In a few words….
“I don’t think it’s a matter of time. People have been saying it’s a matter of time for a very long time”
– Lady Hale is scrupulous in her call for diversity on the bench.
In a few more words…
The government is considering a “right to know” law in relation to perpetrators of domestic abuse. The proposals are a flawed response to the issue, however. Victims in domestic abuse cases may be open to blame if it can be shown that they either found out and ignored a partner’s past violent record, or indeed if they shun the option at the outset of the relationship. The onset of domestic violence is known to be incremental in the majority of cases, with incidents increasing in frequency and severity over the course of a relationship. Such history may lack meaningful corroboration in a victim’s experience at the start of a relationship and the mechanisms that hamper that victim’s inability to escape their abuser are not solved by the mere knowledge that their situation is history repeating itself. Furthermore, an abuser who had reformed may be inhibited in his or her ability to enter into relationships in the future by the restrictions that such a tool would carry. Enabling local authorities to effectively police and support domestic violence incidents, along with an appropriate response from the courts, would have far more significance than this proposal.
A council has been found vicariously liable for the harm suffered by four child victims of domestic abuse and ordered to pay £320,000 damages. Judgment was handed down in the case of ABB & Ors v Milton Keynes Council  EWHC 2745 on 24 October 2011; the case is notable because of the quantum of the damages awarded, which were unusually large, and the fact that the claim was successfully brought against Milton Keynes council, the successor of the now defunct Buckinghamshire council, under whose management the social workers operated at the time the abuse was taking place. Social workers at Buckinghamshire County Council were aware of the abuse, conducted by the children’s father in 1992. He was told to leave the family home and the children were placed on the Child Protection Register. However, six months later social services allowed the father to return home and closed the case. The abuse continued until 2005 and the father is now serving a life sentence for inter alia rape and indecent assault.
The council had disputed the nature of the duty of care it owed to the children, now aged between 17 and 25, and denied all responsibility for the abuse suffered by the youngest child because she had not been born at the time. Judge Alison Hampton QC ruled that the social workers were negligent, finding the council vicariously liable for the shortcomings of the social work provided to the family during 1992 and 1993 and the failure to follow up the family’s case. She concluded that the father had posed a very high risk of significant harm to the children. She awarded damages ranging between £155,000 for the most seriously abused and £12,000 for the third child. Milton Keynes Council, as successor to Buckinghamshire County Council, must pay the awards.
Legal aid cuts are expected to have a profound effect on victims of domestic violence. More has been made of this in the press this week; the coverage can be found here.
Nicola Sturgeon, Scotland’s deputy first minister, has met with a catholic bishop to discuss his concerns with regard to gay marriage. Bishop of Paisley Philip Tartaglia believes governments “do not have the authority to say what marriage is or to change its nature or to decree that people of the same sex can marry”.
Plans to lift the ban on civil partnerships being conducted in places of worship in Scotland were announced in February of this year. The plans would allow ceremonies to contain religious elements including Bible readings; be presided over by priests, ministers, or other religious officials; and could allow the bonds created to be called a marriage.
When the plans were outlined in February, a spokesperson for the catholic church stated plainly that such a service “would never take place” in a catholic place of worship, while other points of view included those fearing that although churches would not be forced to offer same sex ceremonies they could be accused of discrimination and face lawsuits if they did not. Largely the plans have been welcomed.
Sexual offences & rape
Ken Clarke has set out plans to extend mandatory life sentences to crimes other than murder, for offenders convicted of a serious violent or sexual offence for the second time. From the starting point of indeterminate jail sentence, Ken Clarke proceeded to unveil a “two strikes and you’re out” mechanism for mandatory life sentences. Whilst tougher sentencing for the crimes that typically attract an impassioned response may score points with the public and in the press, they fall short of the standard as far as many members of the legal profession are concerned. Critics have pointed toward the judges’ discretion in finding the most appropriate sentence being hampered. A lot has been made of judicial activism in the past and the noise continues to sound. Conversely, this is seen as an encroachment on the discretion of the judiciary in accounting for the minutia of a case when delivering the most appropriate sentence. Mr. Clarke was quick to point to a “get out clause” that purports to circumvent this intrusion, which would share the wording of Michael Howard’s 1997 “three strikes and you’re out” sentence for repeat burglars and drug dealers. A spokesperson for the Ministry of Justice commented that “it means that the court has to impose the sentence unless they can prove it would be unjust to do so” – the ramifications of which have all the hallmarks of fettered discretion.
The shadow secretary Sadiq Khan’s appraisal of the proposals as “classic smoke and mirrors” seems rather fitting.
Recent research has shown that over 70% of LGBT lawyers believe that there is still homophobic bias in the judiciary. According to recent research by the lesbian, gay, bisexual and transgender legal group Interlaw, 70% of LGBT lawyers believe there is prejudice within the selection process for judicial office, with the issue extending across the sector. Some progress is afoot, however: Recent performance of law firms in the top 100 employers rankings compiled by the gay rights charity Stonewall showed six firms ranked, compared with none in 2007.
And a bit more from afar….
Well not too far away this week; after reading Lord Philips’ interview with Owen Bowcott in the Guardian, consideration of the expanding debates on ECHR jurisprudence has been forthcoming…
Lord Philips has been candid in his appraisal of Strasbourg jurisprudence in an interview with the Guardian this week. The broadsheet has been conducting a series of interviews with the Supreme Court Justices in celebration of the courts second birthday. Lord Philips pointed to the abstract wording of Strasbourg jurisprudence being ‘sometimes too narrow’, adding that “sometimes we feel that Strasbourg ought to give us a bit more scope to apply the principles of human rights in the particular way we have done so in this country.”
The views are inconsistent with those offered by the Lord Chief Justice, Lord Judge at the House of Lords committee this month, who postulated that that there was an “arguable case” that the UK had to take account of decisions emanating from the court in Strasbourg but that “we are not bound by them”
Dominic Grieve will soon appear before European court of human rights in Strasbourg in a case about prisoners’ voting rights, to argue that English and Welsh courts should have “primary responsibility” in interpreting the convention.