Archive for the ‘Law Review’ Category


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Motorists face 60mph speed limit on motorways

Interestingly, not to save lives from driving and reduce claims for road traffic accidents – but from pollution.  The plan is to reduce the speed limit to 60mph on some roads. The Telegraph 

Remembering 1914

With Lord Kitchener appearing on a £2 coin – an example of rather poor taste in the view of many – the remembrance of The Great War will bring much comment and analysis.

Neil Schofield writes: 

“Part of the point of commemorating the hundredth anniversary of a war is the certainty that nobody who served in it will still be alive.  It is the point at which, definitively, that war has passed from direct into reported experience; history that can be turned into mythology, without the inconvenience of spontaneous testimony from those who were there, and might have something different to offer on the subject….”

Witness protection – why Nigella Lawson is not a victim of the criminal justice system

Felicity Gerry writing in Legal Week makes some robust and good points about the Grillo sisters case.

Nigella Lawson is a victim of domestic violence, but she is not a victim of the criminal justice system.

Much has been said about the treatment of Ms Lawson as a witness in the fraud trial of her former personal assistants, Francesco and Elisabetta Grillo; an experience she has described as “deeply disturbing”. There have even been calls for greater protection of witnesses as a result.

This comes at a time when former chief prosecutor Sir Keir Starmer QC has announced that he will lead areview into the treatment of victims in the criminal justice system.

No review of the treatment of witnesses will stop them from being accused of lying or being inaccurate when that is the defence case; that is the purpose of a trial. To put this into perspective, if you were accused of stealing from your employer, then you would naturally expect your accuser to be questioned robustly.

At last, a law to stop almost anyone from doing almost anything

George Monbiot in The Guardian writes: “Protesters, buskers, preachers, the young: all could end up with ‘ipnas’. Of course, if you’re rich, you have nothing to fear”
Back later…

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It bears repeating…Save UK Justice

Disruption in criminal courts as barristers and solicitors stage mass walkout: live updates

The Guardian

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If we are to continue to provide justice in this country – despite the difficulties we all face – it is important to ensure that we have the lawyers to represent those who need help.

The mark of a civilised country, surely, is that it treats those who face the legal system fairly? How will we be able to do that if we don’t provide legal aid?

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I quote at length from a remarkable blog post from the Prison Reform Trust…

For the first time this Christmas, people in prison will not be able to receive parcels from their loved ones under petty and mean new rules introduced by the Justice Secretary Chris Grayling.

The new rules, which forbid prisoners from receiving any items in the post unless there are exceptional circumstances, were introduced in November as part of the government’s changes to the Incentives and Earned Privileges (IEP) scheme.

Under the rules, families are prevented from sending in basic items of stationery such as cards, paper or pens to help people in prison keep in touch with their friends and families and wish them a happy Christmas. They are also prevented from sending books and magazines or additional warm clothes and underwear to the prison. Instead people in prison are now forced to pay for these items out of their meagre prison wages to private companies who make a profit from selling goods to prisoners.

Read the rest of the article…

This is grotesque government – a policy introduced by a politician with no experience of the law or the ‘Justice’ system.

And they say that Britain is a 1st World Nation…with a reputation for ‘humanity’.

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A new series of events aimed at lawyers, providing inspiration and ideas on life and work will kick off on 10 October 2012.

Who: Guest speakers for the first event include Nick Southgate, a member of the School of Life faculty, on ‘The surprising science of better decision making’ and John Purkiss, consultant in personal branding and author of Brand You , on ‘Discovering the life that you want’.

What: Life With Law is a series of free talks offering inspiration and ideas for living a good, happy and satisfying life while practising law. The first event, Finding Your Path & Making Things Happen includes guest talks on ‘The surprising science of better decision making’ and ‘Discovering the life that you want’.

When: Wednesday 10 October 2012 6.30 pm (- according to the website)

Where: BLP, The Auditorium, Adelaide House, London Bridge, London, EC4R 9HA

Why: Though good at helping their clients, lawyers aren’t always so good at managing their own lives – or at helping their team to manage theirs. Life With Law provides a forum for lawyers to find inspiration, featuring some of the best speakers to help lawyers reflect and then make their ideas happen.

Whilst the Life With Law events are the brainchild of alternative legal services business Lawyers On Demand, they are not intended to persuade lawyers down any particular path.

Simon Harper, Co-Founder of Lawyers On Demand, points out that:

“As the legal profession experiences accelerating change, we all need some space to think about our working lives. Life With Law is a place for lawyers to take a bit of time to reflect on how to meet their changing personal development needs.”

Clients and lawyers alike are placing increasing importance on alternative legal services models as a result of the growing commercialisation of the legal sector. Now one of the first of the new legal service providers is mirroring another trend that is beginning to shape the business world and giving lawyers access to tools for personal development, self-help and ‘mindfulness’.

“Lawyers On Demand’s free Life With Law events are open to any lawyers who are curious about ideas for better managing their own lives – and to help their teams to manage theirs.”

Future events in the Life With Law series will explore other issues in the intersection between living well and working wisely.

In a world where work-life balance has become meaningless, Life With Law is about lawyers finding time to reflect and making mindful choices in their daily working lives. For more information go to www.lifewithlaw.com or follow on Twitter here

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Professor David Rosen
This is an academic discourse on the subject of ‘blasphemy’. The opinions are my own and not that of Darlingtons, Brunel University, or the Society of Legal Scholars.

I write this article on the Aristotelean premise that:

‘It is the mark of an educated mind to entertain a thought without accepting it’.

It is written because some issues need to be aired, and politically correct people telling us to leave things well alone (Especially the atheists and the nihilists), are becoming tiresome.

Until recently, the swearing of an Oath on solemn statements/Affidavits before the Courts, was mandatory. I have already written an article as to why what is left of swearing Oaths, should remain. (The Darlington’s blog archive of posts by Professor Rosen)

An integral part of British Society called upon the acceptance of a superior omnipresent being, that governed the ways of the World by way of a divine presence and divine providence.

That acceptance brought an understanding of Christian values and Christian beliefs without which it is at least arguable that the Order and foundation of moral understandings and beliefs founded upon religious values, may not have evolved quite how they did.

The obvious case, as all Law students know, is that of Donoghue v Stephenson [1932] UKHL 100, loving one’s neighbour: Essentially one of the 10 Commandments, and in any event, a Noachide Law. The entirety of the common Law of Torts is founded upon such an understanding that tortious duties exist in a wide variety of subjects such as Consumer Law, Professional Negligence, Personal Injury etc…

Indeed, fairness, mercy, and forgiveness, are all fathers of the Law of Equity, and mitigation in  Criminal Law, which are founded upon ethics and morals from the Old Testament.

One day, God became…less important in our Law. It has for some time been uncool, and über-cool to believe in nothing, so that we have a whole array of nihilists on the one part, atheists, sort-of-go-with-the-flow believers, and religiously accepting.

I wish to immediately distinguish that this article relates to blasphemy and blasphemous libel, as opposed to religious hatred which is a different thing altogether. Blasphemy was governed by various Statutes of Law which were revoked in May 2008 under the Criminal Justice and Immigration Act 2008, whereas the latter continues to be governed primarily by the Racial and Religious Hatred Act 2006.

Blasphemy was a criminal offence punishable with the death penalty until 1676, and thereafter punishable with a fine and/or imprisonment. The criminal aspect of blasphemy was abolished by the Criminal Law Act 1967.

Blasphemy as a common law offence, was abolished as recently as 2008.

What changed? What went wrong? What went right?

In a developing Society/Empire (as then it was the British Empire), Christianity was inextricably linked to the Laws of England.

In Bowman v Secular Society Limited [1917] AC 406 at 457, Lord Sumner refers to the older Taylor’s case of 1676 1 Vent, as follows:

‘…and Hale said that such kind of wicked blasphemous words were not only an offence to God and religion, but a crime against the Laws, State, and Government, and therefore punishable in this Court. For to say, religion is a cheat, is to dissolve all those obligations whereby the civil societies are preserved, and that Christianity is parcel of the laws of England; and therefore to reproach the Christian religion is to speak in subversion of the Law’.

Post World War II, in 1949, Lord Denning in a speech, said:

‘It was thought that a denial of Christianity was likely to shake the fabric of Society, which was itself founded on Christian religion. There is no such danger to society now, and the offence of blasphemy is a dead letter’.

Post-1945, blasphemy was considered not so much a violation of the sanctity of God’s name, but rather an attack on the moral principles which constituted the Law we have, based on Religious teachings.

In Whitehouse v Gay News Limited [1979] AC 617, the matter was debated in the House of Lords. As per Lord Scarman, the principle of the Laws relating to blasphemy are as follows:

It is not blasphemous to speak or publish opinions hostile to the Christian religion, or to deny the existence of God, if the publication is couched in decent and temperate language.

The test to be applied is as to the manner in which the doctrines are to be advocated, and not as to the substance of the doctrines themselves.

Blasphemy Laws only applied to the Christian Religion, because this was what was directly applicable to the foundations of The Laws of England and Wales.

The actualite of blasphemy had nothing necessarily to do with God, per se. Lord Scarman summed up the position that blasphemy has a role to play, and the Laws of England should have continued to uphold the Laws of blasphemy moderately applied as per Whitehouse v Gay News, in order to ‘safeguard the internal tranquility of the kingdom’.

The Law has moved on and developed so that anyone using threatening or publishing words or behaviour in relation to any religion or faith, or those with no faith or religion with religion imposed upon them (which is a paradox, given the basis upon which English Law developed), to stir up religious hatred, may be guilty of an offence contrary to the Racial and Religious Hatred Act 2006.

As with the Communications Act 2003, there are varying degrees of what constitutes ‘offensive’, to the extent that it is actionable. Lord Chief Justice Judge summed up the position in Chambers v DPP [2012] EWHC 2157:

‘Before concluding that a message is criminal on the basis that it creates a menace, it’s precise terms, and any inferences to be drawn from its precise terms, needs to be examined in the context in and the means by which the message was sent’.

The United Kingdom is a multi-cultural society. Some say that our Islands are populated as a direct result of the British Empire coming to an end, and the Empire coming home to roost.

Technology is evolving at a phenomenal speed. The future of World Economies are uncertain. Consumerism and Materialism are rife. Societies need guidance. Religions gave and give a structure of how to behave morally and ethically. Certainly from a Christian perspective, those same morals and ethics have found their way into the development of our Laws, and to a large extent, morals and ethics by way of altruisms are fairly consistent in every religion. How to punish, guide, or protect those morals and ethics, differ considerably from religion to religion, and faith to faith. Have we done away with religion? Do we have a firm grasp of what is and is not good? Is this reflected in our Laws?

In a Nietzschian context, is God dead? Are our Lawmakers at least, ubermentschen above the Law who can make Law for the masses?

Our Laws are based on sound morals and ethics rooted predominantly from the Old Testament accepted by Christians, Jews and Muslims alike.

There is much to learn from Religious Sages from all religions and faiths, and we would be foolish not to be open-minded and discuss such matters openly, and take all that is good and compatible with the Laws of England and Wales.

Professor David Rosen, is a Solicitor-Advocate, Partner and head of Litigation at Darlingtons Solicitors. He is a visiting associate Professor of Law at Brunel University, and a member of the Society of Legal Scholars. He is also a practising Orthodox Jew.

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The criminal justice system in England &  Wales is under siege.
Many have written about this – so I do not need to repeat the litany of examples in this podcast review post.

John Cooper QC has produced a manifesto for the Criminal Bar Association Vice-Chairman’s position and talks to NorthpodLaw in an excellent podcast which I can thoroughly recommend.

NorthPodLaw describe the contents:
The subjects up for discussion include the BPTC aptitude test and the conflicting interests between the providers pockets and the quality of the candidates; potential strike action; how to get the CBA out of London and engaging with wider Bar; and why the Bar and Solicitors need to be a unified fighting force but not a unified profession.

