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Couple to Head to Supreme Court in Pursuit of Civil Partnership

An opposite-sex couple who wish to enter into a civil partnership now hope to take the matter to the Supreme Court after the Court of Appeal ruled against them. Currently, UK law only allows opposite-sex couples to enter into civil partnerships.

The solicitor representing Charles Keidan and Rebecca Steinfeld has confirmed that the couple intends to seek a hearing in the Supreme Court, the UK’s highest court. They are seeking a judicial review on the government’s decision that it will not pursue any change to the current law which prevents opposite-sex couples from entering into a civil partnership. After losing their case in the High Court, the couple then proceeded to the Court of Appeal where they again lost their case on 21st February.

Appealing to the Supreme Court will cost the couple a minimum of £20,000, according to a post on the website of the legal firm representing them, Deighton Pierce Glynn. They must submit their application for a hearing by the end of this week.

Louise Whitfield, the solicitor representing the couple, said that it was “very frustrating indeed that my clients lost their appeal by such a narrow margin on such an important issue, particularly when all three judges readily accepted that there had been a potential violation of their human rights.”

Whitfield also said that the government “must act quickly” to deal with an issue “which the court as a whole recognised could not continue indefinitely and which they agreed is ultimately unsustainable.” She said that one of the judges, Lady Justice Arden, had “accepted that time had already run out” for the government to take action, but that “her fellow judges were unfortunately prepared to allow the government a little more time.”

There is currently a bill making its way through parliament which would indeed see the government open up civil partnerships to opposite-sex couples, the Civil Partnership Act 2004 (Amendment) Bill 2015. This bill is due to go before the House of Commons for its second reading next month.

Proponents of civil partnership for opposite-sex couples say that it would enable cohabiting couples to access the same legal benefits as married couples even if they do not wish to actually get married. There are currently few rights and protections for unmarried cohabiting couples in the UK. Others wish both to access these protections and make a statement of commitment, but without the cultural baggage that they feel is attached to the status of marriage.

The government welcomed the Court of Appeal’s ruling on Steinfeld and Keidan’s appeal. A spokesperson said that the government would “carefully consider this judgement and will take it into account as we evaluate the take-up of civil partnerships and same-sex marriage.”

Personal Injury Case Leads to Landmark Fixed Fees Ruling

royal-courts-of-justiceA personal injury case that escalated to the Court of Appeal over a matter of fees has resulted in a landmark ruling. The Court of Appeal’s decision has upheld a previous decision that the highest fixed fee level could be applied to cases that are listed for disposal – a decision which, in the opinion of Lord Justice Briggs, is set to have “substantial” consequences.

The case in question, Bird v Acorn, originated when the claimant, Mr Bird, received an injury in 2013 while visiting the premises of the defendant when a dropped tool landed on his hand. He instructed a firm of solicitors to begin a personal injury claim, which was initially lodged through Employer’s Liability/Public Liability portal – a platform used for launching various workplace injury claims and claims for accidents in public spaces.

No response to this initial claim was received, so it was withdrawn from the portal. The following month, the defendant’s insurer admitted liability, so the claimant’s solicitors responded to the insurer with medical evidence of the injury in the hope of reaching an appropriate settlement. However, no agreement was reached and legal proceedings began, with the defendant failing to acknowledge and a default judgement ultimately issued to the defendant.

The case them progressed to Birkenhead County Court where it was finalised after a disposal hearing of ten minutes. However, there was one slight complication regarding fixed costs. Costs had not been agreed beforehand, and therefore the judge was left with the task of choosing which of the predefined fixed cost options should be applied. The judge decided that “column 3,” the highest level of fixed costs at 27.5% of awarded damages plus £3,790, should be applied.

However, the case was then taken to the Court of Appeal, with specific regard to this decision to apply the highest level of fixed costs to the case. The judge described the matter as a “short but important” one. The question at the heart of the matter, he said, was whether a disposal hearing constituted a trial or not. If it did qualify as a trial, then this would mean that higher levels of fixed costs would be recoverable than if the matter had been settled before this point.

The Court of Appeal upheld the original decision to apply the highest band of fixed costs to the case, therefore providing “authoritative guidance… on a question which has generated significant controversy.”

Regarding the scope of the judgement, the judge said: “The difference is, in absolute terms, a modest one but the cumulative effect of its application to numerous cases is substantial.”

