Law Weblog

Miscarriage of justice.

The conviction of Donna Anthony has been quashed by the Court of Appeal. She had been found guilty of killing her daughter Jordan, aged 11 months, and her son Michael, aged four months, in 1998. The prosecution had relied on Professor Sir Roy Meadow’s evidence, which claimed the babies had been smothered.

Her Majesty’s Courts Service commenced on 1 April 2005

Her Majesty’s Courts Service’s purpose is to deliver justice efficiently and effectively. the new service administers the civil, family and criminal courts in England and Wales. This covers Crown, county and magistrates’ courts. This is the first time thee different courts have been under one umbrella body.

The new website is a treasure of links for example everything you need to know about magistrates, Latin terms, and much more; some links are circular or broken but no doubt this is a temporary glitch.

HMCS web site here

Police Powers; sentencing; courts

The Drugs Bill received Royal Assent today.
The Drugs Act 2005 brings in powers to: 
>  give the police powers to test for class A drugs on arrest and require those who test positive to attend a drugs assessment and follow-up appointment;
> make dealing near a school, or using children as couriers for drugs or drugs-related money, an aggravating factor in sentencing; 
> introduce a new presumption that those caught with more drugs than reasonable for personal use intend to supply, which carries tougher penalties; 
> give the police tougher powers to tackle dealers who swallow their drugs or hide them in body cavities – the police will be able to order an x-ray or ultrasound, and magistrates will be able to remand suspected swallowers in custody for up to eight days; 
> tackle the open selling of ‘magic mushrooms’ by clarifying the law that fresh mushrooms, as well as prepared ones, are illegal; and
> establish a new drug intervention order to run alongside anti-social behaviour orders to address drug misuse by people committing anti-social acts.

Role of judges and dispute resolution

The Inquiries Act 2005 received Royal Assent today. The Act provides a framework for statutory inquiries set up by Ministers into events causing public concern. It sets out the independence of those carrying out inquiries by providing that they must be impartial. Inquiry chairmen will also have legal powers to seek out evidence that they need.
The Act brings a new duty to publish inquiry reports and new requirements to publish and contain costs.

The Inquiries Act covers:
> setting up inquiries 
> appointing panels to conduct inquiries
> procedures and powers
> submission and publication of reports.

The Act replaces the Tribunals of Inquiry (Evidence) Act 1921 and a number of inquiry powers in various other legislation, including s.49 of the Police Act 1996, s.81 of the Children Act, 1989 and s.84 of the NHS Act 1977.

Living wills to be part of the law of England and Wales

The Mental Capacity Act 2005 has received Royal Assent.  The law which will cover England and Wales, provides a statutory framework for people who may not be able to make their own decisions for example because of a learning disability, an illness such as dementia or mental health problems. It sets out who can take decisions, in which situations, and how they should go about this.

The Acts key provisions are:
> Five key principles, which make it clear that a person should be assumed to have capacity unless proven otherwise.
> A best interest’s checklist for people acting on behalf of others. This includes consideration of the person’s wishes, feelings, beliefs and values (including any written advance statement made by them when they had capacity) and taking account of the views of their family and friends.
> Protection to carers and professionals, subject to rules and limitations, to lawfully care for someone who cannot consent without incurring liability.
> Lasting powers of attorney (LPA) – for people to appoint an attorney of their choosing to act on their behalf if they should lose capacity in the future.
> For the court to appoint deputies to make decisions on behalf of a person about matters in relation to which that person lacks capacity.
> Creation of Independent Mental Capacity Advocates to support and represent people lacking capacity who have no one else to speak for them when decisions need to be taken about serious medical treatment and long-term residential care.
> New safeguards controlling many types of research involving people who lack capacity.
> For a person whilst they have capacity, if they so wish, to make an advance decision to refuse treatment, known as living wills.
> The introduction of a criminal offence of ill treatment or neglect of a person who lacks capacity, with a maximum sentence of five years.

