Search Results for: prisoner voting/page/16/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.

Schrödinger’s Defendants: Inquests, Unlawful Killing and Criminal Acquittals

6 February 2023 by Matthew Hill

Three recent cases indicate a substantial change in law and practice, with inquests now seemingly free to make a determination of unlawful killing notwithstanding the acquittal of a defendant at a criminal trial.

The Inquests into the Shoreham air crash

R (Leeson) v HM Area Coroner for Manchester South [2023] EWHC 62 (Admin)

 R (Makki) v HMSC for S. Manchester [2023] EWHC 80 (Admin)

The coronial and criminal jurisdictions have a long and tangled relationship. The word “murder” derives from “murdrum”, the Medieval tax levied on a community after a coronial finding that an unidentified body was that of a Norman. In later centuries, juries at inquests could find people guilty of murder, empowering the coroner to issue an arrest warrant and commit them for trial. Yet from common soil and entwined roots, inquests and trials grew into increasingly distinct plants and during the twentieth century the primacy of criminal investigations and prosecutions became enshrined in legislation. Coroners were required to suspend inquests during criminal proceedings. If resumed, those inquests were prohibited from coming to conclusions that were “inconsistent” with the verdict of the criminal court: see what is now para.8(5) of Schedule 1 of the Coroners and Justice Act 2009 (“CJA 2009”). After 1977, inquests were prohibited from appearing to determine criminal liability on the part of a named person: see what is now s.10(2)(a) CJA 2009. The conclusion of “unlawful killing” remained, but inquests could no longer formally identify who was responsible; that was a matter solely for the criminal courts.

Richard III on the move again – pitched into the current judicial review debate

23 October 2013 by David Hart KC

The Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others, Haddon-Cave J, 18 October 2013 (PCO) read judgment, and on permission, 15 August 2013  read judgment

I posted here on the original judgment giving the Plantagenet Alliance permission to seek judicial review of the Secretary of State’s decision to re-bury Richard III in Leicester. At the time, the judge had made a full Protective Costs Order in favour of the Alliance, so that it would not have to pay costs if it lost. The judge had also ordered what he envisaged to be a short hearing to determine in what sum the Alliance’s costs should be capped. if it won. 

The judge was then somewhat surprised to be faced by a full-blown attempt by MoJ (Chris Grayling) to discharge the PCO, and seek an order for security of costs against the Alliance. The written argument in support was signed by the top barrister doing work for the Government, and the hearing about it took a day (think of the costs of that).

The application was conspicuously unsuccessful, as we shall see, but what was all this about?  Something to do with proposed judicial review changes, I suspect – for reasons which will become evident.

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Supreme Court dismisses self-incrimination appeal

9 July 2012 by Guest Contributor

Philips v Mulcaire [2012] UKSC 28 – read judgment

The Supreme Court has had its first (and perhaps last) look at an issue arising from the phone hacking litigation against the News of the World newspaper.

The appeal related to a request for further information served by the Claimant, Ms Nicola Phillips, on the Second Defendant, Mr Glenn Mulcaire, the private investigator engaged by the newspaper.Mr Mulcaire had declined to provide the information, asserting that to do so would be contrary to his privilege against self-incrimination, having regard to the significant scope for criminal prosecution he still faced arising from his alleged phone hacking activities.
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Loss of capacity does not automatically terminate solicitor’s retainer

18 February 2014 by Richard Mumford

Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust, Phillips J with assessors, 5 February 2014 – read judgment

Upholding the rights of individuals who lack the mental capacity to conduct proceedings can be a minefield for the unwary or even, as shown by this case, the wary. The point at issue before the court was whether, where a party loses mental capacity in the course of proceedings, such loss of capacity has the automatic and immediate effect of terminating their solicitor’s retainer.
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Supreme Court rules on EU conditions for asylum seekers

10 March 2014 by Dominic Ruck Keene

EM (Eritrea) and Others v Secretary of State for the Home Department [2014] UKSC 12 – read judgment

The Supreme Court overturned the Court of Appeal’s decision on the correct test for when an asylum seeker or refugee resists their return to another EU country (here Italy) in which they first sought or were granted asylum. The parties before the court all agreed that the test applied by the Court of Appeal, namely a requirement for a systemic deficiencies in the listed country’s asylum procedures and reception conditions was incorrect. 

