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Criminal Justice and Courts Bill – new criminal offences

Administrator 1 : April 22, 2014 3:01 pm : Blog, Headline

By Dan Bunting

Another year, and yet more criminal justice legislation. The Criminal Justice and Courts Bill 2013-14  is going through Parliament at the moment, and it will come as no surprise that it includes new criminal offences. Here’s a quick look at them:

Research by jurors (s 44)

This adds a new s 20A-D to the Juries Act 1974. It comes off the back of the Law Commission Report on Juror Misconduct that was published on 9 December 2013 and effectively implements the recommendations, save that there is no exception for academic research which is a disappointment. The new offences mainly codify the common law on contempt of court as it relates to jurors. It allows them to be dealt with by the “usual” criminal courts rather than through proceedings for contempt, which is arguably a sensible way forward. In reality, there will not be that many cases that are prosecuted.

From the moment when they are sworn as a juror to when they are discharged, either individually or as part of a general discharge (the “trial period”), it is a criminal offence to undertake any research. This is defined as including:

(a) asking a question;

(b) searching an electronic database, including by means of the internet;

(c) visiting or inspecting a place or object;

(d) conducting an experiment; and

(e) asking another person to seek the information.

That is relevant to the case. This is defined ((4)) as including information about:

(a) a person involved in events relevant to the case;

(b) the judge dealing with the issue;

(c) any other person involved in the trial, whether as a lawyer, a witness or otherwise;

(d) the law relating to the case;

(e) the law of evidence; and

(f) court procedure.

There is an analogous offence under s 20B of sharing information with a fellow juror, a very wide s 20C relating to encouraging a juror to engage in “Prohibited Conduct” (which means “conduct from which it may reasonably be concluded that the person intends to try the issue otherwise than on the basis of the evidence presented in the proceedings on the issue”). Lastly, there is s 20D, an offence of disclosing (or trying to get information from) details of a jury’s deliberation.

There are various exceptions as to be expected, mostly in line with common sense (not always a given sadly). A couple of points to note is that the “public interest” disclosures protect a juror if the information is passed to any police officer, a Judge from the Crown Court of Court of Appeal, the Registrar of the Court of Appeal (and presumably their delegate) or a staff member of the Crown Court. Note, this does not include any of the lawyers involved in the case (nor a journalist, but that is perhaps less surprising).

One aspect of concern is the prohibition on researching court procedure and the law of evidence is very wide. It of course only applies when someone is actually a juror (rather than after they have received their summons), but even so, in applying the law it is hoped that there is an element of common sense.

Possession of pornographic images of rape and assault by penetration (s 18)

This adds to the current extreme images offence and creates a new category of “extreme images” by adding a new s 63(7A) Criminal Justice and Immigration Act 2008. This widens the ambit to include an image that “portrays, in an explicit and realistic way, either of the following:

(a) an act which involves the non-consensual penetration of a person’s vagina, anus or mouth by another with the other person’s penis; or

(b) an act which involves the non-consensual sexual penetration of a person’s vagina or anus by another with a part of the other person’s body or anything else,

and a reasonable person looking at the image would think that the persons were real.

The defence in s 66 (that the images are of consensual activity which the defendant was a participant in) applies to this new category. This offence is either way with a maximum sentence of three years.

The impetus for this new offence comes from a letter from Rape Crisis South London to the Prime Minister pointing out an alleged lacuna. There is no evidence that has been put forward establishing a causal link between “rape porn” and sexual violence. Whilst there are obvious concerns about filming people who are actually being abused, there is a legitimate concern in the BDSM community and wider, as to whether it is appropriate to criminalise the possession of “rape porn” involving actors where there is genuine consent.

Scotland has had this legislation since 2010 and it seems that there has been only one prosecution since then, and that was when the offending image was found in a collection of other illegal images that would have prosecuted in any event.

Given all that, and that the Impact Assessment reckons on a total cost of £10,000 per prosecution, it is unclear whether this is a necessary addition to the criminal law.

Remaining Unlawfully at large after recall (s 10)

Someone released from prison who is notified that they are to be recalled and then fails “without reasonable excuse, to take all necessary steps to return to prison as soon as possible.” is guilty of an offence. This is either way, with a maximum sentence of two years.

The similar offence of remaining unlawfully at large after a temporary release is made either way with a maximum sentence of two years. Currently, such people are returned to prison to serve their sentence.

One other change of note is that the offence under s 1 Malicious Communications Act 1988 is also made either way with a maximum of two years. Note that this isn’t the offence under s 127 Communications Act that has caused so much notoriety of late, which remains summary only.

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ECJ outlaws “snoopers’ charter” – but snoop they shall yet

Administrator 1 : April 15, 2014 4:41 pm : Blog, Featured

Snoopers' charterBy Richard Allison

The European Court of Justice has invalidated the European Parliament’s Data Retention Directive. The decision, following requests from the Irish and Austrian courts, is a blow to Theresa May’s plans to push through a data retention scheme which would indiscriminately collect and store data from UK citizens’ internet and phone use for up to 12 months for later examination.

