Category: Article 7 | Retrospective Punishment

Plebgate and costs budgets – The Sun off the hook for big bucks

27 November 2013 by David Hart KC

Mitchell v. News Group Newspapers 27 November 2013, CA  read judgment

We all know the story about how Andrew Mitchell MP may, or may not, have tried to barge past policeman in Downing Street with the memorable phrase “you’re f…ing plebs”. Like a lot of good stories, it may not be true, and like a lot of good stories it was picked up by The Sun. So Mr Mitchell sues The Sun in libel on the basis that it is untrue.

But this decision of the Court of Appeal is all about the reforms initiated by the man to my left, Sir Rupert Jackson, also a judge in the CA, who has shaken up the whole system of legal costs in civil litigation. And one of the major steps he has taken is to compel litigants to say what they intend to spend on a case early on – the costs budget – so that the judges can make some assessment of whether the thing is to be run sensibly or extravagantly.

Cue the present argument, where our MP’s lawyers do not file their costs budget on time, which is 7 days before the relevant hearing. So the parties go before the court, and The Sun says – we did our bit on time but we only got their budget yesterday, and we are not ready. To cut a long story short, The Sun now stand to recover a budgeted figure of £589,555 if they win, but our hapless MP (or his lawyers) will only recover his court fees if he wins.

How so?

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Costs budgets – now with sharp teeth. If you want more than your budget, apply.

17 June 2013 by David Hart KC

Elvanite Full Circle v. AMEC Earth & Environmental (UK) Ltd [2013] EWHC 1643 (TCC), Coulson J read judgment

The Jackson reforms, which are designed to stop lawyers spending too much of their clients’ or their opponents’ money, are still but young, and therefore not yielding much in the way of decided cases. But there were some pilot schemes which are very similar, and this case about one such scheme (in the Technology & Construction Court) is an interesting, and tough, example of why costs budgets must be taken seriously.

Elvanite claimed that AMEC had given them negligent planning advice about waste management. Coulson J dismissed the claim. AMEC sought and got their costs. But, from the judge’s judgment on costs, it seems unlikely that they will recover more than 50% of their actual costs. Why?

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Courts should take note of Strasboug’s doctrine of deference

6 July 2012 by Rosalind English

R(on the application of S and KF) v Secretary of State for Justice [2012] EWHC 1810 (Admin)- read judgment

This case about prisoner’s pay provides an interesting up to date analysis of the role of the doctrine of “margin of appreciation” and its applicability in domestic courts.

Margin of appreciation is a doctrine of an international court: it recognises a certain distance of judgment between the Strasbourg court’s overall apprehension of the Convention principles and their application in practice by the national authorities. In theory it has no application in domestic disputes but ever since the Human Rights Act introduced Convention rights into domestic law there has been an ongoing debate about its applicability at a local level. This case demonstrates the importance of its role in the assessment, by the courts, of the compatibility of laws and rules with Convention rights.

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Why Stephen Lawrence killers were sentenced as juveniles and under old law

4 January 2012 by Adam Wagner

Updated | Two of Stephen Lawrence’s killers Gary Dobson and David Norris have been sentenced to minimum life terms “at her Her Majesty’s Pleasure” of 15 years 2 months and and 14 years 3 months respectively.

There has been surprise, from the Daily Mail amongst others that Dobson and Norris, now in their mid-30s, were sentenced as juveniles. Curiously, they have also been sentenced under historic law dating back to around 1993, which means they cannot be sentenced under harsh new guidance for racially aggrevated crimes.

This may all sound a bit strange, but as readers of this blog will know, the sentencing of criminals convicted in “cold cases” which have heated up can be much more complicated than if the crime happened a short while before trial. This may upset Daily Mail readers, but the reason is partly the European Convention on Human Rights. As Alasdair Henderson posted last month, Article 7 prohibits retrospective punishment, that is punishment using law which was not applicable at the time of the crime:

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What to do with ‘cold cases’ when they eventually heat up

8 December 2011 by Alasdair Henderson

R v. H & others [2011] EWCA Crim 2753 – read judgment.