Listen to the podcast

By the way – To vote, you must be a CBA member and you will need to visit www.criminalbar.com with your membership number to hand.

I see that John Cooper QC, who I have had the pleasure of meeting and podcasting with, has taken up blogging with the wonderfully titled “Shadow of The Noose” blog – and you can read his manifesto for the Vice Chair position at the CBA there

Continuing with podcasts…

Legal Cheek has interviewed Emily Allbon of City University’s excellent Lawbore blog.
Well worth a listen: The Future of Legal Blogging

AND… I have managed to do a couple of podcasts myself in the last week…

Lawcast 213: Carl Gardner on the appointment of Lord Neuberger as president of the UKSC and House of Lords reform

Lawcast 212: Peter Crisp, Dean and CEO of BPP Law School

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Newly minted Supreme Court justice Lord Sumption makes some good points with his recent statement that the best lawyers are not law graduatesbut it would be interesting to know what  evidence he has for this broad assertion. It seems to be rather a general and sweeping statement?  Perhaps Lord Sumption has developed a taste for ex tempore extra-judicial statements of a general nature?

Amusingly, Ronald Dworkin has a scathing response to  a Lord Sumption review and it is worth quoting in full from Ronald Dworkin’s Justice for hedgehogs blog –   the source of the quote:

In the course of an otherwise generous review (The Spectator, March 19, 2011) Jonathan Sumption, who is a Justice of the UK Supreme Court, made a damning observation:

[Dworkin] has taken pleasure in throwing rocks into the placid ponds of academic discourse; to such an extent that the life-cycle of a Dworkinian argument is by now quite well-known. It starts with a brutal forensic demolition of some conventional truth, accompanied by a radical alternative theory. Critics then gather round with their objections. Some of them hit the mark with distressing accuracy. Dworkin responds by reducing the size of the target. He jettisons the more striking and vulnerable parts of the argument one after the other, in order to preserve the persuasive force of the rest, rather like the crew of an early steamer cutting timber out of the superstructure to feed the boilers. Gradually, the theory becomes more acceptable but less radical, until the point is reached when Dworkin is no longer saying anything remarkable after all.

I recently asked him for an example of my regrettable but recurring practice. He confessed that he had “somewhat” overstated his position. He didn’t really mean that it was “well-known” that I water down earlier bold claims. On the contrary he meant only that he now remembers having that impression – in the 1970’s – based on his understanding of my first book. Could he remember which bold statements he had the impression that I later retracted? Or any other details about the impression he now remembers? No, it was much too long ago. Justice Sumption will, of course, take much more care on the bench.

Well.. it amused me.

And so…to the law blogs…

I continue my ‘dystopian legal system’ theme from my Law Review Weekly #4 Part 1 with this notification of fraud and world class theft from RollonFriday.com…

There are two new entries from the archive into the RollOnFriday Dodgy Solicitor Top Trumps pack this week.

First up, Simon Morgan, formerly of Milners, Leeds. Ex-office manager Morgan is currently eighteen months into his seven year jail term for stealing an impressive £1.4 million from his former employer. He spent the cash on using private jets and a Ferrari and on expensive holidays.

Second, and long overdue his own RollOnFriday Top Trump is Hogan Lovells’ nightmare Christopher Grierson. The former partner was recently convicted of stealing £1.3 million in phony expense claims from his firm, much of which he gave to his mistress. Given his extensive plea in mitigation, Grierson escaped what could have been an extremely stiff sentence, but will still serve three years.

And Legal Cheek is on the boil with this story: EXCLUSIVE: Drug Possession Pupil Barrister Henry Mostyn Is Rejected For Tenancy. Clearly..being the son of a famous high court judge – Sir Nicholas Mostyn – was not a plea in mitigation.

It is, of course, not unknown in the legal profession for lawyers to enhance their performance by self medicating with alcohol and taking coke and other illegal highs.  Being caught by Police in possession of  cocaine is not a career improving move.  Legal Cheek reports: “As Richard Todd QC put it while defending Mostyn at his May Bar Standards Board (BSB) disciplinary hearing: “The caution [given by the police to Mostyn when he was caught with the drugs] itself has an impact – it will have a bearing on future applications, whether for [crown court] recorder or Queen’s Counsel.”

And on that note..on to more legal matters…

Following the report of the BSB on advocacy – scathingly ripped apart by Richard Moorhead (referred to in Part 1) – Legal Futures reports: Judges “warming up” to QASA as row over solicitor-advocates rumbles on

I followed the debate in the House of Commons on Lords reform yesterday and was struck at how badly flawed the proposals are.  The principle of electing members of the ‘upper house’ is a good one – but the proposals for a 15 year term, to quote just one part, let alone difficulties surrounding  primacy of the two houses and the lack of a referendum reveal a lack of clear thinking and, one suspects, an element of haste for vainglorious Liberal-Democrat political legacy and glory?  Clegg was described as a ‘struggling sixth form debater’ by one twitter ‘observer’ – and, I have to agree.  It was not an impressive performance.  Rather woolly.

Carl Gardner, on his Head of Legal blog – puts the boot in with elegance and precision of thought: We must say no to this bad Lords reform

Carl Gardner begins with…“Walter Bagehot, in his high Victorian classic The English Constitution, wrote that the danger of the House of Lords certainly is, that it may never be reformed.”

I suspect that reform may be kicked into  the long grass tonight by the Tory rebels et al – not a matter over which I shall lose much sleep given the rather more pressing problems facing the country at the moment which require mature political thought and action.

The UK Human Rights blog reports: Supreme Court dismisses self-incrimination appeal
Philips v Mulcaire [2012] UKSC 28 – read judgment.  The Supreme Court has had its first (and perhaps last) look at an issue arising from the phone hacking litigation against the News of the World newspaper.

@Bretttechlawyer has an interesting piece on his blog: Accountants win in the Board Room – also not taught at General Counsel School

In England, the accountants rule. But it’s the lawyers who are dominant in business in the United States*. I work in England under the rule of accountants and they call the shots in business here. For a profession that has zero television shows made about it accountants really do command a lot screen time in the office and in the board room. But “LA Accountant” is never going to make prime time.

Meanwhile.. over at Family Lore…John Bolch asks: Can divorce lawyers stop wives from cutting up their husbands with chainsaws?

JohnBolch writes: “This advert by Dresden-based lawyers Hannig, Ahrendt & Partners is apparently causing something of a stir in Germany. The slogan that appears after the woman drops the chainsaw reads: “This wouldn’t have happened with a divorce lawyer.” Hmm…”

Obiter J has an interesting analysis on the riots of last summer: August 2011 Disorder ~ Judicial and Court ~ Statistics

There are three kinds of lies: lies, damned lies and statistics.”  The phrase is something of a warning to exercise care when reading statistics.  Nevertheless, two interesting statistical offerings from  the Ministry of Justice and one from the Attorney-General’s Office are worthwhile reading.  Make of them what you will.

Obiter J also reflects on the Libor scandal: Can the law nail the Libor bankers?

“I love the law,” said UpTights today. “Makes me skip to work in the morning. Gives meaning to my life. Colour to my soul. Feeds me from the first to the last. You know, without the law, I am nothing.”

Babybarista: I love the law

“Proof that as the Olympics grow ever closer the authorities are losing whatever grip on reality they may ever have  had came yesterday with an electronic cigarette.”

The White Rabbit investigates The Case of The Electronic Cigarette

Bizarre… indeed.


Recent podcasts

Lawcast 211: Giles Peaker of the Nearly Legal blog on housing law and the changing legal world.


The Guardian

Lawyers decry government plans for ‘flexible courts’ to speed up justice

Supreme court president to be confirmed by No 10 within weeks
My money is on Lord Neuberger MR

John Terry trial: Twitter’s contempt for the rules

‘Secret justice’ bill will mean no justice at all

Shami Chakrabarti: National security doesn’t mean we should jettison our proud tradition of fair trials – peers must oppose this bill

Clive Stafford Smith: ‘The jury system in this country is utter insanity’
The lawyer and founder of Reprieve on defending clients on death row, why the whole justice system is flawed – and his fear of appearing sanctimonious

LegalWeek: CC takes on double Libor role for Barclays and RBS with Chinese wall
Clifford Chance (CC) is advising both Barclays and the Royal Bank of Scotland (RBS) on the fallout from the Libor scandal, with a Chinese wall set up to avoid potential conflicts.

Legal Week: A little more collaboration
Alex Novarese on Legal Week’s move to work on a ‘preferred partner’ basis with Chambers and Partners…

Law Society Gazette: Freshfields and Linklaters dampen magic circle celebrations
Magic circle rivals Linklaters and Freshfields have recorded modest financial results to end a week of announcements by the UK’s biggest firms.

Law Society Gazette: Legal Ombudsman delays complaints publication

The Lawyer: Firms have well-publicised diversity programmes – but they’re not working, InterLaw finds

The Times (£): Cohabitees ‘should get more rights’

The Times (£): Lucy Scott-Moncrieff takes the helm at the Law Society


Professional Update
Thursday 05 July 2012
This week’s issue features diversity reporting requirements, PII practice notes, new president, and more.

Law Society annual review and financial report

Help shape our library services and win M&S vouchers

Sponsored by CILEx

49th CILEx President calls for independent practice rights

Higher Apprenticeship in Legal Services
Industry to benefit from government funding for new Legal Services Higher Apprenticeship.

Bar Council news

School Pupils Gain Taste of Life at the Bar
9 July 2012 – The Bar Council, which represents barristers in England and Wales, will this week host the sixth annual Bar Placement Scheme in conjunction with the Social Mobility Foundation. The scheme enables talented state school students to spend a week undertaking work experience with barristers’ chambers and attending talks, workshops and a reception hosted by the Chairman of the Bar, Michael Todd QC, and the Chair of the Bar Council’s Social Mobility Committee, Taryn Lee QC.

Bar Council Chair Condemns Secret Court Plans
9 July 2012 – As the House of Lords prepares for the Report Stage of the Justice and Security Bill, the Chairman of the Bar Council, Michael Todd QC, has condemned the Government’s planned extensions to the use of Closed Material Proceedings (CMPs), endorsing the arguments of Liberty, Reprieve and the Special Advocates who participate in these proceedings.

And I leave the more mature male readers with the news from the humourist Barry Cryer – that he continues to take Viagra to stop him rolling out of his bed…

AND…this, without much doubt, is probably the BEST transcript of court proceedings in a criminal case you will ever read.  Class!

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It can only be a matter of time, surely, before the fraud cops get their men and women in the City for the LIBOR – and who knows what other –  frauds?   HT to Tom Kilroy @kilroyt for the link to this appropriate pic on twitter (left).  It appears that this photo has, in fact, been photoshopped – but it is still an amusing comment on the Barclays fraud – but not as amusing as this one (right).

Libor Scandal: UK Serious Fraud Office will launch investigation into rate rigging

Synonyms for the noun ‘amateur’ include:   dilettante – dabbler – lover – fancier

It is a fair assessment  of the MPs questioning Bob Diamond at the select committee last week to describe their efforts as ‘amateur’.  While a few good questions were asked – there are reports on twitter that lawyers were sending tweets to MPs suggesting questions to ask – the questions lacked precision and cohesion and were doomed, inevitably, to fail to reveal Bob Diamond as anything other than a banker coached in how to not answer questions with a side specialism in selective memory and hyberbole expressed in his repeated statements of ‘love for Barclays’.

Parliament has gone on, inevitably with the Tories in power , to arrange for the investigation into the LIBOR fraud and corruption in banking generally to be handled by a select committee of amateurs – declining the opportunity to have the matter dealt with by a judge assisted by a lawyer skilled in the art of questioning  leading to a greater likelihood of laying bare some semblance of truth through techniques of forensic legal excision.

