February 2011 articles archive:

High Court blocks compensation bid by prisoners prevented from voting in last years' general election

With 585 prisoners commencing claims that their human rights were breached, and a potential of 1,000 cases coming to court, the High Court has now blocked an attempt to claim compensation by prisoners prevented from voting in the 2010 general election.

In what could be seen as good news for those in the government, including the prime minister, who have voiced their objection to allowing prisoners to vote so vehemently, the High Court has prevented prisoners claiming compensation as they were prohibited from voting in the 2010 general elections.

Mr Justice Langstaff said "This judgement is to the effect that, applying those laws, including the Human Rights Act 1998, a prisoner will not succeed before a court in England and Wales in any claims for damages or a declaration based on his disenfranchisement while serving his sentence."

"The case was heard a day before parliament debated whether it should introduce legislation to amend the 1983 Act (Representation of the People Act 1983). Though the subject matter of each is the same – the enfranchisement of prisoners – the role of the courts and of the legislature are distinct ...

"This judgement is to the effect that, applying those laws, including the Human Rights Act 1998, a prisoner will not succeed before a court in England and Wales in any claim for damages or a declaration based on his disenfranchisement while serving his sentence."

The judge said the fact that the 1983 act was incompatible with a prisoner's rights under the European convention arose because of the blanket nature of the ban, as previous cases made clear. Those cases expressly recognised that a state had a wide margin of appreciation in deciding the category of case or prisoner for whom a restriction on the right to vote would not be a disproportionate interference with his rights generally.

He said it was not obvious if Paul Hydes, the lead claimant, would be in a category that would be enfranchised "however the margin of appreciation be exercised in honouring the government's international obligations".

"It cannot therefore be said that if the incompatibility were removed he would then have the vote," said the judge. "All would depend on how, legitimately, parliament chose to legislate. He might well remain outside the scope of the franchise."

He concluded: "I hold that there are no reasonable grounds in domestic law for bringing a claim for damages or a declaration for being disenfranchised whilst a prisoner.

The lead claimant, Paul Hydes was convicted in July 2009 of burglary, robbery and firearms offences. He was serving a life sentence with a minimum term before parole of four years and 265 days.

Where now?  The High Court may indeed have provided the many who object to prisoners being allowed to vote some welcome support, but we are answerable to the Council of Europe. This is not going to go away and what gives us the right to dictate to other countries how they should behave if we will not listen to other countries' opinions however unpalatable it may seem to many of us?







Cotswold Geotechnical Holdings Ltd fined £385,000 for manslaughter.

Cotswold Geotechnical Holdings Ltd has been fined £385,000 following the guilty verdict under new corporate manslaughter legislation.

Cotswold Geotechnical Holdings Ltd, found guilty of failing to ensure the safety of their employee Alexander Wright, have been fined £385,000, a figure slightly less than the starting point of £500,000 recommended by the Sentencing Council.

The fine imposed by the judge, Justice Field, is to be paid over a 10-year period and could reflect the fact that the company has a relatively small turnover.  For larger firms the fine could run into millions of pounds.


Cotswold Geotechnical (Holdings) Ltd becomes the first company to be convicted under new corporate manslaughter legislation.

Young college graduate and geologist Alexander Wright died tragically when the trial pit he was working in capsized. His employers, Cotswold Geotechnical (Holdings) Ltd, have now been convicted of the first corporate manslaughter.

Following failed prosecutions for manslaughter against large companies and individuals there has been a lobby of voices calling for changes to the law. The Corporate Manslaughter and Corporate Homicide Act 2007 which came into force on the 6th April 2008, aims to address the shortfalls highlighted by the failure of previous prosecutions in accidents succeeding.

The new law is intended to make it simpler for a conviction to be made. The intention is that courts will look at management systems and practices across the organisation, providing a more effective means for prosecuting the worst corporate failures to manage health and safety properly.  Prior to this new Act an individual person had to be identified as the 'directing mind' of the company. That individual had to be identified and had to be guilty of gross negligence or manslaughter and until then the company could not be convicted. The new act makes the employer account for the actions of all of its senior managers and not just one individual.

The aim is to make it easier for large firms and businesses to be held accountable and the thought was that the Act would be used very rarely. 

More tragic then that the first time the Act was put to the test was in such sad circumstances. 

Twenty seven year old Mr Wright, an employee of Cotswold Geotechnical (Holdings) Ltd, had been working at a development site with Mr Eaton the company director.  Mr Eaton then left the site and Mr Wright continued with his work in the 12.6 ft deep, unsupported pit.  The owners of the plot said at the trial that they heard "an odd muffled noise and then a cry for help". They went to the pit and could see that soil had fallen onto Mr Wright.  The court heard of their attempts to help the young man and to get the emergency services to the scene. Attempts to remove the soil from Mr Wright's face failed and more soil fell into the pit and He died from traumatic asphyxiation as his body was crushed by the weight of the soil. 