A Home Office spokesperson said: “We are considering the judgment and its implications carefully. The retention of communications data is absolutely fundamental to ensure law enforcement have the powers they need to investigate crime, protect the public and ensure national security.”

James Welch, legal director for Liberty, said: “Knowing the every detail of our communications creates an extremely intimate portrait of our lives. In this hugely welcome and significant judgment, the court criticised the blanket nature of the obligation to retain communications data and the lack of safeguards, particularly as to who can authorise access. Mass snooping of this type has no place in an internet-age democracy – our government must clean up its act.”

As ever, there is an unbridgeable gulf between what governments want to be able to do with electronic data that reveals our every secret and what civil liberties organisations say they should be allowed to do with it.  The government wants access to everything and anything in the interests of national security and the prevention and investigation of crime.  The opposing factions say that this is a breach of our fundamental right to privacy and an affront to liberty. Both sides bleat while in the meantime the authorities conduct a very great deal of data-mining and surveillance – I’m sure we don’t even know the half of it. Almost any violation of personal privacy can be justified under the exceptions enshrined in ss 28 (National security) and 29 (Crime and Taxation) of the Data Protection Act 1998. Evidently it is easier for the government and police not to have to conceal the level of monitoring they wish to perform and it is normally in their interests to declare their actions, especially when it comes to admissibility of evidence in court.  But they will spy on us whether we like it or not, to one degree or another.

In terms of an intellectual debate I have never heard anything that goes beyond the equivalent of a man in uniform saying “I need to look in that private box of yours because I am important and it might contain something relevant to crime prevention and/or detection” countered by a man in civvies replying “You can’t look in my box because it’s private and you don’t have reasonable grounds to suppose criminality and who are you anyway?”  Following which the man in uniform looks in the box anyway, probably without the civilian’s knowledge.

So what to do?  The first problem is that not everyone agrees – some citizens are quite prepared to sacrifice almost all privacy for the sake of feeling safer.  The second – and most significant – is, Quis custodiet ipsos custodes? Even if privacy laws exist, what hope has the humble citizen of detecting and correcting a breach when the authorities control all the machines? (Assuming, of course, a breach has even been committed – the existing legislation contains such huge get-out clauses.) The best one can probably hope for is a continued beating of the drum (including exposure of malpractice) by civil rights groups, to function as some sort of inhibitor. Which has about as much chance of success as my cat has of controlling the entire rat population of London.

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Eve’s Law: addresses of domestic violence victims must be kept secret

Administrator 1 : April 14, 2014 9:26 am : Blog, Featured

Domestic violenceBy Christine Land

In busy working environments it is easy to make mistakes but some mistakes are more costly than others. An inadvertent disclosure of a domestic violence victim’s safe address to their abuser, for instance, could cost someone their life. Now signed by 87 MPs, Early Day Motion 900 so called “Eve’s Law” is calling for the greater protection of safe addresses.

The motion comes as a result of the tireless campaign of Eve Thomas, herself an escapee of domestic violence. In August 2012, Eve faced being sent to prison for contempt of court for refusing to disclose her safe address during the course of small claims hearing. Eve wasn’t prepared to risk her safe address being leaked to her violent ex-partner and was willing to go to prison to protect herself and her children. Eve’s concerns were not unfounded. Since the campaign was launched, numerous victims of domestic violence and support organisations have come forward to explain how the current court system has failed them.

One particular victim recounts that just a month after she had escaped her violent ex-partner, a non-molestation order was served on her ex-partner with her full address on. She says; “If he had caught me unawares at any point… he would have murdered me.” Particular areas of weakness exist where a perpetrator makes a claim against the victim for allegedly running away with his or her children and the victim’s address is simply disclosed. There is also the issue of proceedings being transferred to the victim’s local court which gives the abuser an indication of where the victim is living.

The result is that victims are frequently being put at risk by seeking protection when they need it the most. This situation is unacceptable and failing to protect safe addresses potentially violates numerous articles of the ECHR including the prohibition from torture and respect to private and family life. The situation is also avoidable. Simple steps which are cheap to implement, such as flagging up documents, which should not be disclosed, and empowering victims to choose whether or not to disclose their address, could limit human error and make all the difference.

In an announcement published on 8 March 2014, Theresa May acknowledged the shortcomings in the current system stating “there are still too many cases where vulnerable people are let down”. The Home Secretary cited the Government’s intention “to put in place a new code of practice to ensure that safe addresses of victims of domestic abuse are protected”.

A code of practice is obviously a step in the right direction in improving standards. It will raise awareness of the importance of protecting victims’ safe addresses and encourage the spread of knowledge, especially through the media. The Government would benefit from carefully listening to the victims and support organisations who have witnessed the shortcomings first hand before drawing up the code.

