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Monday, 21 April 2014

Don't really like the idea of positive discrimination

because the best person should get the job -

but then you read the statistics and realise that there are 5 BME High Court Judges out of 108 and no more at a higher position.  15 BME of 654 Circuit Judges and 27 BME Civil DJs of 446 in total.  The judicial trainees are where it gets even more worrying -  68 BME Recorders out of 1196 and 39 of 764 DDJs (Civil) or in other words there is no hope of the full time judicial numbers getting much better in the near future.  4.8% BME of the total judiciary!  13 of the 100 new QCs are BME (of the 225 applicants, 32 were BME).  Only 10% of practising Bar is BME.

Time for positive discrimination? Time for quotas? Check out this bewildering Belgian example....

Don't like it, instinctively think it is unfair to the non-protected characteristic candidates?  But then something must be done.............Perhaps if two candidates are equal in merit, the BME gets the role?

What's the answer?

Sunday, 13 April 2014

& so as foreshadowed in this blog it came to pass, county courts RIP

The CPR is to be amended, probably from 21st April, to reflect the abolition of the county courts and replacement by one single national County Court.

4. In the Rules and in CCR Order 27—

(a)unless amended elsewhere in these rules —

(i)for “a county court”, in each place it occurs, substitute “the County Court”;

(ii)for “county court”, in each place it occurs, substitute “County Court”;

(iii)for “county courts”, in each place it occurs, substitute “the County Court”; and

(iv)for “district judge”, in each place it occurs, substitute “District Judge”;

What we used to call and attend as county courts - i.e. the buildings will now be called County Court Hearing Centres.  Another small innovation is that district and circuit judges are being capitalised in the new legislative arrangements:

1) Subject to paragraph 2), in each practice direction— 
a) for “a county court”, in each place it occurs, substitute “the County Court”; 
b) for “any county court”, in each place it occurs, substitute “the County Court”;  5
c) for “county court”, in each place it occurs, substitute “County Court”;
d) for “county courts”, in each place it occurs, substitute “the County Court”; 
e) for “circuit judge”, in each place it occurs, substitute “Circuit Judge”; 
f) for “Circuit judge”, in each place it occurs, substitute “Circuit Judge”; 
g) for “designated civil judge”, in each place it occurs, substitute “Designated 
Civil Judge”; 
h) for “district judge”, in each place it occurs, substitute “District Judge”; 
i) for “master”, in each place it occurs, substitute “Master”; and 
j) for “the county courts”, in each place it occurs, substitute “the County Court”. 

Well bye bye county courts........and in particular my favourite and the oldest civil court in the world, the Crime and Courts Act 2013 repeals the following:

(2) For the purpose of establishing a court to exercise so much of the jurisdiction previously exercised by the Mayor's and City of London Court as is appropriate to a county court and for exercising any other jurisdiction which may hereafter be conferred on a county court, the City of London shall, by virtue of this section, become a county court district and accordingly the enactments relating to county courts shall apply in relation to the county court for the City of London as they apply in relation to a county court for any other county court district.

(3) Without prejudice to subsection (1) above, the county court for the district constituted by subsection (2) above shall be known as the Mayor's and City of London Court and the Circuit judge assigned to that district under section 20(1) of this Act shall be known as the judge of the Mayor's and City of London Court.

But curiously not this:

The courthouse and accommodation which up to the appointed day have been respectively known as the Central Criminal Court and the Mayor's and City of London Court shall continue to be known by those names, and it shall be the duty of the Common Council of the City of London (in this section referred to as “the Common Council”) to continue to make the said premises available for use for the sittings and business of those courts respectively.

Not sure what all that means?

Saturday, 15 March 2014

Read and weep Lord High Chancellor

"The Prisoner comes to the Bar as an innocent man and is to be regarded as an innocent man.  He is entitled not only to every right but to every privilege which is granted to every other person in Court.  When your Lordship comes into Court we all stand up because your Lordship represents the Majesty of the King , and when your Lordship sits down we are all allowed, by that courtesy to resume our seats in such ease as enables us to perform our respective duties,and I submit that that courtesy should be extended as much to an unconvicted prisoners as to anybody in Court.

