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Joshua Rozenberg
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April 30, 2009

What are we going to do about human rights?

In my latest column for Standpoint magazine, I take a pretty dim view of Lord Hoffmann's belated discovery that the European Court of Human Rights "lacks constitutional legitimacy". But I believe he is right to suggest that where a national court has properly taken account of Strasbourg rulings, the European Court should be slow to interfere.

There's just room to note that neither of the main political parties has anything very sensible to say on the subject.


Posted at 04:25 PM | Comments (0)

April 27, 2009

Press may be excluded from "open" family hearings

Divorcing couples will be able to ask for the press to be excluded from family court hearings under new rules that take effect today.

Even though reporters will be allowed to attend some hearings that have previously taken place in private, they will not be allowed to identify children who may be involved in family proceedings.

That was pointed out by a High Court judge last month in a speech I reported here.

“Whilst accredited journalists can now expect to be permitted to sit in on a private court hearing relating to children,” Sir Andrew McFarlane said, “they will face tough sanctions if they report any detail of the particular case that they are observing. Reporting will be limited to the process and the gist of proceedings, rather than the detail of any particular case.”

It is now clear that the new rules may apply even in cases of childless couples. Reporters may be excluded if the court is satisfied that justice will be “impeded or prejudiced”.

A practice direction from Sir Mark Potter, president of the High Court Family Division, says this rule could apply “where there appears to the court to be a significant risk that a witness will not give full or frank evidence in the presence of media representatives”.

That could be used by a wife who believes her husband would not speak frankly if his evidence was going to be reported.

The media could also be excluded if witnesses who are not parties refuse to give evidence with reporters present. That rule might be invoked by experts, including paediatricians.

A party could also ask for the media to be excluded from a financial hearing if price-sensitive information might be disclosed. The practice directions assume that couples who are wealthy enough to control public companies would not be litigating before magistrates in the Family Proceedings Courts.

Two sets of practice directions were rushed out at the last possible moment on Friday afternoon, together with rules for the Family Proceedings Courts and the higher courts.

Different rules were necessary because the rules for Family Proceedings Courts exclude journalists from hearings that they had previously been allowed to attend — not that many did. Similar principles now apply at all levels.

The practice directions were issued in such a hurry that eight lines are apparently missing from paragraph 6.1 of the magistrates’ directions. The section tells reporters when they can challenge moves to throw them out of court.

Fortunately, one can guess at the missing lines by comparing the truncated paragraph with the directions that apply to the higher courts.

The press may also be excluded where necessary “for the orderly conduct of proceedings. Sir Mark says “it may be difficult or even impossible physically to accommodate all (or indeed any) media representatives who wish to attend a particular hearing on the grounds of the restricted size or layout of the court room in which it is being heard”.

He adds: “court staff will use their best efforts to identify more suitable accommodation in advance of any hearing which appears likely to attract particular media attention, and to move hearings to larger court rooms where possible. However, the court should not be required to adjourn a hearing in order for larger accommodation to be sought where this will involve significant disruption or delay in the proceedings.”

In a separate guidance note, the president of the Family Division points out that the government has left the judges in the lurch when it comes to operating the new rules.

He points out that reporters will immediately ask to see court papers in individual cases, without which they would not be able to understand and report what is going on.

That may be opposed by the parties, who could argue that the government’s reforms were designed simply to avoid charges of “secret justice”. There are no changes to the long-standing rule that proceedings involving children must remain private.

Jack Straw, the Lord Chancellor, said yesterday: "Existing reporting restrictions for the newly-attending media will of course still apply to protect children and families. But I want to ensure a change in the culture and practice of all courts towards greater openness and this is an important step towards that goal."

It may also be necessary for the courts to decide how far to protect the identities of people who would be known locally as family friends.

Sir Mark says, with justifiable irritation, that “the government declined to adopt the recommendation of the High Court judges to address the detail of such issues when introducing the change”.

So the courts will have to provide the necessary guidance themselves. To avoid -- or, at least, minimise -- inconsistency, arrangements will be made to whizz potential test cases up to the High Court for authoritative decisions. Some applications will have to be put on hold in the meantime.

