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Archive for July, 2009

On the day when the Law Lords bade farewell to the House of Lords and sit as Justices of the Supreme Court of the United kingdom at the new Supreme Court in October, they gave judgment on one of the emotive issues of our times in R (on the application of Purdy) v Director of Public Prosecutions [2009]

The Times reports: “Five Law Lords unanimously backed the woman’s call for a policy statement from the Director of Public Prosecutions on the circumstances in which a person such as her husband might face prosecution for helping a loved one end their life abroad.”

“The Law Lords agreed that changes were a matter for Parliament, but upheld Ms Purdy’s argument that the DPP, Keir Starmer QC, should put in writing the factors that he regarded as relevant in deciding whether or not to prosecute. After the verdict, Mr Starmer issued a statement accepting the decision and saying that an interim policy would be produced by the end of September. He added that his final version should be published by spring 2010.”


I spoke earlier in the week to Lord Falconer on his amendment to the law on assisted suicide. We now have a clear statement from the Law Lords that the DPP is under a duty to put in writing the factors he regards as relevant in deciding whether or not to prosecute and, thereby, clarifying the position for those, Like Ms Purdy who wish to end their lives knowing that their loved ones will not be prosecuted if they assist.

A step in the right direction but by no means a change in the fundamental law – a challenge for a future parliament. The next stage must, inevitably, be pressure on Parliament to change the law to permit assisted dying in this country.

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An issue of justice

While our own legal history has a grim and primitive past; with trial by ordeal and combat being replaced by rough justice and the penalties of death by hanging, drawing, quatering et al – and the Americans and other supposedly civilised jurisdictions around the world continue to exact the penalty of death – we do have the right as commentators to say that  this and other cruel punishments are plain wrong, just as we have the right to observe in this country when bad laws are made and bad judgments are handed down.

We are not, by any means yet, in a state of grace where we can legitimately say that our Justice is perfect,  or even more foolish –  the best in the world – for that degrades the evolution of our system and the work of judges who do their best, in the main, to dispense justice within the confines of a flawed menu of laws.

That stated, there is a shocking story in the Guardian today about a flawed legal system and the remarkable courage of a young woman who has renounced her UN immunity by resigning from her job with the United Nations to protest and test the Sudanese judiciary and Islam itself as it is interpreted in that country.

Sudanese journalist quits UN job to go on trial for wearing trousers

Guardian: A  female Sudanese journalist facing 40 lashes for wearing trousers in public told a packed Khartoum courtroom yesterday that she was resigning from a UN job that grants her immunity so that she could challenge the law on women’s dress. Lubna Hussein was among 13 women arrested on 3 July in a raid by members of the public order police force on a popular Khartoum cafe. The women were all wearing trousers, considered indecent under the strict interpretation of Islamic law adopted by Sudan ‘s Islamic regime. All but three of the women were flogged at a police station two days later.

I have read with some irritation suggestions from Lord Phillips, the Archbishop of Canterbury and others that we should embrace Sharia law concepts within our nation,  and The Times only recently had a Sharia gorge fest reporting on the views of a cleric who wants to see Sharia courts given greater prominence.

We live in an increasingly secular country. I accept, for reasons of history that the Church of England enjoys a degree of primacy,  but rather than suggest that we embrace all religious systems within our law, I would prefer to see all religious systems and overt influences  removed from law and judicial hearings.  We have a common law system which, while not perfect,  is evolving. That is one of the benefits of a common law system over more structured written constitutions or civil systems based on codes. It may well lead to imperfection and inconsistency but many of these can be tempered, evened out or put right through our appellate system.

This is not a crass political issue – it is about justice and the rule of law in our country.  For my part I do not see how we can operate several different types of law within our nation and I certainly do not feel attracted by the justice of Islam when it continues, even in this country, to be manifestly oppressive to women – most alarmingly, in this country, in terms of the rights of islamic women in relation to divorce and family law issues. I have no difficulty at all with those who wish voluntarily and with informed consent to have their disputes settled by Sharia courts in this country,  but I would not wish to see those ‘courts’ have any force of law at all in terms of ousting the jurusdiction of our own courts and system of law – or mediation  by those courts barring the right to appeal to the courts of England & Wales.

