Welcome to the lawmentor.co.uk Blog!

Here you can read the latest views from the team at lawmentor.co.uk

Caparo three part test – revisited

In Robinson the Supreme Court laid to rest the proposition that there is a Caparo test which applies to all claims in the modern law of negligence.

This modern approach, which helps to establish whether a duty of care is owed, was revisited in Robinson (Appellant) v Chief Constable of West Yorkshire Police (Respondent)(2018) when it reached the Supreme Court on appeal from the Court of Appeal Civil Division.

In Robinson the Supreme Court laid to rest the proposition that there is a Caparo test which applies to all claims in the modern law of negligence.

Lord Reed gave the leading judgment when he opened his remarks about the use of the Caparo test by saying 'The proposition that there is a Caparo test which applies to all claims in the modern law of negligence, and that in consequence the court will only impose a duty of care where it considers it fair, just and reasonable to do so on the particular facts, is mistaken'.

Lord Reed went on to point out that, 'In the ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it is necessary to consider whether the precedents should be departed from). In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions'.

In effect, Caparo only comes into its own, when considering new or extended applications of the law of negligence.

Lord Reed was equally clear that the Supreme Court did not need to consider an extension of the law of negligence in Robinson but that the answer would be found by applying established principles which govern liability to the circumstances of the case. As a result the Supreme Court allowed the appellant's appeal and found the police responsible for the injuries sustained by Mrs Robinson, aged 76 at the time, when they failed to take into account her presence nearby when they attempted to arrest an alleged drug dealer in public. Mrs Robinson was injured when she was knocked to the ground by the police officers and other men in the course of the arrest.

The question of whether a duty of care is owed is sometimes answered by what has now become known as the Caparo three part test. This modern approach comes from the case of Caparo Industries pIc v Dickman & Ors (1990). The case relates to a company, Fidelity, which was not doing well and was the target of a takeover by Caparo Industries plc. Fidelity's shares were halved in March 1984 after issuing a profit warning. A preliminary announcement in May of the same year confirmed that their position was bad and again their share price fell. Those of you who follow such things will know that profit warnings can have a tremendous affect on markets including share prices.

At this time Caparo Industries started buying shares in large numbers. The following month the accounts, prepared with the help of Dickman, were issued to the shareholders including Caparo. Caparo reached a shareolding of 29.9% of Fidelity and at this time made an offer for the remainder of the shares. Having taken over control, Caparo then realised that the accounts for Fidelity were in a worse state than the directors or auditors had revealed.

Caparo sued Dickman for negligence in preparing the accounts in an attempt to recover their losses. The case laid down something called the 'incremental approach' or what is known as the Caparo three part test. To establish whether a duty of care has been established three questions are raised:

Was the damage or loss forseeable?

Is the relationship between the wrongdoer and the victim sufficiently close?

Is it just and reasonable to impose a duty of care?

If the answer to these three questions is yes, then it can be said that a duty of care exists.

 

 

Statutory interpretation - Penal legislation is construed strictly

The Supreme Court reminded everyone per Lord Reed and Lord Hughes that 'Penal legislation is construed strictly, particularly where the penalty involves deprivation of liberty'.

R (on the application of Gibson) (Appellant) v Secretary of State for justice (Respondent) (2018)  R (on the application of Gibson) (Appellant) v Secretary of State for Justice (Respondent)

 

The Supreme Court reminded everyone per Lord Reed and Lord Hughes that 'Penal legislation is construed strictly, particularly where the penalty involves deprivation of liberty'. Lord Reed and Lord Hughes said that they had 'concluded that this straining of the wording of section 79(2) cannot be justified in circumstances where it would adversely impact on the period of imprisonment to which a person would be subject.'

 

The issue in the appeal was whether interest is included in the starting point under s.79(2) Magistrates’ Courts Act 1980 for the giving of proportionate credit for part payment of a confiscation order.

 

The Court of Appeal felt that it was possible to add two additional words 'Where, before or after a period of imprisonment … has been imposed …' to the wording of section 79 (2). The Supreme Court disagreed that this should be done and allowed the appeal. If interest were to be added to the amount considered this would significantly affect any credit to be given for part payment as the interest was considerable.