It is clear that reform is not only required within the court system but an increased awareness is also needed within the police force and social housing organisations. The aim should be for protected information to be “red flagged” against disclosure and kept on a secure database with multi-agency access. Speaking with Eve about reform in the housing sector in particular, she suggested that protection could be improved simply by giving tenants the opportunity of explaining their personal circumstances at the outset and giving victims a say in how risks are managed. This is in addition to the ongoing need to educate staff and improve safeguards against disclosure. The “home-swap” system employed by many social landlords for instance was identified by Eve as being a hotbed for inadvertent disclosures.

It is hoped that the code of practice will lead the way to more concrete protection measures being enshrined in law. While admittedly it might be desirable for the Government to see how the code works in practice, it’s hard to find a good reason not to immediately give the force of law to a victim’s right to decide not to provide his or her safe address in court, especially as the current safeguards are lacking. After all, it could be a decision which saves their life.

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Should judges question vulnerable witnesses?

Administrator 1 : April 10, 2014 12:47 pm : Blog, Featured

By Matthew Seys-Llewellyn

Sir Keir Starmer, the former Director of Public Prosecutions, has been in the news this week with the suggestion that vulnerable witnesses should be questioned by the Judge in the case rather than by counsel, and this idea should give us pause to reflect on both the role of the judge and the role of the advocate.

The English have traditionally viewed judges with a certain amount of distrust, perhaps because one man seemed easier to bribe than 12 men of the jury, or possibly because judges can become hardened to certain sections of society by repeatedly seeing the worst of human nature.  For that reason the role of the judge is to rule on admissibility of evidence, direct the jury on what the law says, and to try and run proceedings at an administrative level.  It is that role that makes a judge more of an umpire than an active participant in the fact finding process.

Concerns about vulnerable witnesses are not new.  In fact they predate even the academic discourse of the seventies and eighties when feminist authors first questioned how the bias of male judges affected the decision to admit previous sexual history evidence in rape cases.  Concerns about child witnesses (for example) have been recorded since the eighteenth century at least.  As the basic mechanics of admissibility came from the common law, the whole area of witnesses and questioning has been overlaid by specific provisions such as ss 41 and 42 of the Youth Justice and Criminal Evidence Act 1999 on sexual history evidence, or the bad character and similar fact provisions of the Criminal Justice Act 2003 which require that notice is given at the plea and case management hearing trial rather than being sprung as an ambush on the day of trial.  The 1999 Act also makes provision for special measures for vulnerable witnesses, such as a answering from behind a screen or by video link or even removing wigs and gowns to make the proceedings feel less formal and threatening.

Such rules raise the question of whether it is advocates who are doing something wrong.  Appearing in court as a witness is frequently described as “an ordeal” and it this concern that Starmer focuses on.   For there to be a fair trial, the assertions of witnesses do need to be tested for inconsistencies and in the process of a lawyer putting their case before the court.  For barristers, the Bar Standards Board outlines the role of a barrister while examining any witness in rule rC7 in the New Code of Conduct:

“.1 you must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person;

.2 you must not make a serious allegation against a witness whom you have had an opportunity to cross-examine unless you have given that witness a chance to answer the allegation in cross examination;

.3 you must not make a serious allegation against any person, or suggest that a person is guilty of a crime with which your client is charged unless:

.a you have reasonable grounds for the allegation; and

.b the allegation is relevant to your client’s case or the credibility of a witness; and

.c where the allegation relates to a third party, you avoid naming them in open court unless this is reasonably necessary.

.4 you must not put forward to the court a personal opinion of the facts or the law unless you are invited or required to do so by the court or by law.”

Many readers will recognise that this builds on longstanding guidance in previous recitals of the Code, particularly the phrase “merely to insult, humiliate or annoy”.

That is only the first safety net, and the second is the provision of specialist witness training to the lawyers involved these cases. I’ve had the argument before about whether barristers with a mixed practice should do serious sexual offences work – or whether they lose something by not doing criminal work regularly – but it seems clear that it takes greater experience to ask only the minimum number of questions necessary to make their point.  Yet once again, as r C7.3 explains, if you are to assert something in your closing speech, you must first have put that case to the witness or else the case cannot be fairly run and that means that awkward questions will sometimes have to be asked.  The third safety net is the judge and their power to intervene and stop a dubious line of questioning, a role that would surely have to change if Sir Keir’s suggestion was taken up.

The wider question for us all must now be whether it should be judges or lawyers who are asking those questions.

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Shocking justice gap for disabled prisoners

Administrator 1 : April 4, 2014 11:49 am : Blog, Featured

By Benjamin Burrows

It is Prison Service policy that prisons provide a fair and equal service to all prisoners, including to those who are disabled. The purpose of this policy is to make sure that the Prison Service meets its obligations under the Equality Act 2010 (EqA). However, for many disabled prisoners, these obligations are not being met.