Mr Eaton has been too ill to stand trial but in a statement he said someone always had to be above ground if a person had entered a pit. He said he was "astonished" Mr Wright entered the pit after he had left the site.

Mark Ellison QC, prosecuting, told the jury "the case against the company was essentially an assessment of the conduct of Peter Eaton".

"The substantial cause of Alex Wright's death was the failure of the company to manage its affairs so as to comply with its legal duty to ensure that Alex Wright's health was not put at risk."

The circumstances of the accident were investigated by the police, in this case the Gloucestershire Constabulary and supported by the Health and Safety Executive and the Crown Prosecution took the case to court. The jury only took an hour and a half to reach its' guilty verdict and many would say that the size of the company was not that for which the legislation was intended.



Early medical abortions: High Court rules against a change in the law

The British Pregnancy Advisory Service (BPAS) has failed in its' bid to allow women to take some of their pills at home as part of their early medical abortion.

There will be many law students who will remember learning about the case of Royal College of Nursing v Department of Health & Social Security (1981) but how many of you thought you might encounter a case which may be remarkably similar to the principles which occupied the minds of those learned judeges all those years ago.

The case in 1981 was brought to the House of Lords by the Royal College of Nursing in an endeavour to protect nurses who had, due to medical advances, become involved in the practice of inducing abortions by the use of drugs as opposed to surgical means.  Sounds familiar?

By 1981 the use of nurses to carry out abortions had become standard practice, procedures in use by this time did not exist and were not thought of when the Abortion Act 1967 was passed.  The Act applies to England, Scotland and Wales and allows abortions in certain circumstances.  The Act only permitted abortions to be carried out by a 'registered medical practioner'

In 1981 the matter eventually reached the House of Lords and the case is often held as an example of an approach to statutory interpretation known as the mischief rule.  By the 1970's the advances in medical practices meant that terminations of pregnancy normally meant inducing early labour by the administration of drugs. It was with the administration of these drugs that nurses become involved.  The issue was whether the Act should be interpreted narrowly, so as only to permit doctors to carry out such procedures, or whether a more pragmatic approach recognising the practical benefits of allowing trained and skilled nurses to be involved in the later part of the procedure.  The similarities with the present High Court case are striking.

In the House of Lords a majority of the judges decided that in the Royal College case it was lawful for nurses to participate in the process as they were doing but the other two judges took the view that such practice was unlawful.

The majority based their decision on the mischief rule and in so doing pointed to the situation prior to the 1967 Act.  There were high numbers of illegal abortions and some of these may have involved young teenage girls. The judges acknowledged Parliament's concerns for the welfare and safety of young girls should they seek help from 'backstreet' abortionists.  This is what the mischief rule is all about - seeking out the wrong which existed prior to the Statute and identifying the remedy provided.  The majority of the judges were convinced that Parliament intended to provide a safe alternative in limited situations to guard against secret 'backstreet' abortions when young people were driven to risk their lives. 

Dissenting Lord Edmund-Davies argued strongly to the contrary and said 'My Lords, this is redrafting with a vengeance'.

Lord Wilberforce was equally unconvinced by the speeches by the majority and said 'The Act is not one for ‘purposive’ or ‘liberal’ or ‘equitable’ construction. This is a case where the courts must hold that anything beyond the legislature’s fairly expressed authority should be left for Parliament’s fresh consideration' and he resisted any attempt to redraft the 1967 Act.

We may need to wait for a more detailed account of the High Court's present ruling.  The effect of the High Court ruling is that the second dose of pills must be administered on clinical premises.  At present women must return to the clinic or hospital for the second dose, where the tablets are taken under supervision and then they usually return home.  Will there be an appeal?  The BPAS seem convinced about the strength of their case but is this a step too far? Or is it 'hair splitting' and artificial to regard the taking of the second set of pills at a clinic the only way of proceeding? There must be hundreds of cases when prescribed drugs with known side effects are prescribed, but no doctor or nurse is in sight yet alone present when patients take the drugs.


Up to a million samples of DNA could be wiped under The Freedom Bill

The Protection of Freedoms Bill is aimed at cutting back on what many perceive as the current 'Big Brother' state of intrusion of privacy. It is the first time the voting public have had a chance to examine a Bill online and comment on its' contents.

The Protection of Freedoms Bill published on the 10th February 2011 aims to cut back on what many consider to be an intrusion of privacy and an invasion of liberty.  The Bill addresses the retention of DNA and only that of people suspected of serious offences of sex or violence will be retained and even then only for five years.  It will be some time before the deletion of these DNA samples starts as the police will not change their policy until the proposals become law.  When it does become law about one in five of the five million samples of DNA will be removed as they belong to people who have never been convicted of an offence.