 

The Supreme Court took the view that had Parliament intended a different basis for calculation when ascertaining a reduction in days of imprisonment then Parliament had the opportunity to do so but it did not. Lord Reed and Lord Hughes pointing out that 'The words of section 79(2) do not provide clearly for a period of imprisonment calculated on the basis for which the Secretary of State contends; on the contrary, they suggest the natural construction that the starting point for the arithmetical calculation of reduction in days of imprisonment is the sum outstanding at the time of the Crown Court order'.

 

 

 

 

 

 

 

Court of Appeal gives judgment acknowledging unmarried woman's rights

The claim related to bereavement payments under the Fatal Accidents Act 1976 as amended.

In M/s J Smith v Lancashire Teaching Hospitals NHS Foundation Trust and others (2017) an appeal which came before the Court of Appeal earlier this month, the Court of Appeal has taken the opportunity to demonstrate its willingness to allow an appeal as it was found to be incompatible with Article 14 (Prohibiting discrimination) of the European Convention on Human Rights (the Convention) when read in conjunction with Article 8 of the Convention. Sir Terence Etherton MR gave the judgment of the court which was unanimous. The claim related to bereavement payments under the Fatal Accidents Act 1976 as amended.

 

The Fatal Accidents Act 1976 (FAA) as amended by the Administration of Justice Act 1982 (AJA), and the Civil Partnership Act 2004 provided for a right of action for a wrongful act causing death in favour of a dependant (dependency damages) which included any person living with the deceased as husband or wife for at least two years before the date of death.

 

Section 1A of the FAA as amended (by the AJA) further provided for the payment of bereavement damages (currently £12980) but excludes persons living together or cohabitees.

 

The appellant claimed that her rights under the European Convention for Human Rights were being infringed and appealed against the original trial judge's decision to refuse the claim.

 

The Court of Appeal, if it found that there was incompatibility, is entitled to make a declaration accordingly under the Human Rights Act 1998 (HRA), which contains the following relevant provisions:

    "3.— Interpretation of legislation.

    (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
    (2) This section—
    (a) applies to primary legislation and subordinate legislation whenever enacted;
    (b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and ….”

If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility under Section 4.

 

Article 8 and Article 14 are as follows:

    "Article 8 Right to respect for private and family life
    1. Everyone has the right to respect for his private and family life, his home and his correspondence.
    2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
    "Article 14 Prohibition of discrimination
    The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

The Convention was entered into by the UK in 1950 after the second world war and became effective in 1953. It was made part of UK law as part of the HRA 1998.

 

The Court of Appeal allowed the appeal and in so doing made a declaration of incompatibility with Article 14 in conjunction with Article 8 in respect of section 1A of the FAA in that it excludes persons living with the deceased in the same household for at least two years as husband and wife. The Master of the Rolls was not convinced that the exclusion in the case of bereavement payments was justified whereas cohabitees of 2 or more years were included for the purposes of the dependency payments. In addition, there was found to be a sufficient link between the scheme for bereavement damages under section 1A of the FAA and Article 8 and such link was not too tenuous for that scheme to be within the ambit of Article 8 for the purposes of Article 14.

 

The Master of the Rolls considered the nature and quality of the relationship of cohabitees and was able to distinguish the present case from that of Burden v UK (2008) when he said:

I agree with the (trial) Judge that, in the context of bereavement damages under section 1A of the FAA, the situation of someone like Ms Smith, who was in a stable and long term relationship in every respect equal to a marriage in terms of love, loyalty and commitment, is sufficiently analogous to that of a surviving spouse or civil partner to require discrimination to be justified in order to avoid infringement of Article 14 in conjunction with Article 8.

In the context of this particular scheme, it is not the special legal status and legal consequences of marriage and civil partnership that are material, in the sense of providing a rational distinction with other people and relationships: cf, for example, Burden, in which the ECrtHR rejected the complaint of two unmarried sisters, who had lived together all their lives, that the liability to inheritance tax payable on the death of one of them, which would not be faced by the survivor of a marriage or civil partnership, would violate their rights under Article 14 read with A1P1. Rather, it is the intimacy of a stable and long term personal relationship, whose fracture due to death caused by another's tortious conduct will give rise to grief which ought to be recognised by an award of bereavement damages, and which is equally and analogously present in relationships involving married couples and civil partners and unmarried and unpartnered cohabitees.”