John Thurso, the bearded Liberal Democrat ex-peer, intending to be critical of Diamond, inadvertently summed up the ineffectiveness of the MPs questioning thus: “If you were an English cricketer I think you would be Geoffrey Boycott – in occupying the crease for two hours I’m not sure we’re any further forward.”

Something is rotten in the state of Denmark.
Hamlet (1.4.90), Marcellus to Horatio

Trust in the great institutions of the British establishment is, clearly, on the wane. 

The MPs expenses fraud added to the lack of trust and respect we have for our ‘political masters’.   The power of the Church of England, despite the absurd presence still of many Bishops in the House of Lords in 21st century Britain, has waned as we have become more secular and atheistic as a society and, increasingly, there are concerns about the legal system and the rule of law which in part underpins the working of our society.

Government is inflicting great damage to our legal system with the ‘cuts’.  Legal aid is being taken away from the more vulnerable members of our society.  The secretary of state for justice and lord chancellor, Ken Clarke, is believed by many criminal law practitioners, particularly at the Bar, to be on a ‘mission from God’ to destroy the criminal justice system and weight the odds in favour of the prosecution and the courts.  The government applauded last year as our judges accepted the political requirement for swift justice in the wake of the riots – and many would argue that our judges stepped up to the plate badly and handed down sentences disproportionate to the harm and rather more severe than sentences for similar behaviour outside the context of ‘riot’.  It is hardly surprising that many question the fairness of sending a young person to prison for looting a £3.50 bottle of water when we cannot manage to prosecute very much more serious corporate and banking fraud.

 “We are very bad at prosecuting financial crime in this country,”
Mr Clarke said in an Interview with Radio 4’s Today programme.

The Telegraph reports: Kenneth Clarke has said that it is easier to “get away with” financial crime than practically any other kind.

Alex Bailin QC writes in the Guardian: The law catches up with Libor
“The process for setting Libor is pretty much unregulated. That will have to change”

There are plans to engage in an orgy of swift justice, should it be necessary to bring villains and others to justice during the Olympics.  Ironically, there are suggestions that some of our courts will have to close during the Olympic period because ‘Olympic chiefs’ will be wafting around London in the new Olympic ‘Zil’ lanes.

The Mail on Sunday reports this morning that serious villains who are currently being entertained by Her Majesty’s prison authorities are being moved quietly out of London lest, inspired by watching the pole vault and high jump,  they escape during the Olympics (below).  It appears that we won’t have enough Police – another problem with government cuts – to catch these escapees.  The Police will be too busy ensuring that visitors to the Olympic games don’t engage in rioting, general affray and that most heinous of crimes –  interfering with Corporate sponsor rights by bringing non sponsor bank  credit cards, pepsi-cola and Wendy burgers into the Olympic Park.

London’s criminals to get a break during Olympics as courts close
The Independent reports: Services to be cut by half during Games over fears that transport delays will prove too disruptive

Joshua Rozenberg has wheeled himself out to comment, rightly, on the plans for swift justice:
Courts unprepared for Olympics, warns top solicitor

In the wake of the experience last summer, I will not be surprised if newspapers report, two months hence, that the ‘swift justice’ plans further erode trust in the English criminal justice system.  I hope to be proved wrong.

Charlie Gilmour, son of Pink Floyd band member, has an interesting article in the Mail on Sunday today – commenting on his time in prison and the disenfranchisement of many young people who were caught up in the riots and ‘swift justice’ of last summer

Faith in our legal system rests, to some extent, on a good understanding of how it works. 

Cheryl Thomas, professor of judicial studies at University College London’s faculty of laws, has an interesting article in The GuardianLack of understanding about the judiciary is unacceptable and dangerous

A video of her inaugural lecture, Purple Haze: The Danger of Being in the Dark about Judges can be found here

I  very much welcome greater openness on the judiciary.  Gone are the days of automatic deference to authority – thankfully.  Much has already been done to open up our justice system.  Parliament is televised routinely.  We can watch proceedings in The Supreme Court on television.  There are plans to televise other trials – or parts of them.  Professor Cheryl Thomas is right – we do need to scrutinise the judiciary more closely.

The lack of judicial studies in the UK is unnecessary, unacceptable and dangerous. Amid growing media attention on the political role of judges, the British judiciary has become more open, often speaking publicly about important social issues. It is now time for the academic community to develop judicial studies in Britain so it too can contribute to a better functioning justice system and better public debate about the judiciary.

Professor Cheryl Thomas

It is bad enough when government inflicts wounds to the legal system.  It is, arguably, even worse when the profession indulges in ‘self harming’ through incompetence.

Professor Richard Moorhead writes scathingly about the recent efforts of The Bar Standards Boards in relation to their findings on Advocacy: Bar Standards Board’s ‘research’ is crass and deeply flawed

“Barristers think higher court advocates aren’t much cop. Let’s not pretend that’s a reliable indicator of their quality”

Professor Moorhead continues…

The debate on criminal advocacy standards has been a fraught one. It is a debate about quality and the public interest, but it is also a debate about territory, and which profession gets to dominate the criminal defence system. Given the temperature of the debate, one would expect any independent regulator to take a forensic, principled and evidence-based approach to the resolution of the problems posed by intra-lawyer rivalry.

It is against this background that an astonishingly crass piece of research has been published by the Bar Standards Board, the Bar’s independent regulator. The Board’s chair, Baroness Deech, says the research provides, “a robust evidence base as to the high level of concern about advocacy competence in the criminal courts.” The solicitors‘ representative body, the Law Society’s CEO, Des Hudson describes it as “deeply flawed [and] self-serving research… It simply gave participants an opportunity to express their prejudices and self interest.”

And finally.. for this cheery snapshot of a possibly dystopian legal system for modern Britain – The Bar Standards Board has run into a few problems in relation to the new Bar Professional Training Course.  I spent an interesting Friday and Saturday afternoon talking to lecturers, students and others on the problems which have arisen on the new centrally set BPTC.  I now plan to go further into this topic and I have written to Janet Pugh of the Bar Standards Board for her thoughts on how the BPTC has gone this year. I have started to write to the deans of the law schools providing tuition for the BPTC.

It may be that the problems are ‘teething problems’.  It may be that they are not and reveal a systemic failure which goes beyond minor incompetence.  I shall try to find out.  I suspect that this will take some time. Having founded BPP Law School with BPP Holdings plc and a team of my academic colleagues in the early 1990s – I retain an interest in legal education and, particularly, into instances where students are unfairly prejudiced by providers and regulators – should activity of this nature come to light.

Alex Aldridge in Legal Cheek has flagged up some of the concerns: EXCLUSIVE: BPTC Students Point Finger At Bar Standards Board Following ‘Disastrous’ And ‘Unfair’ Exams

Part 2 and 3 of Law Review Weekly will follow on Monday….

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In a week where Chancellor Osbore has performed yet another U-turn (Government tally: 40+ and counting so far),  we wake to news of yet more greed and fraud from the bankers – this time, fiddling LIBOR…

On the matter of Osbore’s U-turns – I watched the Paxman interview with treasury minister Chloe Smith MP who was ripped apart for the edification on the Newsnight watching horde the other evening – Guardian: Jeremy Paxman interviews Chloe Smith: the full transcript | The Car crash interview with Paxo. However, Chancellor Osbore comes out of this debacle with his reputation as a ‘coward’ intact… so some good news for CCHQ.

As to the banker LIBOR fiddling: It would seem that the Barclays ‘Big Society’ initiative to provide work experience for disadvantaged looters hasn’t gone too well.

Curiously – while imprisonment faced the young looters and rioters of last summer – Barclays (and other banks soon to follow) face only a fine.  in the US, Barclays is believed to have secured immunity from criminal prosecution – paying only a hefty fine of £220 to the US authorities and £50 million (ish) to the FSA who seem to regard the matter as a purely ‘civil action’.  Ironically, the fine will be used to reduce the fees for other banks – other than other British banks yet to be caught out in the LIBOR fraud.

But all in the world is good – our prime minister has said, with his usual acuity and precision..or, some might say, his usual vacuity and imprecision.”I think the whole management team have got some serious questions to answer. Let them answer those questions first.”  (BBC)

City Unslicker writes: How did Barclays make it through that dark days of 2009?

By whistle-blowing Barclays are probably covered against future investigations and the other Banks will soon get their own place in the limelight of shame. It’s a sad story though and shows that even the heart of the markets cannot be trusted, a sad day for financial capitalism and the reputation of London – but a better day hopefully as it lead to positive changes at the Banks (or their regulators keeping a better watch).

Perhaps the CPS, when they have finished wasting court time with the prosecution of Paul Chambers in the #TwitterJokeTrial case, will be able to turn their minds to the possibility that bankers may have committed criminal offences?  If no suitable criminal offences can be found in the HUGE database of UK wide crime laws – perhaps Parliament could address attention to remedying this for the future?

Anyway.. there we are: A further ‘dark’ thought occurred to me – which I tweeted…“If I rent a Barclays *Boris bicycle*.. can I be sure that someone at Barclays hasn’t fiddled with the settings or gearing?”

The Twitter Joke Trial has been in the news again with the Lord Chief Justice, Lord Judge, presiding at a hearing yesterday.  I did a podcast on the issue with Paul Chambers’ solicitor David Allen Green on the eve before the hearing: #WithoutPrejudice Special: #Twitterjoketrial with David Allen Green –  and Carl Gardner did an interview with David Allen Green and counsel John Copper QC after the hearing: “Twitter joke” appeal: interview with John Cooper QC and David Allen Green


Recent Lawcasts…

Lawcast 210: Barbara Hamilton Bruce on CILEX and the changing legal world…

Today I am talking to Barbara Hamilton-Bruce who describes herself as “Mother, wife, friend, worker bee, FILEX, social drinker and occasional disco dancer” on twitter where she tweets enthusiastically as @bhamiltonbruce

Barbara also has a blog – The Red Files – and one of her recent posts caught my attention and amused me: Law Tourism

Listen to the podcast

Twitter Joke Trial

#WithoutPrejudice Special: #Twitterjoketrial with David Allen Green

Lawcast 209:  Francis FitzGibbon QC on the Assange asylum bid

Julian Assange walked into the  Ecuador Embassy in London on Tuesday evening to claim political asylum.  The President of Ecuador is shortly to make a statement on Assange’s application.  Today I am talking to Francis FitzGibbon QC about the law relating to asylum and the legal consequences of Assange’s extraordinary decision to seek asylum – a decision which surprised several of his supporters who put up the bail money and which they are possibly in danger of forfeiting.

Listen to the podcast

Read – Francis FitzGibbon QC article: Julian the Asylum Seeker


Legal education news sponsored by BPP Law School

Beautician turned barrister GEORGINA BLACKWELL awarded a First in law at BPP

 Georgina Blackwell, the former beautician who made national headlines in 2009 when she won a High Court case with Bellway Homes has achieved a first class honours, the highest level of degree that can be awarded, from privately owned BPP University College. Georgina, aged 26, from Colchester, Essex who completed the LLB Law (Hons) in 2 years at BPP’s London Waterloo centre, is on her way to becoming a barrister following her examination results published this week. Peter Crisp, Dean of BPP Law School wrote to Georgina in November 2009, offering her a scholarship, having read about her court case, where she defeated the property developer in a dispute over access to her family’s garden, despite having had no legal training.

And Legal Cheek hones in on a current problem issue for legal education…

Restricting The BPTC To Students Who’ve Already Bagged a Pupillage Wouldn’t Breach Competition Law…

The plight of thousands of aspiring barristers who invest large sums of money to undertake the BPTC, but are increasingly unlikely to secure pupillage, has encouraged a lively debate in and around the profession (see, for instance, contributions from The Law Horse, Alex Aldridge and BPP Law School CEO Peter Crisp).