Police Will be Lenient With new Car Smoking Laws

Car Smoking ChildrenStarting on the 1st of October, long-discussed laws banning people from smoking in cars that contain children will come into force. However, some police have said that they intend to take a lenient and “non-confrontational” stance when it comes to the enforcement of this new law.

It will be illegal for anybody, driver or passenger, to smoke in a car that also contains somebody under the age of 18. If the smoker is a passenger, both this passenger and the driver will be held responsible.

The law was first suggested after extensive research into the serious harm that passive smoking can do to children, especially in enclosed spaces such as vehicles. Police will have the power to stop vehicles and issue warnings or on-the-spot fines if they see somebody breaking these laws. The standard fine will be £50, though paying within two weeks of issue will get this discounted to £30. A conviction in a magistrates court for breaking this law, on the other hand, could see a fine of up to £200 issued.

However, a number of prominent individuals within the nation’s police force have expressed an intention not to be too strict with the enforcement of these new laws. Many have said that they will favour warnings over fines, as they believe this equates to “education not prosecution.”

“As the existing smoke-free law extends to vehicles,” said a spokesperson, “police forces will be following guidance from the Chartered Institute of Environmental Health by taking an educational, advisory and non-confrontational approach when enforcing the new legislation.”

The new ban on smoking in vehicles containing children has been welcomed by many because of the very real danger that passive smoking can pose to the help of young people. Others, however, have criticised the new laws over the course of the long discussions involved in bringing it from proposal to enforceable legislation. In many cases, criticism centred not on the intentions of the law but on the idea that it would simply prove impractical to enforce it effectively.

While the police insist that their approach is in line with relevant guidance, others have criticised their stated intention to exercise lenience. Shadow policing minister Jack Dromey suggested that it was less a result of following guidelines and more a result of having to keep costs down in the face of cuts to their budgets.

“The ban on smoking with kids in cars is designed to protect their health and save lives. It is absolutely wrong that Theresa May’s police cuts will put vulnerable children at risk,” Dromey said.

Surveillance Legal Challenge Succeeds

A legal challenge mounted by two MPs against state surveillance powers has been upheld by the High Court. The laws in question, the MPs claimed, gave security services and police the right to “spy on citizens” and lacked the safeguards that should such powers should be subject to.

Tom Watson, a candidate for the role of deputy leader of the labour party and David Davis, a former Conservative minister, said that these powers violated the human rights of UK residents. Two judges at the High Court ruled that this was indeed the case, deciding that the legislation allowing such surveillance breached both the European Union Charter of Fundamental Rights and the Human Rights Act.

The legislation in question was contained in the Data Retention and Investigatory Powers Act, which was passed last year. This allowed the UK’s security agencies and certain other public bodies to gather and retain information about who suspects are contacting by phone and email. While the content of these communications is not retained, a detailed record is kept of who people are contacting and when. The act was rushed through parliament as a piece of emergency legislation, passing in a matter of days. According to Watson and Davis, this meant there was no time for the act to be properly scrutinised before it was passed.

According to campaign group Liberty, which supported the two MPs in their legal challenge, the act “”It was privately agreed following discussions between the then three main party leaders. It became law within just three days – denying time for proper parliamentary scrutiny, amendment or even debate.”

The court’s ruling that this act is “inconsistent with EU law” has effectively rescinded certain parts of the legislation – though this will not take effect until March next year. The court’s decision comes at a significant time, as there is much discussion surrounding issues of state surveillance. Much of this stems from Theresa May’s controversial proposals, widely nicknamed the “Snoopers’ Charter”, which would allow even more comprehensive gathering of information on how people are communicating and using the internet.

A court challenge to primary legislation by MPs is very unusual, and some have called it entirely unprecedented.

The government has expressed dissatisfaction with the High Court’s ruling and has stated that it intends to appeal against the decision. John Hayes, the Security Minister, said: “The effect of this judgment would be that, in certain cases, communications data that could potentially save lives would only be available to the police and other law enforcement if a communications company had decided to retain it for commercial reasons.”

Founder of Silk Road Receives Life Sentence

Silk RoadA sentence of life imprisonment has been handed down in the US to Ross Ulbricht, founder of black market selling platform Silk Road. The sentence came as a surprise to some degree, since it was even more severe than the one requested by the prosecution.

