Law Weblog

Judicial Appointments Commission (JAC) starts moving

Sir Nigel Wicks has been appointed as the first chairman of Judicial Appointments Commission (JAC) which will replace the Department for Constitutional Affairs’ role in judicial appointments .

Wicks, the Lord Chief Justice, and another person, whom Wicks will appoint will select the 15 members of the JAC, who will, from next year, choose judges. The 15 will comprise six lay members a barrister, a solicitor, a district judge, a circuit judge, a Lord Justice of Appeal and one lay magistrate.

None of this will happen until April 2006.

Civil partnerships

The Civil Partnership Act 2004, comes into force on 5 December 2005.  It will give same-sex couples many of the rights and benefits opposite-sex couples have already. Lesbian and gay couples who register as civil partners will have formal legal recognition of their relationships, and will have rights and duties to each other and to third parties and the state.
Civil partners must be:
Of the same sex,
Not in an existing civil partnership or marriage,
Old enough to marry (i.e. 18 without permission, 16 with permission),
Not ‘within the prohibited degrees of relationship’, as with marriage.

Civil partnerships will be introduced throughout the UK, and there will be a registration process, like civil marriage, and a dissolution process, similar to divorce. Civil partners will be treated like married partners for the purposes of tax, nationality and immigration, inheritance, liability for maintenance and child support, tenancies, employment and pension benefits and protection from domestic violence.

There are benefit implications, Tax credit implications, living together and benefit implications many of which have yet to be worked out.

Miscarriage of justice.

The conviction of Donna Anthony has been quashed by the Court of Appeal. She had been found guilty of killing her daughter Jordan, aged 11 months, and her son Michael, aged four months, in 1998. The prosecution had relied on Professor Sir Roy Meadow’s evidence, which claimed the babies had been smothered.

Her Majesty’s Courts Service commenced on 1 April 2005

Her Majesty’s Courts Service’s purpose is to deliver justice efficiently and effectively. the new service administers the civil, family and criminal courts in England and Wales. This covers Crown, county and magistrates’ courts. This is the first time thee different courts have been under one umbrella body.

The new website is a treasure of links for example everything you need to know about magistrates, Latin terms, and much more; some links are circular or broken but no doubt this is a temporary glitch.

HMCS web site here

Police Powers; sentencing; courts

The Drugs Bill received Royal Assent today.
The Drugs Act 2005 brings in powers to: 
>  give the police powers to test for class A drugs on arrest and require those who test positive to attend a drugs assessment and follow-up appointment;
> make dealing near a school, or using children as couriers for drugs or drugs-related money, an aggravating factor in sentencing; 
> introduce a new presumption that those caught with more drugs than reasonable for personal use intend to supply, which carries tougher penalties; 
> give the police tougher powers to tackle dealers who swallow their drugs or hide them in body cavities – the police will be able to order an x-ray or ultrasound, and magistrates will be able to remand suspected swallowers in custody for up to eight days; 
> tackle the open selling of ‘magic mushrooms’ by clarifying the law that fresh mushrooms, as well as prepared ones, are illegal; and
> establish a new drug intervention order to run alongside anti-social behaviour orders to address drug misuse by people committing anti-social acts.

Role of judges and dispute resolution

The Inquiries Act 2005 received Royal Assent today. The Act provides a framework for statutory inquiries set up by Ministers into events causing public concern. It sets out the independence of those carrying out inquiries by providing that they must be impartial. Inquiry chairmen will also have legal powers to seek out evidence that they need.
The Act brings a new duty to publish inquiry reports and new requirements to publish and contain costs.

The Inquiries Act covers:
> setting up inquiries 
> appointing panels to conduct inquiries
> procedures and powers
> submission and publication of reports.

The Act replaces the Tribunals of Inquiry (Evidence) Act 1921 and a number of inquiry powers in various other legislation, including s.49 of the Police Act 1996, s.81 of the Children Act, 1989 and s.84 of the NHS Act 1977.

Living wills to be part of the law of England and Wales

The Mental Capacity Act 2005 has received Royal Assent.  The law which will cover England and Wales, provides a statutory framework for people who may not be able to make their own decisions for example because of a learning disability, an illness such as dementia or mental health problems. It sets out who can take decisions, in which situations, and how they should go about this.

The Acts key provisions are:
> Five key principles, which make it clear that a person should be assumed to have capacity unless proven otherwise.
> A best interest’s checklist for people acting on behalf of others. This includes consideration of the person’s wishes, feelings, beliefs and values (including any written advance statement made by them when they had capacity) and taking account of the views of their family and friends.
> Protection to carers and professionals, subject to rules and limitations, to lawfully care for someone who cannot consent without incurring liability.
> Lasting powers of attorney (LPA) – for people to appoint an attorney of their choosing to act on their behalf if they should lose capacity in the future.
> For the court to appoint deputies to make decisions on behalf of a person about matters in relation to which that person lacks capacity.
> Creation of Independent Mental Capacity Advocates to support and represent people lacking capacity who have no one else to speak for them when decisions need to be taken about serious medical treatment and long-term residential care.
> New safeguards controlling many types of research involving people who lack capacity.
> For a person whilst they have capacity, if they so wish, to make an advance decision to refuse treatment, known as living wills.
> The introduction of a criminal offence of ill treatment or neglect of a person who lacks capacity, with a maximum sentence of five years.

The Act creates two new public bodies:
1. Court of Protection – the new court will have jurisdiction in relation to the Mental Capacity Act. It will have special procedures and judges.
2. Public Guardian – This public official will take over from the current Public Guardianship Office. The Public Guardian will be the registering authority for lasting powers of attorney and deputies.

Link to the Act here

Bar Council Annual Report 2004

Revealed in the Bar Council Annual Report 2004

Only 300 barristers have chosen to undertake the necessary training to allow them to receive direct access to the bar from the public.

From 2008 students will not be allowed to call themselves ‘barrister’ until after training has been completed, viz after pupillage.

Unpaid fees to barristers in 2004 = £3.9m.

Complaints against barristers continue to fall 2004-667; 2003-685; 2002-743. During 2004 151 complaints were internal matters such as incomplete CPD.  About 102 resulted in individual barristers being disciplined.

Bills become Acts in final process

Tonight Parliament was prorogued – closed – until after the general election. One of the last duties of a Parliament is to give Royal Assent to Bills that have been passed.

MPs process – well amble – to the Lords behind Black Rod. They then huddle at the bar of the House of Lords to hear the Commissioners give Royal Assent, in Norman French and then the Bills are Acts of Parliament and the law of the land.

The Queen does not give Royal Assent, the last time the monarch gave assent in person was in 1854. The Clerk of the Crown simply reads out the names of the Bills, the Commissioners, including the Lord Chancellor doff their black hats before the Clerk of the Parliaments pronounces consent in Norman French in the words `La Reyne le veult’, which means `the Queen wills it’.

For the MPs who could not be bothered to walk the 200 yards to the Lords, or knew they would not fit the Speaker of the Commons read out the names of the Bills that had become law in the final moments of this Parliament. Queen Anne was the last monarch to refuse to give her consent in 1707.

Workers who sit on juries cannot be sacked

From today 6th April 2005 the Employment Rights Act 1996 is amended to provide that an employee has the right not to be dismissed or treated detrimentally because he serves on a jury or is summoned to do so. This amendment was thought necessary because it was expected that getting out of jury service for most worker would be difficult and sometimes impossible.