The Bill also plans to look at checks on adults working with children so as to scale them back to common-sense levels. Other proposals include reducing the state's "snooping" powers, regulating CCTV cameras, making it illegal for wheel-clamping on private land, examining libel law reform and restoring rights to non-violent protest.

Police powers of stop and search will also be changed and they will no longer be able to stop and search members of the public under terror laws unless there is 'reasonable suspicion' that an atrocity will take place.

This is the coalition government's first attempt to increase transparency and is the first Bill to be put on line for the public to consider and comment upon.  Comments can be left on www.publicreadingstage.cabinetoffice.gov.uk and these comments are intended to be taken into account during the Bills passage through parliament.

As a student of law, or come to that, as a member of the public, we should perhaps take this opportunity to make our thoughts known on the contents of this Bill. There is a fine balance between protecting the public and intruding in our every day life.



'Ayo Joanna Lumley' will the Justice Secretary be next to feel the wrath of Ms Lumley?

Ayo Gorkhali - here come the Gurkhas, the now famous battle cry of the Gurkhas, may once again be changed to Ayo Joanna Lumley as she joins the fight to prevent the Government cutting millions of pounds from legal aid.

Could Kenneth Clark, the Justice Secretary,  become the next to yield to what can only be called the brilliant campaign style of Ms Lumley?  Her support for the Gurkhas in their fight to secure better rights for those wanting to remain in the United Kingdom, was relentless.  Ms Lumley has now, together with legal experts, the Bar Council and the Law Society,  turned her attention to the proposed cuts to the legal aid budget.

Ms Lumley is backing the Sound Off for Justice campaign saying that without legal aid cases like the Gurkha Justice Campaign "could never have been fought, let alone won".

"Everyone has a right to be heard," she said.

"I believe justice is only just if it is available to everyone."

The Bar Council and the Law Society, representing barristers and solicitors in England and Wales, said the cuts "could end up costing rather than saving taxpayers' money, with a devastating effect on access to justice" 

Mr Clarke launched the Ministry of Justice's Green Paper last November. In it are plans to axe civil legal aid for a wide range of disputes, and includes disputes over relationship break-ups, school admissions and expulsions, as well as clinical negligence. The proposals would help save £350 million over the next four years.

Stephen Cobb QC, chairman of the Family Law Bar Association, said the proposals would trigger "a surge in DIY litigants which risks gridlock in the courts, as they struggle to get justice".

"The threats posed by the Government's proposals are real and potentially brutal," he said.
"In family cases, men or women suffering from serious psychological abuse may go unrepresented in private law proceedings.

"Parents, without representation, could face the removal of their children into care if the court finds reasonable grounds for believing that the children are suffering significant harm.

"Consumers suffering at the hands of negligent corporate entities may have to fund their own claims.

"The list is extensive."

He went on: "More people will face courtroom ordeals, without the benefit of experienced lawyers to advise them as to their rights and guide them through court procedures.

"Instead, where would-be litigants may be advised not to bring a claim, or to settle, they will turn to the courts alone.

"The impact on the court system will be longer trials, more appeals, more costs and the risk of miscarriages of justice.

"Worse still, without the help and support of a proper system of legal aid, vulnerable people whose rights have been infringed may not be in a position to pursue those rights at all. This is not the type of justice that a civilised society should expect."

Mr Cobb added: "We fear these attempted cuts, being so crude and brutal, will cost more than they save.

"In the absence of proper or reliable evidence on which the proposals are based, and our identification of clear unintended consequences, the Government cannot say with any confidence that the proposed cuts will not end up costing as much as it is trying to save.

"Put simply, the proposals don't add up."

Linda Lee, the Law Society's president, said: "We recognise that in this tough economic climate tough decisions need to be made, but these must not risk doing lasting damage to access to justice.

"We believe what is currently on the table is just another example of panic-stricken cuts.

"We believe these cuts are ill conceived and unfair and that the Government risks doing long-lasting damage to justice in this country. Sound Off For Justice aims to give the public the voice to say no."

Seven year legal battle against NHS Trust finally over.

A seven year legal battle finally ended for the parents of Theo Kramer when the High Court awarded £6.4 million to Theo in settlement of his medical negligence claim.

Theo Kramer, now 8 years old, has been awarded £6.4 million in settlement of his medical negligence claim.  He suffered severe brain damage during his delivery at the Edgware Birth Centre, in Burnt Oak. Theo was born unconscious after a student midwife failed to monitor his heart rate properly during Mrs Kramer's labour.  He was transferred to Barnet General Hospital after the Birth Centre had spent 20 minutes trying to revive him.

Theo is unable to sit up unless supported and will never be able to walk. He is almost completely paralysed and has severe learning difficulties.

