piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Records of Inquest: the conclusion is... use your boxes correctly and keep it succinct

For those of you practising in coronial law, the Chief Coroner's Guidance No. 17 was published on 30 January 2015. It contains some useful and succinct guidance on short form conclusions and narrative conclusions, including: how and when they should be used (as alternatives or together); the correct approach to the three stages of the conclusion (i.e. fact finding, box 3 of the Record of Inquest and box 4 of the Record of Inquest); standards of proof; and a summary of the 'ingredients' of the common short form conclusions. The guidance is by no means a full and comprehensive review of the law, but it certainly provides clarity and is likely to be a useful reference when dealing with submissions on conclusions.   The guidance can be downloaded at http://judiciary.go.uk/related-offices-and-bodies/office-chief-coroner/guidance-law-sheets/coroners-guidance/ 

Lights, Camera … Appeal!

    It’s Channel 4’s fault!   Was it just coincidence that on 10 July, the day after “The Murder Trial” was first screened on television, the Court of Appeal (Recording and Broadcasting) Order 2013 was published?   Or that yesterday (17 July) saw the release of the Crime and Courts Act 2013 (Commencement No 3) Order 2013 which, amongst other things, permits the Lord Chancellor by order to enable the making and use of films and other recordings of proceedings in courts in England and Wales?   Nick Holt's documentary concerned the retrial of Nat Fraser for the murder of his wife, Arlene, in Scotland. Mr. Fraser had already been tried and found guilty but in 2011 his conviction was quashed by the Supreme Court and the Channel 4 film followed his retrial.   Compressing a five week trial into two hours was always going to be challenging. Six remote cameras were placed inside the courtroom in Edinburgh with the consent of all the parties including Mr. Fraser who was re-convicted for the murder of his wife whose body has never been found after she went missing in 1998.   The public can already watch proceedings in the Supreme Court. The new Order sets out the conditions under which broadcasters in England and Wales will be able to film in the Court of Appeal later this year.   Currently, section 41 of the Criminal Justice Act 1925 makes it an offence to film in court and section 9 of the Contempt of Court Act 1981 makes it a contempt of court to record sound in court except with the permission of the court. The new Order provides that these provisions do not apply where the conditions in the Order have been satisfied. There is power in the Order to prescribe the types of hearing that can be recorded, what part of the hearing can be recorded and who can record a hearing. There is also power to set out when the recording of a hearing in the Court of Appeal can be broadcast and what content is permitted in a broadcast.   In “The Murder Trial” I thought Mr. Fraser's defence team did a pretty good job on his behalf. However, dramatic compromises were still necessary. These included the action in the court room being interspersed with shots of isolated forest tracks and a soundtrack clearly chosen to ratchet up the tension and anxiety.   Personally, I get all the tension and anxiety I need just by being in the Court of Appeal but when drafting my next skeleton argument, I will definitely give some thought to the music to go with it … just in case!          

Litigants in Person, the Judges and You!

      According to the government's own figures, 623,000 of the 1,000,000 people who previously received public funding each year ceased to be eligible for such assistance when the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 came into force on 1 April 2013.   On 5 July 2013 the Judicial Working Group on Litigants in Person (LIPs) published its report on how the judiciary proposes to deal with the massive increase in LIPs in courts and tribunals. It merits careful reading by all practitioners.    www.judiciary.gov.uk/Resources/JCO/Documents/Reports/lip_2013.pdf    The challenges are immense and will be further increased by the impending rise in the financial limit for the small claims track from £5,000 to £10,000. A doubling of this limit will inevitably mean more cases fall within the small claims track where public funding is not available. As for alternative sources of assistance, the Citizens Advice Bureau estimates that local advice and community based services will lose over 77% of their public funding.    In 2012, District Judge Richard Chapman, the immediate past president of the Association of Her Majesty’s District Judges observed that already:   “Judges like me are spending more and more of our time having to deal with litigants who simply do not know the law, have never heard of the Civil Procedure Rules 1998 or the Family Procedure Rules 2010 and have breached most of the case management directions”.    The report recommends that the Ministry of Justice and Her Majesty’s Court and Tribunal Service should devote the necessary time and resources to producing, with judicial involvement, appropriate materials, including audio-visual materials, to inform LIPs what is required of them and what they can expect when they go to court as well as reviewing the information that is currently publically accessible on the various judicial websites – see [2.8] and [3.49-3.52] of the report.   The Judicial College should also urgently assess the  feasibility of providing training on LIPs –  a sort of “Quick Lit” course for judges – together with developing a  “litigants in person toolkit” utilising the existing judicial guidance – see [2.9] and [4.9-4.19] of the report.   More far reaching proposals include:   1.      The inclusion in the CPR of a dedicated rule which makes specific modifications to other rules where one or more of the parties to proceedings is a litigant in person.  2.      The introduction of a power into Rule 3.1 CPR to permit the court to direct, where at least one party is an LIP, that proceedings should be conducted as a more inquisitorial form of process.  3.      The introduction of a specific general practice direction or new rule in the CPR to address, without creating a fully inquisitorial form of procedure, the needs of  LIPs in obtaining access to justice whilst enabling  courts to manage cases consistently – see [2.10] and [5.11] of the report.    The stark reality is that in some courts and tribunals LIPs will be the rule rather than the exception. This will inevitably slow down and drive up the cost of proceedings and take up valuable judicial time. Equally inevitably, the call will surely go out from the judges to practitioners at all levels for assistance in responding to the challenges that lie ahead.   Image – www.123rf.com

