Law Weblog

Lord Justice Hooper’s puppy, Nelson did his best to destroy all the work done by a committee that produced the protocol and three new practice directions concerning control and management of heavy fraud and other complex criminal cases by eating the disc containing the only copy of critical material

Nevertheless, the Lord Chief Justice was able to hand down the protocol and directions today.

Codification of procedure
The protocol and directions are the first step in the creation of a criminal procedural code. They make procedure rules more readily accessible than before. They bring together in one place rules previously contained in almost 50 separate statutory instruments.
Active case management
Written in plain English they give courts explicit powers and responsibilities to manage cases actively.
Overriding objective
They subject criminal procedure to an explicit and overriding objective that criminal cases be dealt with justly and to assist that end the judiciary are responsible for Case Management.
All trial courts affected
The rules apply not only to the Crown Court but also to the Magistrates’ Courts. It is the over-riding objective and Case Management, that go to the heart of the new culture that the rules promote. Case Management is already an established part of the Civil and Criminal Justice Systems. However, the extent to which cases were managed previously has very much depended upon the taste of the individual judge.
Plea and Case Management Hearings (PCMHs)
From 4 April judges will be required to exercise an extensive managerial role at the Plea and Case Management hearing, formerly a Plea and Direction Hearing (PDH) which is to take place for every case in the Crown Court.
Dealing with the case efficiently and expeditiously
Central to the Protocol is that no trial should be permitted to exceed three months or an outer limit of six months, save in exceptional circumstances. The Protocol is primarily directed towards cases which are likely to last eight weeks or longer. It should also be followed, however, in all cases estimated to last more than four weeks. This Protocol applies to trials by jury, but many of the principles will be applicable if trials without a jury are permitted under s. 43 of the Criminal Justice Act 2003 (certain fraud cases to be conducted without a jury).
The new rules are here

From today a new offence of causing or allowing the death of a child or vulnerable adult comes into force.

The new offence of familial homicide, introduced in the Domestic Violence Crime and Victims Act 2004, will close a legal loophole that allows those jointly accused of the murder of a child or vulnerable adult to escape justice by remaining silent or blaming each other.

The public information leaflet is available at
http://www.homeoffice.gov.uk/docs4/familial_homicide.htm

Domestic violence accounts for 16 per cent of all crime (Crime in England and Wales 2003/4, Home Office 2004).

Making legal services consumer friendly

Reforms proposed for the regulation of legal services will be based on Sir David Clementi’s recommendations in his ‘Report of the Review of the Regulatory Framework for Legal Services in England and Wales’ published 15 December 2004.  

Professional bodies of lawyers are:
The Law Society
Bar Council
Institute of Legal Executives
Institute of Trade Mark Attorneys
Chartered Institute of Patent Agents
Council for Licensed Conveyancers
Immigration Services Commissioner and Court of Faculties.

New measures will introduce a regulatory framework covering all legal professionals, create a new complaints process and permit new arrangements for setting up legal businesses.

It is hoped that he reforms will introduce value for money together with accessible, consistent, responsive legal services, which are designed to suit the consumer and not the convenience or interest of the supplier.

A Consumer Panel will be set up to advise the Government on implementing the reforms. 

Regulation
A new Legal Services Board (LSB) will oversee aspects of the legal services industry.
The LSB will have a chair and majority membership made up from people drawn from outside the legal profession. Appointment to the Board will be made on merit by the Secretary of State for Constitutional Affairs
Regulatory powers will be invested in the LSB, with powers to devolve regulatory functions to frontline bodies subject to their competence and governance arrangements
The LSB will determine whether these bodies are fit for purpose and will have a range of powers such as the power to set targets, issue guidance and impose fines and, in the final analysis, to de-recognise a professional body if it fails in its duties
The regulatory and representative functions of all front-line regulatory bodies should be separated. They will have to demonstrate to the LSB that their regulatory processes are robust, transparent and independent

New Complaints Body
A single and fully independent body, the Office for Legal Complaints, will be set up to handle all consumer complaints against regulated legal service providers where the complaint cannot be resolved at the local level. A single point of entry will be easier to access, providing consistent, fair and professional handling of cases for all complainants.

Most importantly, it will be demonstrably independent, while providing quick and fair redress for consumers. The Office for Legal Complaints will be headed by a board with a Chair and majority membership appointed from outside the legal profession. Appointments are to be made on merit.

New Business Structures
The Government will make it possible for legal services to be delivered in new ways. Proposed measures will include:
Non-lawyers will be able to be managers or partners in legal practices as well as owners and investors, for the first time
Robust safeguards for the consumer and a licensing arrangement for new businesses to ensure their fitness to act on behalf of clients.