The Supreme Court agreed and held that even when the Dublin II Regulation was engaged, the correct test was that laid down in Soering v United Kingdom (1989) 11 EHRR 439  –  the removal of a person from a member state of the Council of Europe to another country was contrary to the ECHR “where substantial grounds have been shown for believing that the person concerned… faces a real risk [in the country to which he or she is to be removed] of being subjected to [treatment contrary to article 3 of the Convention].” 

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Judicial Review: What is meant by “totally without merit”

15 February 2016 by Matthew Hill

Samia Wasif and another v Secretary of State for the Home Department [2016] EWCA Civ 82

Read judgment here

What is the difference between a case that is “totally without merit” and one that is “not arguable”? Are either of those more or less hopeless than a case that is “bound to fail”?
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The power of unelected judges – Part 2 of 2

30 May 2011 by Adam Wagner

Updated x 2 | Two court decisions have upset UK governments this week. One is being appealed in the normal way by the Secretary of State for Education, but the other may lead to a fundamental rethink of the Scottish justice system. As a Bank Holiday special, this post is split into 2 parts. Part 1 is here.

Meanwhile, north of the border in Scotland, a more significant constitutional storm may be brewing following Wednesday’s decision of the UK Supreme Court in Fraser v Her Majesty’s Advocate. Rosalind English has already posted on the ruling, which related to a Scottish murder appeal. As Rosalind said,

this was a Scottish criminal case and the Supreme Court would normally have had no business dealing with it … The Supreme Court’s appellate jurisdiction extends only to a consideration of a “devolution issue” , including whether an exercise of a function by a member of the Scottish Executive is incompatible with any of the Convention rights.

Parliament, through Schedule 6 to the Scotland Act 1998, has given the Supreme Court jurisdiction in relation to devolution issues arising in criminal proceedings. It has been suggested that this was to ensure that a consistent and coherent view upon them could be given across the UK.

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‘Do Not Resuscitate’ and the Right to Die – the Human Rights Roundup

29 June 2014 by Celia Rooney

Welcome back to the UK Human Rights Roundup, your regular game, set and match of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.

In the News

The Right to Die

This week, in the cases of R (on the application of Nicklinson and another) v Ministry of Justice; R (on the application of AM) (AP) v The Director of Public Prosecutions [2014] UKSC 38, the Supreme Court rejected the appeal of campaigners who asserted a right to die under Article 8 of the Convention.

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Tax tribunal rules that Arron Banks suffered political discrimination

14 November 2018 by Thomas Beamont

Banks v Revenue and Customs Commissioners [2018] UKFTT 617 (TC) – read judgment

Donations made by Arron Banks to the United Kingdom Independence Party (‘UKIP’) are subject to a tax regime which discriminates against the donor on grounds of his political opinion, the First-Tier Tribunal (Tax Chamber) has found.

Facts

Mr Banks and companies controlled by him donated £976,781.38 to UKIP between 7^th October 2014 and 31^st March 2015.

As the donations constituted ‘transfers of value’ within s.3 of the Inheritance Tax Act 1984 (‘IHTA’), they attract a payment of inheritance tax unless a relevant exemption applies.

Section 24 of the IHTA provides for an exemption for gifts to political parties where at the last general election preceding the transfer of value in the following circumstances:

(2) …

(a) Two members of that party were elected to the House of Commons, or

(b) One members of that party was elected to the House of Commons and not less than 150,000 votes were given to candidates who were members of that party.

The fact that UKIP failed to have any MPs elected from its ranks on 6^th May 2010 meant that, on the face of s.24, Mr Banks’s donations could not fall within the exemption.

Article 14

Mr Banks contended that this was discriminatory.

The Judge accepted as a starting point the well-known five-stage approach as set out by Lord Steyn in R (S) v Chief Constable of South Yorkshire Police [2004] UKHL 39 at [42]:

(1) Do the facts fall within the ambit of one or more of the Convention rights?

(2) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison?

(3) If so, was the difference in treatment on one or more of the proscribed grounds under article 14?

(4) Were those others in an analogous situation?

(5) Was the difference in treatment objectively justifiable in the sense that it had a legitimate aim and bore a reasonable relationship of proportionality to that aim?

As to (1) and (2), it was agreed that the provision fell within the ambit of Article 1 of the First Protocol (the right to protection of property), and that there was differential treatment.

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James Robottom: The Safety of Rwanda Act, Slavery and the Common Law

6 May 2024 by Guest Contributor

The following piece was first published on the UK Constitutional Law Blog on 25 April 2024 and is reproduced here with their permission, for which the editors are grateful

This post argues that, read in the light of the common law constitutional prohibition of slavery (“POS”), s.4 should prevent all suspected and confirmed victims of slavery from being removed against their will to Rwanda without, at the least, a detailed assessment of their specific risks of re-trafficking there.