"I never knew that ....!"

    The Freedom of Information Act (FOIA) 2000 is an important piece of legislation. Correctly used, it can bring into the public domain information that would otherwise be unknown to the general public. Yesterday (31 January) it led, indirectly, to the revelation that the James Bond villain that Michael Gove, the Education Secretary, would most like to be is Sir Hugo Drax in Ian Fleming’s novel “Moonraker”. The Education Secretary was answering questions by MPs (and the public via Twitter at #AskGove) during a session of the Education Select Committee. In the course of his evidence, Mr. Gove also revealed that he has not yet complied with the guidance from the Information Commissioner last month that private e-mails which discussed official business were subject to the FOIA 2000. Mr Gove told MPs that he was “awaiting fresh civil service advice” before complying. Mr. Gove was clearly too busy discussing with the Education Select Committee how James Bond, with the help of Special Branch agent Gala Brand who became C.I.A agent Dr. Holly Goodhead in the film, sabotaged Drax's “Moonraker” missile launch to know that on Monday (30 January) the Information Commissioner's Office (ICO) had released a new and, I think, very helpful plain English Guide to help public authorities better understand what the FOIA 2000 says and how to apply it in practice. http://www.ico.gov.uk/for_organisations/freedom_of_information/guide.aspx In 56 pages the guide looks at the law in a sensible and straightforward fashion and explains in simple terms what public authorities and organisations need to do to comply, including how to respond to requests and decide what information they should routinely publish. What is, I think, particularly useful is that the guide answers many frequently asked questions and gives practical examples to illustrate how to apply the FOIA 2000 in practice. For any busy practitioner who is currently trying and failing to get answers from a public authority, I recommend simply forwarding the guide to the person dealing with his or her request. It is surely just a coincidence that yesterday (31 January), the day after the ICO published its new guide, the government issued a 133-page memorandum to the Justice Select Committee containing its “Post-Legislative Assessment of the (FOIA) 2000”. http://www.justice.gov.uk/downloads/publications/policy/moj/post-legislative-assessment-of-the-foi-act.pdf The memorandum sets out the government's position on what it considers to be the primary concerns about the FOIA 2000 and concludes that “the Government’s commitment to transparency stands alongside its commitment to reduce regulatory burdens. A question worthy of consideration is whether the current FOIA regime strikes the right balance between those two objectives”. The fate of the FOIA 2000 is thus uncertain unlike that of Drax who, as film goers will recall, was fatally wounded by Bond’s poison dart wrist watch before being escorted into an airlock and ejected to die in space.  

Smile... you're on candid camera!

In the Judicial Studies Board Annual Lecture yesterday Lord Neuberger, Master of the Rolls, considered the issue of open justice and, in doing so, revisited the contentious question of cameras in court.  In a compellingly argued lecture, he expressed the view that "if we wish to increase public confidence in the justice system, transparency and engagement, there is undoubtedly something to be said for televising some hearints, provided that there were proper safeguards to ensure that this increased access did not undermine the proper administration of justice." The full text can be found online:  http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-jsb-lecture-march-2011.pdf