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Farewell to the law lords
Times / David Pannick QC: Today the law lords sit to give judgment for the last time in the House of Lords and, as Lord Hope of Craighead said there last week, the upper chamber will be “losing part of itself”. From October the law lords will become Justices of the Supreme Court, created under the Constitutional Reform Act 2005. As the law lords give judgments for the last time, we should celebrate the institution whose life is coming to an end….

Sudanese journalist quits UN job to go on trial for wearing trousers
Guardian: A  female Sudanese journalist facing 40 lashes for wearing trousers in public told a packed Khartoum courtroom yesterday that she was resigning from a UN job that grants her immunity so that she could challenge the law on women’s dress.

Lubna Hussein was among 13 women arrested on 3 July in a raid by members of the public order police force on a popular Khartoum cafe. The women were all wearing trousers, considered indecent under the strict interpretation of Islamic law adopted by Sudan’s Islamic regime. All but three of the women were flogged at a police station two days later.

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Head of Legal blog: Lord Lester: my life as a goat

“Lord Lester, writing in the Guardian today , explains why he resigned as the government’s independent adviser on constitutional change. I have some sympathy for Lord Lester – he had the experience (that many civil servants have had) of finding out his role and position was in reality quite different from the one he was offered, and of discovering that ministers were not so committed to constitutional change as he’d thought. But I see it through different lenses.

While I agree with a number of Lord Lester’s ideas, I certainly don’t agree with all of them: I think a War Powers Act is unnecessary; I do not share the fashionable view that the Attorney General’s role must be significantly reformed; and I think adopting a written constitution would be a historic blunder…….”
More…

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There is a certain irony  that the  Bar Standard Board could be forced to abandon plans to introduce a compulsory aptitude test designed to reduce the number of people taking the Bar Vocational Course  after The Office of Fair Trading ‘dubbed it’ anti-competitive earlier this week. (The Lawyer)

Far be it from me, a blogger who spends a lot of his time with his wine supplier, to suggest that the OFT may actually have got this wrong. But…  I think the Bar Standards Board have got it right by introducing an aptitude test to give students a realistic idea in advance of spending a great deal of money as to whether they have a realistic prospect of making a decent career at the Bar.  There are far too many people chasing too few tenancies.  This is unlikely to improve in the current climate and may well not improve at all given that we are unlikely to return to the heady days of the past fifteen or so years bull run. While law schools will solemnly give students warnings about the difficulties they face, it is a bit like asking turkeys what their plans for the Christmas holidays are to leave entry to a Bar exam course to the law schools.  I would make the same point about LPC providers. &000 LPC students taking less than 6000 training contracts is not an ideal situation for students in the bottom 1000.

By the same token – full marks to The Law Society for taking a pragmatic approach to the current difficulties by launching  a campaign warning students to think twice about embarking on a career in law (The Lawyer).

That said – the law has always been a competitive profession and if a student believes that the or she  possesses the qualities (the aptitude test will assist here) and knowing the risks, they are prepared to take the risk – the profession will benefit from that attitude and we should be wary of warning students off.  The public and private interest is best served by maintaining standards of excellence – and we do not want to see diversity or risk issues bring in a culture where no-one loses and there are no prizes.  Equality of opportunity to compete for the best education to allow competition for the best opportunities should be our goal – not some artifical construct where people are weeded out to cap numbers and control real markets.

Frankly – an idea few will like,  is to make the examinations for law a lot more difficult. That would weed out those who have little prospect of  a career in law and raise standards in universities… Oh… and get rid of this ludicrous idea where everyone should get an Upper Second or a First.  Degree inflation is a farce…..  I’ll get my coat.

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