Individual reporters will have to get used to making instant applications in court, since parties seeking to have them excluded will not normally be required to give notice. And that will not be the only occasion on which reporters will have to use their advocacy skills.

A statement from the Ministry of Justice yesterday said that "media representatives who attend family courts must be holders of the UK Press Card". Fortunately, as paragraph 4.3 of each practice direction makes clear, this is not true.

Bloggers and other commentators who cannot produce a valid press card should remember that they can ask the judge for permission to attend a private hearing under rule 10.28(1)(g) of the Family Proceedings Rules 1991 as inserted by the Family Proceedings (Amendment) (No.2) Rules 2009 or, as appropriate, rule 16A(1)(g) of the Family Proceedings Courts (Children Act 1989) Rules 1991 as inserted by the Family Proceedings Courts (Miscellaneous Amendments) Rules 2009. Doesn't sound too difficult!


Posted at 12:01 AM | Comments (0)

April 24, 2009

Controversial Japanese judge dies in office

Fumiko Saiga, the Japanese judge at the International Criminal Court, died today after a short illness. She was 65 and had served as a judge for little more than a year.

The court paid generous tribute to her. “Her sharp legal acumen and dedication to impartial justice, coupled with her balance and grace, made her an eminently capable jurist,” said Judge Sang-Hyun Song, the court's president. “Judge Saiga will forever be remembered for her critical contributions to international criminal justice.”

No doubt. But her death will give the Japanese a chance to consider whether it might be appropriate to nominate someone with judicial experience as her successor. Failing that, might it not be a good idea to find someone with legal training?

Before joining the court, Judge Saiga spent most of her working life as a diplomat, with a brief interlude in local government. I know the courts of England and Wales rely on heavily lay magistrates and lay juries, but surely someone who is going to have to give binding legal rulings in court without the assistance of a legal adviser needs some experience as a lawyer?


Posted at 09:28 PM | Comments (0)

How Pinochet tainted Hoffmann's brilliant career

My column in the Law Society Gazette recalls the only occasion in which the law lords have ever had to "vacate" one of their decided cases.


Posted at 07:21 AM | Comments (0)

April 23, 2009

"Rude" judge is the first to be sacked in public

Margaret Short, a district judge who was appointed to the South East District Bench on 6 January 1993, has been removed from judicial office by the Lord Chancellor and the Lord Chief Justice.

The Office for Judicial Complaints said today that her removal followed complaints about her misconduct in court, “primarily about the way in which she behaved towards solicitors appearing before her but including a variety of other inappropriate behaviour”.

District Judge Short is the first full-time judge to be sacked since the Office for Judicial Complaints started naming judges whose conduct was the subject of an investigation. However, the investigation in her case goes back to before new disciplinary procedures were intriduced three years ago.

District Judges are the most junior members of the full-time judiciary. Most of their work involves deciding civil claims in the county courts.

In a statement, the the Office for Judicial Complaints said that the final decision to remove District Judge Short from office followed a judicial investigation started in 2006.

“This investigation looked at various complaints and found that her behaviour had been inappropriate, petulant and rude with regard to one incident, and intemperate and ill-judged with regard to another.

“The investigation also identified the following criticisms of District Judge Short’s conduct:

• taking annual leave when she was asked specifically not to;

• failing on request to hand over court documents central to the investigation combined with a refusal to co-operate with it, thereby contributing significantly to the time the disciplinary process has taken; and

• failing to deal with the substantive issues or to exercise sound judgement when responding to the complaints. This included making serious allegations against support staff which were not only untrue but which it was found she knew to be untrue.

“On this basis, and against a history of earlier complaints, the Lord Chancellor and the Lord Chief Justice have decided to remove District Judge Short from office under section 11(5) of the County Courts Act 1984.”


Posted at 02:04 PM | Comments (0)

April 22, 2009

Another complaint against Judge Gledhill

Another of the solicitors' firms in the case I wrote about on Monday and again yesterday is to complain about the trial judge.