The Chief Inspectorate of Prisons carried out a thematic review of disabled prisoners in March 2009, and found that, on the whole, disabled prisoners reported that they had a worse prison experience, across all areas of prison life, than non-disabled prisoners.

Arguably, since March 2009, the lot of disabled prisoners has become worse rather than better. This is not altogether surprising given that the Prison Service is battling an aging population with increasing health, social care and disability needs, as well as an ever tightening squeeze on both its accommodation and resources.

The problems faced by disabled prisoners are routinely highlighted by Chief Inspectorate of Prisons, as well as by disabled prisoners themselves. However, these problems are rarely acted upon by the Prison Service. In a despairing letter to the prison newspaper, Inside Time, a prisoner suffering with Multiple Sclerosis, set out the particular problems he was facing at HMP Wandsworth:

“I am registered disabled with secondary progressive MS. The doctor says I should be located on the ground floor and that my mobility should be actively encouraged. HMP Wandsworth’s answer to this is to keep me locked up for 23 hours a day on the second floor and have my food bought to my cell. I get no activity; they just lock me up and may as well throw away the key. The Governors and staff here make no effort at all to find disabled prisoners a job and they cannot get a cell on the ground floor as these are reserved for workers. Surely this is discrimination?”

In the face of seeming inaction by the Prison Service, disabled prisoners have little choice but to turn to the law for protection. However, whilst the EqA does offer such protection, it is becoming harder for disabled prisoners to avail themselves of it.

The EqA offers Claimants, including disabled prisoners, two main avenues of redress: judicial review challenges and county court claims. However, both avenues are fraught with procedural and funding difficulties.

Judicial Review Challenges

Where the discrimination is continuing and the main aim is to stop the discrimination from happening, it may be most appropriate for the Claimant to bring a judicial review challenge. However, disability discrimination claims and the Administrative Court have not always proved to be a perfect fit.

By their nature, disability discrimination claims are often factually and medically complex, and, as such, both the nature and extent of the disabilities and what steps have or have not been taken to address those disabilities is frequently the subject of dispute between the parties. The Administrative Court is often hesitant in involving themselves in such disputes unless the factual basis is not in dispute and there is a clear legal issue which needs their determination.

County Court Claims

In many ways, this is why the EqA envisaged that the majority of disability discrimination claims would be brought in county court. However, over the last year or so, changes in the law and the court rules have meant that the ability of Claimants to bring such claims has been significantly restricted.

The main reason for this is that these changes have not taken into account the relatively modest value of these claims. Awards of compensation in disability discrimination claims are guided by caselaw. The “Vento” guidance provides that compensation should be awarded to Claimants according to three bands: the lower band of up to £6,600; the middle band of up to £19,800; and the upper band of up to £33,000.

However, the relatively modest value of disability discrimination claims affects the ability of the Claimant to get funding and then to recover their costs.


Disability discrimination claims can be funded through legal aid. However, they will be subject to the Legal Aid Agency’s (“LAA”) funding criteria. This includes a proportionality test, which, in general terms, means that the likely benefits of the claim must justify the likely costs of bringing the claim. Therefore, claims which are for compensation only and are in the lower and middle bands of the Vento guidance will often find it difficult to satisfy this proportionality test.

Previously, where a Claimant was not financially eligible for legal aid funding, or where a claim did not satisfy the LAA’s proportionality test, disability discrimination claims could be funded through a Conditional Fee Agreement (CFA) with After-the-Event Insurance (ATE). This effectively meant that, if the claim was successful, the Defendant would pay the Claimant’s costs including the ATE premium, but, if the claim was unsuccessful, the Claimant was insured against paying the Defendant’s costs.

However, with the passing of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), ATE premiums are no longer payable by the Defendant even if a claim is successful. Rather, the Claimant is now responsible for paying the ATE premium out of any compensation they have been awarded. Unfortunately, in many cases, ATE premiums can amount to thousands of pounds and, as such, can dwarf the compensation awarded.

To address this problem, the Civil Procedure Rules (CPR) introduced the concept of Qualified One Way Costs Shifting (QOCS). In simple terms, QOCS mean that, if a claim is unsuccessful, the Claimant is protected against paying the Defendant’s costs, which, in turn, means that ATE is no longer necessary.

However, QOCS only apply to claims which include a claim for compensation for “personal injuries”. At present, there is uncertainty in the law as to what this means and to what extent it covers claims for compensation for disability discrimination. Faced with such uncertainty, many Claimants in disability discrimination claims are understandably apprehensive of bringing a claim and then being exposed to paying the Defendant’s costs if that claim is then unsuccessful.


Even if a Claimant is able to get funding for a disability discrimination claim, the introduction of cost-budgeting by the CPR then makes it difficult for them to recover their costs. When determining what costs are reasonable for the Claimant to recover if their claim is successful, the courts will adopt the concept of “proportionality”.

