Archive for December 2012
The Commission, established in the early days of the Coalition Government, has now reported. The outcome does not give clear advice to Government.
Seven of the Commission’s nine members believe that, on balance, there is a strong argument in favour of a UK Bill of Rights on the basis that such a Bill would incorporate and build on all of the UK’s obligations under the European Convention on Human Rights, and that it would provide no less protection than is contained in the current Human Rights Act and the devolution settlements. Some of the majority believe that it could usefully define more clearly the scope of some rights and adjust the balance between different rights. For the majority as a whole, the most powerful arguments for a new constitutional instrument are what is called ‘the lack of ownership’ by the public of the existing Human Rights Act and the European Convention on Human Rights, and the opportunity which a UK Bill of Rights would offer to provide greater protection against possible abuses of power.
The two members are strongly opposed to this conclusion – Helena Kennedy and Philippe Sands. They believe that now is not the time to focus on a new UK Bill of Rights. They believe that the majority has failed to identify or declare any shortcomings in the Human Rights Act or its application by our courts. While they remain open to the idea of a UK Bill of Rights were they to be satisfied that it carried no risk of decoupling the UK from the European Convention on Human Rights, they fear that one of the principal arguments relied upon by the majority – the issue of public ownership of rights – will be used to promote other aims, including the diminution of rights available to all people in our community, and a decoupling of the UK from the European Convention on Human Rights.
Press reporting of the Commission’s report was pretty sketchy – not the subject of big headlines. The consensus seems to be that little action is likely to be taken in the short-term – it is one of those issues that divides the Coalition. However, in the run up to the 2015 General Election, commentators anticipate the Conservatives in particular returning to the attack, and arguing for closing off the existing routes to the European Court of Human Rights.
The consultation paper on Judicial Review has now been published. Responses are invited by 24 January 2013. If the Christmas and New Year holiday period is discounted, this leaves the response time very short.
The Consultation Paper’s analysis of the problem (so far as it is a problem) is not in my view very clear. As the Press Release puts it: ‘There were 11,200 applications last year (2011), compared to just 160 in 1974 – and of last year’s decided applications only 1,200 (one in six) were deemed suitable for a Judicial Review to go ahead.’
The vast bulk of these applications were made in cases involving aspects of immigration and asylum.
The present rules already require applications for judicial review to be made within 3 months of the date of the decision which it is sought to review, and the courts have discretion to refuse to hear cases where the application was made towards the end of the period. In other words anyone seeking judicial review has to get a move on.
Of course, each of the applications has to be considered; this creates an enormous burden on judges who have to read the papers and decide whether or not to grant leave. If they refuse leave, they have to provide written reasons, and these may themselves trigger an application for an oral hearing to reconsider the application. If this is rejected, there is a further right of appeal to the Court of Appeal.
Until recently, all application were made to the Administrative Court in London; there has been an element of decentralisation by the creation of Administrative Court centres in Birmingham, Manchester, Cardiff, and Leeds.
In addition, some immigration/asylum cases are now dealt with by the Upper Tribunal. And clauses in the Crime and Courts Bill, currently before Parliament, will, if enacted, allow for all immigration, asylum or nationality Judicial Reviews to be heard in the Upper Tribunal. It is also proposed to give the Lord Chief Justice greater freedom to deploy Judges more flexibly across the courts and tribunals to respond more quickly to changes in demand.
If the immigration and asylum cases are stripped out of the system, the remaining number is actually quite small and should be capable of being handled without undue delay. The Government however is not willing to wait and see what the impact of removing those categories of case would be. It is also proposing other amendments, in particular to time limits (which are already short).
- For planning cases – reducing the time after the initial decision that an application for Judicial Review can be lodged from three months to six weeks, to match the time limit for challenges to the High Court on planning matters;
- For procurement cases – reducing the time after the initial decision that an application for Judicial Review can be lodged from three months to 30 days, to match the time limit for procurement appeals
There are also proposals to restrict the circumstances in which an oral renewal may be sought.
Finally it is proposed to increase quite sharply the fees that must be paid for making an application for judicial review – from £65 to £215 for an application, with another £235 for an oral hearing.
The aim of these reforms seems to be not immigration and asylum – which are already being dealt with – but other types of challenge to official decisions, in particular decisions such as planning decisions, in relation to which some argue that JR causes economic damage by delaying important projects.
Some pretty big legal guns are being lined up to challenge these proposals and I suspect they will get heavily criticised in the House of Lords; but it is the House of Commons that matters more and here legal arguments may have less impact.
Clearly the Government is determined to do something. There may be ways in which procedures can be streamlined without damaging the interests of those who may wish to challenge the exercise of public power.
Future posting will keep you up to date.
To read the Consultation Paper, go to http://www.justice.gov.uk/news/press-releases/moj/judicial-review-consultation
A topic which has excited considerable debate, both in and out of Parliament, is whether prisoners should have voting rights.
Current law in the UK is that those in jail don’t vote.
The issue has been raised in the European Court of Human Rights in a number of different cases. Article 3 of the First Protocol of the Europen Convention on Human Rights gives the right to free and fair elections.
In 2005, the Grand Chamber of the European Court of Human Rights (ECtHR) found in Hirst v UK (No 2) that the UK’s blanket ban on serving prisoners voting was in contravention of this provision in the Convention.
The Greens and MT v UK judgment, which became final on 11 April 2011, set a deadline of six months for the UK to bring forward legislative proposals to end the blanket ban, i.e. 11 October 2011.