 The case of Smith is a further example of what may happen in the event of incompatibility with our HRA. It is also yet another example of the work of the Law commission is not always acted upon by the Government. The Law Commission has previously recommended that cohabitees should be included in the context of bereavement damages and although the government did introduce a draft Bill in 2009 it was not pursued and did not become law.

 

European Union law – in the case of conflict between national law and European law

Walker (Appellant) v Innospec Limited and others (Respondents) [2017] UKSC 47 On appeal from [2015] EWCA Civ 1000

When discussing European directives and regulations we invariably end up talking about implementation and the extent to which individuals can rely upon them in terms of their rights. This in turn brings us to issues surrounding their effect and applicability to individuals in the event of non implementation. There is also the point that Regulations have both vertical and horizontal direct effect but directives do not have horizontal direct effect. However Walker (Appellant) v Innospec Limited and others (Respondents)2017 serves to highlight that, just because the UK government has implemented an EU Directive, it does not necessarily mean that there is no conflict between the subsequent UK legislation and the overall purpose of the Directive. As we know, Parliament passed the European Communities Act in 1972. Since then, if there is a conflict between national law and European law, the UK courts must give priority to European law.

 

In addition to the issue of conflict, the case of Walker (Appellant) v Innospec Limited and others (Respondents) (2017) is a reminder that legislation does not have effect retrospectively and this applies to EU legislation as much as to UK law.

 

The appeal before the Supreme Court was brought by a John Walker who worked for the respondent, Innospec Ltd, from 1980 until his retirement in 2003. Throughout his employment he made regular contributions to the firm’s occupational pension scheme.

Mr Walker is gay and had lived with his male partner since 1993.

 

They entered into a civil partnership in 2006 and are now married. In 2006 Mr Walker asked Innospec to confirm that, in the event of his death, they would pay the spouse’s pension, which the scheme provides for, to his civil partner. Innospec refused. The reason given being that because his service pre dated 5 December 2005, the date that civil partnerships were introduced in the UK, and any discriminatory treatment is therefore permitted under paragraph 18 of Schedule 9 to the Equality Act 2010.

 

Paragraph 18 provides that it is lawful to discriminate against an employee who is in a civil partnership or same-sex marriage by preventing or restricting them from having access to a benefit, facility or service the right to which accrued before 5 December 2005 or which is payable in respect of periods of service before that date. The refusal concerned a significant “spouses pension” and as things were, John's husband would not benefit.

 

Mr Walker’s claim for discrimination was upheld by the Employment Tribunal. Innospec appealed to the Employment Appeals Tribunal and this was allowed. Mr Walker appealed to the Court of Appeal and this was dismissed. Mr Walker now appealed to the Supreme Court.

 

The Supreme Court unanimously allowed Mr walker's appeal and made a declaration to the effect that Paragraph 18 of Schedule 9 of the Equality Act 2010 was incompatible with EU law and that it should be disapplied. The Court further declared that Mr Walker's husband be entitled to a “spouses pension on Mr Walker's death provided that they remain married."

 

The Court felt that the issue in the case was not about whether UK law was in conflict with EU law over discrimination in the work place in relation to sexual orientation because in giving the leading judgment, Lord Kerr made it clear that Parliament had recognised same-sex partnerships, first through the introduction of civil partnerships and subsequently through the recognition of same-sex marriages. The UK had therefore complied with the requirements of the EU Directive 2000/78/EC (the Framework Directive) which required member states to prohibit discrimination in employment on several grounds including sexual orientation.

 

The essential issue in the court's mind was whether Paragraph 18 of Schedule 9 of the Equality Act 2010 was incompatible with EU law for other reasons and in particular the principle that legislation operates “prospectively” and not “retrospectively”.

 

It is necessary to make a distinction between the retroactive application of legislation to past situations (which is prohibited unless expressly provided for) and its immediate application to continuing situations (which is generally permitted). The majority of judges felt that the Court of Appeal had erred in their attempts to identify whether the entitlement to a “spouses pension” had become a permanent entitlement at the date of retirement.