The concept of proportionality is very similar to the LAA’s proportionality test in that the award of compensation must be proportionate to the costs of bringing the claim. The effect is that it becomes uneconomical for firms to bring disability discrimination claims on behalf of Claimants, as, whilst, the amount of work done and the costs claimed are the same as for other claims, the amount of costs they are then able to recover is much less.

Therefore, whether through ignorance or otherwise, these changes in the law and the court rules have created a justice gap whereby many Claimants who have suffered discrimination are unable to enforce their rights through the law. Disabled prisoners are often the most vulnerable of these Claimants in that the discrimination is more prevalent and that they have less control over their circumstances. This begs the question: what is the point of the EqA if the majority of the most vulnerable people it was designed to protect cannot avail themselves of its protection?

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Mr Grayling: why he’s wrong about the Human Rights Act

Administrator 1 : April 3, 2014 2:39 pm : Blog, Featured

Mr Grayling• REX/Geoff Pugh
By Stephen Hockman QC

The recent debates between Nigel Farage and Nick Clegg highlight once again how difficult it is to persuade the British public to embrace anything European. In his appearance on 26 March 2014 before the House of Lords Constitution Committee, the Lord Chancellor Chris Grayling MP showed clearly that the Conservatives intend to capitalise on this at the next general election.

Mr Grayling stated that “My position has been very clear all along, I have no issue with the (European Human Rights) Convention, which I regard as a laudable document, a statement of the principles of a modern democratic nation”.

However, Mr Grayling made it clear that it is the decisions of the Strasbourg Court of which he disapproves, and he wants to “curtail the role of the Court in the UK”. To achieve this he deems it necessary to “replace the Human Rights Act”.

As we now have (for the first time) a Lord Chancellor who is not a lawyer, it is crucial that he should receive suitable and correct legal advice in carrying out his responsibilities. Sadly, this does not in this case seem to have occurred, for the following reasons:

  • It is the Human Rights Convention itself in Art 46 which requires the governments of contracting states to implement the decisions of the Court in those cases which are brought to it. This is hardly surprising, since the Convention would otherwise be toothless.
  • The Human Rights Act imposes no more stringent obligation on our courts, recording simply that Strasbourg decisions should be “taken into account”. Hence Mr Grayling’s purported justification for the repeal of the Human Rights Act is specious.
  • The central and logically necessary reason for the enactment of the Human Rights Act was to make the Convention binding upon government and the courts in this country. If it is in order to undermine this principle that Mr Grayling wishes to repeal the Act, then his support for the Convention is itself shown to be equally specious.
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Bar calls off action – views from the profession

Administrator 1 : March 28, 2014 5:18 pm : Blog, Headline

legal aid cuts strikeREX/Mark Thomas

By Rebecca Carter

In a turbulent week for criminal lawyers, the profession, until recently so united in protest against legal aid fee cuts, has voiced strong and mixed reaction to the Criminal Bar Association’s (CBA) decision to call off the imminent two days of action and their no returns policy.

The announcement from CBA Chairman Nigel Lithman QC came following a deal reached with the Ministry of Justice in which they agreed to suspend all fee cuts for graduated fee cases until the next general election in summer 2015: “This gives 89% of the Criminal Bar (those that do not do VHCC cases) what they have demanded and has been achieved by their resolve”.

Twitter was immediately awash with words of lament and anger at the decision, reflecting a view from some that Nigel Lithman had “sold out”.

“I now seem to have replaced Mr. Grayling as Public Enemy No.1” said a shocked Mr Lithman in a new announcement today, in which he gave a considered explanation of his decision and called for a ballot of CBA members on the question of the days of action and no returns.

The HLE team reported on the scene at the London Grayling Day demonstration on 7 March where we interviewed Nigel Lithman. Three weeks on, we look at how the views of the CBA and the criminal lawyers affected have changed.

Then: Grayling Day 

Interview with CBA Chairman Nigel Lithman QC:

“.. people are unwilling to come into the profession to be a part of it and without them.. it will wither and die..”

Interview with David Jones, 2 Dr Johnson’s Buildings:

“It is not about the fees, it is about the system..”

Interview with Andrew Tucker, Cornwall Street Chambers:

“We are determined that these cuts are not going to be implemented.”

Interview with Melanie Krudy, GT Stewart Solicitors:

“£250 for twelve hours at a police station – it works out at practically nothing..”

Now: government concession and a pending ballot  

Robert Bryan of One Paper Buildings:

“It was always going to be difficult herding 4,000 self-employed practitioners, but, for well-known reasons, the CBA executive managed to lead their troops into battle. Chris Grayling no doubt was told that it couldn’t be done; the Bar had accepted cut after cut and would just accept another. How wrong he and his advisers were.

