Category: Judges and Juries


The Supreme Court reveals its Achilles Heel – Dr Richard Cornes

17 October 2013 by

Supreme Court press briefingOn October 2 at 10am, the United Kingdom Supreme Court held an hour long pre-term press-briefing to mark the opening of the Court’s fifth year. This blog looks not only at what was said by the Court, and asked by the journalists on the day, but also what was then reported.

The Supreme Court’s relationship with the media is marked by the same combination of common interests and tensions which mark the media’s relationship with any other public body. Yes the Court wants media coverage; and a function of the media is to cover the Court. The media though will always want more than its subjects are looking to give up, and not only that, will often frame how the subject is presented according to each outlet’s particular agendas. Further, the Court, and its justices, will also have their own goals about what messages should be highlighted.


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Judicial Review is not part of a vast left wing conspiracy

9 September 2013 by

kite-picture2The second salvo in the Government’s war against Judicial Review was launched last week. At least, that is what you may think after reading the Lord Chancellor Chris Grayling’s fire-breathing op-ed in the Daily Mail, in which he gets within a whisker of saying Judicial Review was invented by Karl Marx to foment socialist revolution.

Beware kite flyers“, warned former Court of Appeal judge Sir Stephen Sedley in a recent article. Before Mr Grayling launched his latest kite, Sir Stephen argued that placing a political attack dog in the constitutionally delicate role of  Lord Chancellor  “exposed the legal system to the vagaries of politics and policy, with profound implications for the rule of law“. Law was hardly insulated before, but it is difficult to remember a Lord Chancellor putting his case  in such a  nakedly political and incendiary way.

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UK judges have breathed new life into Human Rights Convention, says former court president – Sanchita Hosali

4 September 2013 by

 

NicBYesterday Sir Nicolas Bratza spoke candidly about the responsibility of certain UK politicians and media outlets in tarnishing this countries human rights legacy. He called on lawyers and NGOs to help rekindle the fire for human rights at home.

At an event hosted by the British Institute of Human Rights (BIHR) and the Law Society – “Sixty years of the European Convention on Human Rights (ECHR): What does the future hold?” –  politicians, legal practitioners, civil servants, academics and activists debated the impact of six decades of the UK’s membership of the ECHR.


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Standing and judicial review: why we all have a “direct interest” in government according to law – Dr Mark Elliott

30 July 2013 by

RCJ restricted accessAccording to reports in yesterday’s Times (£) and Telegraph, the government is planning a further set of reforms to judicial review. (I have written before about why the original proposals, published in December 2012, were objectionable—and about the fact that the government pressed ahead with many, but not all, of them, excoriating criticism notwithstanding.) Today, it is said that the Ministry of Justice is drastically to restrict the test for standing in judicial review cases. A “government source” told the Times that:

We’re looking at making some changes so that the system isn’t open to abuse by groups who may not have a direct interest in the issue at hand but simply want to cause delay or disruption to plans or generate publicity for themselves.

This fits with the overarching narrative emerging from (certain parts of) government, according to which accountability to law—whether domestic or European—is increasingly characterised as a brake on economic progress, a challenge to democracy by unelected judges, or little more than a public-relations tool that is strategically deployed so as to “play the system”.


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Keep it short, judges: no need to churn to earn

27 July 2013 by

zq5cNeumanns v. Adronikou [2013] EWCA (Civ) 916, 24 July 2013  read judgment

This time of year, high court and appellate judges will have been trying to clear their desks – to stop the complex half-finished judgment from skulking around in their minds and spoiling their holidays.

So they must relish this advice from Mummery LJ, a long-standing member of the Court of Appeal, about brevity – in particular, what to do when the CA is dismissing an appeal from an immaculate judgement below: 

What sensible purpose could be served by this court repeating in its judgments detailed discussions of every point raised in the grounds of appeal and the skeleton arguments when they have already been dealt with correctly and in detail in the judgment under appeal? No purpose at all, in my view.

Quite so.

But Mummery LJ did a little more than this in an attempt to stifle down at least some of the words pouring out from the courts, as we shall see.