 

Lord Kerr was of the view that two recent decisions of the Grand Chamber of the CJEU about the equal treatment rights of same-sex partners to survivor’s pensions put success for Mr Walker’s claim beyond doubt (Case C-267/06 Maruko v Versorgungsanstalt der Deutschen Bühnen and Case C-147/08 Römer v Freie und Hansestadt Hamburg).

 

From these cases it is clear that, unless evidence establishes that there would be unacceptable economic or social consequences of giving effect to Mr Walker’s entitlement to a survivor’s pension for his husband at the time that this pension would fall due, there is no reason that he should be subjected to unequal treatment as to the payment of that pension. Lord Kerr was convinced that the Court of Appeal had made a mistake in being influenced by the Barber case (and “the Barber line”) principle (Barber v Guardian Royal Exchange Assurance Group (Case C-262/88) [1990] ECR I-1889;[1991] 1 QB 344) which tried to take account of financial and economic factors in judgments which might result in unfairness on others. As a result, the Court of Appeal were distracted away from the issue in Mr Walker's case which was one of discrimination not of equal pay as was the case in Barber. In addition, the Barber case was an instance of imposing restrictions on a judgment for essentially practical reasons and not an example of a general principle of non-retroactivity for EU legislation.

 

Lord Kerr began to home in on two recent decisions of the Grand Chamber of the CJEU concerning the equal treatment rights of same-sex partners to survivor’s pensions which in his words “put success for Mr Walker’s claim beyond doubt” (Case C-267/06 Maruko v Versorgungsanstalt der Deutschen Bühnen and Case C-147/08 Römer v Freie und Hansestadt Hamburg).

 

From these cases, Lord Kerr was able to reason that “it is clear that, unless evidence establishes that there would be unacceptable economic or social consequences of giving effect to Mr Walker’s entitlement to a survivor’s pension for his husband, at the time that this pension would fall due, there is no reason that he should be subjected to unequal treatment as to the payment of that pension”.

 

Lord Kerr concluded that I would therefore hold that Mr Walker’s husband, provided he does not predecease him, and that they remain married at the time of Mr Walker’s death, is entitled under the Framework Directive to a spouse’s pension calculated on the basis of all the years of Mr Walker’s service with Innospec. On that account, paragraph 18 of Schedule 9 is incompatible with the Framework Directive. In particular, paragraph 18(1)(b) which authorises a restriction of payment of benefits based on periods of service before 5 December 2005 cannot be reconciled with what I consider to be the plain effect of the Directive.”

 

Lord Carnwath and Lord Hughes, whilst agreeing with the majority that Mr Walker's appeal be allowed, preferred to leave the broader question of whether or not the Barber line of case law is of any relevance to the application of the Framework Directive to be determined by the CJEU in O’Brien v Ministry of Justice [2017] UKSC 46, in which the Court has decided to refer to the CJEU a question relating to the pension entitlement of part-time workers.

 

 

 

Vicarious liability is alive and well

This decision extends the doctrine of vicarious liability in respect of foster carers for the fist time and it represents another example of the potential for the expansion of this form of liability.

The Supreme Court demonstrated the value of consistency through following and applying earlier reasoning of previous cases when, in Armes (Appellant) v Nottinghamshire County Council (Respondent) 2017, it applied the principles set out in Cox v Ministry of Justice (2016).

 

In Armes the appellant was in the care of the respondent local authority for a number of years through to her late teens. Nottinghamshire County Council placed her into foster care with a Mr and Mrs A between 1985 and 1986, and with Mr and Mrs B between 1987 and 1988. Mrs A had physically and emotionally abused the appellant. The appellant had been sexually abused by Mr B. It was accepted that the local authority were not negligent in the selection or supervision of the foster parents, but that they were nevertheless liable for the abuse perpetrated by her foster carers. She claimed that the local authority were liable for the abuse, either on the basis that they were in breach of a non-delegable duty, or on the basis that they were vicariously liable for the wrongdoing of the foster parents. Her claim was dismissed by the High Court and the Court of Appeal.