The Bar was in a unique position of being self-employed and thus, unlike solicitors, not contracted to the LAA – they could take a stand if united, but that unity would come at a cost. Personally, I was in agreement with those who saw the measures adopted as a proportionate way to seek to bring the government to the negotiating table. That has been achieved and it is right that the negotiations now take place.

I am saddened at the vitriol that is now being vented at the CBA executive, especially as it was clearly not their decision alone. It’s especially sad as, having been so unified, the Criminal Bar is publicly showing the Ministry of Justice that the unity is dissipating.

The difficulty with any ensuing vote is that there are 4,000 competing views, yet 4,000 cannot negotiate with the Ministry. At some stage, individuals have to trust their leaders to do the best they can; to try and please the greatest number.”

Michael Harrison of 23 Essex Street:

“It was the right decision by the CBA to call for a ballot so that the decision reflects the views of all the members on such an important issue. There is an impression that Chris Grayling is deploying his well-known and obvious “divide and rule” ploy to reduce the impact of the protest action, particularly before the solicitors’ days of action next week.

The no returns policy was working and I would vote to continue that action to obtain an absolute commitment to rescind the proposed cuts to Graduated fees and restore VHCC rates to a fair and reasonable level. I will not work on any VHCC case at the new rates.”

Robert Rhodes QC of Outer Temple Chambers:

“I am delighted that the Justice Secretary has at last listened seriously to the justified complaints of the criminal Bar as regards the proposed further cuts in graduated fees. There is little public sympathy in paying for barristers “to defend criminals” until people are themselves wrongly accused of crime; when they realise how important it is to have men and women of real ability to defend them. Let us hope that these cuts are permanently cancelled, because otherwise it will only be the well-off who will be able to afford to go to the criminal Bar.

I would expect the criminal Bar to heave a collective sigh of relief, and overwhelmingly to support the CBA’s decision to call off the “no returns” policy and the days of action.

It is a pity that the cuts in big cases will stand, because the resulting hourly level of payment will be so low that very few barristers will be able to afford to accept that work.”

Michelle Heeley of No 5 Chambers:

“I agree with the action taken by the CBA and I will be voting for an end to the no returns policy. The Bar acted as one to prevent further cuts to graduated fees. Solicitors had the opportunity to take similar action, but have chosen to continue accepting work at the lower rates. A continuation of the no returns policy would not, in my view, make a difference to cuts already imposed.

It is right that the Bar continue to support solicitors in their fight. We should not cover any cases that they cannot do as a result of their days of action and we should continue to lobby during the various consultations for fair remuneration for the work they do.

The CBA has shown their strength and the government will now take our views seriously. I do not believe the Bar should have been balloted before agreeing to end the no returns policy; we elected our representatives to deal with the political negotiations for us and they have acted in our best interests. If we had refused the deal put forward, we would all be worse off. This allows a time of reflection and time for coordinated campaigning to ensure we get a good deal for all members of the criminal justice system.”

Next week?

With the barristers’ ballot pending and solicitors expected to go ahead with the two days of action next week on 31st March and 1 April, this is an issue that is far from being resolved, but it must surely bolster the profession that their voices have been heard and they have succeeded in achieving some concessions from the government.

Do you agree with the CBA’s decisions? Will you be attending the days of action? How will you vote in the CBA ballot?

Tell us your views below and tweet us @HLEThinkTank.


Litvinenko inquiry: what next for the Home Secretary?

Administrator 1 : March 27, 2014 4:31 pm : Blog, Featured

Litvinenko inquiryREX/London News Pictures

By Louis Flannery

An extended version of this article appeared on New Law Journal here.

Few reading this will fail to recall the well-publicised circumstances of Mr Litvinenko’s death from radiation poisoning in London in late 2006.

The conspiracy theories still abound, but the prime suspects are Russian agents who remain at large in Moscow.


A week after Mr Litvinenko passed away, an inquest began into the cause of death. The coroner ruled (on a provisional basis) that the scope of the inquest would include the possible culpability of:

(a) the Russian state; and

(b) the British government in failing to take reasonable steps to protect Litvinenko from a real and immediate risk to his life (the Osman “preventability” issue).

The next month, the British government claimed public interest immunity (PII) for several government documents (the HMG material) relevant to the inquest. This became the key issue.

Request for statutory inquiry

In May 2013, the coroner upheld the PII claim for most of the documents. The government appealed against the decision insofar as it rejected the PII claim. The appeal was upheld in November 2013 by the Divisional Court.

In June 2013, the coroner wrote to the Lord Chancellor to request that a statutory inquiry be setup. Such an inquiry was essential in the coroner’s view; it being clear that, while he could conduct the inquest, it would be without the benefit of the HMG material, which was of central importance.

In her decision letter, the Home Secretary maintained it was not appropriate to set up a public inquiry, but she would keep the request “under review”.