In this debate competition law looms like a spectre; often being referred to but rarely being discussed.

Worth a read…read more…


New books from Oxford University Press


New Edition
International Co-operation in Civil and Criminal Matters
Third Edition
David McClean

Charting the Divide Between Common and Civil Law
Thomas Lundmark

From Juvenile Delinquency to Adult Crime
Criminal Careers, Justice Policy and Prevention
Edited by Rolf Loeber and David P. FarringtonPaperback | 416 pages

From Single Market to Economic Union
Essays in Memory of John A. Usher
Edited by Niamh Nic Shuibhne and Laurence W. Gormley

The Social Value of Shared Resources
Brett M. Frischmann

Negotiating Spaces
Legal Domains, Gender Concerns, and Community Constructs
Edited by Flavia Agnes, Edited by Shoba Venkatesh Ghosh, and Edited by Majlis

New Edition
The Future of Human Rights
Third Edition
Upendra Baxi

Creation without Restraint
Promoting Liberty and Rivalry in Innovation
Christina Bohannan and Herbert Hovenkamp

New Edition
Covert Investigation
Third Edition
Clive Harfield and Karen Harfield

Part II Law Review Weekly – later today or first thing Friday morning…

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It is difficult to know where to start this week.  The law just keeps giving. 
Tax law seems to be in the news with the Times revelations about comedian Jimmy Carr who manages to salt away, apparently, £3 million yearly for his ‘produce’. Apparently Carr is having the last laugh having reduced his tax exposure to 1% with the K2 scheme. Tax evasion is illegal.  Tax avoidance is not.

There appears, however, to be some form of ‘aggressive tax avoidance’ which chancellor Osborne and prime minister Cameron regard as ‘morally repugnant’.  It now seems that Mr Gary Barlow, recently elevated to OBE, may be a participant in – a  perfectly legal tax avoidance tactic – as well,  though with a different consultancy who don’t name their schemes after mountains.

The answer seems to be relatively straightforward.  The government hold all the aces.  They have the power to draft tax laws clearly – to minimise or even stop tax avoidance schemes.  Of course, it cannot possibly be as simple as that or the government would have done it.  Or would they?

Blogger LoveandGarbage doesn’t mess about on this issue – a good read.  He analyses the matter with precision: Spartacus restored scene – starring David Cameron

Julian Assange, facing extradition to Sweden to answer questions about his sexual conduct, took refuge in the London embassy of Ecuador on Tuesday evening.
Apart from Ecuador, not noted for human rights or freedom of the press, is a a rather curious choice for the ‘champion of free speech’ – Assange may well fail in this latest tactic to avoid extradition to the USA via Sweden.  Francis Fitzgibbon QC analyses the legal issues in a very clear blog post –  Julian the Asylum Seeker – pointing out, that in any event, Sweden would not be able to extradite Assange to the USA without the consent of the British home secretary until any charges put are proved in court, at which time Sweden would not be permitted by the European Convention to order authorisation to the USA if there was any prospect of Assange facing the death penalty.

And… it is not often that we see cases of judges being subject to judicial review which are successful.
Nearly Legal, a leading housing law blog, comments on such a case: Judicial review of a closed minded appeal.

“This is by any measure an unusual case. It is a judicial review of the conduct of an appeal to a circuit judge in an unlawful eviction and harassment claim. What is more, it is a successful claim for judicial review (sorry to spoil the tension)…

Read more…

Tony Nicklinson wants to die.  Unfortunately, he is ‘locked-in’ and needs a compassionate third party to kill him.  Will the law go so far as to include ‘necessity’ as a defence to murder or somehow find a solution to this awful situation for Mr Nicklinson?  Given that Parliament is unlikely to sanction euthanasia – and even Lord Falconer, a keen supporter of assisted suicide, does not go so far as to accept Mr Nicklinson’s proposition, it is unlikely that the court will find in Mr Nicklinson’s favour. The legal argument has been put to the judges. We await their decision.

I wrote about the issue in broad terms – covering suicide, assisted suicide and Mr Nicklinson’s predicament earlier in the week: The right to sign our own ‘death sentence’. The right to die and to refuse medical treatment or intervention.


Recent Lawcasts with members of the profession

Natasha Phillips of Researching Reform on topical family law issues
Natasha Phillips is a non-practising barrister and author of the Researching Reform blog – an excellent and  thoughtfully constructed resource for practitioners and others interested in the field of family law.  We look at gay marriage – problem families – no-fault divorce – forced marriages.

Listen to the podcast

Legal Cheek podcast: PODCAST: Be Yourself, Not Some ‘Made In Chelsea’ Clone

The quality of advocacy – BBC Law in Action

“As the lines blur between the work of solicitors and barristers , Joshua Rozenberg asks whether a cheaper service provides better value for money or is it leading to poor representation in court and ultimately miscarriages of justice? He discusses the issues with Baroness Deech of the Bar Standards Board, a solicitor advocate Sundeep Bhatia and Elisabeth Davies, Chair of the Consumer panel at the Legal Services Board. He also speaks to senior appeal court judge Lord Justice Moses and asks about the best way to assess quality and what dangers lie ahead if suffers.”



The Law blogs…

The UK Human Rights blog from 1 Crown Office Row produces yet another thoughtful piece – this time from the pen of Adam Wagner.

There is a democratic deficit in the courts… here’s how to fill it

The current Government often complains about a “democratic deficit” in the courts. It seems that  ”unelected judges” are making important decisions on social policy without any kind of democratic mandate, particularly in controversial human rights cases.

I agree that there is a democratic deficit in the courts. But it isn’t about elections. It is about access.

Read more…

I agree with Adam Wagner’s viewpoint – but I would go a bit further and push the discussion to include wider access  to the ranks of the judiciary. Most of the judges come from the Bar.  That is a historical fact.  Increasingly, judges are being selected from the solicitors and legal executives sides of the profession.  In the recent round of judicial appointments – women fared better, but ethnic minorites not so well.

While a legal academic would not be qualified to sit at first instance or, possibly, on appeal to the Court of Appeal  – unless they were practising as well – there is a case to be made for eminent legal academics to be appointed to the UK Supreme Court where issues of law, rather than fact and evidence, dominate the discussion. Academic reflection and study of the law (and the skills which such deep study brings) seems to me to be a most useful qualification to have when considering the difficult issues faced by the UKSC.  I certainly believe that our judiciary should reflect better the changing mores of our times and the constituent peoples of our nation.  It will take time – but progress does seem to be rather slow.  I can see no reason, in the changing legal landscape with solicitor-advocates taking on more court work – for the bench to be an exclusive sinecure for or preserve of the barrister.

Inner Temple Library wins award for ‘Current Awareness’

I was delighted to see that Inner Temple Library’s hard work over the past years with their excellent Current Awareness service has been recognised with BIALL’s Wallace Breem Award 2012.

Obiter J provides an insightful look into: Justice and Security Bill ~ second reading in Lords

Obiter J notes

Liberty believes that the proposals are dangerous and unnecessary. They will not only overturn centuries of common law fair trial protections for those seeking to challenge the actions of the State, but also undermine the vital constitutional principle that no one is above the law, including the Government.

“LIBERTY” – Campaign “For their eyes only” and see their briefing paper on the bill. 

So, what do others have to say?

Read more…


The Guardian

Offering Julian Assange asylum in Ecuador could be an empty gesture

Julian Assange asylum: questions and answers

Secret court plans ‘address genuine problem in disproportionate way’

‘As hard as it gets’: the case of anorexic E and the right to die
Daniel Sokol: The judge in this challenging case relied on intuition. In such a dilemma, can law or ethics ever yield a single right answer

Officer accused of Ian Tomlinson killing appears in court

Legal Week: Ex-Dewey partners offered settlement deal to avoid future liability

The Lawyer: Mishcon unveils turbo-charged results as turnover leaps 20 per cent

The Lawyer: SJ Berwin turnover flatlines after year of “consolidation”

The Lawyer: Court of Appeal in key corporate veil ruling

Sponsored by the Law Society

Professional Update Thursday 14 June 2012
This week’s issue features equal civil marriage, new CML instructions, member offers, and more.

Excellence Awards are now open for nominations

Ambush marketing: join the debate

Sponsored by CILEx

VQ Day 2012
CILEx is supporting VQ Day, which is being held today, 20 June 2012.

Bar Council news

Bar Council Responds to Consultation on Separate Legal Jurisdiction for Wales

“The Bar Council has responded to the Welsh Government’s consultation on whether there should be a separate legal jurisdiction for Wales. The Bar Council does not express a view on this matter, which is essentially a political question, but it seeks to identify a number of practical issues relevant to arguments for and against the proposition.

It argues that, even if a decision was taken to create a separate legal jurisdiction for Wales, it is in the public as well as the UK national interest that there is free movement of legal professionals within the UK by assisting the administration of justice. It also argues that there would be no need to create any separate institutions for the legal professions in Wales.”

Please click here to read the Bar Council’s full response.

BAILII: Recent Decisions

Recent case summaries from ICLR

XX (Ethiopia) v Secretary of State for the Home Department (JUSTICE intervening) – WLR Daily
IMMIGRATION — Deportation — Conducive to public good

Hutton and others v Criminal Injuries Compensation Authority [2012] EWCA Civ 806; [2012] WLR (D) 176
CRIME — Criminal Injuries Compensation Authority — Application for compensation — Application made outside prescribed time period


A look at the surreal and possibly bizarre side of the legal world…

The Bar’s tricks have been revealed... hat tip to @legalaware on twitter.

Fraud Prevention Services have provided a nifty guide for cons and others likely to end up in a court of law: Tricks barristers often use and how to overcome them

The Yes/No You Lie Trick The Keep Talking Trick – Play Around the Borders Trick – Irrelevant Technical Point TrickProvoking Anger Trick – Questions with Assumptions Trick

All rather tricky?  Oui?

Legal Cheek weighs into the sea of ignorance with: Getting a Pupillage Contract At Slaughter & CILEX: Report Reveals That Young People Are Ill-Informed About Careers

“Young people are overconfident slackers who don’t have a clue about the real world, new research has revealed….Want to find out if your knowledge about legal careers beats your average moron teen? Take the Legal Cheek test.

RollonFriday.com has a bonza of a post for you…

Defendant launches into potty-mouthed courtroom tirade

The Supreme Court of Queensland was subjected to an expletive filled rant from a disgruntled defendant last week, who used the word “f*ck” 77 times during a hearing.

The defendant did little to endear himself to the judge during the short hearing. Effing and blinding from the outset, he opened by telling the judge: “look – listen here, mate, you don’t know what you’re f*cking  talking about“. He added that the judge was a “lard arse“, telling him to “stick your trial up your f*cking arse” and, enigmatically, complaining that the judge was “talking but not in the lingo language“. And when the judge made an order he responded, with rapier wit, “Order me a f*ckin’ pizza while you’re at it“. Boom.

And finally…

Legal education news sponsored by BPP Law School

Legal Week Student Q&A in association with BPP Law School. In this Q&A, Legal Week editor-in-chief John Malpas discusses the hot topics in legal education with Peter Crisp, dean of BPP Law School. Crisp gives his take on the pressure to improve diversity in the legal profession, the 2020 Review of legal education and how candidates can stand out from the crowd when applying for a coveted training contract.

You need to register to watch the webcast

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“I do believe that it is a person’s first human right to be able to determine when, where and how to end his own life. All this talk about a person’s life being ‘a gift from god and only he can decide when a person’s life can end’ is utter rubbish.

