Law in Practice

Later this year anyone who is arrested in Europe will be able to find out about their legal rights – in their own language – online. Amanda Pinto QC discusses what the Council of Bars and Law Societies of Europe project involves 

The European Commission has decided to provide a pan-European project enabling those who come into contact with the criminal justice system in another member state to find out about their rights in their own language. 

Charlotte Woodhead examines the provisions of the Holocaust (Return of Cultural Objects) Act 2009 

In 12 November 2009 the Holocaust (Return of Cultural Objects) Act 2009 (“the 2009 Act”) received Royal Assent and it entered into force on 13 January 2010. This widely welcomed legislation permits the governing bodies of some of the major museums in England and Scotland to return cultural objects to their pre-war owners or their heirs. It therefore provides a means by which to redress the imbalance between claimants seeking return of looted cultural objects from national museums and non-national museums who are not prevented from returning such objects. Whilst the 2009 Act does extend to Wales, no Welsh institutions are listed in the Act. 

The Law Reform Committee wants to know which areas of law reform it should consider on behalf of the Bar, say Dan Stacey and Eleena Misra 

Is it possible to challenge extradition requests based on the right to family life following Norris, asks Abigail Bright 

Nobody has yet successfully challenged an extradition request made under a bilateral extradition treaty on the grounds that the extradition would breach the person’s right to respect for private and family life, as guaranteed by art 8 of the European Convention on Human Rights, within the territory of the respondent state. In Norris v Government of the United States of America (No 2) [2010] UKSC 9 the Supreme Court – unanimously – rejected Ian Norris’ argument that extradition to the USA would be incompatible with his right to a private and family life in the UK. Nevertheless, Norris provides overdue guidance on when such a challenge may succeed.  

Defendants are now required to provide written notice of the witnesses they seek to call at trial. Monica Stevenson considers the likely pitfalls 

Over the last decade criminal practitioners have been greeted with a deluge of legislation, the effect of which has been to increase case workloads at the same time as the government has panicked over the cost of paying lawyers to deal with it all.  Continuing the trend is the new requirement that defendants provide written notification of those witnesses they intend to call at trial. This change is ushered in by virtue of s 6(c) of the Criminal Procedure and Investigations Act 1996 (“CPIA”) (as amended by s 34 of the Criminal Justice Act 2003 (“CJA 2003”)) which entered the statute books seven years ago but only came into force on 1 May 2010. It is accompanied by regulations, the Notification of Intention to Call Defence Witnesses (Time Limits) Regulations 2010, SI 2010/214 (“the 2010 Regulations”), and a Code of Practice for Conducting Interviews of Witnesses Notified by the Accused (“the Code”). 

Are the criminal courts the best place for intellectual property owners to protect their rights, asks Alex Stein 

In January 2010 Alan Ellis was unanimously acquitted of a charge of conspiracy to defraud based on his activities as creator and supervisor of the peer-to–peer (“P2P”) file sharing website oink.cd. He was the first person to be prosecuted for such activities in the UK. The website which operated between 2004 and 2007 utilised BitTorrent technology allowing members to share files (mainly music but with some books) between themselves. The site was by far the most popular UK based file sharing site. It generated around £150,000 in donations, attracted in the region of 600,000 members and facilitated 21 million downloads. Ellis, who was only 21 when he started the site, ran it from his bedroom in shared student digs. 

Justin Rushbrooke argues that the manner in which the last government sought to reduce success fees in defamation cases was ill conceived. The irony is, he says, had a more moderate approach been adopted, meaningful reform would have been possible 

The Conditional Fee Agreements (Amendment) Order 2010, which sought to reduce the maximum “uplift” in defamation and privacy cases from 100 per cent to 10 per cent, had a short and inglorious life. It was ill-considered, rushed through with unseemly haste by the former Justice Secretary, Jack Straw, and his colleagues; and, in the end, counter-productive. As with much of the debate that surrounds media law issues, it was bedevilled by ignorance, exaggeration and muddled thinking. The irony is that had Mr Straw adopted a more moderate approach to what was, on his own account, only supposed to be an interim measure, he would have been able to achieve meaningful reform of a kind that nearly everyone agreed was warranted. But the manner in which it was handled cannot help but give rise to a suspicion that, with a general election looming and a government in need of friends in the media, appearance always mattered more than substance. 

Simone Paissoni outlines the tax issues involved in owning a property in France 

France is a wonderful country, but complex at all levels, and it excels in its complexity regarding the taxation of real estate.
Anyone who dreams of owning that “petit bijou” in the sun or the city, knows that the costs and duties on purchase amount to six or seven per cent, but what about after completion? What does the new owner have to worry about? What about on sale, or gift or death—how are such events treated tax wise in France? 

The DPP’s guidelines on assisting suicide are welcomed but are unlikely to make a fundamental difference to the way the CPS handles suspects, suggests Nicholas Kazaz 

On 25 February 2010 Keir Starmer QC, the Director of Public Prosecutions, issued “The Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide”, which sets out the guidelines that must be followed in respect of cases of assisting suicide. 

In Re W the Supreme Court reformulated the approach a family court should take when exercising its discretion to decide whether to order a child to give live evidence in family proceedings. However many questions still remain unanswered,  believes Chris McWatters 

 Most barristers would consider it a travesty of justice if they were not allowed to cross-examine a complainant who had made allegations against their client, especially if those unchallenged allegations were believed by a court.