This decision was challenged by Marina Litvinenko by way of judicial review.

Divisional Court ruling

The Divisional Court upheld the appeal against the Home Secretary’s decision and an order was made quashing it. However, the court did not go so far as to hold the decision was so obviously contrary to the public interest as to be “irrational”.

Next steps

The issue is at a crossroads.

The coroner has declared an intention to hold the inquest hearing in May 2014, but excluding the Russian state responsibility and preventability issues in the light of the PII ruling. How does that square with the Divisional Court decision?

The Home Secretary now has to make a difficult decision: she must either accept that a public inquiry is essential, or come up with other compelling reasons to refuse it – despite the fact that any reasons she may now “come up with” were plainly not sufficiently compelling to occur to her first time around.

An extended version of this article appeared on New Law Journal here.

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No maternity rights for surrogate parents?

Administrator 1 : March 26, 2014 1:35 pm : Blog, Featured

maternity leave for surrogate mothersREX/Image Broker

By Samantha Ellaby

In the recent cases of CD v ST and Z v A Government Department and the Board of Management of a Community School, the ECJ clarified the EU position regarding the protections and benefits that should be afforded to mothers having children through surrogacy arrangements.

Current EU law

EU law sets minimum standards of protection for pregnant workers and those on maternity leave. However, it does not specifically govern the protections to be afforded to surrogate parents. Recent debate has questioned whether the Pregnant Workers Directive entitles commissioning mothers (that is, intended mothers via surrogacy arrangements) to equivalent protection and benefits, notwithstanding that they have not given birth.

Current UK law 

There is currently no legislation in the UK to guide employers on how they should deal with surrogate parents in the workplace.

It is well established that employers must provide certain protections and benefits to pregnant workers and adoptive parents, but there is no requirement to offer the equivalent to surrogate parents. In practice, many employers will choose to offer surrogate parents protections and benefits equivalent to those offered to adoptive parents, but there is no obligation on them to do so and, arguably, no certainty or consistency of treatment.

ECJ decisions 

The cases concerned a hospital employee in the UK and a teacher in Ireland respectively, both of whom had children using surrogate mothers as they were unable to bear children themselves. Both brought claims of discrimination in their local tribunals, which were referred to the ECJ.

The key findings of the ECJ were as follows:

  • EU law does not require a mother who has had a baby through a surrogacy arrangement to be entitled to maternity leave or its equivalent.
  • A refusal to grant paid leave to commissioning mothers did not (in those cases) amount to sex and/or disability discrimination.

Impact in the UK 

The ECJ found that the primary aim of the Pregnant Workers Directive, “is to protect the health of the mother in the especially vulnerable situation arising from her pregnancy”. They acknowledged that, although maternity leave is also intended to ensure that the special relationship between a woman and her child is protected, that objective concerns the period after “pregnancy and childbirth” only, which does not apply to a commissioning mother who has received a baby through a surrogacy arrangement.

European law represents the minimum standards that UK legislation must adhere to. The UK may implement legislation which goes over and above the European standards. The UK government is in the process of implementing legislation that offers certain protections and benefits to surrogate parents, which UK employers will of course be required to comply with. For now, however, there is no such requirement.

With regards to the discrimination complaints, the ECJ found that, on the facts of these cases, there was no sex or disability discrimination.

There was no less favourable treatment because of sex where the employer would have treated a male parent of a child born via surrogacy in the same way. So where UK employers treat both surrogate mothers and fathers consistently (by offering both no benefits or the same benefits), the risk of a direct sex discrimination claim should be low.

With regard to indirect sex discrimination, the ECJ found that there was no evidence put forward to suggest that the refusal of maternity leave in these circumstances puts female workers at a particular disadvantage compared with male workers. However, this would not prevent workers in the UK from successfully bringing an indirect sex discrimination claim if they are able to collate evidence to support the assertion that female workers are put at a particular disadvantage by a policy of not extending maternity or adoption benefits to surrogate parents.

The claimant in Z v A was unable to carry a child herself as she did not have a uterus. The ECJ found that this impairment did not meet the definition of a disability under the Equal Treatment Framework Directive as the impairment did not, “hinder the full and effective participation of the person concerned in professional life”. Under the relevant UK law (the Equality Act 2010), there is no such requirement. Instead, a person must have a physical or mental impairment which has a substantial and long term adverse effect on that person’s ability to carry out normal day-to-day activities. It is, therefore, possible that a person working in the UK with a similar condition could pursue a disability discrimination claim in these circumstances.

Future developments

With surrogacy arrangements becoming increasingly popular in the UK, it is time for the current legislative loophole to be addressed to provide both employers and workers with guidance on the entitlement of surrogate parents to protections and benefits in the workplace. The UK government is already well underway with steps to address this.

Section 122 of the Children And Families Act 2014 (which received Royal Assent on 13 March 2014) will give the Secretary of State the power to make regulations providing for statutory adoption leave and pay to be available to employees who have applied, or intend to apply, for a parental order where the child has been born by a surrogate.