Regulatory Gaps
The Legal Services Board will identify regulatory gaps and advise the Government. Where significant gaps are already evident, the Government will evaluate whether early moves to regulate are in the public interest. Work has already begun to determine whether consumers will benefit from the regulation of claims managers and will-writers.

National Mediation Helpline

People with personal injury, small claims, business and consumer disputes can get information and advice on how mediation can help solve their problem from a new National Mediation Helpline (NMH) pilot scheme.

Calls to the helpline on 0845 60 30 809 will be charged at the local rate and the service can arrange mediation appointments with an accredited independent mediator so that people across England and Wales can settle disputes quickly and easily.

Website here.

R v Secretary of State for Education and Employment and others ex parte Williamson [2005] HL

[Assault – the right of parents in loco parenti to physically chastise their children]
D the government. The Education Act 1996 totally bans corporal punishment in all schools. The claimants were teachers and parents whose children attended schools which were established specifically to provide a Christian education that was based on Biblical observance and this meant the use of corporal punishment on a limited basis as part of their beliefs. The claimants argued that the ban was incompatible with the Human Rights Act 1998 and their rights under Article 9 of the Human Rights Convention; their right to an education of their choice.

Held: Lord Nicholls: “Parliament was bound to respect the claimants’ beliefs in this regard, but was entitled to decide that manifestation of these beliefs in practice was not in the best interests of children.” “Parliament was entitled to decide that, contrary to the claimants’ submissions, a universal ban is preferable to a selective ban which exempts schools where the parents or teachers have an ideological belief in the efficacy and desirability of a mild degree of carefully-controlled corporal punishment.” Lady Hale said “This is … a case about children [y]et there has been no-one here … to speak on behalf of the children.” “The battle has been fought on ground selected by the adults. This has clouded and over-complicated what should have been a simple issue. ”

C lost.
Whole case here

The Domestic Violence, Crime and Victims Act 2004 (DVCV) makes two changes in respect of the new section 5 DVCV offence, and murder/manslaughter offences.

In cases where it is difficult or impossible to prove which of two people caused a death (usually parents of a child) the defence make a “half-time” submission that there is no case to answer”, if the prosecution has not proved the case the trial ends at that point.
The changes relate to:
a) the drawing of adverse inferences from silence in court, and
b) the postponement, until the end of the defence case, of the decision on the question of whether there is a case to answer.
Both have effect in relation only to the charge of murder or manslaughter, when those charges are accompanied by charges under the new offence.

These procedural changes were proposed by the Law Commission in their report, Children: Their Non-accidental Death or Serious Injury, although the Act adopts a tighter mechanism for triggering them to keep them closely targeted at the “which of you did it?” cases.

The prohibition on a conviction being based wholly or mainly on the inference from silence is not relevant.

Causing or allowing the death of a child or vulnerable adult

Whilst it is not explicitly part of the specifications these changes are highly significant and plug a loophole that has vexed lawyers and critics of the current state of the law of murder and manslaughter.
Introduction
1. The Domestic Violence, Crime and Victims Act 2004 is the biggest overhaul of the law on domestic violence in the last 30 years. It contains a wide range of reforms in the three distinct areas; domestic violence, crime and victims. Its provisions will be commenced in stages.
2. Sections 5 and 6 introduce a new offence of causing or allowing the death of a child or vulnerable adult and new procedural measures linked to the offence. The offence will come into force in England and Wales on 21st March 2005.
3. The new offence and procedural changes form a package of measures which are intended to solve the problem that arises when a child or vulnerable adult suffers an unlawful death and it can be proved that one or more of a small group of people living in the same household as the victim caused the death, but not which of them. In such circumstances there may be no case to answer against any member of the household for murder/manslaughter. Until now this loophole in the law has enabled those co-accused of the death of a child or vulnerable adult to escape justice by remaining silent or by blaming each other. However it is also a serious stand-alone offence which puts a new legal responsibility on adult household members who could be charged with the offence even for example where there is no charge of murder/manslaughter or where evidence suggests that the defendant could not themselves have committed the criminal act which killed the victim.
4. The offence provides that members of a household who have frequent contact with a child or vulnerable adult will be guilty if they caused the death of that child or vulnerable adult or three conditions are met:

1. they were aware or ought to have been aware that the victim was at significant risk of serious physical harm from a member of the household; and
2. they failed to take reasonable steps to prevent that person coming to harm; and
3. the person subsequently died from the unlawful act of a member of the household in circumstances that the defendant foresaw or ought to have foreseen.

be applicable in two different circumstances – the defendant may have caused or allowed the death of a child or vulnerable adult. The prosecution do not have to prove which of the two circumstances apply to the defendant. The maximum penalty is 14 years.
5. The text of the Act including the new offence and procedural measures can be found on http://www.hmso.gov.uk/acts/acts2004.htm.
6. The ‘allowing’ element of the offence will generally be continuous rather than a single event, but for the offence to apply some failure to take reasonable steps to protect the victim, or continuation of a failure to take steps, must have taken place after the commencement of the provisions in the Act.

