Law Weblog

QC selection, proposals announced

Proposals for changing the appointments system for Queen’s Counsel (“silks”) have been agreed by the Law Society and the Bar Council.
“Secret soundings” will no longer be used, instead selection will be on evidence based merit. The scheme will provide information about the area of advocacy in which an individual QC excel, rather than the existing broad brush approach, this will require applicants to produce “hard evidence” of their superior status to be selected as a QC.

An independently-appointed selection board of nine members, of whom four, including the chairman, will be “distinguished non-lawyers” will assess applications from barristers and solicitors. The panel will take references from people who have dealt with the applicant including judges, other lawyers and clients.

Hunting Act 2004

It has arrived: the ban on fox (and any other mammal) hunting (and hare coursing). Seven hundred hours of parliamentary time given to the passing of a very short Act of only 17 sections.
We have resisted commenting on the progress of the Bill until the Parliament Acts 1911 and 1949 were used to ensure its final stage. Immediately it received Royal Assent a challenge was made in the High court because the Parliament Act 1949 is thought to be invalid. We expect that every other form of legal action possible will follow. Feelings run very high on this debate, and outside parliament are evenly divided. The whole process, we predict, will give a thorough airing to the processes of democracy and the role of parliament.

The Hunting Act 2004 is here.

Recommendation 61 of the Stephen Lawrence Inquiry Report

The London wide roll out of Recommendation 61 of the Stephen Lawrence Inquiry Report was launched by the Metropolitan Police on Wednesday 17 November 2004. National implementation is due in April 2005. Recommendation 61 of the Stephen Lawrence Inquiry Report called for the police to record all stops as well as searches.
The Home Office implemented seven pilot sites for Recommendation 61 across the country in phases beginning in April 2003. The Metropolitan Police Service was one of seven police services chosen for the initial phase of implementation.

A police stop is defined by the Home Office as “when an officer requests a person in a public place to account for themselves i.e. their actions, behaviour, presence in an area or possession of anything, a record of the encounter must be completed at the time and a copy given to the person who has been questioned, this is unless there are exceptional circumstances … a record of an encounter must always be made when a person requests it, regardless of whether the officer considers that the criteria set out has been met.”

Police Powers Module 1: Stop and Search Action Team Community Panel

The Stop and Search Action Team (SSAT) was launched on 2 July 2004. Its main aim is to ensure that the police force use the stop and search power fairly and as effectively as possible.

The Home Office today announced the appointment of Lord Victor Adebowale CBE as chair of the Stop and Search Action Team Community Panel.
The Home Office is currently in the process of appointing the members of the panel community panel. The panel will consist of 20 prominent representatives from communities throughout the country. The panel’s first meeting will be in early December. Among the Community Panels’ terms of reference are: to provide advice to the Stop and Search Action Team (SSAT) and the delivery board on the race and community impact of the SSAT work programme; The Stop and Search Action Team Delivery Board, which works alongside the community panel, provides expert and professional advice to SSAT, and makes sure that SSAT delivers against its work programme. More information about Stop and Search can be found on the Home Office web site, here. 

Previous convictions to be disclosed to juries

Juries handling theft and sex abuse cases will be made aware of the defendant’s previous convictions and charges, under government plans announced today.
An order laid in Parliament today will mean juries will be made aware of relevant previous convictions and charges from mid December.

Speaking at his monthly press conference, the Prime Minister said he knew the move would be controversial. “There are people who believe this undermines a defendant’s rights. “But for too long the scales of justice have been weighted in the defendant’s favour and against the victim.” He said the change will end the situation where a defendant may have committed a string of similar offences but they are not considered relevant or admissible in court.

The order paves the way for the implementation of more general bad character provisions in the Criminal Justice Act 2003 by the end of the year. Home Secretary David Blunkett added: “Trials should be a search for the truth and juries should be trusted with all the relevant evidence available to help them to reach proper and fair decisions.”

Details here

Law and Morality: ECJ ruling in laser game ban re-opens moral exception. Article 234 reference

14 October 2004
The Omega Case C-36/02 decided by the European Court of Justice (ECJ) on 14 October could have extensive ramifications. In 1994 Omega started laser game facilities in Germany where players shoot at each other with laser guns. In other EU countries these games are acceptable but in Germany where human dignity is a constitutional principle the police took an order forbidding Omega from operating the “playing at killing” game on the ground that the act of simulated homicide and the trivialisation of violence engendered were contrary to fundamental values.

As the equipment was lawfully made in the UK the company sought to argue that the order breached its rights under the EU principle of freedom to provide services. The German Supreme Administrative Court found that the game was an affront to human dignity as protected under the German Constitution nevertheless referred to the ECJ under Article 234 on the lawfulness of the prohibition under Community law.