Section 122 has not yet been published at the time of writing, so the extent of the protection that will be afforded to surrogate parents is not yet clear. It is expected that it will allow some parents in surrogacy arrangements to be entitled to shared parental leave in the same way as certain adoptive parents. Such arrangements will go well over and above the minimum standards required under EU law. However, parental orders are only available where the genetic material of at least one of the applicants was used to create the embryo, so this will still leave some surrogate parents without protection and may need revisiting. Employers will of course be entitled to offer protections and benefits over and above the minimum standards required under the Act.

Whilst the new “shared parental leave” provisions (which will come into force in April 2015) and the extension of protection and benefits to surrogate parents will no doubt be largely welcomed by workers, it will increase the administrative burden upon employers who will, for example, need to amend their existing maternity, paternity and adoption leave policies to reflect the changes.

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Deprivation of liberty – time to rip up the DOLS regime and start again

Administrator 1 : March 25, 2014 3:56 pm : Blog, Featured

deprivation of liberty safeguards DOLSREX/Denis Closon

By Alexander Ruck Keene

The dust is now beginning to settle, slightly, after the earthquake that was the decision of the Supreme Court in the conjoined appeals of Cheshire West and P and Q, which extends the criteria for determining whether living arrangements made for mentally incapacitated individuals amount to a deprivation of liberty.

Art 5 ECHR gives people deprived of their liberty important procedural safeguards to ensure that the deprivation is lawful. A deprivation of liberty should either be authorised by a court or by the Deprivation of Liberty Safeguards (DOLS) regime under the Mental Capacity Act (MCA) 2005. This ruling has widespread implications, which could afford extra protection for thousands of people who do not have capacity to make certain decisions, by ensuring that the arrangements made for them are in their best interests.

The majority held that in the case of those who are under arrangements made by the state (no matter the setting in which that care is being delivered):

(a)   There is an “acid test” which can be applied to determine whether they are objectively deprived of their liberty for the purposes of Art 5, namely whether the person is (1) subject to continuous supervision and control, and (2) not free to leave.

(b)   Irrelevant to the application of the test to the facts in any given case is (1) the person’s compliance or lack of objection, (2) the relative normality of the placement (whatever the comparison made) and (3) the reason or purpose behind a particular placement.

I should put my cards on the table immediately and say that I think the decision is entirely correct. Moreover, the contrary position advocated (very ably) on behalf of the local authorities in question and adopted by the minority – namely, that the decision is an entirely fact-specific one taking account of the concrete situation of the individual – slides inexorably and, to my mind, entirely inappropriately into the proposition that liberty only means as much to an individual as they are able to make of it.  By contrast, it seems to me entirely right that the issue should be whether the individual in question is in a “cage”, whether or not that cage is “gilded” (to use Lady Hale’s instant catchphrase – “A gilded cage is still a cage”), and whether or not that individual is aware of it.

In deciding whether a very vulnerable person is deprived of their liberty, the focus should be on the actions (or potential actions) of those in power around them. Decisions about whether that power is being exercised benignly and in the interests of such a person is a question that comes in at the second stage of justifying the deprivation of liberty.

Despite my self-appointed role as cheerleader for the ruling (not the least because it allows me to say “I told you so”), I am the first to acknowledge that it does give rise to some difficult questions that will require further working out. Amongst these, I would not class the question of what the references in the judgment to “freedom to leave” mean. For reasons that I set out in more detail here, I am confident that Lady Hale was not saying that a person who is unable to express a desire to leave (e.g. because they are in a coma) is therefore automatically to be considered not to be free to leave. Rather, her emphasis was upon what would happen if they did express a desire to leave. In other words, the scrutiny is again (and rightly) upon those around the individual.

Much more difficult, however, is the position of “private” deprivations of liberty (i.e. care arrangements made without state involvement which amount, objectively, to deprivations of liberty). These give rise to questions of the positive obligations of the state in such situations. I think there are principled answers to these questions, which I suggest here, but the courts will undoubtedly have to pronounce upon them in due course.

In the meantime, the practical consequences of the decision are enormous: at a stroke, tens if not hundreds of thousands of people have been brought (back) within the scope of Art 5(1) and, of these, a huge proportion could not previously be made the subject of DOLS authorisations because they are being cared for in supported living or in foster placements.

The House of Lords report published two weeks ago highlights that evidence suggests tens of thousands of individuals are deprived of their liberty without the protection of the law and the safeguards Parliament intended, and condemning the DOLS regime as not fit for purpose.

It seems clear that the government will have no option in light of this decision and the damning Select Committee report, but to revisit the DOLS regime as a matter of urgency to (1) extend it to cover placements outside hospitals and care homes, and (2) strip it down so that it actually serves as a functioning mechanism.

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