New Judicial Appointments and Conduct Ombudsman

Wednesday 29 June 2005 at 8:37 pm | In News | Post Comment

A new ombudsman to investigate judicial appointment complaints and handling of judicial conduct complaints is to be appointed by the Department for Constitutional Affairs (DCA).

The creation of this new office follows the passing of the Constitutional Reform Act 2005 earlier this year. Only a person selected by a new Judicial Appointments Commission (JAC), independent of ministers, may be appointed to judicial office.

The ombudsman will investigate individual complaints relating to these appointments. The ombudsman will also be able to review the handling of complaints about judicial conduct by the new Office for Judicial Complaints. The Constitutional Reform Act establishes the Judicial Appointments Commission, which will be set up next year and will take responsibility for the selection of judges in England and Wales.

Details of the ombudsman role and person specification can be found here

High Court judge resigns – first time in a lifetime

Thursday 23 June 2005 at 9:54 pm | In News | Post Comment

Sir Hugh Laddie aged 59 is thought to be the first High Court judge to voluntarily resign for 35 years. Mr Justice Laddie is to join a solicitors’ firm.

Reported in The Telegraph, here

The law of provocation is in a mess. Didn’t their Lordships know the A level law exams are next week?

Sunday 19 June 2005 at 9:30 am | In News | Post Comment

The Privy Council believes Parliament should sort out provocation (together with all the law of homicide) as soon as possible; the courts can do no more with it, it is now up to Parliament. Within less than 4 years, they have pronounced R v Smith (Morgan) [2001] HL to be wrong, in the case of R v Holley.  (Jersey v Holley [2005])

This means that women suffering from Battered Woman Syndrome may satisfy the first test in Section 2 Homicide Act 1957, but not the second objective test and so appear to be back in the position they were before Morgan Smith and have to rely on diminished responsibility. In fact, their Lordships urged courts to read together these two defences to obtain an overall, balanced view of the law in this field.

In applying the second ‘objective test’ we are advised to no longer use the term ‘characteristics’ of a defendant, but to rigorously apply a uniform objective standard of the degree of self-control to be expected of an ordinary person, to be judged by one standard, not a standard which varies from defendant to defendant.

The reasonable man described in Luc Thiet Thuan, Camplin and Morhall are to be applied to all defendants. The jury are required to judge the defendant’s loss of self-control by reference to the standard of the degree of self-control to be expected of an ordinary person of the defendant’s age and sex, and not a defendant with the ‘abnormalities’ of the accused.

The Board stated that in adopting the formulation of Sec 3 Homicide Act 1957 Parliament recognised the potential hardship to defendants suffering mental abnormality and had enacted the defence of diminished responsibility in s 2.

Luc Thiet Thuan v The Queen [1997] . R v Camplin [1978] and R v Morhall [1996] are to be considered the correct test for the “objective test”

Jersey v Holley [2005] PC
[Provocation – objective test limited to reasonable man test including age and sex of D. Statutory interpretation – literal approach adopted]
D killed his girlfriend with an axe. He was an alcoholic (as was she). She told him she had just had sex with another man. He picked up the axe, intending to leave the flat and chop wood, when the deceased said, “You haven’t got the guts” he hit her with the axe seven or 8 times. He pleaded provocation.

Held: D’s alcoholism should not have been taken into account.
Subjective element:
The jury are required to assess the gravity of the provocation by reference to the defendant’s individual characteristics in deciding if he lost self-control.
Objective element:
The jury are required to apply a uniform, objective standard of the degree of self-control to be expected of an ordinary person of the defendant’s sex and age when judging whether his loss of self-control was sufficient to satisfy the defence.

Not guilty of murder for other reasons

Comment: Morgan Smith cannot now be considered correct on this point. Whilst the advice of the Privy Council is said to be only persuasive this was a judgment of nine Law Lords sitting as the Privy Council. It is extremely rare that so many judges sit unless the case if of massive importance. This ruling can be seen as binding.

Top judges change jobs

Friday 17 June 2005 at 8:58 pm | In News | Post Comment

When Lord Woolf retires as Lord Chief Justice for England and Wales on 30 September Lord Phillips will replace him.

Lord Justice Clarke will be the new Master of the Rolls.

Lord Justice Judge will become President of The Queen’s Bench Division, which is a new position; previously the Lord Chief Justice presided over the QBD.

These are appointments approved by The Queen.

How much do barristers earn?

Saturday 11 June 2005 at 10:05 am | In News | Post Comment

Many barristers earn less than plumbers and teachers.  Rates of pay for barristers doing legal aid work are £0 – £33.50 per hour before deductions.
It has been revealed that the hourly rate for junior barristers is £33.50 gross.
Out of this they have to deduct their costs, such as tax, insurance, chambers rent and books. Travel time to court is £15 an hour. Some work, such as advising defendants that they have no grounds for appeal, is not paid at all.

In a survey by the Criminal Bar Association in May 2005, one barrister calculated his pay in a three-day drugs case, including 60 hours’ preparation, at £26 an hour. Rates of pay include payment of £1,000 for a one-week rape trial.

It is estimated that it costs £40,000 in professional studies to become a barrister.

The Department for Constitutional Affairs says that the average yearly payment to criminal barristers was £62,000. Simple mathematics shows that those at the bottom end of the scale are therefore poorly paid. The Criminal Bar Association has 2,500 members and the top 9 per cent of barristers earn more than £100,000 leaving very little for those at the bottom.
The “average pay” of barristers is hardly relevant to a newly qualified advocate who is not paid enough to make a living.

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