The ECJ found that the protection of human dignity was a principle common to the EU Member States, not least through the application of the European Convention on Human Rights. It was immaterial that Germany should be the only EU State to have given this principle constitutional status; the protection of a fundamental right was a legitimate interest which justified “a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty such as the freedom to provide services.”

From the strict perspective of EU law the Court has affirmed that there is no common market in morality and it is striking how far it is prepared to go. It appears that moral standards and the law have moved on since the 1986 Conegate case (Case 121/85) where the Court held that Britain could not stop the import of inflatable dolls on the grounds of public morality, but the Court’s decision in Omega could re-ignite debates that most would consider closed.
It is possible that the court would reconsider issues such as abortion, which the Court held in Grogan (Case 159/90) was a service within the meaning of Community law, with the consequence that Ireland, where abortion was illegal could not stop its nationals travelling to another EU country where it was lawful.

With the enlargement of the EU it could be that religious and moral principles could come back on the agenda, for example by the activity of the so-called Dutch “abortion ship” that was refused docking in Portugal and Poland earlier this year.

The Advocate General in Omega referred to the “Television Without Frontier Directive” which requires states not to prejudice respect for human dignity, is morality returned to the centre stage of EU law?

Full case report here

Passing of legislation, Private Member’s Bills

Liverpool city councillors voted last night to promote a Private Member’s Bill that would outlaw smoking along the lines of New York and Dublin.
The council will petition Parliament to pass the Liverpool City Council (Prohibition of Smoking in Places of Work) Bill, which could take at least 18 months.

It is widely expected that there would follow extensive bans on smoking in public places such as pubs and restaurants; the medical evidence seems to be overwhelmingly against the smoker. More than 100 people in Liverpool die each year as a result of inhaling second-hand smoke, the author of this blawg nearly joined them on 13th July as a result of a heart attack caused, inter alia by smoking.

Court of Appeal “in” Hull

The Court of Appeal in London has this week heard three cases via video link for the first time, with the appellants in each case sitting 300 miles north in Hull Prison. In a pilot scheme, Lord Justice Judge, Mr Justice Moses and Mr Justice Royce used the technology to hear the appeals against sentence. The result of the hi-tech link-up from the Royal Courts of Justice to Hull Prison meant that decisions in each case could be delivered without the need for the appellants to be transferred to London.

More detail here

The Licensing Act 2003 became law today

Role of Magistrates
The 2003 Act represents the first major review of licensing law for almost 40 years and will change the existing laws regarding the type of licence required in order to provide a number of different functions and facilities.
Magistrates lose licensing role to Local Authorities
When fully operative the Act will abolish the existing liquor licensing system which currently operates under the Licensing Act 1964 through the Magistrates’ Courts in England and Wales. The new ‘licensing authority’ will in future be the relevant local authority. There will be one licensing body for all licensing issues. However, appeals against the ‘licensing authorities’ decisions will be to the magistrates.
What will it affect?
The Act will amalgamate six existing licensing regimes, these being: alcohol public entertainment cinemas theatres late night refreshment houses night cafes
When will everything change?
7 February 2005 is the first appointed day for Licensing Authorities to begin processing licensing applications

Caldwell recklessness is not dead

Tuesday 5 October:
R v G [2003] HL delivered Caldwell a fatal blow so far as the Criminal Damage Act was concerned. It was not clear what survived R v G, but we now know that the test of recklessness for all but Criminal Damage may have survived. The authority for this is an unreported case in the Court of Appeal, R v Mark and another [2004] CA.

[Gross negligence manslaughter – D need not actually be aware of risk of death]
DD were involved in the management of a company that contracted to clean a resin storage tank. V, an apprentice died when an explosion occurred because a halogen lamp was knocked over by another apprentice. The appeal was made so DD could obtain permission to take the case to the House of Lords to ask them to consider whether R v G had altered the position in R v Adomako [1994]. 

Held: Actual foresight by D of the risk of death was not essential in gross negligence manslaughter (R v Adomako). Further, the decision in R v G was limited to recklessness in the context of a particular statutory provision (Criminal Damage) and no reference had been made to R v Adomako.

Guilty leave to appeal against conviction refused.
[Comment] The court considered the following two cases:
A-G’s Ref (No 2 of 1999) [2000] (CA) which confirmed that where the defendant’s state of mind was relevant in Gross Negligence manslaughter the test was objective.
R v DPP, ex p Jones [2000] (QBD) IRLR 373 which said that the test of negligent manslaughter is an objective one confirming Attorney General’s Reference No 2 of 1999.

If the accused is subjectively reckless, then that may be taken into account by the jury as a strong factor demonstrating that his negligence was criminal.

Where D fails to consider the risk (as opposed to taking a risk) in an obvious and important matter, he can still be convicted.

In the instant case the Court of Appeal has followed the law to the letter and decided that the law is in no need of revision.