“I don’t really care if you believe in god, Santa or the tooth fairy; it is okay up to a point but when believers insist that their way is the only way I get angry. What if you believe in a different faith or no faith? I object to being told what I can and cannot do by a faith I don’t believe in (for the record I am an atheist). I feel that I am denied my most basic human right; I object to society telling me that I must live until I die of natural causes and I will do all I can to restore those rights.”

Mr Tony Nicklinson in The Independent: Tony Nicklinson: ‘Perhaps I’ll say goodbye on Twitter’

The Independent reports: “A severely disabled man with locked-in syndrome will this week endeavour to change euthanasia laws by convincing three High Court judges that any doctor who helps him to die should not face criminal charges.

In a landmark case Tony Nicklinson is asking the court to extend the common law of ‘necessity’ to assisted suicide and murder so that he can be medically helped to die without the doctor risking prosecution.

Can it be right, in a civilised society, that an individual be denied the right to determine the mode and time of death, ask for the assistance of a compassionate third person without the risk of that third person being prosecuted or be denied the right to refuse medical treatment when life is so unbearable that life becomes a burden?

This a complex moralo-ethical issue beset with difficult legal issues – not by any means clear in law: statute or caselaw.

1.  The Suicide Act 1961 states that it is no longer a criminal offence to take one’s own life.  Unfortunately, without medical assistance, suicide is often grim, bloody and painful.

2.  The law on assisted suicide is rather more complex and is regulated, in the United Kingdom,  guidelines published by the Director of Pubic Prosecutions,

3.  The legal presumption in favour of life: Mr Justice Peter Jackson in A Local Authority v E [2012] (Infra) at para. 120 states: “All human life is of value and our law contains the strong presumption that all steps will be taken to preserve it, unless the circumstances are exceptional.  This principle is reflected in Article 2 EHCR, which provides that everyone’s life shall be protected by law.  It is the most fundamental of the Convention rights.”

  4. Set against Article 2 ECHR is Article 8 ECHR: ” The ability to lead one’s life as one chooses is the cornerstone of individual liberty.  Article 8 ECHR guarantees  the right to respect for a person’s private life.  This right belongs to “everyone” and the fact that a person lacks mental capacity does not deprive them of its protection. “  Peter Jackson J, A Local Authority v E [2012]  (Infra) at para. 125

Later this week, Mr Nicklinson will ask the court to extend the common law of ‘necessity’ to assisted suicide and murder so that he can be medically helped to die without the doctor risking prosecution.  The problem for Tony Nicklinson – he cannot take his own life or fall within DPP guidelines. He needs someone else to kill him – which is murder as presently defined –  a step too far? Parliament will not sanction euthanasia for the present or, in all likelihood, the long term future.  The judges are likely to say that this is a matter for Parliament?

5. The right to refuse medical treatment and medical intervention:

In A Local Authority v E [2012]., on the right to refuse medical treatment or intervention,  Mr Justice Peter Jackson had to balance the sanctity of human life with the individual rights enshrined in Article 8 ECHR.  The judgment is clearly written and well worth careful reading.

Peter Jackson J set out the law on capacity (paras 7-11):

The law

7. People with capacity are entitled to make decisions for themselves, including about what they will and will not eat, even if their decision brings about their death.  The state, here in the form of the Court of Protection, is only entitled to interfere where a person does not have the capacity to decide for herself.

8. By contrast, where a person lacks capacity, there is a duty to make the decision that is in her best interests.

9. The first question therefore is whether the person has capacity.  The second, which can only arise if she does not, is what decision is in her best interests.

10. A valid advance decision made at a time when a person has capacity will be effective if the decision has to be made after capacity has been lost.

The Mental Capacity Act 2005

11. These principles appear and are amplified in the statutory framework of the Mental Capacity Act 2005 (‘the MCA’), the relevant provisions being ss. 1-4 and 24-26.

1    The principles
(1)    The following principles apply for the purposes of this Act.
(2)    A person must be assumed to have capacity unless it is established that he lacks capacity.
(3)    A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4)    A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(5)    An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(6)    Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Obiter J considers the complex case of A Local Authority v E [2012] Court of Protection ~ Anorexic patient ~ Capacity to refuse treatment

“We only live once – we are born once and we die once – and the difference between life and death is the biggest difference we know” – Peter Jackson J  

In the Court of Protection, Peter Jackson J has given judgment in A Local Authority v E [2012] EWHC 1639 (COP).  See The Guardian 15th June 2012 – “Anorexic woman should be fed against her wishes, judge rules” – and listen to Dr Tony Calland of the British Medical Association Ethics Committee.

Read Obiter J’s analysis and summary…

Obiter J notes:

Decisions on three issues were required (para 46) and it was necessary to take them in the following order.
(1) Did E have the mental capacity to make decisions about her treatment?  The judge answered NO – paras. 47-53.

(2) Did E have mental capacity when she made an advance decision in October 2011.  Again, NO – paras. 54-70.  Interestingly, it may have been the case that E had acted inconsistently with her purported advance decision but the judge did not have to decide this point since he had held that the advance decision was invalid for lack of capacity.

(3) Was it in E’s best interests to receive life-sustaining treatment in the form of forcible feeding with all necessary associated measures.  The answer was YES and this is addressed from para. 71 onwards.

Making the decision as to the best interests of a person was not a mechanistic exercise but was an intuitive process with weighty factors on each side of the scales (para. 129).  At para. 114 the judge summed up the factors involved in the “best interests” decision.  On the facts of this case, the legal presumption in favour of saving life was not displaced.  There was a possibility that the treatment now available (and for which funding was now available) would succeed.  The judge seems to have been influenced by the commitment of the health authority to a treatment plan.  In the final paragraph of his judgment, the judge indicated that the authorities were now honour-bound to see through the provision of resources in the short, medium and long term.  “Had the authorities not made that commitment, I would not have reached the conclusion that I have.”

In relation to the law, Peter Jackson J had the benefit of Baker J’s comprehensive survey of the law relating to withdrawal or withholding of life-sustaining treatment in W v M and others [2011] EWHC 2443 (COP).  Nevertheless, Peter Jackson J set out, in a straightforward manner, the relevant law at paragraphs 7 to 15 of his judgment and he stated that – “the court has to approach its task in a highly individualised way, focusing on the situation of the individual concerned” (para 12). European Convention rights engaged were Articles 2, 3 and 8.  On these see the judgment at paras. 119-123 (Art 2); 126 (Art 3) and 124 (Art 8)

Validity of advance decision
Mr Justice Peter Jackson stated at para 54: Where there is a genuine doubt or disagreement about the validity of an advance decision, the Court of Protection can make a decision: MCA Code of Practice at 9.67.  If ever there was a case where this route might have been taken, this was it.

para 55: I consider that for an advance decision relating to life-sustaining treatment to be valid and applicable, there should be clear evidence establishing on the balance of probability that the maker had capacity at the relevant time.  Where the evidence of capacity is doubtful or equivocal it is not appropriate to uphold the decision. 

Mr Justice Peter Jackson:

The right to life

120. All human life is of value and our law contains the strong presumption that all steps will be taken to preserve it, unless the circumstances are exceptional.  This principle is reflected in Article 2 EHCR, which provides that everyone’s life shall be protected by law.  It is the most fundamental of the Convention rights.

121. However, the principle is not absolute and may yield to other considerations: Airedale NHS Trust v Bland [1993] AC 789.

122. Likewise, the MCA might have given absolute priority to the preservation of life, but it does not.  The approach taken by the Act is accurately reflected in the MCA Code of Practice at 5.31:

“All reasonable steps which are in the person’s best interests should be taken to prolong their life.  There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery.”

123. E’s life is precious, whatever her own view of it now is.  She is still a young woman, with the possibility of years of life before her.  The prospects of her making a reasonable recovery are highly uncertain, but it cannot be said that treatment efforts are doomed to fail or that treatment would inevitably be futile.

124. As to the quality of E’s life if she were treated, it is possible, but not probable that she could achieve a state of being that would be acceptable to her.  It is more likely that the underlying difficulties would remain and that her life would continue at best to be a struggle.  It would in part depend upon the quality of support and professional services that would be available and whether they would be different to what has been available in the past.

Respect for personal independence

125. The ability to lead one’s life as one chooses is the cornerstone of individual liberty.  Article 8 ECHR guarantees  the right to respect for a person’s private life.  This right belongs to “everyone” and the fact that a person lacks mental capacity does not deprive them of its protection.

126. The treatment that is proposed for E amounts to a very severe interference with her private life and personal autonomy.  It could only be justified on the basis that it was necessary, in accordance with the law and proportionate to a legitimate aim, namely the preservation of life.

127. Likewise, forcible feeding would be an assault upon E and a violation of her rights under Article 3 ECHR, which prohibits inhuman or degrading treatment, unless it was shown to be in her best interests on the basis of therapeutic necessity that has been convincingly shown to exist: Herczegfalvy v Austria [1993] 15 EHRR 437.

Doughty Street Chambers summarises the complexity of the judgment as follows: “The Judge concluded that ‘The competing factors are, in my judgment, almost exactly in equilibrium, but having considered them as carefully as I am able, I find that the balance tips slowly but unmistakably in the direction of life-preserving treatment. In the end, the presumption in favour of the preservation of life is not displaced’.

Mr Justice Peter Jackson stated:
138. Against them, I place E’s life in the other scale.  We only live once – we are born once and we die once – and the difference between life and death is the biggest difference we know.  E is a special person, whose life is of value.  She does not see it that way now, but she may in future.

139. I would not overrule her wishes if further treatment was futile, but it is not.  Although extremely burdensome to E, there is a possibility that it will succeed.  Services and funding will now be provided that were not available before, and it would not be right to turn down the final chance of helping this very vulnerable young woman.

The final paragraph of Mr Justice Peter Jackson’s judgment is instructive: “I record that the state, having instigated this plan of action for E in the way that it has, is now honour-bound to see it through by the provision of resources in the short, medium and long term.  Had the authorities not made that commitment, I would not have reached the conclusion that I have. “

The case illustrates the complexity of the issues faced by the court while stressing the importance of the rights of an individual to lead one’s life as one chooses – a cornerstone of individual liberty under Article 8 ECHR.

Is it reasonable, in the light of this and other judgments (Baker J in W v M & Ors [2011] EWHC 2443 (COP) ),  to conclude that certainty over one’s life choices and rights under Article 8 ECHR will only be assured if there is very clear evidence of (a) capacity to make a decision or an ‘advance decision’; and (b) there are no inconsistencies which reveal ambiguity as to intention?

If this is the case – what would amount to “clear evidence establishing on the balance of probability that the maker had capacity at the relevant time“?

Mr Justice Peter Jackson was careful to point out ” I consider that for an advance decision relating to life-sustaining treatment to be valid and applicable, there should be clear evidence establishing on the balance of probability that the maker had capacity at the relevant time. 

Perhaps the law needs to be clarified on this issue so that those faced with making ‘advance decisions’ can face the rest of their lives safe in the knowledge that their free will and  choice(s) will be respected by the authorities and the Court of Protection?

Do we have the right to sign our own ‘death sentence’?

Mr Justice Peter Jackson stated (Supra): “People with capacity are entitled to make decisions for themselves, including about what they will and will not eat, even if their decision brings about their death.  The state, here in the form of the Court of Protection, is only entitled to interfere where a person does not have the capacity to decide for herself. “

Is the clear statement above determinative?

Claiming no specialist expertise  (I write to highlight the issue) – and welcoming advice and comment from practitioners in this difficult field – is it reasonable to suggest that while The Mental Capacity Act provides that a  person of full capacity may make a decision, even if it brings about their own death – there is still room for the judges of the Court of Protection to override an individual’s wishes by examining the capacity issue and finding that there was insufficiently ‘clear evidence’?