The Act creates two new public bodies:
1. Court of Protection – the new court will have jurisdiction in relation to the Mental Capacity Act. It will have special procedures and judges.
2. Public Guardian – This public official will take over from the current Public Guardianship Office. The Public Guardian will be the registering authority for lasting powers of attorney and deputies.

Link to the Act here

Bar Council Annual Report 2004

Revealed in the Bar Council Annual Report 2004

Only 300 barristers have chosen to undertake the necessary training to allow them to receive direct access to the bar from the public.

From 2008 students will not be allowed to call themselves ‘barrister’ until after training has been completed, viz after pupillage.

Unpaid fees to barristers in 2004 = £3.9m.

Complaints against barristers continue to fall 2004-667; 2003-685; 2002-743. During 2004 151 complaints were internal matters such as incomplete CPD.  About 102 resulted in individual barristers being disciplined.

Bills become Acts in final process

Tonight Parliament was prorogued – closed – until after the general election. One of the last duties of a Parliament is to give Royal Assent to Bills that have been passed.

MPs process – well amble – to the Lords behind Black Rod. They then huddle at the bar of the House of Lords to hear the Commissioners give Royal Assent, in Norman French and then the Bills are Acts of Parliament and the law of the land.

The Queen does not give Royal Assent, the last time the monarch gave assent in person was in 1854. The Clerk of the Crown simply reads out the names of the Bills, the Commissioners, including the Lord Chancellor doff their black hats before the Clerk of the Parliaments pronounces consent in Norman French in the words `La Reyne le veult’, which means `the Queen wills it’.

For the MPs who could not be bothered to walk the 200 yards to the Lords, or knew they would not fit the Speaker of the Commons read out the names of the Bills that had become law in the final moments of this Parliament. Queen Anne was the last monarch to refuse to give her consent in 1707.

Workers who sit on juries cannot be sacked

From today 6th April 2005 the Employment Rights Act 1996 is amended to provide that an employee has the right not to be dismissed or treated detrimentally because he serves on a jury or is summoned to do so. This amendment was thought necessary because it was expected that getting out of jury service for most worker would be difficult and sometimes impossible.

Jury service guidelines remove the need to complete jury service for some people…

Section 321 Criminal Justice Act 2003 means that the normal presumption is that everyone, unless mentally disordered or disqualified, is required to perform jury service when summoned to do so. This has resulted in an increase in the number of jurors with professional and public service commitments. Therefore the Lord Chief Justice has issued guidelines that considerably weaken the effect of the legislation.
For example; where a juror unexpectedly finds him or herself in difficult professional or personal circumstances perhaps a parent whose childcare arrangements unexpectedly fail or a worker who is engaged in the provision of services the need for which can be critical or Member of Parliament who has deferred their jury service to an apparently more convenient time, but is unexpectedly called back to work for a very important reason – may be excused jury service.

We believe that the intelligent articulate groups who were the target of the legislation will now be able to escape jury service in much the same way as they did before the Act. The need for these guidelines indicates that the legislation was thoughtless and bungled.

Guidelines here.

Constitutional Reform Bill clears the final hurdle and awaits Royal Assent

The Constitutional Reform Bill addresses four important areas:
Judicial independence:
For the first time, the Bill enshrines in law a duty on government ministers to uphold the independence of the judiciary. They will be specifically barred from trying to influence judicial decisions through any special access to judges. Reforming the Lord Chancellor:
The Bill reforms the post of Lord Chancellor, transferring his judicial functions to President of the Courts of England and Wales. The Lord Chief Justice, currently Lord Woolf, will become President of the Courts of England and Wales. He will be responsible for the training, guidance and deployment of judges. He will also represent the views of the judiciary of England and Wales to Parliament and ministers.
Supreme Court:
The Bill also establishes a new, independent Supreme Court, separate from the House of Lords with its own independent appointments system, its own staff and budget and, ultimately, its own building.
Judicial Appointments Commission:
The Bill will establish an independent Commission, responsible for selecting candidates to recommend for judicial appointment to the Secretary of State for Constitutional Affairs. This will ensure that while merit will remain the sole criterion for appointment, the appointments system will be placed on a fully modern, open and transparent basis.