Justice Matters

Seeing and Believing? Professor Penny Cooper on observing witness and defendant demeanour  

On September 16 2013 HHJ Peter Murphy gave a ruling in R v D (R)  in relation to the wearing of a niqaab by the defendant during proceedings in the Crown Court. This first instance decision was widely reported in the media and generated discussion about religious freedom (though the judge found that the wearing of the niqaab was not a religious requirement) and to a lesser extent discussion about observing witness and defendant demeanour. 

Daniella Waddoup on reforming the criminal defences of insanity and automatism  

The relationship between crime and mental disorder is a complex and multi-faceted one, leaving criminal justice and mental health systems to grapple with a range of difficult questions. These include, but are not limited to, the following: does mental disorder cause crime? Are mentally disordered offenders less culpable by reason of their condition? Are they criminally responsible at all? What role does the severity of mental disorder play? 

Ali Naseem Bajwa QC and Terry McGuinness examine port stops carried out under Schedule 7 of the Terrorism Act 2000  

In June this year, journalist Glenn Greenwald published in The Guardian newspaper the first of a series of reports detailing US and British mass surveillance programmes, based on documents obtained by the National Security Agency whistleblower, Edward Snowden. On 18 August, Mr Greenwald’s partner and occasional assistant, David Miranda, flying via London from Berlin to Rio de Janeiro was stopped at Heathrow Airport under schedule 7 of the Terrorism Act 2000. Mr Miranda was detained for nine hours, questioned and had various items of electronic equipment seized from him. The link between Mr Greenwald’s publications and Mr Miranda’s detention is undisputed. 

John Wilson QC examines a ground-breaking Supreme Court ruling on the separate identity of a corporate entity . 

Prest v Petrodel Resources Ltd & Others  [2013] UKSC 34; [2013] All ER (D) 90 (Jun), is a landmark case which is of considerable interest to corporate and insolvency lawyers, as well as family lawyers. It will cited for years to come although, in another way perhaps, it merely burnishes the pedestal of the ground-breaking case of Salomon v A. Salomon & Co Ltd  [1897] AC 22. Salomon  established the broad inviolability of the separate identity of a corporate entity. This is something we now take for granted, but it was then a far more radical concept. A. Salomon & Co Ltd was not Mr Salomon, even though he was the only shareholder in the company. They stood side by side as separate legal personalities. Mr Salomon did not stand behind A. Salomon & Co Ltd in the eyes of the law. 

Professor Dominic Regan outlines the implications of the newly introduced batch of civil litigation reforms.  

Jackson was just the beginning. The arrival of fixed litigation costs in fast-track injury work, from 31 July 2013, represented another enormous shift and there is plenty more in the pipeline. How does the future look for civil practitioners? It is a common myth that the focus is upon injury. Not so. 

Andrew Otchie reflects upon the Commercial Court’s approach to granting an anti-anti suit injunction  

The jurisdiction to grant a final injunction to prevent the breach of an arbitration clause is provided by s 37(1) of the Senior Courts Act 1981, which confers upon the court a general power to grant injunctions “in all cases in which it appears to the court to be just and convenient to do so”. 

David Wurtzel and Professor Penny Cooper examine how to ensure the effective participation of vulnerable defendants in a trial  

On 12 October 2010, Jordan Dixon, along with two co-defendants, was convicted of murder following a trial at the Old Bailey. A year before, on Halloween, Dixon and the two others came across a young man and his girlfriend in a town centre. One of the other defendants took part of the woman’s Halloween costume, stamped on it, and then spat. When her partner remonstrated, he was punched to the ground where he was kicked in the head. He died shortly afterward. All three defendants landed a blow; medical evidence could not establish who had been responsible for the fatal one. The most compelling evidence at trial came from the CCTV images which were played repeatedly. The jury found all three guilty on a joint enterprise basis. When the matter came before the Court of Appeal in March 2013, Dixon’s appeal against conviction was upheld (R v Dixon [2013] EWCA Crim 465). The real legal interest in the decision though concerns the question of the effective participation in his trial of a vulnerable defendant and of the value of a Ground Rules Hearing. The authors attended the appeal. 

Paul Magrath provides an overview of current guidance for Litigants in Person  

Family Courts without a Lawyer: A Handbook for Litigants in Person, by Lucy Reed (Bath Publishing, 350pp, £29)
Small Claims Procedure in the County Court, by Patricia Pearl and Andrew Goodman (Wildy, Simmonds and Hill, 309pp, £19.99)
Representing Yourself In Court: Guide to Civil Law, by Francis Manyika (CreateSpace Independent Publishing Platform, 104pp, £28.68)
A Guide to Representing Yourself in Court, The Bar Council (72pp, free)
A Guide to Bringing and Defending a Small Claim, Civil Justice Council (30pp, free). 

Paul Epstein QC and Ed Williams explain witness familiarisation – the training, judicial attitudes, and how to stay within professional boundaries  

In the recent High Court battle of the oligarchs between the late Boris Berezovsky and Roman Abramovich the case turned on conversations several decades earlier. What the two men said and how they said it was central to Mrs Justice Gloster’s eventual judgment dismissing Mr Berezovsky’s £5bn claim. 

Dr Vicky Kemp examines PACE protections and access to legal advice  

For more than a quarter of a century the Police and Criminal Evidence Act 1984 (‘PACE’) and its Codes of Practice have provided legal protections for those arrested and detained by the police; including access to free and independent legal advice. How has it worked in practice? Why do so many refuse to take up the offer of free legal advice? 

As a Principal Researcher with the Legal Services Research Centre, which had been the independent research division of the Legal Services Commission, from 2008 to 2012 I had undertaken a number of studies into police station legal advice. The first study involved a survey of over 1,000 users in the criminal justice system, which was conducted in six cities during 2008. Further research was undertaken, including a small-scale study of eight police custody suites (one station was in the city where the survey was conducted and the others based in five different areas) and interviews with defence practitioners. In 2009 we carried out a statistical analysis of over 30,000 police custody records drawn from four police force areas. There followed in 2010 a qualitative study of the main police station in each of these four police force areas. In one of the police stations observed an initiative was set up to help improve access to legal advice. This involved duty solicitors based full-time in the police station and the initiative was subject to a three-month review in 2011 and then again in 2012.