W (by her litigation friend, B) v M (by her litigation friend, the Official Solicitor) and others [2011] – admits for the possibility of a legally valid advance decision expressing a wish to forego life-sustaining treatment: What is a life worth living? Further analysis of “M” – Daniel Sokol

It must be a very difficult question for a trial judge faced with a ‘life or death’ situation  to resolve and one accepts that they will do all they can to preserve the sanctity of life unless there is very clear evidence to respect the wishes of the individual.

Should we ask a judge to make such a decision?  Parliament will not sanction ‘assisted suicide’.  Is it likely that Parliament will provide clarity in cases of medical treatment and intervention – or will they abrogate responsibility to an ‘unelected judge’?

I would be very interested to hear from practitioners in this field – for I do not claim any expertise in this complex issue – and welcome comment.

I found an article written by Daniel Sokol,  a pupil barrister at 1 Crown Office Row and an Honorary Senior Lecturer in Medical Ethics at Imperial College London, was most helpful: Are lawyers in right-to-die cases breaking the law?
as were these posts from The UK Human Rights blog:

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“When freedom does not have a purpose, when it does not wish to know anything about the rule of law engraved in the hearts of men and women, when it does not listen to the voice of conscience, it turns against humanity and society.” 

Pope John Paul II

After The Home Secretary’s extraordinary performance on Andrew Marr this morning where she set out her cunning plan to bring out guidelines for the judges in relation to the interpretation of Article 8 of The European Convention – enshrined in our law by The Human Rights Act – the sardonic side of my temperament would like to substitute the word ‘government’ in the quote above for ‘freedom’.  I shall, however, resist the urge to do so.

Apart from suggesting that a corporate lawyer, with no experience of policing, let alone the more difficult and complex aspects of frontline operational policing,  take over the top job at Her Majesty’s Inspectorate of Constabulary (HMIC) – Ms May MP is on a roll with her latest stunt on providing guidelines to the judges.

The Guardian sums it up rather nicely: Theresa May cannot dictate to judges on human rights cases, lawyers warn

Shami Chakrabarti, director of the human rights group Liberty, told the Guardian that article 8 had always been qualified and allowed the government considerable latitude over immigration control. “The home secretary is far better reviewing immigration rules than bashing the Human Rights Act or the judiciary,” she said.

Law Review Weekly

After doing a trial run some months ago, I will be producing a Law Review Weekly highlighting interesting legal news from the press and the profession, links to important judgments handed down in the previous week, commentary and analysis from the law blogs, a link to my recent Lawcasts (and podcasts done by other lawyers, where available) and a section on the human condition to look at the more surreal and bizarre happenings in law.


Recent Lawcasts with members of the profession and from the Without Prejudice panel.

Lawcast 207: Adam Shutkever and Jeremy Hopkins of Riverview Chambers on new legal services delivery

Today I am talking to Adam Shutkever, COO of LawVest, which launched Riverview Law in February  – Riverview Law is the trading name of LawVest Limited – and  Jeremy Hopkins, late of 3 Verulam Buildings where he was a clerk. Jeremy Hopkins has joined Riverview Law as Director of Operations – he also blogs, enthusiastically and amusingly, at Clerkingwell

#WithoutPrejudice 26: Spectator contempt – Hunt / Warsi and The Ministerial Code – The Case for ‘Code’

Lawcast 206: Solicitor Nicky Richmond on Property and the Insurance sector, the changing legal landscape and food.

Lawcast 205: Kim Evans – from the Flying squad to the police station as a police station representative

LawCast 204: Diane Burleigh, CEO of CILEx, on an alternative way to qualify as a lawyer

#WithoutPrejudice 25 podcast: Assange judgment – Twitterjoketrial update / Diversity – Monarch

#WithoutPrejudice ‘Special #Twitterjoketrial result podcast with David Allen Green

From Northpodlaw: Series 4 Episode 5 – Speeches and Statements

From Legal Cheek: How To Go From Corporate Law Into Human Rights Academia


In a week which ended with four days of Jubilee celebrations, Carl Gardner had a thoughtful  and strongly argued blog post on June 2nd: The case for constitutional monarchy

Former Tory Mp and criminal barrister, Jerry Hayes declared: Why For The First Time In My Life I Might Go On Strike – a very critical piece about the government’s attitude to criminal barristers, their failure to pay fees in a timely fashion and for good measure, Jerry takes a pop at Ken Clarke and the Bar Council

And what about our great trade union the Bar Council, to whom we have to pay exorbitant fees to prop up a mismanaged pension fund? Well, just don’t mention that body in any robing room. The consensus, perhaps not always fair,  is that they are a collection of greasers and chancers who are more interested in preferment than the poor bloody infantry. A few years ago when there was such dissatisfaction there was talk of setting up an alternative. So they persuaded the government to make it a criminal offence not to join by a little ruse of making you pay a fee for your practising certificate. Any barrister who does not pay up is fined or suspended. There is a very long queue of those waiting to be punished.

Jerry Hayes is always worth reading on Dale & Co – and invariably amusing.

From the UK Human Rights blog – three posts which caught my eye and worth a read:

Adam Wagner –  Criticisms remain as dust settles on secret trials bill

Rachit Buch: UK passes ‘human rights exam’, but with room to improve

Assange kills off Pupino, but ambiguity remains – Alex Tinsley

Francis Fitzgibbon QC on his Nothing Like The Sun blog considers the matter of COURT DRESS. Although written in March, it is an interesting read.

And..in a bit of a jump.. Obiter J considers the issue of Treason

Barrister Lucy Read at Pink Tape covers the In Dad’s Shoes photography exhibition

“Researching Reform and DadsHouse are launching a photography exhibition and it’s going on tour. The photos are a collection of photos of single dads and their kids. It sounds as if it’s going to be pretty organic in its development, and may gather material en route.”

Natasha Phillips of Researching Reform writes: Government wants to end Blame Culture – By Blaming Others

11 KBW in Panopticon: Important new privacy judgment: police retention of protestor’s data not an Article 8 infringement

The Admin Court (Gross LJ and Irwin J) has handed down judgment this week in Catt v Association of Chief Police Officers and Commissioner of Police of the Metropolis [2012] EWHC 1471 (Admin). It is an extremely important judgment on Article 8 ECHR in the context of personal information retained for policing purposes. It is also notable for its analysis of protest as an inherently public activity…..

Read more…

John Bolch at Family Lore writes: It’s not ALL nonsense around here…  – surveying the many and varied services he provides free for practitioners and students.


The Guardian

Facebook forced into revealing identities of cyberbullies

No-fuss sacking payouts included in employment law overhaul

The Tory folly of cutting back the Equality Act

Criminalisation of forced marriage ‘will push issue underground’

The Telegraph: Man jailed after bragging “I think I got away with it” on Facebook

The Law Society Gazette: Watchdog calls for Ombudsman to be opened up to third parties

The Independent: Oxford don’s legal fight over price rise signals trouble for phone giant. A law lecturer claims the small print in Three’s contracts may allow millions of its mobile customers to avoid higher bills.

Legal Week: Outsourcing in focus as RBS prepares to cut back legal roster
Royal Bank of Scotland (RBS) has kicked off a much-anticipated review of its legal panel, with tender documents sent out to law firms late last month.

Legal Week: International interest in UK mergers grows as City retains pulling power
The number of international law firms in London open to a UK merger has almost doubled over the past year

The Lawyer: Employment judge first to fall foul of new misconduct rules
An employment judge has become the first to be publicly censured under new rules that will see all judges and magistrates who are disciplined for misconduct have their cases publicised by the Office for Judicial Complaints (OJC).

The Lawyer: Libel star Benaim quits Schillings

BBC: Facebook to release ID of users who abused woman online


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Brokers’ commission: call for transparency

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Society warns over patents court decision

The Law Society has warned the government that the UK could lose up to £3bn a year if a new patents court is not based in London. The warning follows a report which highlighted the potential cost to the UK’s intellectual property industry if the court was based elsewhere in Europe.
Read more

Consumer survey: solicitors offering value for money

The Legal Services Board Consumer Panel has this week published consumer satisfaction research, which suggests that an increasing proportion of consumers consider they are getting good value for money from legal services, and that 84 per cent are content with the outcome of their legal work.
Read more
Read the research (PDF)

Full Law Society professional Update page

Sponsored by CILEx

Chartered Legal Executives will help create a more diverse judiciary

Baroness Neuberger has spoken of how Chartered Legal Executives will continue to play a significant part in the future of a diverse judiciary in England and Wales.

At our Annual Presidential Luncheon yesterday, 31 May 2012, The Chartered Institute of Legal Executives (CILEx) awarded its Pro Bono Medal 2011 to a member who has been described as ‘one of the best human rights lawyers in England and Wales’.

Bar Council news

Ministry of Justice call for contributions to the Red Tape Challenge

Update for the profession: the Ministry of Justice has invited interested parties to respond to the legal services section of the Government’s “Red Tape Challenge” consultation, identifying which regulations they believe should be improved, retained or scrapped.

Data Protection Act 1998: Procuring Disclosure of Personal Data

Financial and accounting news sponsored by Cassons for Counsel

Which expenses can I claim against tax?

Will my pupillage awards be taxed?

Legal education news sponsored by BPP Law School

Launch of Bespoke MA (Legal Practice Course with Business)

Airmail from The Staterooms – Oversupply of law students edition…
I considered the issue of oversupply of law students, particularly in relation to the Bar, after reading Michael Todd QC’s statements about there being too many law students enrolling on the Bar professional Training Course.


Recent case summaries from ICLR

4 Breams Buildings plan to publish a monthly digest of cases.

Supreme Court decisions from The UKSC blog

Case Preview: SerVaas Inc v Rafidain Bank & Ors [2011] EWCA Civ 1256

The case concerns debts owing from a foreign sovereign state and whether assets subject to a Third Party Debt Order (“TPDO”) in the UK are immune to execution by virtue of the State Immunity Act 1978.

Supreme Court refuses Ryanair permission to appeal Aer Lingus ruling

The Supreme Court has refused Ryanair permission to appeal the Court of Appeal’s decision of 22 May. The Court of Appeal upheld the Competition Appeal Tribunal’s decision that the OFT was entitled to refer the issue of Ryanair’s minority shareholding in Aer Lingus to the Competition Commission after the EC Merger Regulation process had concluded.


AND finally… a look at the surreal and possibly bizarre side of the legal world…

I enjoy reading the more bizarre stuff Legal Cheek manages to find each week – always worth the hike over to their website.

This is an astonishing story… ‘He Daubed The Word “Bitch” On Wall In My Garden, Which Doesn’t Seem Like Something The DPP Would Do’

Inevitably..with examinations.. there is an opportunity for the top vocational law schools to demonstrate their competency in a very public way.  At this time, each year – the examination season – it is only a matter of time before some law school ‘cocks up’.

Rollonfriday.com notes: Exclusive: Students twiddle thumbs for 90 mins after BPP exam cock-up

There was embarrassment at BPP this week when LPC exams were delayed by an hour and a half because, err, there weren’t enough desks.

Students turned up to take their exams on Wednesday at Royal Mint Court, but found that some of them didn’t have anywhere to sit. Those lucky enough to have a chair sat patiently while the invigilators tried to sort things out. Eventually some extra desks were tracked down and the exams finally started an hour and a half late. As one weak-bladdered student said, the exams were three hours long and “four and a half hours is a long time to sit still“.

But it is not only the law schools.  Here we have an example of ‘judicial misfeasance’  – again from RollonFriday…

Judge in Breivik case caught playing on computer during evidence

And.. not to be outdone… Thieving lawyers face jail in UK, Ireland and US: “More lawyers around the world are facing jail this week after pleading guilty to various charges of thievery.”

And the villains are not letting us down…

Burglar tries to break in Judge Lillian Sing’s car
Judge Lillian Sing got a taste of judicial medicine the other day when a convicted car burglar she was trying to help walked out of her San Francisco courtroom and, within minutes, was busted for allegedly breaking into her car.

