Law Weblog

Barristers’ “strike” called off

Following meetings with Lord Carter of Coles, who is leading the review of barristers’ pay, barristers have agreed to return to normal working and await the review’s outcome.

Juries under threat, again.

Lord Goldsmith, the Attorney General announced that juries might no longer be used from 1st January 2006 in serious or complicated fraud cases.
A judge would sit alone in probably 15 and 20 such cases a year where the judge considers that the trial is too “burdensome” for a jury. Such a trial would also need the approval of the Lord Chief Justice.
The Criminal Justice Act 2003 s43 permits non-jury fraud trials but the government agreed it would not be implemented without further approval from both Houses, it is expected that there will significant opposition.

Intoxication – self-defence – murder – rule in O’Grady correct

R v Hatton [2005] (CA)
[Intoxication – rule in O’Grady is correct – intoxicated mistake not relevant to self-defence]
D beat the deceased to death with a sledgehammer after drinking over 20 pints of beer His recollection of events was unclear but he believed that he was under attack. The issue was the reasonableness of D’s reaction as he had believed the facts to be, even if that belief was mistaken and the mistake was caused by his intoxication.

Held: In self-defence, a mistake induced by drunkenness cannot be relied on. The decision in O’Grady was not obiter simply because it was a case of manslaughter, and that, accordingly, anything said about the law of murder had to have been unnecessary to the decision. The issue considered by the court in O’Grady had been whether a defendant who raised the issue of self-defence was entitled to be judged on the basis of what he mistakenly believed to be the situation when that mistaken belief was brought about by self-induced intoxication by alcohol or drugs. To that issue, the court had ruled that he was not. The general principle in O’Grady was not obiter so far as the law of murder was concerned that issue had not been restricted to the offence of manslaughter.

Guilty

Britain’s youngest magistrate

Britain’s youngest magistrate is 20-year-old Annand Limbachia from Crawley. Her appointment has not been without controversy. The minimum age for selection as a justice of the peace was lowered last year from 27 to 18.
More detail, here

Funding of legal services

Campbell v MGN Limited [2005] HL
[Funding of legal services CFAs do not interfere with the media’s right to freedom of expression]
C, Naomi Campbell sued MGM newspapers (Daily Mirror) for breach of confidence after they published photographs and additional details concerning alleged drug treatment.
The House of Lords ordered MGN to pay Ms Campbell’s costs. Her appeal to the House of Lords had been funded by way of a conditional fee agreement, with a 95-100% success fee (although it is thought she could afford a conventional fee arrangement).
This meant that although her legal costs came to around £300,000, nearly £600,000 could be claimed from the Mirror.

MGN claimed that such a liability infringe its right to freedom of expression under Article 10 of the European Convention on Human Rights. Also, CFAs could lead to a newspaper self-imposing restraints on publication. Also, it might also lead to media defendants being significantly tempted to pay up something to be rid of unmeritorious litigation for purely commercial reasons.
Campbell argued that conditional fee agreements were necessary to provide the access to the courts required by Article 6 of the Convention.

Held: The regimen of CFAs and the imposition of costs and success fees on the losing party is legislative policy which the courts must accept. In addition, they held that there was nothing in the relevant legislation which suggested that a solicitor, before entering into a CFA, must inquire into his client’s means and satisfy himself that he could not fund the litigation himself. Their Lordships recognised that CFAs could have something of a chilling effect on newspapers exercising their right to freedom of expression, but considered that if this were a problem, a legislative solution would be required.

C won.

Judges – appointments process

The appearance of inappropriate actions on the part of the Lord Chancellor in the selection of judges is not acceptable.
In October 2005 a row broke out between the Lord Chancellor and the Commission for Judicial Appointments, which accused the Lord Chancellor of interfering in the judicial selection process and also of using his influence to favour Oxbridge educated candidates.

