Law Weblog

Taylor v Chief Constable of Thames Valley Police [2004] (CA)

[Arrest – person arrested must be told essential legal and factual grounds for his arrest – Police and Criminal Evidence Act 1984, s 28(3)]
D a police officer arrested C who was 10 years old who was at an anti-vivisection demonstration with his mother. He had been identified from video and still photographs taken at an earlier demonstration at the same location, where he was filmed throwing rocks and stones.

Held: The Police and Criminal Evidence Act 1984, s 28(3) provides: ‘No arrests is lawful unless the person arrested is informed of the ground for the arrest at the time of or as soon as practicable after the arrest’. The arresting officer had informed the claimant of the ground for the arrest within s 28(3) of the 1984 Act and art 5(2) of the European Convention on Human Rights. He was told both the essential legal and factual grounds for his arrest, namely that he was suspected of taking part in violent disorder at the same place on the occasion of the previous demonstration. The words used were sufficient and the arrest was lawful.

D won but C proved that he had been detained for about an hour longer than necessary and damages were agreed for the one hour.

Legal Services Ombudsman for England and Wales. Annual Report for 2004.

The Office of the Legal Services Ombudsman completed 1,731 investigations into complaints between 1 April and 30 September 2003 and 1,485 new cases were accepted during that period. The average turnaround for investigation of complaints by the Ombudsman decreased from 5.6 to 2.5 months. The total amount awarded in compensation was £200,090, with an average of £431 per award; the highest award was £4,000 for distress and inconvenience, while the lowest was £50 for inconvenience. Complaints about solicitors comprised 87 per cent of the Ombudsman’s workload. Of these, she made no formal recommendation or criticism in 53 per cent of cases, indicating more dissatisfaction with the Law Society’s complaints handling procedures compared with last year’s figure of 67 per cent. However, the Law Society did reduce its live caseload by 1,090 cases (8.5 per cent).

The Ombudsman provides an independent check on the complaint-handling activities of the Office for the Supervision of Solicitors, as well as the General Council of the Bar, the Institute of Legal Executives, the Council for Licensed Conveyancers and the Chartered Institute of Patent Agents. The current Ombudsman, Ms Zahida Manzoor CBE, was appointed in March 2003.

Sir David Clementi was commissioned by Constitutional Affairs Secretary of State, Lord Falconer, to produce a wide-ranging review of the regulation of legal services. Sir David will report by the end of the year.

Call for younger and more minority ethnic magistrates in Dorset

2 July 2004: Constitutional Affairs Secretary Lord Falconer called today for more young people and those from minority ethnic backgrounds to become magistrates in Dorset.
No magistrates aged 18 have been appointed since the Lord Chancellor lowered effective age of appointment from 27 to 18 in 2003.

He was speaking during a visit to Bournemouth on Friday whilst visiting several agencies and staff within the Criminal Justice System (CJS) such as the Pre-Charge Advice Centre, Detained Persons Unit, Volume Crime Investigation Unit and Bournemouth Crown Court.

There are 322 magistrates in Dorset. However, only five are under 40 years of age and only eight come from a minority ethnic background. More magistrates in their twenties and thirties would provide a more diverse magistracy that would better reflect the community it serves.

Lord Falconer said:
“Magistrates are the cornerstone of our justice system. The overwhelming majority of criminal cases begin and end in the magistrates’ courts. They play a major part in meeting the Government’s commitment to narrowing the justice gap.

“That is why we need to re-double our efforts and recruit younger magistrates and increase the number of candidates from a more diverse background.

“One of the main difficulties in recruiting from minority ethnic communities lies in the generally held, but erroneous view, that to become a magistrate you have to be white, middle class, middle-age and professional. This is a preconception that we have to challenge.”

Lord Falconer said that Dorset was a good example to the rest of the country, however, in its recruitment of women magistrates with about half of all magistrates in the county being female.

Dorset’s youngest sitting magistrate is not only a woman but was just 29 years old when she was appointed last year. Heidi Leavesley endorsed Lord Falconer’s push for younger people to become magistrates, saying it’s brought a whole new dimension to her life.

“Becoming a Magistrate has been rewarding for so many reasons.

“The role is so stimulating and challenging personally and allows me to make a real contribution to my community. Also, as a busy mum and part time employee, the workable number of sittings and general flexibility means that I can easily balance my courts sittings with my other roles so I really do get the best of both worlds.

“Personally, I would love to see more young people getting involved because they have so much to offer to the bench. Different approaches, different perspectives and different experiences – all of these things help maintain balance and that is key, in my opinion, to maintaining a healthy bench.”

Last year the Government launched a national campaign to recruit more magistrates generally.

It wants to:

– Almost double the number of new magistrates appointed each year over the next three years, from 1,500 to 2,500. This is a vital element of the Government’s commitment to narrowing the justice gap of bringing 1.2 million offences to justice by 2005/06.

– Encourage younger people to become magistrates – less than four per cent are under 40. About 80 per cent of magistrates are over 50.

– Targeted recruitment of ethnic minorities in cities where they are under-represented.

– Encourage more people with disabilities to become magistrates.