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Legal aid and ideology: the new basis for Government reform? – Angela Patrick

4 July 2013 by

UK human rigths blog lipmanIn a famous advert from the 80s, Maureen Lipman picked up the phone to caution her distraught grandson that he could never be a failure if he had an “ology”.  It was perhaps in memory of that fine advice that the Lord Chancellor appeared before the House of Commons Justice Select Committee on Wednesday morning.   For the first time, the language of ideology was openly placed at the heart of the Government’s approach to the reform of legal aid. 

Most of the legal profession is familiar with the controversy of the Government’s latest raft of suggestions for reform of legal aid, in the Transforming Legal Aid consultation paper.  JUSTICE and many others have raised substantial concerns about the Government’s approach. The changes proposed to the provision of criminal legal aid will drastically limit the ability of people accused of crimes by the State to access quality legal advice that they can trust. This will increase the likelihood of miscarriages of justice and may make the criminal justice system as a whole more expensive, and less fair, as more people attempt to represent themselves.

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Will Article 6 come to the rescue after the legal aid reforms? – Guy Mansfield QC

26 June 2013 by

Henry Cavill in Man of Steel, Zack Snyder's Superman movieTan & Anor v Law & Anor (2013) – Currently available on Lawtel 25/6/2013 and Westlaw, BAILII link to follow

The absence of legal representation for defendants to an action for debt who contended they could not speak English resulted in the High Court granting an application that the trial be adjourned for a second time.  The judgment is a good example of the interaction of Article 6 ECHR (right to a fair trial) with the Civil Procedure Rules (CPR). 

The decision by Judge Burrell QC obviously turns on its own facts. But the absence of legal aid, the rise in litigants in person, and the increasing number of persons in this country for whom English is not their first language (or indeed their language at all) mean that this is not likely to be the last such case.

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‘Good lawyers save money’: Supreme Court President weighs in on Legal Aid

19 June 2013 by

Neuberger lega aidAccording to the President of the Supreme Court, the judiciary not only has a right but an obligation “to speak out on matters concerning the rule of law.”  In recent months, it is a duty from which Lord Neuberger has not shirked, and last night’s lecture to the Institute of Government was no exception.  Its focus was the importance of legal aid, which Neuberger described through the prism of the UK’s constitutional set-up and the respective roles of the legislature, executive and judiciary within it.

This is not the first time that the UK’s most senior judge has intervened in the debate surrounding the Transforming Legal Aid consultation, which closed on 4 June.  Back in March, he warned that proposals intended to save £350 million a year by 2015 could end up costing the Government more, with greater numbers of litigants appearing in court without legal assistance, and longer hearings.

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145 specially appointed Government barristers demand rethink on Legal Aid plans

6 June 2013 by

lawyer-barrister-wig-007145 barristers on the Attorney General’s Panel of Counsel have signed a letter seeking that the Government to rethink its plans for reform of Legal Aid. I was one of the signatories. The letter is reproduced on the Legal Aid Changes blog.  

The letter relates specifically to Judicial Review, which is an area in which Panel counsel practise regularly. Here is a taster:

We consider that the proposals in the Consultation Paper will undermine the accountability of public bodies to the detriment of society as a whole and the vulnerable in particular. Those who are reliant on legal aid are most likely to be at the sharp end of the exercise of government power and are least likely to be able to fund judicial review for themselves, or effectively act in person.

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Electronic plagiarism? The dangers of the cut-and-paste

26 May 2013 by

CutandPasteCrinion v. IG Markets [2013] EWCA (Civ) 587  read judgment

and R (o.t.a. Mustafa) v. The Office of the Independent Adjudicator, Queen Mary College Interested Party [2013] EWHC 1379 (Admin) read judgment

A judge hears a case and accepts one party’s version. That party provides a convincing closing speech (in a Word document) which the judge lifts, makes some modifications, and circulates as his judgment. 

What is wrong with that? Put it another way, does the judge have to re-invent the wheel by paraphrasing the arguments of the parties?

What is wrong is the appearance that the judge has not really engaged with the arguments of the losing party – as the Court of Appeal emphatically pointed out in their judgment.

My second case reminds us what happens when students do this.