I am extremely sorry that I should make a demand which is unpleasant to your Lordship, but there is something which all Counsel must do, and that is that they should have courage in defending the rights and in defending the liberties of their clients and the constitution of this country has never been more jealous than in pruning all relics of harsh and cruel treatment of prisoners.  For these reason I submit that as a matter of right the prisoner, unless there is danger of his escape, should be allowed to be seated."

So submitted Maurice Healy of Counsel to Mr Justice Horridge at Derby Assizes in 1922 and his client was allowed to sit and thereafter all Defendants were and are usually invited to sit after being arraigned.

Ought to bring a tear to Grayling's eye - because it's that advocacy, that sentiment, that essential bulwark of oral argument standing in the way of the prosecuting state and the unfair tribunal, that guarantee of all that is right and good in our country's devotion to the Rule of Law, that he's out to degrade and demolish in pursuit of something less costly but also less good.  

Read and weep Lord High Chancellor.

Derby Assizes:

Tuesday, 18 February 2014

Come on Home Secretary you know you've got to.....order a Litvinenko Public Inquiry

Sir Robert Owen, otherwise High Court Judge with great experience, but for these purposes the Assistant Coroner for Inner North London, wanted to include within his Inquest into the death of Mr Litvinenko, the question of whether the Russian Federation Government was culpable in his homicide.  A review of the documents by his legal team elicited a positive prima facie case.  But HMG PII'd many of those docs making an Inquest (which is outside of JSD - see posts passim) impossible.  So Sir Robert, in pursuit of justice, asked to be made the Chairman of a Public Inquiry so that he could hold secret hearings, but at least he could look at the question of who killed Mr Litvinenko - i.e. work out whether or not the agents of a foreign government murdered someone under the Queen's Peace (or within the procedural jurisdiction of article 2 ECHR as we now call it).  HMG does not want an inquiry for various reasons including our foreign post-Snowden intelligence partners not understanding how a Judge gets to have a look a loads of sensitive evidence, even in private.  Plus bizarrely:

Fifth, an inquiry is almost certain to be more costly of time, money and resources than an inquest. Since the whole point of an inquiry would be to enable the chairman to consider material additional to that which the inquest would consider, the inquiry would be very likely to take considerably longer to complete, in circumstances where there is justifiable public concern to see this matter brought to a proper conclusion. The effect of acceding to your request would be that the consideration of closed material, which can never be revealed publicly, would delay the publication of conclusions that can be drawn from the open material. Furthermore, even allowing for your helpful offer to act as Chairman and to adapt the existing administrative arrangements to fit an inquiry, it is the Government's assessment that the exercise would be substantially more expensive than an inquest. In times when the public pursue is under real strain and the whole of Government is required to exercise restraint in incurring additional expenditure, this is a factor of real substance which must be taken into account.

Seriously?  The question of whether or not something pretty serious happened on English soil can't be investigated in a proper manner because the public purse won't run to it.  

Well the Admin Court (Stephen Richard LJ in the lead) quashed the decision (although of course it could not address the costs issues - better to stick with the black letter stuff) and has sent it back to the Home Secretary to have another go at either coming up with lawful reasons to refuse an Inquiry or to jolly well get on with setting up a public inquiry as to how some foreign chaps might have got some highly radioactive elements into central London and inside Mr Litvinenko.  Why would the public have interest in having that investigated by a Judge.  Let's get on with it?  I'm sure Owen J will respect and protect the sensitivities of our intelligence partners and will keep the PII material out of the public domain; but will at least give us some sort of publicly exposable gist of what happened and how we might prevent, what might have been a dangerous incursion into our sovereignty, from happening again.......  

Monday, 27 January 2014

The HS2 judgment: European Law not supreme? Some statutes might be immune from it? Who says?

You'll recall section 2(1) European Communities Act 1972?

All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression [“enforceable EU right”] and similar expressions shall be read as referring to one to which this subsection applies.

Which means that EU law trumps the law of England and Wales whenever the two collide.  As the ECJ instructed the House of Lords in Factortame:

20. The court has also held that any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent, even temporarily, Community rules from having full force and effect are incompatible with those requirements, which are the very essence of Community law (see theSimmenthal case Case 106/77 [1978] ECR 629 at 644 at (paras 22–23)).