McCormacks said their client had been acquitted and the Judge Gledhill's remarks were not directed against their firm. But Andrew Palazzo, managing principal at McCormacks, said that both firms involved in the case and all the criticised advocates were making complaints.

In a statement, which you can read here, the firm said that "judges ought not to use the Bench as a platform for making suppositions about the way advocates are instructed without first seeking evidence of the facts".


Posted at 04:38 PM | Comments (0)

April 21, 2009

Solicitors accused of incompetence to complain about judge

Two of the three solicitors accused by Judge Gledhill QC of incompetence are planning to lodge a complaint against the judge.

As I reported yesterday, Judge Gledhill said last week that a solicitor defending one of four fraudsters accused of taking part in a £3.5 million credit card cloning operation had “neither the experience nor the competence to adequately represent his client” in court.

He addressed his remarks to Kathleen Roxburgh, a self-employed consultant with Bullivant and Partners. She was the only lawyer he had “no cause to criticise”.

The solicitors, based in the City of London, have now said that two of the three advocates criticised by the judge were also from the firm. Avtar Bhatoa, from Bullivant and Partners, told me that Judge Gledhill was referring to him when the judge said he had been thinking of calling in the firm's senior partner.

Bullivant and Partners have released a spirited defence to Judge Gledhill's remarks, which you can read here. It alleges that the judge was hostile to the firm's solicitor-advocates "from the outset".

Since issuing the statement, Bullivant and Partners have said they intend to refer the matter to the Office for Judicial Complaints.


Posted at 04:38 PM | Comments (0)

April 20, 2009

Judge accuses defence solicitors of incompetence

A solicitor defending one of four fraudsters accused of taking part in a £3.5 million credit card cloning operation had “neither the experience nor the competence to adequately represent his client” in court, the trial judge said after the defendant was convicted last week.

The solicitor’s “knowledge of the law, procedure and advocacy skills fall below that which is needed in this case”, Judge Gledhill QC said at Southwark Crown Court on April 15.

All four defendants were represented by solicitors with advocacy rights rather than by barristers. Three of the solicitors were criticised by the judge for breaking basic rules of law and procedure.

In remarks made after the trial, which can be read in full here, the judge suggested that at least one of the solicitors’ firms concerned had wanted to keep the legal aid fees for itself rather than share them with a barrister.

The fraudsters, all Chinese nationals, were each given four and a half years’ imprisonment.

Khi-San Voong, 46, Qiu Yeu, 46, Qiang Xue, 34, and Dauy Chung, 40, all of Walworth, south London, had operated during a “window of opportunity” after Barclaycard announced its takeover of Morgan Stanley’s credit card business last year.

The court heard that while the security system was not operating effectively, the gang defrauded 2,000 accounts across 27 countries, stealing £3.5million between 28 September and 8 October.

Judge Gledhill did not name the three solicitors. Instead, he addressed his remarks to “Miss Roxborough”, saying she was the only lawyer he had “no cause to criticise”.

It appears he was referring to Kathleen Roxburgh of Bullivant and Partners.

The prosecutor was Ben Fitzgerald. He too should have been given more support from the CPS, the judge said.

Judge Gledhill’s remarks will be welcomed by the criminal Bar, which has long been concerned that the quality of legal representation in court is deteriorating because of pressures on the legal aid scheme.


Posted at 11:37 PM | Comments (0)

Lord Clarke for Supreme Court

Sir Anthony Clarke, Master of the Rolls and Head of Civil Justice, will join the Supreme Court on October 1, the first judge appointed direct rather than moving across from the House of Lords. He replaces Lord Scott of Foscote, who will be retiring at the end of the summer.

The appointment is not a surprise: indeed I suggested it here earlier this month.

