R v Secretary of State for Education and Employment and others ex parte Williamson [2005] HL

Friday 25 February 2005 at 11:40 pm | In News | Post Comment

[Assault – the right of parents in loco parenti to physically chastise their children]
D the government. The Education Act 1996 totally bans corporal punishment in all schools. The claimants were teachers and parents whose children attended schools which were established specifically to provide a Christian education that was based on Biblical observance and this meant the use of corporal punishment on a limited basis as part of their beliefs. The claimants argued that the ban was incompatible with the Human Rights Act 1998 and their rights under Article 9 of the Human Rights Convention; their right to an education of their choice.

: Lord Nicholls: “Parliament was bound to respect the claimants’ beliefs in this regard, but was entitled to decide that manifestation of these beliefs in practice was not in the best interests of children.” “Parliament was entitled to decide that, contrary to the claimants’ submissions, a universal ban is preferable to a selective ban which exempts schools where the parents or teachers have an ideological belief in the efficacy and desirability of a mild degree of carefully-controlled corporal punishment.” Lady Hale said “This is … a case about children [y]et there has been no-one here … to speak on behalf of the children.” “The battle has been fought on ground selected by the adults. This has clouded and over-complicated what should have been a simple issue. ”

C lost.
Whole case here

The Domestic Violence, Crime and Victims Act 2004 (DVCV) makes two changes in respect of the new section 5 DVCV offence, and murder/manslaughter offences.

Thursday 24 February 2005 at 8:08 pm | In News | Post Comment

In cases where it is difficult or impossible to prove which of two people caused a death (usually parents of a child) the defence make a “half-time” submission that there is no case to answer”, if the prosecution has not proved the case the trial ends at that point.
The changes relate to:
a) the drawing of adverse inferences from silence in court, and
b) the postponement, until the end of the defence case, of the decision on the question of whether there is a case to answer.
Both have effect in relation only to the charge of murder or manslaughter, when those charges are accompanied by charges under the new offence.

These procedural changes were proposed by the Law Commission in their report, Children: Their Non-accidental Death or Serious Injury, although the Act adopts a tighter mechanism for triggering them to keep them closely targeted at the “which of you did it?” cases.

The prohibition on a conviction being based wholly or mainly on the inference from silence is not relevant.

Causing or allowing the death of a child or vulnerable adult

Thursday 24 February 2005 at 6:44 pm | In News | 1 Comment

Whilst it is not explicitly part of the specifications these changes are highly significant and plug a loophole that has vexed lawyers and critics of the current state of the law of murder and manslaughter.
1. The Domestic Violence, Crime and Victims Act 2004 is the biggest overhaul of the law on domestic violence in the last 30 years. It contains a wide range of reforms in the three distinct areas; domestic violence, crime and victims. Its provisions will be commenced in stages.
2. Sections 5 and 6 introduce a new offence of causing or allowing the death of a child or vulnerable adult and new procedural measures linked to the offence. The offence will come into force in England and Wales on 21st March 2005.
3. The new offence and procedural changes form a package of measures which are intended to solve the problem that arises when a child or vulnerable adult suffers an unlawful death and it can be proved that one or more of a small group of people living in the same household as the victim caused the death, but not which of them. In such circumstances there may be no case to answer against any member of the household for murder/manslaughter. Until now this loophole in the law has enabled those co-accused of the death of a child or vulnerable adult to escape justice by remaining silent or by blaming each other. However it is also a serious stand-alone offence which puts a new legal responsibility on adult household members who could be charged with the offence even for example where there is no charge of murder/manslaughter or where evidence suggests that the defendant could not themselves have committed the criminal act which killed the victim.
4. The offence provides that members of a household who have frequent contact with a child or vulnerable adult will be guilty if they caused the death of that child or vulnerable adult or three conditions are met:

  1. they were aware or ought to have been aware that the victim was at significant risk of serious physical harm from a member of the household; and
  2. they failed to take reasonable steps to prevent that person coming to harm; and
  3. the person subsequently died from the unlawful act of a member of the household in circumstances that the defendant foresaw or ought to have foreseen.