The Silk Road, which first launched in 2011, existed on what is called “the dark web” – a section of the internet only accessible through anonymous proxied internet connections. While there are also legitimate sites in the dark web, it is also where you will find the bulk of the internet’s illegal activity. Such activities can only practically take place in this anonymous environment, as on the mainstream internet such websites would quickly be shut down and their creators identified by law enforcement.

It was into this category of anonymous, illegal websites that The Silk Road fell. It served as a billion-dollar platform for buying a range of black market goods, predominantly illegal drugs. Ulbricht founded the site and operated it under the pseudonym “the Dread Pirate Roberts” in reference to a character from 1987 comedy film The Princess Bride. As well as illegal drugs, the site also sold fraudulent identity documents and other such items. There is a charge still waiting to be heard in Maryland relating to murder-for-hire services.

Identifying the origins and owners of websites on the dark web is difficult, but as one of the most prominent illegal trading platforms Silk Road received a comparatively large amount of attention from law enforcement bodies internationally. In 2013 US Federal Bureau of Investigation (FBI) was able to shut down the website and arrest Ulbricht, who had been successfully identified as the man behind the site.

Judge Katherine Forrest, in handing down the sentence, decided to go beyond even the requests of the prosecution and apply the full force of the law. As well as his sentence of life imprisonment, Ulbricht has been ordered to pay huge restitution payments. This restitution, estimated to be equivalent to the total value of drug and fake ID sales made through Silk Road, amounts to more than US$183 million (roughly £120 million). Sales of assets seized by authorities, predominantly virtual currency bitcoin through which Silk Road received payments, will be used to help meet these payments.

In sentencing Ulbricht, Forrest said: “Silk Road’s birth and presence asserted that its…creator was better than the laws of this country. This is deeply troubling, terribly misguided, and very dangerous.”

Ulbricht admitted the charges against him over the course of the trial, but had hoped for a lenient sentence. “I’ve changed. I’m not the man I was when I created Silk Road,” Ulbricht claimed. “I’m a little wiser, a little more mature, and much more humble”

Deportation, Human Rights & Terrorists

When deportation and asylum claims are brought to court, one question often raised is what happens to the asylum seeker upon return if deported?

In many cases, the asylum seeker would face mistreatment, or a risk of serious harm if returned to their country of origin. Such potential harm is for them to prove in court. If there is a significant risk of harm upon return- then a deportation cannot go ahead. It would be illegal, under domestic and EU law, to deport someone to face significant ill treatment. It would further be a breach of their human rights- under both the UK Human Rights Act (1998), and the European Convention on Human Rights. Such a deportation would also be contrary to the spirit and letter of the 1951 UN Convention on Refugees.

Prior to any deportation, it is necessary to establish what dangers, if any, the returned asylum seeker would face. What treatment they can expect to receive upon return to their country of origin is an important part of the asylum and immigration legal processes. Aside from detailed investigations, in some cases assurances are often sought from the asylum seeker’s home country as to their personal safety upon return. The recent landmark Supreme Court case of EM (Eritrea) only served to reaffirm that policy- although did not totally clarify what that meant exactly.

Such human rights issues, and assessing the risk of return, give ample scope for extradition proceedings to be long, drawn our matters. Appeal after appeal, even judicial reviews, are not uncommon in immigration law. However, the Home Office has to act in accordance with law, and with respect to the deportee’s rights, as regards such deportations. The case of Abu Qatada, an extremist cleric deported to Jordan in 2013 after an eight year legal battle fought on such human rights grounds, serves to illustrate this. Recently, such principles were again demonstrated in a New York courtroom.

It was such an issue of human rights, and risks if deported to the US, that kept radical firebrand cleric Abu Hamza tied up in litigation for many years in the UK. Wanted in the US for terrorist offences (amongst which concerned setting up a terrorist training camp in Oregon), there were concerns about the conditions he would face if extradited to the US to face trial. Eventually, the legal battles ended- and he was deported to New York.

As part of the legal and extradition agreement, US authorities made assurances to the British government as to Abu Hamza’s prison terms and conditions, prior to his 2012 extradition. After being convicted of an array of terrorist offences in 2014, February 2015 saw the terrorist leader jailed for life in the shadows of the World Trade Centre.