Marvellous stuff and on that note, I will leave you with an observation from Charles Pugsley Fincher




My thanks to all the sponsors above and to Riverview Law

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The Queen’s Speech and National Security
BY Krishnan Nair
National security is of course a chief concern of any government, more so for the hosts of the Olympic Games in an Olympic year. The Queen’s speech, delivered on May 9th, set out the coalition’s legislative plans for the upcoming parliamentary session. Among the bills described in the lengthy speech was the Justice and Security Bill. The speech reintroduces to the public conscience a green paper, originally published in October, which outlines the Government’s intentions behind this bill. These are summed up in the early phases of the paper:
“The first duty of government is to safeguard our national security. In delivering this duty, the Government produces and receives sensitive information…Sensitive information can be used to prevent terrorist attacks, to disrupt serious crime networks and to inform decisions such as deportations and asset freezing. Such decisions are often challenged and reliable procedures are needed to allow such cases to be heard fairly, fully and safely in the courts…The Government believes that there is scope to make improvements in response to recent court rulings”.
But what are these ‘improvements’ the Government speaks of and why must they be made? Well, as the paper expounds, “the Government is concerned that the UK’s critically important and hard-earned secrets and those of our intelligence partners may be obtained by individuals through a recent development in our justice system”.
January saw the conclusion of the 3 year long MI5/MI6 torture debacle which started in 2008 with the Binyam Mohamed case. The intelligence and security services were accused of being complicit in the torture of suspected terrorists; frustrated, they’ve been pushing the government for greater protection of ‘sensitive information’ through more closed material procedures.
The bill enhances and creates a more temperate ground for closed material procedures in civil claims cases. Closed material procedures are by their very nature highly controversial. For some – Ken Clarke certainly – in the interests of national security they are vital. For others, they represents a rule of law own goal. The right to a fair hearing – the right to hear and to have the opportunity to respond to the evidence imparted against you – eroded. Such procedures might involve barring parties – along with their lawyers – from viewing sensitive information which could be used against them. More than this, lawyers are replaced by ‘special advocates’, many of whom have spoken out against the bill:
“It is one thing to argue that, for reasons of national security, the unfairness and lack of transparency inherent in [closed material procedures] should be tolerated in specific areas – such as deportation appeals and control-order proceedings. It is quite another to suggest government ministers should be endowed with a discretionary power to extend that unfairness and lack of transparency to any civil proceedings, including proceedings to which they are themselves party.”
Last month I wrote about a case which raised an important question about closed material proceedings: is there sufficient disclosure of material on which a party can instruct special advocates and effectively respond to the case made against them (or indeed mount a claim against another) and have a fair hearing? I concluded that cases in which decisions are predominantly made on the basis of closed material are probably unfair. But does the bill change this concept of fairness, where what is fair is considered only after security considerations have been attended to?
The green paper does at various points address fairness and justice: “as much relevant material as possible should be considered by the courts in order that judgments are based on a complete picture and that justice is done more fully”. But the paper goes on to entertain a tighter system for disclosure by suggesting we “[reinforce] existing mechanisms to prevent harmful disclosure of sensitive information”. Reinforcing existing mechanisms will likely see an increase in the number of cases where sensitive evidence is given in court, but not seen by all parties. Deportation cases will probably be the first to feel the impact.

Without a clear definition of fairness in a closed material context, open justice is surely threatened. Of this matter Amnesty International UK Policy Adviser Tara Lyle said: “These proposals are dangerous and should be dropped…They will allow the government to throw a cloak of secrecy over wrongdoing, including matters as serious as the alleged involvement by UK officials in human rights violations like rendition, secret detention and torture”.
Granted, this is a difficult topic for the Government to contend with. But it appears fairness is to take a backseat to security, depending of course on how we must now define fairness. Is the Government simply bending to the whim of the intelligence services or have they given full and proper consideration to fairness?
Krishnan Nair writes on immigration and employment law for the Mulberry Finch blog.

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“The rule of law can be wiped out in one misguided, however well-intentioned, generation.”

William T Gossett

After spending much of last week  reading law blogs for the UK Blawg Review I am writing (Sorry it is late – but I have been rather ill of late) I was fascinated by the extraordinary “NightJack” outing in the Times dissected with precision by lawyer, blogger and journalist David Allen Green – a  remarkable piece of writing.

David Allen Green’s blog analysis deserves a post of its own:

The Times and NightJack: an anatomy of a failure

The story of how, in a string of managerial and legal lapses, the Times hacked NightJack and effectively misled the High Court.

David Allen Green begins his analysis – which I urge you to read thus:

The award-winning “NightJack” blogger was outed in 2009 by the Times of London. At the time the newspaper maintained that its controversial publication of a blogger’s real identity was based on brilliant detective work by a young staff journalist. However, it is now clear that the blogger’s identity was established by unethical and seemingly unlawful hacking of the blogger’s private email account.

If the hack was not bad enough, the Leveson Inquiry has also heard how the newspaper in effect misled the High Court about it when the blogger sought an urgent injunction against his forced identification. The blogger lost that critical privacy case and it is possible that the case could have been decided differently if the Times had disclosed the hack to the court.

The following is a narrative of what happened. It reveals a depressing sequence of failures at the “newspaper of record”. Most of the sources for this post are set out on the resource page at my Jack of Kent……..

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Law Review (#1): 2 / 16th February 2012

“The House of Commons starts its proceedings with a prayer. The chaplain looks at the assembled members with their varied intelligence and then prays for the country.”
Lord Denning


With ‘militant secularism’ in the news (whatever ‘militant secularism’ means), unelected  Bishops being difficult in the Lords, rebellion from some Christians to the idea of women bishops (ironic, given that The Queen is head of The Church of England and Defender of The Faith) and judges declaring prayers at Council meetings unlawful –  an atheist may wonder, possibly even marvel, that religion plays, still, so important a role in the governance of our country; be it explicit, ritualistic, atavistic or subtle.

Add to this the many other gods supported by the peoples of our country and the complications, conflicts  and prejudices inherent in balancing the many faith agendas and interests;  we have a cauldron of chaos ahead, arguably, if we do not separate religions from State, from governance and The Rule of Law?

I simply pose the question, while still thinking about the answer… and on that note…. to Part II of my weekly law review this week.  [Part I is here and below]

Obiter J considers: Prayers at Council meetings …

RollonFriday.com and Legal Cheek picked up on the ‘spit roasting’ attitudes  of a Shearman trainee whose email went viral. 

RollonFriday reports:

A trainee at Shearman & Sterling is cringing under his desk after an email he sent from his work address ended up in the Sun, the Mirror, the Daily Mail and the Telegraph. Ouch.

The trainee’s email described his plans for a forthcoming rugby tour. Which included chanting about how rich he is and photographing “spit-roasts”. He sent the email to a friend at another law firm and, predictably, it then winged its way around the City. It reached RollOnFriday by Wednesday, and by Thursday morning the story was all over the national newspapers.

Legal Cheek considered the matter in their weekly podcast – and Alex Aldridge, irritated no doubt by me calling him out for his shoddy treatment of law student Ashley Connick [Accuracy is not an aspiration for journalists and law bloggers. It is a requirement when reporting or commenting on serious issues.], took the opportunity to practice his proto-germanic linguistic skills to describe me.

I am untroubled by Aldridge’s view of me. I am a firm believer in free speech and….  after all,  a contributor  to The Grauniad  (Aldridge no longer describes himself as a Guardian ‘columnist’ on his twitter bio after The Guardian asked him not to)  has to establish a reputation for ‘cred’ somehow.

And… so to…

Lawyer and journalist David Allen Green, on his Jack of Kent blog,  picks up on the current mood with an interesting post: Thoughts on the present discontents.

Every so often the balance of power within a polity changes.

In the United Kingdom the ultimate power supposedly lies with the Crown-in-Parliament.

But in history, the strongest power has shifted: at times it has been the established church, or the landed gentry, or the trade unions.

More recently it has been the popular media.

A good read and very topical.

The UK Human Rights blog from 1 Crown Office Row has, rightly, established a ‘must read status’ for all interested in human rights. A post which caught my eye – Sound of tumbleweed greets secret civil trials proposals – by Adam Wagner,  considers the Justice and Security Green Paper consultation  which proposes introducing “Closed Material procedures” – secret trials – into civil courts.  Another good read.

And let’s go for a hat trick of good reads (not that the blog posts which I refer to below are not good reads… they are… but Carl Gardner, on his Head of Legal blog, writes: Supreme Court judgment: Sugar v BBC

The Supreme Court has today given judgment in this case, about the extent to which the Freedom of Information Act 2000 applies to information the BBC holds for journalistic purposes….

A bit of  light relief…The White Rabbit gets into the St Valentine mood….

ANDso does John Bolch at Family Lore……with a card  from Venal & Grabbit, Solicitors

Meanwhile…. Francis FitzGibbon QC considers Professor Dawkins’s Jury Delusion

Having seen off God, Professor Dawkins turns his attention to another object of veneration, the jury, in the The New Statesman. He thinks that the requirement, as he sees it, of proof ‘beyond reasonable doubt’ for guilty verdicts, is at odds with what juries actually do when deliberating. The high standard of proof should leave no room for discussion, or for the forceful intervention of unusually persuasive jury members. Cases should speak for themselves…..

Professor John Flood says in a post – The Way of the World….  “I want to take several disconnected events to show that the legal services world is really undergoing volcanic eruptions.”

The changing legal landscape is fascinating.  “ABS and disruptives” are on the agenda for the Without Prejudice podcast tonight. Cat Griffiths, Editor of The Lawyer, will be shedding some light on this.

Matt Wardman, writing on the always readable Anna Raccoon blogCapitalism is Fixing It. Slowly.– says ”

“We’re in the middle of a small orgy of kneejerk (or jerk-kneeing, if you prefer) bashing of bankers with self-inflated banker-bonkers, and not a few people trying to keep the ball rolling because it is convenient for their politics. But it seems to me that some of the basic indicators on the Economy are beginning to return from extreme values to something a little closer to ‘normal’. I’m not saying it’s all fixed, but the Gordonion Knot starting to loosen itself?”

Continuing with the economy theme… City Unslicker has an interesting post: UK Inflation – A stopped clock is right twice a day

“Now for years, the Bank of England has been telling us that we are in a deflationary period where we need low interest rates and ultra easy monetary policy. This has been the case since at least 2008 – so getting on for four full years now….”

Alpha Male Lawyer

AND.. if you want to be an Alpha Lawyer.. eventually.. Legal Aware has some advice: The training contract interview itself

Or.. perhaps an Alpha barrister? The Pupillage blog also has advice: The Roll of the Pupillage Dice

Or.. perhaps you fancy making an FOI request via twitter  to The Supreme Court?  The UK Supreme Court blog has this review: FOI requests via Twitter – a Supreme problem



I am starting my ‘Podcast With A Practitioner’ series as part of the weekly review next week to see what lawyers at the coal face think of the legal landscape.  As Prime Minister Camcorderdirect has got into ‘binge drinking’ for  his latest ‘Big Society’ intervention in our lives… I thought it was appropriate to dredge up my “DRINKING FORECAST” from 2010…. complete with Sailing By and North Utsire…

Listen to the podcast if you wish to


The maxim res ipsa loquitur comes to mind here – so in this section I simply draw attention to a few interesting articles from the mainstream legal  press  I enjoyed reading  – without comment.

The Guardian: How secret renditions shed light on MI6’s licence to kill and torture

The Guardian: Lord Justice Moses and the 161 criteria

The Guardian: Why is Abu Qatada not on trial?

The Guardian:  Where are the judges fit for the internet age?