To which Lord Bridge replied:

If the supremacy within the European Community of Community law over the national law of member states was not always inherent in the EEC Treaty it was certainly well established in the jurisprudence of the Court of Justice long before the United Kingdom joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the 1972 Act it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. 

But apparently it may not always be the duty of the UK Court to override all such rules of national law in conflict with EU Law:  The Supreme Court was asked in the HS2 appeals to consider whether the hybrid bill procedure (which is in use to bring the high speed line to legislative fruition) is sufficient for the purposes of several EU Directives and other provisions which require minimum public consultation and involvement safeguards before a high speed rail line is driven through the back gardens of middle England.  The Sup Ct, but not the parties, spotted the massive constitutional hazard on the line which prevents the Court considering the efficacy of parliamentary procedure: Article 9 of the Bill of Rights no less:

In the case of the United Kingdom, the approach suggested by the two Advocates General would raise a particular issue of a kind which article 1(4) (formerly 1(5)) was no doubt intended to avoid. It is, we recognise, one that may be specific to the United Kingdom. Article 9 of the Bills of Rights, one of the pillars of constitutional settlement which established the rule of law in England in the 17th century, precludes the impeaching or questioning in any court of debates or proceedings in Parliament. Article 9 was described by Lord Browne-Wilkinson in the House of Lords in Pepper v Hart [1993] AC 593, 638, as "a provision of the highest constitutional importance" which "should not be narrowly construed". More recently, in the Supreme Court case of R v Chaytor and others [2011] 1 AC 684, para 110, Lord Rodger of Earlsferry said this:

"[I]n his Commentaries on the Laws of England, 17th ed (1814), vol 1, Bk 1, chap 2, p 175, under reference to Coke's Institutes, Blackstone says that the whole of the law and custom of Parliament has its original from this one maxim: 'that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere.'"

Some laws are more important than others, and some laws might not apparently, be subject to the Factorame treatment:

Under the European Communities Act 1972, United Kingdom courts have also acknowledged that European law requires them to treat domestic statutes, whether passed before or after the 1972 Act, as invalid if and to the extent that they cannot be interpreted consistently with European law: R v Secretary of State, Ex p Factortame Ltd (No 2) [1991] 1 AC 603. That was a significant development, recognising the special status of the 1972 Act and of European law and the importance attaching to the United Kingdom and its courts fulfilling the commitment to give loyal effect to European law. But it is difficult to see how an English court could fully comply with the approach suggested by the two Advocates General without addressing its apparent conflict with other principles hitherto also regarded as fundamental and enshrined in the Bill of Rights. Scrutiny of the workings of Parliament and whether they satisfy externally imposed criteria clearly involves questioning and potentially impeaching (i.e. condemning) Parliament's internal proceedings, and would go a considerable step further than any United Kingdom court has ever gone.

The United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Rights Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list. The common law itself also recognises certain principles as fundamental to the rule of law. It is, putting the point at its lowest, certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation.

We are not expressing any view on whether or how far article 9 of the Bill of Rights would count among these, but the point is too important to pass without mention. We would wish to hear full argument upon it before expressing any concluded view. It is not a point upon which the parties before us proposed to make any submissions until it was raised by the Court. We were then told that the attention of the Parliamentary authorities (and we deliberately use a vague expression) had been drawn to this appeal, and they elected not to be represented. If and when the point does fall to be considered, the Parliamentary authorities may wish to reconsider whether they should be represented, and, particularly if they still regard that course as inappropriate, it may well be the sort of point on which the Attorney General should appear or be represented. Important insights into potential issues in this area are to be found in their penetrating discussion by Laws LJ in the Divisional Court in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151, (The Metric Martyrs case), especially paras 58-70, although the focus there was the possibility of conflict between an earlier "constitutional" and later "ordinary" statute, rather than, as here, between two constitutional instruments, which raises yet further considerations.

Laws LJ in the above named case said this:

Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature's actual – not imputed, constructive or presumed – intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. I should add that in my judgment general words could not be supplemented, so as to effect a repeal or significant amendment to a constitutional statute, by reference to what was said in Parliament by the minister promoting the Bill pursuant to Pepper v Hart [1993] AC 593. A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later statute.