Sentencing the cleric, Judge Katharine Forrest stated that she was handing down a life sentence because she could think of no time when it would ever be safe to release him. Such a sentence was contrary to promises made to the UK- as was his imprisonment in the notorious Colorado supermax prison facility. However, Judge Forrest left the details (such as the place of imprisonment) to federal prison officials. Federal prosecutors had previously stated that there had been no promises made not to send Abu Hamza to a supermax prison, or as regards handing down a life sentence.

Despite that (apparent) breach of the extradition agreement, the news was greeted with a sense of relief from both sides of the Atlantic, politicians, police and victims alike. Although the terms of the deportation may have been breached, the British government did not seem overly indignant- as it has on previous occasions. Home Secretary Teresa May stated in response to the verdict that she was “pleased that Abu Hamza has finally faced justice… His sentence reflects the severity of his crimes and I am pleased he will spend the rest of his life behind bars where he belongs.”

Inevitably, his lawyers will appeal. With Judge Forest’s verdict, however, there is a sense that justice, although greatly overdue, has finally been done.

 

Overall Crime Down but Reported Rapes on the Rise

According to official figures from the Office for National Statistics, Crime in England and Wales is falling. This conclusion was also backed up by separate research from the Crime Survey for England and Wales, which identified a 16% drop on overall crime. Despite this, however, the number of reported rapes is at its highest ever level.

This is not necessarily entirely down to an increase in the number of offences taking place. For a number of reasons, rape has historically been a significantly underreported crime. Now, victims are becoming more and more willing to come forward and make reports, so that more instances of this type of crime are actually recorded by police. Police writing off reports of rape and generally failing to record them properly is an issue that has raised concerns recently. Following the controversy that has surrounded the issue, according to the ONS’ head of crime statistics John Flatley, “it’s certainly the case the police are taking action to improve their recording and handling of rape investigations.”

However, there are concerns that this may be only one factor driving the increase in the number of incidents recorded, with figures also being driven upwards by an actual increase in the number of offences taken place. The official data does not offer any indication of whether this is likely to be the case, but some statisticians have stated that a 48% increase in knife-point rapes, for instance, is likely to be down to a genuine rise rather than simply better recording processes.

The increased number of reported rapes is made up of two kinds of allegation. Recent years have seen a significant rise in the number of victims gathering the necessary courage to report historical offences when they did not feel able to come forward at the time. However, nearly three quarters (73%) of the latest increase are down to current offences – a departure from the trend seen in recent years.

Overall crime, according to the Crime Survey for England and Wales, is down to a total of 7.1 million offences over the course of a year. This is the lowest level seen since 1981 when the survey started. Meanwhile, the ONS’ data showed that the number of rapes recorded by police in the year leading up to June was 22,116. This is an increase of 29%. The number of rapes in which the victim was threatened with a knife increased by nearly half, rising to 294 from 199.

Lawyers Doubt Usefulness of Government Mediation Scheme

MediationLawyers have expressed doubts about the usefulness of the new scheme which provides separating couples with a free session of mediation funded by the government. Lawyers have stated that they doubt the scheme will increase the number of couples who manage to resolve their disputes without taking them to court.

Jo Edwards, Chair of Resolution, a family lawyers’ group, was one of the voices expressing doubts. While she welcomed the move, she felt that it would have little impact. In particular, she pointed to the fact the scheme is only available in cases where one party is eligible for legal aid.

The new scheme was announced this week by Simon Hughes, family justice minister. It is intended to bolster the government’s efforts to promote the concept of mediation. The government believes that mediation can avoid courtroom battles, and provide an alternative that is both faster and cheaper.

However, the government has had little success in its efforts to encourage mediation so far. These efforts began in April 2013 directly following the controversial cuts to legal aid. Despite the fact that these cuts removed legal aid from the majority of cases in the family justice system, the number of couples turning to mediation actually fell significantly after the cuts took effect. In the first six months, the number of couples who attended mediation dropped by more than half (51%), despite active efforts on the part of the government to encourage the process. The Ministry of Justice has a £24 million fund set aside for mediation, but due to low usage rates only £9.4 million of this was actually needed.

Some have suggested that the reason that fewer couples are using mediation despite the lack of legal aid for courtroom battles is down to the reduced involvement of lawyers in the process. Previously, lawyers would have informed clients about the availability of mediation. Without legal aid, many couples are never consulting lawyers and simply heading to court as litigants in person. Critics have also pointed out that, despite the introduction of several schemes to make mediation accessible, the government has done relatively little to promote or publicise the process.

