Law Weblog

Literal Approach 1 Purposive Approach 0

Bolton School v Evans [2006] CA (Civil Division)
[Statutory Interpretation – purposive approach]
D employed Mr Evans as a technology teacher. He was dismissed from his job after he hacked into the school’s computer system to demonstrate that security was inadequate. Before doing so he informed the head of the department. He was given a formal warning for hacking into the system. He resigned and claimed constructive unfair dismissal. He claimed he had made a protected disclosure under the Employment Rights Act. Mr Evans argued that his the course of conduct as a whole should be regarded as an act of disclosure and accordingly the hacking into the computer system had been part of the protected disclosure.

Held: Disclosure was a common word and Parliament did not intend to add some special meaning to the word. The tribunal’s approach was wrongly based on a purposive interpretation of the legislation and not based on the wording of the statute.

D won

Prison population highest ever recorded

The prison population in England and Wales has risen to 80,306 – the highest prisoner population ever recorded – and over the last ten years numbers have risen by over 25,000.
Despite increases in the number of places available, the rising prisoner population has left the prison estate at its maximum capacity; in other words the UK prisons are full.

England and Wales have the highest rate of imprisonment in Western Europe with about 141 per 100,000 of the population in custody, compared with Germany 98 and France 93. Home Office projections indicate the prison population could rise to 87,840 by 2010. 

Sentencing

An incident at Stormont in Northern Ireland involving Michael Stone has prompted immediate legal action from Whitehall.

An immediate Ministerial Order has been signed to have his licence to live at home revoked, he is currently serving a sentence of 700 years for six murders. What will now happen to Stone will be for courts, almost certainly the Lord Chief Justice of Northern Ireland Sir Brian Kerr.

We were impressed with the bravery and efficiency of security staff at the door. Michael Stone is highly dangerous and violent terrorist and has now been charged with the attempted murder of Ireland’s most prominent politicians.

Legal Aid Minister, Vera Baird Q.C. MP promises improvements to legal aid

The new means test for legal aid was introduced on 2 October 2006 and about 60,000 representation orders have been granted. However, in some areas there have been concerns as to how means testing is operating.

Vera Bird has promised immediate changes to address these concerns. They will guarantee that representation orders will start from the date a completed form is first submitted.

There have been problems with payment for solicitors who represent clients at a first hearing, before a decision has been made on their legal aid application. They can get stuck without payment, if the form is rejected because of a technical error, and the case has ended. From 11th December this will not happen. In that situation, where a defendant qualifies for legal aid, the solicitor will be guaranteed payment from the date when the court received the original form. The forms used for young people and partners will be simpler.

The Government remains committed to the principle of means testing so that those who can afford to pay for their own defence do so.

CrimeLine reports worrying loss of work for solicitors

The Legal Services Commission has issued figures for the grant of representation post 2 October 2006, when means testing began. Jim Meyer, who has analysed the figures states

“…in effect (and extrapolating the figures over a period of a year), there has been a 24% reduction in the number of applications for a representation order.  If 17.48% of all applications are failing based on means, solicitors are basically experiencing a total reduction of 42% of representation orders being granted.  This takes no account of those applications failing the IOJ test, which is estimated to be 5% (so the reduction may be as much as 47%). “

click here for full figures

(c) Andrew Keogh.

Provocation under the spot lamp

The defence of provocation has been discussed this week by two senior legal figures in Scotland and England. The Scottish Lord Advocate and Harriet Harman, Minister of State at the Department of Constitutional affairs in England, have signalled their desire to see the law changed to remove the provocation defence in domestic homicide cases.

This is a joint exercise to alter the law on both sides of the border. Ms Harman said: “There is no place in the 21st century for a man or woman who has killed their partner to escape a murder charge by blaming them for having an affair …. we must protect victims of domestic violence, yet the infidelity defence allows the accused to blame the victim.”

The veil is okay, for the moment

As a temporary solution Muslim women will be allowed to wear the veil in court provided it does not interfere with the interests of justice. The interim guidelines from the Lord Chief Justice, Lord Phillips disclosed that a judicial equal rights committee has been asked to urgently draw up full rules on the veil issue.

Legislative and Regulatory Reform Act finally breaths

The Legislative and Regulatory Reform Act 2006 which received Royal Assent this week will – from 8 January 2007 – give ministers new powers to strip away red tape.

The Act is seen as the way forward to fight bureaucracy. Although there are provisions that will ensure Parliament can block controversial decisions it has been dubbed “The Destruction of Parliament Act”, because the provisions allow ministers to avoid the full process needed for a full Act but to achieve the same result.

The effect of the Act will be to create a new form of Delegated Legislation which empowers a minister to make an order to improve business, including creation or removal of a criminal sanction from almost any other legislative form from byelaws to Acts of Parliament themselves.

Orders will be created by Statutory Instrument made by:
(i) the negative resolution procedure;
(ii) the affirmative resolution procedure; or
(iii) the super-affirmative resolution procedure (this new procedure allows material changes to the order if made within 60 days)

Freedom of expression or communication problem?

A Muslim woman advocate – believed to be a legal executive – was asked to remove her veil by an immigration judge. She declined so he adjourned the case and referred the matter for advice from Mr Justice Hodge, president of the Asylum and Immigration Tribunal.

News item here.

Changes in sentencing policy

On 20th November 2006, ‘intermittent custody’ will cease to be a sentencing option.

On a date to be announced the release of prisoners after they have served 50% of their sentence will cease.

Prisoners serving fixed terms for serious offences will have to appeal to a high court judge who will decide whether an offender serving a ‘determinate sentence’ should be released after 50 per cent of their term.

These are part of measures proposed by the Home Office to restore public confidence in the sentencing process which has been damaged by recent scandals.
News item on the end of intermittent custody here
News item on the end of early release here