be applicable in two different circumstances – the defendant may have caused or allowed the death of a child or vulnerable adult. The prosecution do not have to prove which of the two circumstances apply to the defendant. The maximum penalty is 14 years.
5. The text of the Act including the new offence and procedural measures can be found on http://www.hmso.gov.uk/acts/acts2004.htm.
6. The ‘allowing’ element of the offence will generally be continuous rather than a single event, but for the offence to apply some failure to take reasonable steps to protect the victim, or continuation of a failure to take steps, must have taken place after the commencement of the provisions in the Act.

Appointment of High Court judges – change in procedure.

Sunday 20 February 2005 at 8:25 pm | In News | Post Comment

The process for appointing High Court Judges has changed this week, without announcement, but with little surprise, the changes can be found on the DCA website.
The applicants guide says, “This High Court competition introduces selection through a revised set of competence-based qualities and skills“.
The process includes an approach to senior judges to rate each applicant from “five” to “one”. The applicant will be able to put forward his own referees.
The Lord Chancellor will recommend appointment by the Queen.
In July 2004 the Commission for Judicial Appointments found “substantial inequalities” in the High Court appointments process. Sir Colin Campbell the chairman dismissed the selection procedure as “opaque, out-dated and not demonstrably based upon merit” and as “seriously lacking in transparency and accountability”. The process appeared to have a “substantial built-in bias” towards QCs, while circuit judges and solicitors were far less likely to get promoted.
Until now, High Court judges have been appointed from lawyers who have either submitted application forms or been privately approached by DCA officials.
The new Judicial Appointments Commission which will completely overhaul the process but will not be up and running until at least 2006.

Eligibility criteria
Applications may be made by those practitioners who have either a 10 year High Court qualification or who have held the office of Circuit Judge for at least two years. Subject to the statutory requirements and the statutory retirement age of 70, there are no age limits for this appointment.
In order that solicitors meet the qualification for appointment, they are in some circumstances deemed to have held a right of audience prior to 1 January 1991.
Every barrister and solicitor has the same rights of audience before every court in relation to all proceedings, as long as they comply with the rules of the appropriate professional body.
Full details here

The Hunting Act saga; R (on the application of Jackson and others) v Attorney General (2005) CA

Wednesday 16 February 2005 at 5:43 pm | In News | Post Comment

Held: “For the reasons we have given we have accepted that there was power to amend the 1911 Act to the extent of the amendment contained in the 1949 Act.”

In the Administrative Court the case was treated as an ordinary case turning on a point of statutory interpretation. The Court of appeal ruled that it is not such a case. English courts do not normally have jurisdiction to consider the validity of an English statute. So far as the validity of a statute is concerned, the following observation of Lord Campbell in Edinburgh and Dalkeith Railway Co. v Wauchope (1842) has always been accepted as correct: “…all that a Court of Justice can do is look to the Parliament Roll; if from that it should appear that a bill has passed both Houses and received the Royal Assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament, during its progress in its various stages through Parliament.”

The court suggested that while they are not interfering with Parliament’s activity in this case, if the the scale of the constitutional change proposed by any amendment were greater, the more likely it is that it will fall outside the powers contained in the 1911 Act.

Appeal to the House of Lords refused, but the claimants are to petition the Lords directly.

Steel and Morris v The UK [2005] ECHR

Wednesday 16 February 2005 at 11:50 am | In News | Post Comment

[Provision of legal services – government funding – funding civil cases – cases for which funding not available – pro bono]
DD libeled McDonald’s in 1997 by handing out leaflets attacking the company’s working practices and policies. They were ordered to pay damages of £40,000, which McDonalds has not enforced, nor have they claimed costs. The libel trial last 314 days, it was the longest trial in English legal history (McLibel Case). State funding is not available for defamation (libel or slander) proceedings. They received some help from barristers and solicitors acting pro bono: their initial pleadings were drafted by lawyers.