 

By a majority of 4-1 the Supreme Court allowed the appeal, finding the local authority vicariously liable for the abuse committed by the foster parents. The Court did not accept the argument that the local authority were liable on the basis of a non-delegable duty preferring to deal with the matter on the basis of the principles of vicarious liability. Lord Reed gave the lead judgment, with which Lady Hale (Deputy President at the time) and, Lord Kerr and Lord Clarke agreed. Lord Hughes dissenting. Lady Hale and Lord Reed both sat in the cases of Cox and in the case of Armes.

 

This is not the first time that alleged sexual and physical abuse of children has been the subject of proceedings before the Supreme Court. In the 2012 case of The Catholic Child Welfare Society and others (Appellants) v Various Claimants (FC) and The Institute of the Brothers of the Christian Schools and others (Respondents), the Supreme Court gave guidance on the sort of relationship which may give rise to vicarious liability. A relationship outside of an employee and employer situation it seems is capable of giving rise to vicarious liability, and the Court took the opportunity in the Christian Brothers case to give further guidance on the nature of that relationship if it was indeed to be brought within the gambit of vicarious liability in tort proceedings.

 

The general approach described in Christian Brothers was not intended to be confined to child abuse cases and sets out the factors or circumstances in which vicarious liability may in principle be imposed outside employment relationships. In effect, the judgment and the guidance afforded extends the scope of vicarious liability beyond the responsibility of an employer for the acts and omissions of its employees in the course of their employment. We are told in effect that this is quite deliberate on the part of the judiciary on policy grounds in order to ensure a measure of protection for victims of torts.

 

Looking back to Cox (Respondent) v Ministry of Justice (Appellant) we are reminded that the Respondent in that case, Mrs Cox, worked as the catering manager at HM Prison Swansea and that she was in charge of all aspects of the catering, including the workings of the kitchen producing meals for prisoners. Prisoners also worked in the kitchen alongside other civilian catering staff and it was Mrs Cox's job to supervise these prisoners in the kitchen. Mrs Cox had been injured as a result of some goods being dropped on her by a prisoner whilst working in the stores. The Court saw the working of the prisoners in the kitchen as an integral part of prison life and they had no difficulty in applying the integral or organisation test and they took the view that the work of the prisoners was an integral part in the provision of meals to prisoners. The prison service was found to be vicariously liable to Mrs Cox. Vicarious liability can apply outside of the relationship of employment and Lord Reed reminded the Court that “As was explained in Cox and in the earlier case of the Christian Brothers, however, the doctrine can also apply where the relationship has certain characteristics similar to those found in employment, subject to there being a sufficient connection between that relationship and the commission of the tort in question.”

 

Applying the principles set out in Cox v Ministry of Justice [2016] to Armes (Appellant) v Nottinghamshire County Council (Respondent) (2017) on the imposition of vicarious liability, the Supreme Court found the local authority vicariously liable for the acts of the foster parents in the present case. Lord Reed explained their reasoning:

 

Integration and business activity: The Court noted in particular that Nottinghamshire CC were instrumental in carrying out the recruitment, selection and training of foster parents. This extended to paying their expenses through allowances. Lord Reed also mentions that “The foster parents were expected to carry out their fostering in cooperation with local authority social workers, with whom they had at least monthly meetings. The local authority involved the foster parents in their decision-making concerning the children, and required them to co-operate with arrangements for contact with the children’s families”.;

 

Lord Reed then went on to show that it may not be possible to give a definitive answer in terms of split responsibilities when he said “If one stands back from the minutiae of daily life and considers the local authority’s statutory responsibilities and the manner in which they were discharged, it is impossible to draw a sharp line between the activity of the local authority, who were responsible for the care of the child and the promotion of her welfare, and that of the foster parents, whom they recruited and trained, and with whom they placed the child, in order for her to receive care in the setting which they considered would best promote her welfare. In these circumstances, it can properly be said that the torts committed against the claimant were committed by the foster parents in the course of an activity carried on for the benefit of the local authority”. This approach seems to have led to a conclusion that included the council in responsibility for what went wrong and the abuse was seen as committed by the foster parents against the claimant and took place in the course of an activity carried on for the benefit of the local authority;

 