Coogan and Phillips v NGN – give a thought to the under-privileged – Kirsten Sjovoll

1 February 2012 by Guest Contributor

Coogan and Philips v News Group Newspapers [2012] EWCA Civ 48 –read judgment

The Court of Appeal today dismissed Mr Glenn Mulcaire’s appeal against an order that he provide information to claimants in the phone hacking litigation. The Court (Lord Judge, Lord Neuberger and Maurice Kay LJ) unanimously upheld the rulings of Mann J and Vos J that, as a result of the operation of section 72 of the Senior Courts Act 1981, Mr Mulcaire was not entitled to rely on his privilege against self-incrimination (“PSI”).

Background

Ms Philips, a former assistant to the publicist Max Clifford and Mr. Coogan each brought proceedings against News Group Newspapers Limited (“NGN”) and Mr Mulcaire for damages for breach of confidence and misuse of private arising out of “phone hacking”. Ms Phillips sought an order that Mr Mulcaire swear an affidavit giving information about the individuals who had instructed him, the interception he was instructed to carry out and other matters. He refused, invoking PSI.
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Quicker, costlier and less appealing: plans for Judicial Review reform revealed

13 December 2012 by Adam Wagner

Don’t mention the war

The Government has revealed its plans to reform Judicial Review, and has opened a public consultation which closes on 24 January 2013.

Last month the Prime Minister promised business leaders that he would “get a grip” on people forcing unnecessary delays to Government policy by cracking down on the “massive growth industry” of Judicial Review (JR), the means by which individuals and organisations can challenge poor decisions by public authorities in the courts. He even, in a new twist on Goodwin’s Law, compared cutting down on court challenges to beating Hitler.

The consultation document is detailed and is worth reading. It certainly does not reflect the bombast of the Prime Minister’s statement that “We need to forget about crossing every ‘t’ and dotting every ‘i’ – and we need to throw everything we’ve got at winning in this global race“. What is proposed is a fairly significant reform of the Judicial Review system, and nothing as dramatic as winning World War II. There are, however, some problems with the Government’s analysis which I will come to later.

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The common law right to privacy in Scotland

21 September 2020 by Euan Lynch

BC & Others v Chief Constable of the Police Service of Scotland & Others [2020] CSIH 61

Last week, the Inner House of the Court of Session refused a reclaiming motion in relation to the use of racist, antisemitic and sexist WhatsApp messages in misconduct proceedings against ten police officers. The judgment discusses several interesting issues, such as the police officers’ reasonable expectation of privacy when exchanging such messages, which can be found here.

However, the focus of this article shall be on an aspect of the case which was not cross appealed: the existence of a common law right to privacy in Scotland. Despite not being an issue of contention, the Lord Justice Clerk, Lady Dorrian, took the opportunity to express her views on the matter. These now cast doubt over the existence of such a right – one which Lord Bannatyne, from the Outer House, believed was nascently recognised in case law.

Pet Shock Collar Ban (Part 2)

2 November 2019 by Rosalind English

Back in 2010 Catriona Murdoch wrote about the High Court’s decision that a Welsh ban on the use of collars designed to administer electric shocks to cats and dogs did not breach Article 1 of the First Protocol of the ECHR or impinge upon the free movement of goods protected under European Union Law. I followed with a comment on the status of animal welfare in EU law here.

Any pet owner living near a busy road or with less than adequate fencing will be aware of the availability of an electronic containment system which prevents animals escaping by administering a shock via a collar, a system to which they become conditioned by the warning of a radio signal as they approach the boundary. Hand-held e-collar devices are different in that the shock can be administered anywhere and at any time at the whim of the animal’s owner.

More developments under Schedule 7

28 August 2013 by Rosalind English

Sylvie Beghal v Director of Public Prosecutions, [2013] EWHC 2573 (Admin) – read judgment

In a judgment with implications for the detention of David Miranda, the High Court has today dismissed an appeal against a conviction for wilfully failing to comply with a duty imposed by virtue of Schedule 7 to the Terrorism Act 2000.

The Court rejected the submission that the Schedule 7 powers in question violated the Appellant’s right under Articles 5, 6 and 8 of the ECHR. However, the Court urged consideration of a legislative amendment introducing a statutory bar to the introduction of Schedule 7 admissions in subsequent criminal trials.

Part of the following report is taken from the Court’s press summary, part is based on the judgment itself.

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