– Encourage employers to give workers time off to become magistrates.

– The Government is proposing cutting the number of the minimum number of sitting days to the equivalent of one a month.

There are about 28,000 lay magistrates in England and Wales.
In Dorset:
48 magistrates are between 40 – 49 years
150 magistrates are between 50 – 59 years
119 magistrates are between 60 – 69 years

“No win no fee” arrangements

29 June 2004: The Department for Constitutional Affairs announced that it intends to simplify the rules for Conditional Fee Arrangements (CFAs) (“No Win No Fee”) which were hoped would promote access to justice. CFAs replaced Legal Aid in civil cases, four years ago.
Some observers claim this will take the UK further towards an unrestricted compensation culture.
Problems:
Defendants’ costs which have risen substantially to cover the success fees, which is part of their CFA.
CFAs are complex and opaque.
Reports that clients are being exploited by the unregulated and sometimes unscrupulous intermediary claims management companies.
The ‘indemnity principle’, where a party cannot recover from the loser more than he is actually liable to pay his lawyer.
Little is expected to change until late 2005.
DCA details here

Higher Education Act receives Royal Assent

From 2006, upfront university fees will be abolished. Full-time undergraduate students will not have to pay fees before or during their university education, while their parents will not have to pay fees at any time. Graduates will only pay once they are earning and at a level linked to their earnings.

The point at which graduates start paying back their (real rate interest free) loan will rise from the current level of £10,000 to £15,000. A graduate earning £20,000 will pay just £8.65 per week no matter what they owe, against £17.31 per week under the current scheme.

High Court judicial appointments system is flawed. and biased

Sir Colin Campbell, first commissioner of the Commission for Judicial Appointments has produced a critical report of the system for appointing judges.  He says those who are appointed may well be the best candidates for appointment, but their credibility may be undermined by the failings of the system that appointed them, and that unfairness and patronage cannot be easily rejected under the current system.  He went on to say the system needs radical change.

The Commission had access to the 2003 selection of High Court judges. They had access to files, e-mails and private briefings.

Of the nine candidates offered High Court positions, the Lord Chancellor himself had nominated three. The Commission believes the nomination system should end and all potential High Court judges should be applicants.

The report offers an unprecedented look at the appointments process and the Commission believes it is fundamentally flawed, and urged the government not to wait until 2006 for the introduction of the Independent Judicial Appointments Commission.

The role of the Commission for Judicial Appointments is to deal with complaints about the current system

Report of the Commissioners’ Review of the High Court 2003 competition

Blake v Galloway [2004] CA

[Negligence – duty of care – horseplay – duty only breached by recklessness or high degree of carelessness]
D threw a piece of wood bark at C hitting him in the eye causing serious injury. They were throwing bark and twigs at each other during their lunch break. C and D were members of a jazz quintet (all about 15 years of age). D relied on C’s consent and volenti non fit injuria as defences (to battery and negligence).

Held: Only recklessness or a very high degree of carelessness is sufficient to breach the duty of care owed during horseplay. There is a close analogy between organised sport and horseplay. The absence of formal rules in horseplay is not sufficient distinction, both are consensual, involve physical contact, decision are made quickly or instinctively. C had consented to the risk.

C lost

Nice money, if you can get it

Since April, barristers have refused to sign contracts with the Legal Services Commission in very high cost criminal cases (those which last 11-28 days, including murder, drug trafficking, fraud and terrorism cases); they have effectively been on strike.
If the deal had not been reached, defendants would have been released on bail.
The government has agreed to increase defence barristers’ fees under a new scheme (thought to cost £15m). Daily rates will be £600 a day for a QC and £300 a day for a junior barrister putting annual earnings for a QC at £240,000 and a junior barrister £80,000.
This does not mean that all barristers will earn these figures; a newly qualified barrister is only guaranteed £10,000 a year in his/her first year.

Tesco Law – has started – at… Tesco

Deregulation of legal services dubbed “Tesco law” appears to have started, by Tesco.

Tesco’s “legal store”, on its Tesco.com website, offers: a DIY separation and divorce kit, a “special offer” at £7.49; flat rental agreement forms for £4.49; and triple clubcard points with its £9.99 last will and testament kit

Adams v Bracknell Forest Borough Council [2004] HL

[Tort – time limit of 3 years applied as C could reasonably have been expected to be curious about his injury, dyslexia does not prevent that]
D, the local authority where C went to school. C was dyslexic but this was not diagnosed and so he received no special teaching. C grew up with limited reading and writing skills and as a result, he suffered psychological problems and was disadvantaged in the employment market. He met an educational psychologist 16 years later, and he was advised he had a cause of action against the authority, so he sued. C claimed that his cause of action would only be time-barred from when he knew he had a case. 

Held: There was no reason why C should not have been curious about his ‘injury’ and he could have consulted his doctor and a solicitor. Therefore, s 11 of the Limitation Act 1980 which sets a time limit of 3 years for actions involving personal injury could not be extended. Phelps v London Borough of Hillingdon [2000] HL and Robinson v St Helens Metropolitan Borough Council [2002] (CA) approved.

C lost