments to Part II of the 1999 Act into effect and which was agreed to be poorly drafted. The issue was whether the amendments related to immigration control zones in France as well as the territory of the UK. If the amendments did not apply to the control zones the fines could not be imposed.
The appeal raised the issue of whether the interpretative approach set out in Inco Europe Ltd v First Choice (2000) 1 WLR 586, HL, should be applied to the present case. Under the interpretative approach used in the Inco Europe case, a court may, in very limited instances, be able to adopt an interpretation of a legislative provision which had the practical effect of rectifying a defect in its drafting. The Secretary of State maintained that, pursuant to the guidance in Inco Europe the amendments to the 1999 Act related to immigration control zones in France as well as the UK.
Sales J in the High Court decided that the interpretative approach set out in Inco Europe should be applied to the Commencement Order, adding 'I think that implying words into the text of the Commencement Order in this way is somewhat clearer than substituting text for what already appears in that Order.'
The thinking behind this conclusion was that the true intention of the legislation was that it should apply equally in relation to immigration controls both on United Kingdom territory and in immigration control zones in France, and there was not a suggestion of any intention to draw a new distinction between them.
The present case was found to be an exceptional one in which it was appropriate to imply wording into the original legislative provision.
Browse the lawmentor.co.uk blog archives.
The latest posts from the lawmentor.co.uk blog archives.