Appointment of High Court judges – change in procedure.

The process for appointing High Court Judges has changed this week, without announcement, but with little surprise, the changes can be found on the DCA website.
The applicants guide says, “This High Court competition introduces selection through a revised set of competence-based qualities and skills“.
The process includes an approach to senior judges to rate each applicant from “five” to “one”. The applicant will be able to put forward his own referees.
The Lord Chancellor will recommend appointment by the Queen.
In July 2004 the Commission for Judicial Appointments found “substantial inequalities” in the High Court appointments process. Sir Colin Campbell the chairman dismissed the selection procedure as “opaque, out-dated and not demonstrably based upon merit” and as “seriously lacking in transparency and accountability”. The process appeared to have a “substantial built-in bias” towards QCs, while circuit judges and solicitors were far less likely to get promoted.
Until now, High Court judges have been appointed from lawyers who have either submitted application forms or been privately approached by DCA officials.
The new Judicial Appointments Commission which will completely overhaul the process but will not be up and running until at least 2006.

Eligibility criteria
Applications may be made by those practitioners who have either a 10 year High Court qualification or who have held the office of Circuit Judge for at least two years. Subject to the statutory requirements and the statutory retirement age of 70, there are no age limits for this appointment.
In order that solicitors meet the qualification for appointment, they are in some circumstances deemed to have held a right of audience prior to 1 January 1991.
Every barrister and solicitor has the same rights of audience before every court in relation to all proceedings, as long as they comply with the rules of the appropriate professional body.
Full details here

The Hunting Act saga; R (on the application of Jackson and others) v Attorney General (2005) CA

Held: “For the reasons we have given we have accepted that there was power to amend the 1911 Act to the extent of the amendment contained in the 1949 Act.”

In the Administrative Court the case was treated as an ordinary case turning on a point of statutory interpretation. The Court of appeal ruled that it is not such a case. English courts do not normally have jurisdiction to consider the validity of an English statute. So far as the validity of a statute is concerned, the following observation of Lord Campbell in Edinburgh and Dalkeith Railway Co. v Wauchope (1842) has always been accepted as correct: “…all that a Court of Justice can do is look to the Parliament Roll; if from that it should appear that a bill has passed both Houses and received the Royal Assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament, during its progress in its various stages through Parliament.”

The court suggested that while they are not interfering with Parliament’s activity in this case, if the the scale of the constitutional change proposed by any amendment were greater, the more likely it is that it will fall outside the powers contained in the 1911 Act.

Appeal to the House of Lords refused, but the claimants are to petition the Lords directly.

Steel and Morris v The UK [2005] ECHR

[Provision of legal services – government funding – funding civil cases – cases for which funding not available – pro bono]
DD libeled McDonald’s in 1997 by handing out leaflets attacking the company’s working practices and policies. They were ordered to pay damages of £40,000, which McDonalds has not enforced, nor have they claimed costs. The libel trial last 314 days, it was the longest trial in English legal history (McLibel Case). State funding is not available for defamation (libel or slander) proceedings. They received some help from barristers and solicitors acting pro bono: their initial pleadings were drafted by lawyers.

Held: DD should have received legal aid. By not granting legal aid the UK Government denied the pair the rights to a fair hearing and freedom of expression, Article 6 and Article 10 of the European Convention on Human Rights.

C won. Cost and expenses paid by way of just satisfaction.
Chambers judgment here

Comment: It is unlikely that significant changes will follow this ruling; it was made on the particular facts of a large multinational company suing two impoverished claimants. This has been described as a David and Goliath struggle. Such a view may not take into account the painstaking efforts of the trial judge – Mr Justice Bell – to assist the defendants, which is one of the reasons the case took so long. The question whether the provision of legal aid is necessary for a fair hearing has to be determined on the basis of the particular facts and circumstances of each case and depends on such things as the importance of what was at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent him or herself effectively.