As regards the creation of risk, Lord Reed was also clear on this point stating “…..the local authority’s placement of children in their care with foster parents creates a relationship of authority and trust between the foster parents and the children, in circumstances where close control cannot be exercised by the local authority, and so renders the children particularly vulnerable to abuse.”;

 

Control: The lack of sufficient control being one of the primary reasons why the Court of Appeal did not find in favour of vicarious responsibility was addressed by Lord Reed directly and he concluded that the local authority exercised a significant degree of control over the foster parents: it exercised powers of approval, inspection, supervision and removal. Lord Reed was of the view that vicarious liability may arise in relation to the provision of elements of family life as was apparent with such cases as Lister v Hesley Hall Ltd (2002); E v English Province of Our Lady of Charity (2013) as well as the Christian Bothers case but that Micro-management, or a high degree of control, is not necessary for the imposition of vicarious liability;

 

Ability to pay damages: Lord Reed spoke plainly, making the point that most foster parents have insufficient means to meet a substantial award of damages, whilst local authorities can more easily compensate the victims of abuse;

 

Public interest and impact: Lord Reed found it difficult to accept that by imposing vicarious liability this would impact upon policy decisions such as where to place children thereby discouraging local authorities from placing children in care with foster parents, and encouraging them instead to place them in residential homes, at much greater cost;

 

This is a significant decision for local authorities and their insurers as well as victims as it not only extends the doctrine of vicarious liability in respect of foster carers for the first time, it also represents another example of the potential for the expansion of this form of liability.

 

 

Supreme Court busy - Make sure you are geared up for your course

The Supreme Court has been especially busy lately.

 

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:


Lenovo ideapad 110 15.6-inch 4 GB notebook

Lenovo ideapad 110 15.6 inch 8 GB notebook

Lenovo z50 15.6 inch hd laptop

Dell inspiron 15 3000 series 15.6 inch laptop


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.

 

 

Gina Miller v Secretary of State for exiting the EU 2016 as an example of the importance of judicial independence

Law students are now required to take note of how the independence and work of the judiciary has been reformed

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”.

 

Such threats from the head of the executive bode ill for the independence of the judiciary. It constitutes unacceptable intrusion by one arm of the state into the domain of another,” the Law Society said.

 

 

Useful links:

 

Courts and Tribunal Service https://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-the-government-and-the-constitution/jud-acc-ind/independence/

 

https://www.theindependent.co.zw/2016/09/09/trial-rule-law-zim/

 

http://thezimbabwean.co/2010/01/zims-descend-into-lawlessness-gubbays-perspective/

 

Politics UK http://www.politics.co.uk/reference/judicial-independence

 

UK Constitutional Law Association  https://ukconstitutionallaw.org/2014/08/18/graham-gee-do-lord-chancellors-defend-judicial-independence/

 

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

Policing and Crime Bill and provisions for bail after arrest but before charge

The clear intention is that decisions on pre-charge bail should come under scrutiny.

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.

Archives

Recent Posts

The latest posts from the lawmentor.co.uk blog archives.

Caparo three part test – revisited

In Robinson the Supreme Court laid to rest the proposition that there is a Caparo test which applies to all claims in the modern law of negligence.

Statutory interpretation - penal legislation is construed strictly

The Supreme Court reminded everyone per Lord Reed and Lord Hughes that 'Penal legislation is construed strictly, particularly where the penalty involves deprivation of liberty'.

Court of appeal gives judgment acknowledging unmarried woman's rights

The claim related to bereavement payments under the Fatal Accidents Act 1976 as amended.

European union law – in the case of conflict between national law and european law

Walker (Appellant) v Innospec Limited and others (Respondents) [2017] UKSC 47 On appeal from [2015] EWCA Civ 1000

Vicarious liability is alive and well

This decision extends the doctrine of vicarious liability in respect of foster carers for the fist time and it represents another example of the potential for the expansion of this form of liability.

Supreme court busy - make sure you are geared up for your course

The Supreme Court has been especially busy lately.

Gina miller v secretary of state for exiting the eu 2016 as an example of the importance of judicial independence

Law students are now required to take note of how the independence and work of the judiciary has been reformed

Policing and crime bill and provisions for bail after arrest but before charge

The clear intention is that decisions on pre-charge bail should come under scrutiny.