However, action was further delayed because another case, this time from Italy, was to be decided by the Court. On 30 August 2011, the original deadline was extended to six months after judgment delivery in the case of Scoppola no. 3. The delivery of Scoppola No. 3, became final on 22 May 2012. Thus the six month period referred to in Greens and M.T. began to run on 22 May 2012. It expired on 22 November 2012.
The UK Government has actually argued quite successfully that the opposite to a blanket ban should not be all prisoners getting the vote. Indeed in Scoppola it was acknowledged that the UK argument, that there should be a considerable ‘margin of appreciation’ in implementation, was accepted.
The Court found that under Italian law only prisoners convicted of certain offences against the State or the judicial system, or sentenced to at least three years’ imprisonment, lost the right to vote. There was, therefore, no general, automatic, indiscriminate measure of the kind that led the Court to find a violation of Article 3 in the case of the UK. The restrictions imposed under Italian Law were not in controvention of the Human Rights Convention.
With this flexibility in mind, the Government has published a draft bill offering three options:
- no change to the law – i.e. retention of the blanket ban;
- ban for those sentenced to more than 6 months; or
- ban for those sentenced to more than four years.
In parliament itself, strong arguments have been heard that the UK Government should make its own mind up on these matters and that to allow prisoners vote would make some MPs ‘sick. Equally strong arguments have been heard that, actually, the Convention right guaranteeing the right to vote and the Court’s judgement that there can be much flexibility in how this right is protected is a sensible compromise.
Given recent Government statements about the importance of sentencing leading to rehabilitation and preventing recidivism, it seems to me surprising that the argument for keeping the current blanket ban is not really that strong. But I accept that, for some, this is a very controversial viewpoint. What do you think?
To read the Government proposals go to http://www.justice.gov.uk/news/features/prisoner-voting-rights.
The draft Bill is to be subject to review by a Joint Committee of MPs in the Commons and the House of Lords. It will report in 2013.
Under the heading ‘Unclogging the Courts’, on 19 November 2012, the Justice Secretary announced that he planned to introduce changes to judicial review – the legal process available to those wishing to challenge decisions taken by government and other public bodies. The announcement said that there would be a consultation exercise, presumably with a Consultation Paper.
Although promised, no Consultation Paper has yet appeared. Measures stated to be in the Justice Secretary’s sights include:
- Shortening the length of time following an initial decision that an application for a judicial review can be made in some cases – and stopping people from using tactical delays
- Halving the number of opportunities currently available to challenge the refusal of permission for a judicial review, from the current four to two
- Reforming the current fees so that they cover the costs of providing judicial review proceedings.
This is an extremely important announcement which has the potential to do great damage to an important area of law and practice that has developed over the last 50 years.
The Minister of Justice is attempting to sell the argument on the basis that changes will result in swifter justice outcomes; the Prime Minister was at the same time selling the proposed changes as a way to reduce the number of challenges to major economic infrastucture developments, such as the building of new airports and high speed railways.
These ideas will undoubtedly be extremely controversial. Updates will appear here in due course.
To see the original announcement go to http://www.justice.gov.uk/news/press-releases/moj/grayling-unclogging-the-courts-to-bring-swifter-justice
In the book I argue that it is hard to encourage rational debate on sentencing policy. Discussion tends to be hi-jacked by shrill comments from politicians and the press.
To encourage better public understanding of sentencing and its actual application in particular cases, the Ministry of Justice created an interactive website – You be the Judge – which invites you to be the judge. The scope of the website has been expanded to include new offences.
From 30 November 2012, cases of murder, manslaughter, drug dealing and teen crime were added to the website You be the Judge.
To try you hand at sentencing go to http://ybtj.justice.gov.uk/
New rules arising from enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force on Monday 3 December 2012. The present package includes:
The provisions which came into effect include:
- Introduction of ‘two strikes’ – imposition of a mandatory life sentence for people convicted of a second very serious sexual or violent offence;
- New Extended Determinate Sentence (EDS) – Repleacing Indeterminate sentences, this is a new sentence for dangerous criminals convicted of serious sexual and violent crimes for whom there will be no automatic release from prison halfway through their sentence. They will only be released when they have served at least two-thirds of their prison sentence and may be kept inside prison until the end of their term;
- Knife possession – New offences to target those who use a bladed or pointed article or offensive weapon in a public place or school to threaten and cause immediate risk of serious physical harm to another. These offences will be subject to a maximum penalty of 4 years’ imprisonment. They will also carry a minimum six month prison sentence for adults or a four month Detention and Training Order for 16 – 17 year olds;
- Dangerous driving – new offence of causing serious injury by dangerous driving with a maximum sentence of five years in prison;
- Tough new sentences for hate crime – starting point of 30 years in prison for people convicted of murder motivated by hatred or hostility towards disability or transgender people, up from 15 years. This will bring such cases into line with murders aggravated by race, religion and sexual orientation;
- Tougher community sentences – increase in the maximum length of a curfew requirement in a community sentence from 6 to 12 months, increasing the maximum period of time criminals can be subject to a curfew from 12 to 16 hours per day. Introducing foreign travel bans; and
- Challenging bail decisions. This will allow prosecutors to challenge Crown Court bail decisions where there is serious risk of harm to a member of the public.
Further changes resulting from enactment of LASPO will be brought into effect during 2013.