The legal battle that followed the birth of Theo Kramer went on for seven years surely adding to the distress of the family.  In January 2011 the battle finally ended when the High Court awarded a a lump sum of £2.75 million and £235,000 a year until he is 19 and £275,000 a year thereafter.  Barnet and Chase Farm Hospitals NHS Trust are to make the payment on behalf of Edgware Birth Centre in London. In a statement issued after the hearing, the family's solicitors said the trust admitted the birth centre was negligent.

Barnet and Chase Farm Hospitals NHS Trust only admitted liability for Theo's injuries in 2009.

After the hearing Mr Justice Tugendhat expressed his "admiration and sympathy" to the boy's parents, Janet Evans and Earnie Kramer over the "catastrophe that Theo has suffered".

Medical negligence cases are notoriously difficult to pursue as they can be extremely expensive to fund and may take years to see through to a conclusion with no guarantee as to the outcome.  There have been calls for such criticisms to be addressed.  It was 10 years ago, that Lord Justice Otton put forward the view that such cases might be better dealt with by Tribunals.




Prisoner's right to vote update

MPs enjoy a free vote at prisoner's expense.

MPs were in a defiant mood when they rejected any plans to change the blanket ban on prisoners voting.  At present only prisoners on remand are allowed to vote.  The debate, tabled by David Davis and Jack Straw, was partly put forward to answer the European Court of Human Rights' criticism that Britain's policy had not been debated in Parliament.

We all knew of course that there was no question of the law being changed even if the debate had gone the other way because there was no Bill before Parliament.  The government may come under pressure soon to put forward a response to the European Court's ruling that the blanket ban against prisoners voting is unlawful.

Knife crime update

For those of you following the debate about the government's strategy, including it's sentencing policy on knife crime, you may wish to note that some £18m is to be spent on tackling knife crime.

Theresa May, Home Secretary, announced on  2nd February 2011 that some £18m is to be made available in the continued fight against knife crime as well as crimes involving guns and gangs.  Is this another victory for campaigners for tougher laws on crime knife following the alarming numbers of young people injured or killed as a result of people carrying and using knives?  

It was just last March that the then Justice Secretary, Jack Straw, announced that there should be a minimum jail term of 25 years for those who go armed with a knife and then go on to kill.  This represented a ten year increase from the previous starting point of 15 years. The 15 year starting point was one which the families of victims found difficult to understand.  The 25 year period is now much closer to the starting point for murder using a firearm, which is 30 years.

The reality is of course that even now the trial judge has the ability to reduce the tariff for relevant factors such as the age of the defendant.  This is exactly what happened in the case of Daniel Smith, aged 23 years, in what is considered to be the first murder trial that took place under the higher tariff of 25 years.  The trial judge took Smith's young age into account and reduced the minimum sentence to 20 years.

In announcing the government's proposals Theresa May acknowledged the hard work of Brooke Kinsella, the sister of Ben Kinsella who was stabbed to death on the streets of London in June 2008 and whose death sparked a timeless campaign for reform, saying:

"Brooke Kinsella has done a great job in highlighting what works and what could work better in trying to achieve that.

"Off the back of Brooke's recommendations, we will invest money into changing attitudes and behaviour, alongside being tough on those who persist in being involved in senseless crimes."

No doubt the debate will continue as will the scrutiny of the crime figures.

The UK Supreme Court

How long before we see a review of the law regarding tweeting and blogging sites generally?

The 1981 Contempt of Court Act seems woefully inadequate these days when you consider the level of interest being shown in such high profile cases as the allowing of bail to Julian Assange.  The Supreme Court, give them their due, have set out guidelines which enable journalists and legal teams, as well as members of the public, to tweet during the hearing of a case by the court.

The Supreme Court had already indicated that tweeting was generally acceptable on a case by case basis but have now gone one step further and issued a general approval subject to certain limitations.

  1. Where reporting restrictions have been put in place by the court.
  2. In a case involving a child, where anonymity is of the essence, text-based communications will be permitted, but any breach of the anonymity will be treated as a contempt of court.
  3. Where the UKSC orders that a judgement should not be reported in order not to influence other proceedings taking place in the lower court.

Lord Phillips, President of the Supreme Court, seems to have embraced the guidelines saying 'The rapid development of communications technology brings with it both opportunities and challenges for the justice system.  An undoubted benefit is that regular updates can be shared with many people outside the court, in real time, which can enhance public interest in the progress of a case and keep those who are interested better informed.'

Life in the UK Supreme Court has moved on since February 2011 when the use of Twitter from its courtrooms was first allowed. In February 2012 the UKSC launched its own twitter account .

Even more recently,in January 2013, the UKSC launched its own YouTube channel, , summarising judgments. With live broadcasts also available on Sky it would seem that the UKSC is making every effort to be accessible to the public.


The Supreme Court

Tweeting Allowed in Supreme Court - UKSC blog – UKSC blog

Supreme Court to tweet proceedings - Telegraph


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

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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.