Despite the doubts expressed by lawyers, the Ministry of Justice remains positive about the scheme’s potential to help couples resolve their issues outside the courtroom. The ministry claims that almost two thirds of couples with child-related disputes reached an agreement after attending just one mediation session. The ministry also claimed that, overall, 70% of couples who use mediation reached an agreement without the involvement of the courts.

According to family justice minister Simon Hughes, “We know mediation works and we want more people to make use of it.”

Tory MP Calls for Halt on Lawyers Helping With Tax Avoidance

Conservative MP Charlie Elphicke today put proposals before clients that could see lawyers prosecuted if they help clients with tax avoidance. The plan would prevent solicitors from providing clients with advice which serves no purpose except to act as a way of avoiding tax.

Elphicke, was formerly a tax lawyer himself and is now Conservative MP for Dover. He has tabled the proposals as amendments to the Finance Bill. Today is the final day that this bill will spend in the House of Commons as part of its public bill committee stage. Among the issues dealt with by the bill is the legal framework to facilitate a crackdown by HMRC on the use of limited liability partnerships to avoid tax through “disguised employment.”

The proposed amendments would make it an offence for a solicitor to propose arrangements to their client that “[meet] the definition of ‘tax abuse.'” The definition in question is given as “any arrangement that, having regard to all the circumstances, it would be reasonable to conclude is an arrangement that has no business, social or other purpose other than the obtaining of a tax advantage.” Those caught carrying out activities which are decided to fall within this definition could potentially face prosecution.

Another proposed clause was also floated which would provide an expansion to HMRC’s already-growing powers to combat tax avoidance. The amendment would allow the tax office to “require any person to disclose any privileged information” in certain situations.

Elphicke’s proposals have met with mixed reactions in the political and legal spheres. However, the opinion of most legal and political experts is that there is little chance that the proposals in question will ultimately be passed into law. Nonetheless, Elphicke is adamant that he wants to at least ignite debate about issues surrounding tax avoidance and its morality. In an interview with The Times, he said “We need to get to a point where, at a dinner party, if somebody tries to boast that they’ve secured millions of pounds in tax savings for a client, people don’t just smirk and think it’s funny.”

Another Tory MP, back-bencher John Redwood, has also been notable for his views on the issue of tax avoidance this year. Redwood called on politicians to build up “a concept of good and bad tax avoidance.” This, he suggested, could avert the possibility that competing measures and proposals from different parties keen to tackle the issue might turn into an “arms race.”

New Family Court System Takes Effect

Family-CourtA new system of combined family courts is now in place throughout England and Wales as part of a range of family justice reforms. The new system has been described as “a hugely important change” by Justice Minister Simon Hughes, who also called the old system “very dysfunctional.”

Every year, around 270,000 new cases reach the family courts. These cases relate to a wide range of issues, notably divorce, domestic violence, adoption and intervention from local authorities. Concerns about the system in the past have particularly related to cases involving children. A 2011 review of the family court system said that delayed decisions on care and supervision were leaving children with their “futures undermined.”

The changes introduced through the new system are very much aimed at improving the way cases with children are handled. The system is intended to put greater focus on the experience and wellbeing of the children. Terms that were held to focus more on the rights of parents than on the real needs of the child, such as “contact” and “residence,” have been scrapped and a number of rules have been introduced to address practical problems with the process.

At the time of the 2001 review, such care and supervision cases averaged at 56 weeks. Though the figure has since been reduced to an extent, they should now be completed within six months in normal circumstances. This is partly thanks to the old three tiered system being replaced by a single, combined court.

Other changes include limits placed on the amount of expert evidence that can be used in any given case that involves children. This evidence can now only be used as far as necessary, if it is necessary at all, in order to ensure a fair resolution to the case. Furthermore, separating couples will be required to attend mediation awareness sessions before going to court with disputes about children or financial matters.

Furthermore, there are now new measures in place which aim to ensure that the best location is assigned for each individual case, and that the most appropriate level of judge is appointed to deal with it.

According to Sir James Munby, Family Division President, these changes constitute “the largest reform of the family justice system any of us have seen or will see in our professional lifetimes.”

Sir James went on to describe the new system as “a revolution” and to say that it represents “a fundamental change in the cultures of the family courts.”