Even though Tony Clarke will not become a law lord, he is to be given a peerage. That was announced by the Prime Minister's Office last week. Gordon Brown's reasons were as implausible as they were ungrammatical:

"When the House of Lords Appointment Commission was established, the Government agreed with the Commission, that, as well as appointments of Law Lords, a number of traditional appointments to the Lords would be reserved and fall outwith the Commission. These included the Master of the Rolls, and it was envisaged at that time that, as in the past, future Masters of the Rolls might be elevated to the Lords after a number of years."

It seems pretty clear that Lord Phillips, who becomes president of the Supreme Court, did not want the "new boy" -- whom he knows well -- to be the only founder-member of the court without a peerage. That lowly status will be reserved for future justices.

And who will succeed Clarke as Master of the Rolls? As I said earlier this month, it could be Lord Neuberger -- creating yet another vacancy in the Supreme Court. We shall see.


Posted at 02:08 PM | Comments (0)

April 16, 2009

Told you so

"I now think it very unlikely indeed that either [Christopher Galley] or Mr Green will face criminal charges." Joshua Rozenberg, December 1, 2008.

"The Director of Public Prosecutions, Keir Starmer, QC, has decided there should be no charges brought against MP Damian Green or Home Office civil servant Christopher Galley." CPS announcement, April 16, 2009.


Posted at 04:18 PM | Comments (0)

April 09, 2009

Should Attorney General be able to veto arrests for war crimes?

Should the Attorney General be able to veto arrests for war crimes? I'm not the only one who thinks she should, as you can read in my latest column for the Law Society Gazette.


Posted at 07:49 PM | Comments (0)

Hail and farewell

I was delighted to see that Sir Lawrence Collins, 67, has been appointed a law lord in succession to Lord Hoffmann, who retires this month.

Sir Lawrence joined the High Court as recently as 2000 after a career as a solicitor and academic, taking on what some might have assumed was going to be a quiet retirement job in the Chancery Division.

He moved through the ranks with impressive speed, overtaking fellow Lords Justices to reach Britain's final court of appeal. Though he will move to the Supreme Court when it takes over from the law lords in October, Sir Lawrence has been appointed just in time to pick up a peerage.

But his career as a law lord will be cut short unless the retirement age for Supreme Court justices is raised to 72 or, better still, 75. Most of the current law lords can carry on until 75 because they were first appointed to the judiciary before the age limit was lowered.

The fact that Sir Lawrence Collins has been appointed at the age of 67 suggests that the Lord Chancellor is sympathetic to raising the retirement age for Supreme Court judges.

The other new law lord is Sir Brian Kerr, 61, Lord Chief Justice of Northern Ireland. There is normally a law lord from Northern Ireland and Sir Brian was the obvious choice to succeed Lord Carswell.

There will be one more vacancy before the new court opens: Lord Scott of Foscote reaches retirement age in October. It had been thought his replacement would be announced at the same time as these appointments.

One possible successor would be Sir Anthony Clarke, with Lord Neuberger stepping down from the Lords to replace him as Master of the Rolls. That, in turn, would create another vacancy. So disappointed candidates for the Supreme Court should not give up hope.

Meanwhile, I was saddened to hear that Lord Slynn of Hadley, the former law lord, died this week at the age of 79. Quite apart from his professional accomplishments, he had an unexpectedly mischievous sense of humour.


Posted at 07:04 PM | Comments (0)

April 04, 2009

Intermission

Postings on this website will be even more sparse than usual until the courts return after Easter. Apologies to all my readers.

Meanwhile, I have been waiting to see which news outlet would be the first to pick up Lord Hoffmann’s farewell attack on the European Court of Human Rights. It came in a lecture he delivered to the Judicial Studies Board as long ago as March 19.

This subsequently appeared on the board’s website. It was not until April 1 that it first appeared on the judiciary website, languishing as a suspected spoof until the Today programme brought it to a wider audience this morning.

I plan to write about the lecture in my column for next month’s Standpoint magazine, so I hope readers will forgive me if I keep my powder dry until then.


Posted at 04:14 PM | Comments (0)

April 02, 2009

The Statutory Instrument (Parody) Regulations 2009

A day late, alas, but toothsome nevertheless.


Posted at 03:51 PM | Comments (0)