Held: DD should have received legal aid. By not granting legal aid the UK Government denied the pair the rights to a fair hearing and freedom of expression, Article 6 and Article 10 of the European Convention on Human Rights.

C won. Cost and expenses paid by way of just satisfaction.
Chambers judgment here

Comment: It is unlikely that significant changes will follow this ruling; it was made on the particular facts of a large multinational company suing two impoverished claimants. This has been described as a David and Goliath struggle. Such a view may not take into account the painstaking efforts of the trial judge – Mr Justice Bell – to assist the defendants, which is one of the reasons the case took so long. The question whether the provision of legal aid is necessary for a fair hearing has to be determined on the basis of the particular facts and circumstances of each case and depends on such things as the importance of what was at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent him or herself effectively.

R v Wang [2005] HL

Friday 11 February 2005 at 9:52 pm | In News | 1 Comment

[Juries – verdict – there are no circumstances in which a judge is entitled to direct a jury to return a verdict of guilty]
D a Buddhist had a sword and a knife in his bag; it was stolen at an Essex railway station. As a Buddhist D practised Shaolin, a traditional martial art requiring the use of the knife. The judge at Chelmsford Crown Court could not see that the defendant had a defence and directed the jury to find him guilty on two counts of having an article with a blade or point in a public place.

Held: There are no circumstances in which a judge is entitled to direct a jury to return a verdict of guilty.

Not guilty.
Full report here.

CJA 2003 sentencing measures, which will come into effect on 4 April:

Wednesday 9 February 2005 at 7:04 pm | In News | Post Comment

Public protection sentences – aimed specifically at sexual and violent offenders, which will ensure that those considered to be a risk can only ever be released on the recommendation of the parole board and if the level of risk never becomes acceptable, they may never be released.

All other sentences of 12 months and over – all offenders not on a public protection sentence will be released into the community under licence conditions halfway through their sentence, but supervision in the community will continue to the end of the entire sentence, rather than to the three quarters point as now.

The new community order – giving sentencers a much greater degree of flexibility in putting together tough community sentences that will be tailored to the needs of offenders and the seriousness of their offence.

Custody Minus – a new suspended sentence, allowing the court to impose community requirements together with a suspended custodial sentence, which is activated if the offender breaches the community period.

Home Office press release here

The open evidence, not the secret evidence agains the Belmarsh 9

Tuesday 8 February 2005 at 9:42 am | In News | Post Comment

It is not in your syllabus, but does make an interesting read: The open evidence against the Belmarsh detainees is available on the Court Service website, here.

R (on the application of Jackson and others) v Attorney General (2005) DC

Thursday 3 February 2005 at 5:03 pm | In News | Post Comment

[Statutory interpretation – meaning of “Parliament” – lawfulness of the Hunting Act 2004 and the Parliament Act 1911 Delegated legislation – an Act of Parliament cannot be so categorised]
C representing a pro-fox-hunting group obtained Judicial Review of the Hunting Act 2004, seeking to have it declared unlawful. The Hunting Act went straight from the Commons to Royal Assent, by-passing the Lords using the Parliament Act 1949, which itself was made under the Parliament Act 1911. None of these three acts was made with the consent of the Lords.

1) An Act of Parliament did not have to include the Lords. Interpreting the 1911 Act (particularly the preamble) which includes the word ‘Parliament’. As the Parliament Act 1949 was a lawful statute validly made under the Parliament Act 1911 the Hunting Act 2004 was also lawful.
The 1911 Act expressly refers to ‘any Public Bill’ which was deliberately wide and there is no exclusion. The word ‘Parliament’ did not have a strict meaning and included an absence of the Lords.
2) The 1911 Act was not delegated legislation, it was itself an Act of Parliament – nothing less. It was erroneous to characterise any Act of Parliament as ‘delegated legislation’. There are two routes through which Acts of Parliament could be enacted: the traditional way involving the Sovereign, the House of Commons and the House of Lords and the 1911 Act way emanating from the Sovereign and the House of Commons.

C lost.

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