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Judicial Review reform: What does “totally without merit” mean? – Paul Bowen QC

25 April 2013 by

Chris Grayling, justiceWhat is the test the Court should apply in deciding whether an application is ‘totally without merit’?  The question is prompted by the Lord Chancellor’s announcement on 23 April 2013 that he will press ahead with plans to reform judicial review procedure to target ‘weak, frivolous and unmeritorious cases’.  A key change will be to give judges of the Administrative Court, when refusing permission to apply for judicial review on the papers, the power to certify a claim as ‘totally without merit’ (TWM), thus depriving the claimant of the right to renew the application before the court at an oral hearing.

This power is one that is already exercisable by judges when refusing applications for permission to appeal on the papers under Civil Procedure Rules (CPR) r. 52.3(4A), the effect of which is to prevent the appellant from renewing the application orally. However, it is better known – or, at least, more widely used – in the context of the courts’ jurisdiction to make ‘civil restraint orders’ under CPR 3.11. Indeed, the Administrative Court has had power to certify an application as TWM for the purposes of making a ‘civil restraint order’ since those rules were introduced in 2004 (see R (Kumar) v Secretary of State for Constitutional Affairs [2007] 1 WLR 536). Although no statistics are currently available for this use of the power to certify a claim as TWM, according to Lynne Knapman, Head of the Administrative Court Office, these are now being collated for applications made since the beginning of 2013.

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What is the UK Supreme Court? Head to YouTube to find out (with cheesy muzak)

25 April 2013 by

The Supreme Court has produced a rather excellent short YouTube video about what it does. Look out for interviews with Justices, a funky 3D representation of the UK court system, a bit of court action and of course, cheesy muzak. 

Regular readers will know I am a big fan of the Supreme Court’s efforts to be accessible to the public, which stand in stark contrast to the almost non-existent efforts of the rest of the UK justice system. You can find an article about the video by the court’s Chief Executive here and one reviewing the court’s innovations here.

Enjoy!


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Government pressing ahead with (most of) its proposals to restrict access to judicial review – Mark Elliott

23 April 2013 by

war on JRThe Ministry of Justice has released its response to the comments generated by the consultation paper on judicial review that was published in December. Unsurprisingly, the Government has signalled that it intends to press ahead with most of the proposals upon which it consulted. In particular, it plans to implement the following proposals:

  • Time limits  The time limit for judicial review (which at three months is already very short) will be reduced to six weeks in planning cases and thirty days in procurement cases. The Government recognizes that these timescales are so short that compliance with the Pre-Action Protocol will be impossible, so it will invite the judiciary to disapply the Protocol in such cases. Given that one of the objectives of the Pre-Action Protocol is to encourage pre-litigious resolution of disputes, it is not clear how this will promote the Government’s objective of reducing recourse to litigation.

“More open, more transparent, and more powerful”: communications at the Supreme Court – Dr Richard Cornes

8 April 2013 by

Screen Shot 2013-01-21 at 09.43.46Max Hastings greeted the new Supreme Court with the prediction that it was a “constitutional disaster in the making.” For Hastings this was Blair’s Court, Blair’s legacy; its creation just one more example of Labour’s wrecking of ancient British institutions. Of course, there was also positive coverage in the early days in papers like the Guardian and Times, but ideally the Court needed to get its own message about itself. How has it gone about doing this? And what has it been saying? What challenges has it faced in its first three years?

This blog (a shortened version of an article out this month in Public Law) looks at the Court’s innovative approach to getting the message out not only about what it is doing in cases, but also about its role in general. It is a topic covered recently by Adam Wagner, here. At the heart of the Public Law article is the idea that the Court is quietly asserting its role as a new and powerful constitutional actor. Its communication’s operation has been at the heart of this.

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Chakrabarti debates Clarke on secret courts bill

7 March 2013 by

ClarkerabartiThe Constitutional and Administrative Bar Association (ALBA)  hosted an invigorating debate on Tuesday night, pitting Minister without Portfolio Ken Clarke against Shami Chakrabarti, Director of Liberty, over the question of Closed Material Procedures (CMPs) in civil claims, as proposed in the Justice and Security Bill.

The Bill is currently going through the parliamentary process, having reached the report stage in the House of Commons on 4 March 2013. Of particular note to those with an interest in human rights are the proposals to introduce CMPs into civil damages actions, where allegations such as complicity in torture by the UK intelligence agencies are made.

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