The Guardian: Human rights abuses could be covered up under new justice bill proposals

Legal Week: All aboard – war stories from the select band of GCs to have taken exec roles

Legal Week: Law firms and investors – a match made in heaven or a hasty marriage?

The Lawyer: Brand new bromantics – Two big beasts, a whole bunch of questions. When The Lawyer broke the story of Tony Angel joining DLA Piper last year, one question everyone asked was how he would get on with Nigel Knowles.

The Law Society Gazette: Survey: in-house woe for magic circle

The Law Society Gazette: Lawyers and Leveson – how are they doing?

The Times (£): The case for and against judging advocates

The Times (£): Why there is no whiplash epidemic

The Telegraph: Autistic woman banned from having sex in latest Court of Protection case

The Independent: Pub landlords face jail in new Sky crackdown on TV football

Taxation and Finance articles and news provided by Cassons for Counsel

AND finally…
The weekly review will develop and in weeks to come will include news on the latest law books, comment on important cases and a section on the human condition.  But… I have to see a man about a dog and prepare for the Without Prejudice podcast tonight – so that’s it for this week.
BUT… really finally… I cannot resist this from The Independent..

MP faces charges over Nazi stag night

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Law Review (#1): 1 / 14th February 2012

Groucho Marx

In the seven or so years I have been blogging, since July 2006 on WordPress, I have read many law blogs from this country, the United States, Canada, Australia and elsewhere.  Some have disappeared, others have survived. Twitter has come along in the last few years, transferring comment on topical issues to some extent from the blogs to the short form 140 character medium of twitter. Some blog for pleasure, others to provide a detailed resource on specialist areas of law, some to analyse and dissect a broader range of legal issues , some to market their firm or practice and a few to rant or take the piss.  Legal blogging is a broad church with many aims.  (Scots solicitor Brian Inkster, writing on The Time Blawg, considered The Elephant in the #LawBlogs Room and generated 76 comments, some rather terse and blunt.)

Before I continue with this first of my weekly reviews, I urge you to watch a short film where US lawyers Kevin O’Keefe and Scott Greenfield discuss blogging, twitter and social media and the potential for the dark side to prevail. (On the internet, nobody knows you’re a dog)

Sadly, Scott Greenfield, a criminal defense lawyer in New York and author of the excellent Simple Justice blog, has hung up his keyboard.

And with that, just one final comment: I suspect that Leveson LJ will find it difficult to formulate regulation for  bloggers should he be minded to recommend a state based regulatory system for the press and other media. As we discussed in last week’s Without Prejudice podcast – the existing law may well be sufficient to regulate bloggers?

Professional update from The Law Society

Advocacy section launch event
Why is good quality advocacy in the courts so important and what training and support is available? Hear the views of the lord chief justice, the chief operating officer of the Crown Prosecution Service and the chair of the Solicitors’ Association of Higher Court Advocates.
Listen to the launch event podcast – you’ll need to register at our CPD centre website
Advocacy Section application details

Applications invited for specialist regulatory advocates
The Health and Safety Executive, Environment Agency and Office of Rail Regulation are looking to appoint a list of advocates to conduct their higher court prosecution work and other regulatory advocacy.
Application details – deadline: 12 March

Fusion of professions
What are the implications of barristers and solicitors practising together in partnership under the new regulatory regime?
Fusion or fission – watch a video interview
Solicitor advocates and barristers should mergeGuardian article

Recent new from the Bar Council

Bar Council and FLBA Urge Care on Family Justice Reforms

Bar Council – Private Legal Advice Must be Protected


John Hyde, in The Law Society Gazette, writes: County court shake-up plans dubbed a ‘missed opportunity’ “The government has come under fire from all sides of the civil litigation spectrum over its plans to reform the county court system…..”

Friederike Heine, in Legal Week, has an interesting article on the plight of lawyers in their fifties under pressure to retire early…and what to do post-retirement.

“After 27 years in legal practice, I’m finding it difficult to find new opportunities to explore and I miss the camaraderie of the office. My social life, which used to be inextricably linked to my practice, is practically non-existent. For an energetic 54-year-old, the prospect of spending your retirement at home is difficult to imagine.”

If you don’t already read Neil Rose’s Legal Futures site, you will find it a most useful resource –  thorough analysis and comment on professional practice:  Prospect of MDPs “catching the imagination” of large law firms, survey finds

This section is sponsored by BPP Law School

“Legal education is not the handmaiden of the profession but there is a great deal to be gained from a more mature relationship with it.”
Professor Richard Moorhead

In a changing legal landscape where law firms are facing competition and opportunities from the corporate sector,  there are concerns that law schools will come under pressure to reduce the length of degree programmes and focus more on the needs of legal practice.  Professor Richard Moorhead asks: Do Lawyers Need Scholars?.

I share the concern of some in legal education that there is a danger of law degree programmes being dumbed down, perhaps even shortened from three to two years with a concomitant reduction in content and thinking time. Professor Moorhead’s article provides food for thought.

University student fee rises in the public sector an issue?  BPP launches a May start degree course in law for £3225

BPP University College has  announced that it is offering places at its centres across the UK to start a degree in May 2012 on its accountancy, business and law programmes. The fees are set at £3,225 per year – whether studying in two or three years – enabling more students to study professional, career focused degrees before the September 2012 fee increases.

Carl Lygo, Chief Executive of BPP University College, said:

“One of the reasons we are offering May start degrees is to provide a service for a neglected section of the education and training space – the adult worker. The recent UCAS application figures showed the number of mature students appears to be falling in the wake of the 2012 fee hikes. Hopefully, our May start programmes will show there are alternatives for those looking to switch careers and get a degree before they’re financially out of reach. Mature students typically prefer to live at home and commute rather than moving into halls in far flung campuses, so by offering our degrees out of city centre locations we can make it easier for them to access and fit study around any part-time work commitments.”

BPP enjoys a good reputation in the market for vocational accountancy and law courses and while it will take them time to build a reputation to compete with the Russell Group universities on law degree level programmes, this initiative will start them on the road to doing so.  As with The College of Law and Kaplan, also run on private sector lines,  BPP is very well resourced with a strong business management ethic. It will not take any of the private providers long at degree level to match the quality of provision of the established universities in law – and, it would not surprise me if they overtake many universities in terms of the quality of teaching and resources.  Research, of course, is another matter – but in time?

The very aggressive competition on fees – £3225 against a possible £9000 per annum for top public sector law courses – provides a very attractive option for students concerned about the rising costs of legal education. If BPP can sustain the fee differential at the present ratio and develop reputation in the legal market for their degrees – it will put traditional universities under considerable pressure in the future.


I think it best, given the length of the reviews,  to split my weekly law review into two sections each week for ease of reading and digestion – Part I on Wednesdays and Part II on Thursdays.

In Part II – Commentary on new cases – Law Blogs Roundup  –  Podcast with a practitioner – Finance and Taxation news for lawyers – Arts and… The Human Condition.

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From next week – I’ll be publishing a very detailed weekly review about law and lawyers…with some arts matters which have caught my eye. I’m not sure what day – but it is likely to be Fridays.

(a) Professional news from Law Society / Bar / Ilex
(b) Legal Education news
(c) Podcast with a practitioner covering current perceptions of the legal sectors
(d) Law reports – important cases from the week – brief comment and analysis
(e) Review from the law blogs + comment
(f) Commentary on key legal issues from the week
(g) Accounting and tax news relevant to the legal profession
(h) A lighter look at the law….
(i)  Arts review
If you would like to suggest blog posts – or other items for inclusion – please do not hesitate to contact me by email
[If you can remember to put Law Review in the subject header on the email – it will help me keep track!]

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The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.
Dwight D Eisenhower

The Bloody Assizes were a series of trials started at Winchester on 25 August 1685 in the aftermath of the Battle of Sedgemoor, which ended the Monmouth Rebellion in England.  At the risk of understatement – not a particularly creditable part of our long and rich legal history.

Henry Porter, writing in The Guardian, notes:  “Kenneth Clarke, the secretary of state for justice, the man who set up the commission last spring to investigate a new bill of rights – no doubt with half an eye on the 800th anniversary of Magna Carta in 2015 – is also responsible for the justice and security green paper, which threatens to deprive us of one of the vital traditions of common law, guaranteed by Magna Carta.”

Porter notes that the key proposal will  “provide a magic cloak of protection for any minister or government agency that wishes to cover up a wrong, most significantly for members of the intelligence services.”

Justice isn’t blind.  Justice isn’t the tool of the State.  Justice is a concept of laws to underpin a fair and democratic society; prosecuted, in the case of criminal trials, by lawyers with no interest in the outcome and administered by judges who are independent of the executive, according to the laws made  by our elected representatives. And therein lies the rub – for it is within the power of government to bring in laws which then have to be applied by the judges, subject, thankfully, to the dictates of The European Convention – in particular, the right to a fair trial set out in Article 6:

Article 6 provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter).

The proposal being put forward by The Secretary of State for Justice strikes at the very heart of our rule of law – a rule of law based on open trials, where guilt or innocence is determined by a jury.

Porter notes: “Dinah Rose QC summarised the obvious advantage to ministers in her Atkin Memorial lecture last year. The legislation would, she said, “permit courts to try common law claims for damages using a closed material procedure, whenever a government minister, who is, of course, likely to be party to the action, decides that disclosure of particular material would be damaging to national security”.

… We are following America, where the state secrets privilege results in the exclusion of evidence from the proceedings simply on the basis of affidavits delivered to a court by the government, and this is going to make life very difficult for serious journalism in Britain.”

So much for the much vaunted Bill of Rights…talked of by Nick Clegg and others which, as far as I can see, has not appeared as yet in any meaningful form.

On the theme of The Rule of Law – Rosalind English provides an excellent note in the UK Human Rights blog on a decision which will, no doubt, be an irritant for the present government: Suspected terrorist may not be deported to Jordan – Strasbourg rules

And.. if you need further evidence of the slow erosion of our rights..under Magna Carta.. or otherwise.. this from Michael Mansfield QC is worth reading:

Bashing trial by jury is pathetically predictable

The Guardian: Governments needing a facelift often attempt to curtail jury trial. Quick-fix supermarket justice must be resisted

And… a bit more?  Obiter J notes: “Extradition is in the news again.  The USA is seeking the extradition of Sheffield student Richard O’Dwyer and a judge, sitting at Westminster Magistrates’ Court, has ruled that there is no bar to his extradition – see Daily Mail 14th January.  The US authorities allege that Mr O’Dwyer listed on a website places from where pirated films and TV programmes could be downloaded.  This case – like that of Gary McKinnon – brings into focus the Extradition Act 2003…”

[ PS… Happy Second Birthday to Obiter J and his excellent blog – many happy returns to come! ]

While the McKinnon case and the O’Dwyer case may be distinguished – McKinnon is alleged to have hacked into Pentagon computers.  O’Dwyer set up a website linking to copyrighted material – in a manner not dissimilar to a search engine… Google, for example – it is clear to many that our extradition arrangements with the USA, designed to combat terrorism, are both one sided and are, arguably, being misused in the O’Dwyer case for purely commercial ends.  For my part, at first blush – without a deep understanding of the background to the O’Dwyer case as yet, perhaps our government should be more protective of the rights of citizens when it comes to handing them over to the Americans?

Without Prejudice podcasts resume this Thursday!

Well… there we are.  British justice.. being created by a democratically elected government – with a weak opposition which seems more concerned with party leadership issues and train fare prices than issues of civil liberties.

Mind you… Ken Clarke, apparently, thinks that bloggers are just a load of nutters and extremists.  I don’t think we are.  I wonder if Ken has actually read some of the leading Human Rights and Civil Liberties blogs… has he read Carl Gardner’s Head of Legal?  Has he read Jack of Kent?  Has he read the  UK Human Rights Blog ? Has he read Obiter J?

More to come as the week progresses.

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