The observation appeared in the Commission’s annual report, which accused Lord Falconer of acting “inappropriately” in appointing Wyn Williams QC as a specialist chancery circuit judge for Cardiff despite the unanimous recommendation of the selection panel that the job go to another candidate because Williams lacked the experience of chancery work stipulated in the job advertisement.

Lord Falconer denied he had tried to persuade the commission to change its conclusions.

The Commissioner Sir Colin Campbell said he found it “quite disturbing” that in the legal arena there should be a complaints system without redress. “It is not acceptable for an individual to be informed that an independent commission has upheld his or her complaint, but then to have redress denied.”

Campbell criticised the Government for rejecting the independent watchdog’s recommendations on five occasions over the last four years.

The Judicial Appointments Commission, takes over responsibility for the appointment of judges in England and Wales from April 2006.

Role of the European Commission

The European Commission has fined four Italian tobacco processors a total of €56 million for colluding over a period of more than six years on the prices paid to growers and other intermediaries and on the allocation of suppliers. Such collusion is outlawed by the EC Treaty’s ban on restrictive business practices (Article 81).

The Commission noted that one of the cartel members which had applied for lenient treatment committed a serious breach of its leniency confidentiality obligations and so did not receive full immunity from fines.

More information here

Parliament Acts 1911 and 1949 are lawful, but the battle will continue on another front, using human rights and European employment law next year.

Thursday, 13 October 2005
Jackson v Attorney General [2005] HL
[Legislation – Parliament Acts 1911 and 1949 are lawful]
The Countryside Alliance, which represented pro-hunt campaigners who wished to continue foxhunting, argued the legislation used to force the ban through in England and Wales – the 1949 Parliament Act – was illegal. The government last November used the Parliament Act to push the hunting ban through following continuous opposition to a ban in the House of Lords. The ban made hunting with dogs a criminal offence.

Held: Lord Bingham of Cornhill for their Lordships said it was valid.

Nine of the 12 Law Lords, rather than the usual 5 heard the case because of its constitutional importance.

Legislation passed using the Parliament Acts is not subordinate legislation but primary legislation.

The authority of Picken v British Rail is not doubted by the instant case, which has only proceeded at the invitation of the Attorney General. Picken, was an enquiry into the workings of Parliament where it was said that Parliament had been misled and so, had proceeded on a false basis, the instant case was not such an enquiry. The instant case firstly asked if Acts that created the Hunting Act were “enacted law”. Secondly, a question of law had been raised which had to be resolved by either the courts or Parliament, and because Parliament could not do so it was up to the courts.

Hunting ban upheld

Role of judges, sentencing powers unlimited

7th October 2005 Old Bailey, London
Mr Justice Mackay imposed a record fine of £10 million on the rail maintenance company Balfour Beatty that was implicated in the Hatfield train crash.

The previous record in an English court of £2 million was imposed on Thames Trains after the 1999 Paddington rail crash. A £15 million pound fine was imposed Transco PLC in august 2005 at the High Court of Justiciary in Edinburgh

The judge said Balfour Beatty had been responsible for “one of the worst examples of sustained industrial negligence in a high-risk industry I have ever seen”. The incident at Hatfield resulted in 4 deaths and 102 injuries.

Chair of the Judicial Appointments Commission appointed

Baroness Usha Prashar will be the first Chair of the Judicial Appointments Commission, which will come into being in April 2006.

Baroness Usha Prashar will chair the independent body that will select judges through an open and transparent method, ensuring judges reflect the society they serve. The Commission will be responsible for judicial appointments in courts and tribunals which are currently the Lord Chancellor’s responsibility.

Baroness Usha Prashar is appointed by HM The Queen following her selection by an independent panel chaired by Sir Nigel Wicks.

The Judicial Appointments Commission will consist of 14 commissioners including five lay-people, five judges, one barrister, one solicitor, one tribunal member and one magistrate. Three of the Commissioners will be selected by the Judges’ Council under the terms of the Constitutional Reform Act 2005. The other 11 appointments will be appointed through an open competition.