This development of the common law regarding constitutional rights, and as I would say constitutional statutes, is highly beneficial. It gives us most of the benefits of a written constitution, in which fundamental rights are accorded special respect. But it preserves the sovereignty of the legislature and the flexibility of our uncodified constitution. It accepts the relation between legislative supremacy and fundamental rights is not fixed or brittle: rather the courts (in interpreting statutes, and now, applying the HRA) will pay more or less deference to the legislature, or other public decision-maker, according to the subject in hand. Nothing is plainer than that this benign development involves, as I have said, the recognition of the ECA as a constitutional statute.

Which can only lead me to ask What is a Constitutional Statute/instrument? How is it defined? Who defined it? What democratic legitimacy did they have when they defined it? and What has any of this go to do with the Judges who apply and do not make (save for the odd increment to the common law) the law?

The absence of a written constitution does not mean that we should let the Judges write one for us.  The Supreme Court is wrong and Laws LJ was wrong - unless or until some constitutional revolution takes place and some higher norm is enacted by the common consent of the people, then it remains the constitutional position that all statutes, enacted by Parliament, are equal.  They are all subject to EU Law (so long as the 1972 Act stays on the books), are all are subject to implied or express repeal by a majority in Parliament and none are entrenched.  If the Bill of Rights needs to be overridden by virtue of section 2(1) of the 1972 Act, then the Supreme Court better get on with it according to the judicial oaths they swore to apply the law.  That is what Parliament has told them to do.  It is not for them to refuse.  It is not for them to decide that Parliament did not actually intend them to set aside the Bill of Rights or the like when it enacted the 1972 Act -  how do they derive that from its words or from Hansard?  If Parliament were to amend section 2(1) to protect some category of constitutional statute/instrument from its purview, then that would be a different matter, albeit likely a breach of EU law which would be chastised by the ECJ. 

Stop pretending otherwise in obiter dicta that nobody elected you to declare!  When the Ct says that it cannot go further because it did not hear argument on the point - that is the least of my concerns-   it is has not heard the democratic process on the point either!

I support constitutional reform in this country, i.e. the enactment of a higher norm, probably a written constitution, by common consent, so that these questions can be debated, voted upon and enacted. Some higher norms, rights and duties should be entrenched so as to be protected from the simple political majorities of governments. 

But these questions are not for Judges (nor lawyers), but for people, i.e. the people.  

Meanwhile, the Sup Ct, should leave well alone.    

Sunday, 12 January 2014

French perspective on our profession & and how cuts to criminal legal aid will affect it........

Was in France over New Year when Le Figaro reported that some maverick French avocat had used the fact that some holiday stand in magistrat didn't know what he was doing in order to get  a novel order of disclosure from the flics of papers justifying the continued custody of his client.  Apparently a EU Directive comes into force 2nd June 2014 which requires the State to give sufficient disclosure to a person in criminal custody pending trial so as to be in a position to challenge the lawfulness of that custody.  Think we call it primary disclosure.  Such disclosure is not given in France as yet.  Interestingly the article reported that the Police did not want to give French lawyers disclosure because unlike in England where les avocats ango-saxon are responsible and professional, the French avocats would just supply all of the sensitive information about victims to their clients who would then have them intimidated or worse.

That's our international reputation for professionalism which we risk sending to Hell in a handcart once the only way to make a living at the criminal bar is to seek out rich criminals, who will only hand out their dirty money in return for assistance in likely breach of our Code of Conduct.

Saturday, 21 December 2013

What's in your stocking this Christmas? A judicial appointment

Have been quiet, because have been busy, the Barrister's boon and the Blogger's curse.

Spotted a High Court appointment:

The Queen has been pleased to approve the appointment of Ms. Alison Hunter Russell, Q.C., to be a Justice of the High Court with effect from 13 January 2014.

The Lord Chief Justice will assign Ms. Russell to the Family Division.

Miss Russell, 55, was called to the Bar by Gray’s Inn in 1983 and took Silk in 2008. She was appointed a Recorder in 2004 and is approved to sit as a deputy High Court Judge.