One of the most popular ideas in crime fiction is the ‘cold case’; the apparently unsolved crime which, through various twists and turns, is brought to justice many years after it was committed. Indeed, at least two recent long-running TV dramas (the American show ‘Cold Case‘ and the more imaginatively and morbidly named British show ‘Waking the Dead‘) have been entirely based on this concept.

But what happens when such cases do turn up in real life, get to trial and the perpetrator is found guilty? In particular, how does a judge approach sentencing for a crime which might be decades-old, in the light of Article 7 ECHR? The Court of Appeal recently provided some answers to those questions.

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Master of the Rolls calls for more restraint from Strasbourg judges

6 July 2010 by Rosalind English

The Master of the Rolls Lord Neuberger has given the first lecture to the meeting of the newly-formed the European Circuit of the Bar. Along with the contributions of Lord Judge, Lord Hoffmann and Lady Justice Arden, this address forms part of an elegant but increasingly intense debate that reflects unease about Strasbourg.

At the end of his speech Lord Neuberger calls for a “dialogue” with the European Court of Human Rights that

will require from Strasbourg a more acute appreciation of the validity of the differential approaches by Convention states to the implementation of rights…Strasbourg might well benefit from developing the margin of appreciation to take greater account of practical differences which arise between Convention states and their implementation of high level principles.
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Illegal video supply convictions stand despite failure to comply with European law

3 July 2010 by Rosalind English

Regina v Budimir and another; Interfact Ltd v Liverpool City Council [2010] EWCA Crim 148; [2010] EWHC 1604 (Admin); [2010] WLR (D) 166

CA and DC: Lord Judge CJ, David Clarke, Lloyd Jones JJ: 29 June 2010 – read judgment

A new High Court decision has struck a blow for legal certainty and enforced the sometimes forgotten right under human rights law against retrospective criminal sanctions, which applies even in cases where the UK had failed to enact European Community legislation. In this case, the lack of retroactivity meant that a company and two men could not have their convictions for supplying videos illegally quashed.

The High Court held that where defendants had been convicted of criminal offences under national legislation which was unenforceable owing to a failure by the UK to comply with a pre-enactment procedural requirement imposed by EU law, it was not incumbent upon the Court of Appeal to re-open their cases out of time unless their convictions had given rise to any substantial injustice.

The Video Recordings Act 1984 made it an offence to supply pornographic videos “from” rather than “in” a licensed sex shop (Section 12); it was also an offence under the Act (Section 10 (1)) to supply videos with no classification certificate. The applicants had been convicted under these sections in 2004 and 2008 respectively.

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Beginning of the end for the “Super Injunction”?

8 April 2010 by Adam Wagner

A high profile panel has been formed to review ‘super injunctions’, which have recently been used with varying success to halt media coverage of controversial legal disputes.

Super injunction applications have seen two competing European Convention rights fighting it out; Article 8 (right to privacy) versus Article 10 (freedom of expression).

We have previously posted on the super injunction which was imposed and then swiftly lifted in relation to press coverage of Chelsea footballer and England Captain John Terry’s extra-marital affair.

The committee is to be led by Lord Neuberger, the Master of the Rolls, and will be composed of legal and media experts. One notable absence, as Joshua Rozenberg blogs, is Mr Justice Eady, who has been responsible for many of the more controversial super injunctions.

According to the Judicial Communications Office, The Master of the Rolls has set up the committee following the recent report by the Culture, Media and Sport Committee’s report on press standards, privacy and libel and concerns expressed to the judiciary.

Read more:

• Mr Justice Tugendhat decision in the John Terry case
• The Judicial Communication Office announcement (including the names of the committee members)
• Commentary from Liberty Central in The Guardian