Baines Law: Recent Episodes
Barry Baines
A miscellany of cases and topics of interest to the legal community and others interested in our legal system.
Follow us on www.barrybaines.co.uk, @baineslaw and @barry_baines on twitter
John Bercow MP was Speaker of the House of Commons for over 10 years. He became a worldwide celebrity during the parliamentary Brexit debates for his robust and interventionist style of chairmanship. But more recently he was investigated by the Parliamentary Commissioner for Standards and complaints of bullying and harassment against senior employees were upheld.
Michael Mansfield QC, one of our greatest human rights lawyers, talks about the Home Secretary's (Priti Patel's) attitude to the Ukrainian Refugees, the government's proposals to reform human rights and fundamental freedoms, the diminution of legal aid, and the advent of "Supermarket" justice.
The Parliamentary Accounts Committee criticises the Ministry of Justice's meagre ambition to fix the broken Criminal Justice System. Listen to contributions from Chris Daw QC, HH Nigel Lithman QC and William Clegg QC.
The distinguished and highly experienced William Clegg QC who still presides as a Recorder of the Crown Court gives advice to aspiring advocates and discusses the difficulties the criminal justice system is currently facing: underfunding, decaying courts, backlogs and a complex sentencing system in need of overhaul - but for those intent on a rewarding and thrilling career, it is still worth it.
When a teaching establishment and the authorities turned against a 14 year old boy for a momentary indiscretion, it resulted in the boy's permanent exclusion from school. The headteacher's offensive analogy to that of a murderer and the refusal to accept the boy's fulsome and repeated apology reflect badly on the school, the governors and the local authority: YA v Independent Panel of Swansea City Council [2022] EWHC 408 (Admin)
When the body of a missing 11-year-old girl was tragically discovered by the roadside the authorities, keen to hold someone to account for the atrocity, arrested and detained a young man with a mental age of 12. After three days of questioning without the assistance of a solicitor, he admitted the killing and justice appeared to be done. Or was it?
The simple two stage test in Ivey v Genting Casinos [2017] UKSC 67 still seems to be causing confusion. In Maxfield-Martin v Solicitors Regulation Authority recently, the Solicitors Disciplinary Tribunal was reversed on appeal for failing to consider the two limbs of the test separately.
Chris Daw QC discusses the government's proposals to increase the sentencing powers of magistrates, the age of criminal responsibility, decriminalising drugs, the political motivation of the Law Officers for challenging lenient sentences and other criminal and criminological issues
An overview of an attack by The Times newspaper on the Supreme Court judgment in Bloomberg LP v ZXC [2022] UKSC 5 in which it balances the right to privacy and a publisher's right to freedom of expression. A summary of this episode with case citations under the title Media Whine 2022: A Poor Vintage appears in the News Section at www.barrybaines.co.uk
In this appeal by Dr Sawati against the General Medical Council [2022] EWHC 283 (Admin), the court considered a sanction decision of striking off and the so-called "rejected defence" issue where a practitioner charged with dishonesty may be called upon to defend her defence as well as the primary allegation.
A public scandal involving weekend pool parties at Cliveden, a call girl named Christine Keeler, an osteopath, a Russian Naval Attache and the Secretary of State for War. Did the Russian and the Secretary of State share the same services provided by the call girl and was national security threatened? It led to the resignation of John Profumo, the War Secretary, and later Harold MacMillan, the Prime Minister, on health grounds. These are the questions Lord Denning was required to answer in his inquiry.
Sitting in the Court of Appeal, the Master of the Rolls issues a stark warning to parties who fail to appear to prosecute their appeals: Leave.EU Group Ltd & Anor v The Information Commissioner [2022] EWCA Civ 109 Read a transcript of this episode at www.barrybaines.co.uk
In what a Lord Justice of Appeal described as a "sort of test case" for dentists, the Court of Appeal decided whether the dentist owed a non-delegable duty of care and whether he was vicariously liable for the negligence of his self-employed associate dentists: Iris Hughes v Rajendra Rattan [2022] EWCA Civ 107
Andrea James is a Solicitor Partner in the Manchester legal firm of Brabners, and for over 15 years has represented healthcare professionals (doctors, dentists, pharmacists, paramedics etc) statutorily regulated by 10 separate bodies. Listen to her views on the length of time it takes to bring professionals before regulatory tribunals, the effect on their mental health and the inadequacies of the current fitness to practise regime.
The Deputy President of the Supreme Court, Lord Hodge, takes the opportunity to explain in this judgment the meaning of statutory interpretation.
With many years' experience as a lawyer in the healthcare regulatory sector, David Gomez talks of the significant changes he has seen: the impracticability of healthcare professionals being regulated by ten different statutory regulators when there is so much interdisciplinary care; the different rules for each of the professions who each have to face their own fitness to practise panels. He also discusses inequality of arms between the regulator and the professional, many of whom cannot afford legal representation, and the role of the Professional Standards Authority which oversees the statutory regulators. Finally, he considers whether a total rethink is necessary about the regulation of healthcare professionals.
Having regard to Article 7 of the European Convention of Human Rights, what was the correct approach to sentencing when the maximum sentence available to the court, if the offender had been convicted at the time of the offences, would by reason of his age have been subject to a restriction which did not apply to an adult? And how was the sentence affected by the Children Guideline which came into effect in 2017?
An orthodontal dental practitioner who had an unblemished career spanning 30 year appealed to the Administrative Court against his suspension with a review, imposed three years after his retirement from practice.
This podcast episode deals with the second part of the Supreme Court's unanimous dismissal of the appeal in this case which considers whether if section 13 of the Terrorism Act 2000 creates an offence of strict liability, is that compatible with article 10 of the European Convention of Human Rights.
In this episode we consider that aspect of the Supreme Court decision on a certified point of law of general public importance whether the offence created by section 13 of the Terrorism Act 2000 is an offence of strict liability. Were three men carrying flags of a proscribed demonstration in a demonstration in London required to have mens rea that they were committing the offence?
An application by the General Medical Council to extend an interim order of suspension upon a doctor for a further eight months was refused on the ground of incomprehensible and indefensible delay by the Medical Practitioners Tribunal, and a period of three months was substituted.
A general medical practitioner who was found by the Medical Practitioners Tribunal to have dishonestly altered medical notes without indicating that they had been so altered, appealed to the Administrative Court against the findings and resulting erasure from the medical register.
A Circuit Judge drew attention to the appalling impact of a failing justice system on the welfare of children: Re K (Inability to Instruct Guardian) [2022] EWFC B4: HH Judge Wildblood QC A year after the parties separated and seven months after the children were joined in proceedings, no effective progress had been made because Cafcass and NYAS had been unable to appoint a social worker because of their workloads, and the Legal Aid Agency would not fund an independent social worker.
An Approved Person appealed to the Upper Tribunal against a decision by the Financial Conduct Authority making a prohibition order against him following a criminal conviction. It was the first time the Upper Tribunal had to consider a case where the FCA was seeking a prohibition order against an individual based on that individual's conviction for a criminal offence not involving dishonesty and the behaviour was unrelated to the individual's regulated activity.
A judicial review of a decision of the Crown Prosecution Service not to prosecute a young teenager for the death of another boy, a non-swimmer, after he had appeared to have been pushed off a ledge and into a river. The claimant was the deceased boy's mother.
Almost four years after spending a three day mini-pupillage with a barrister, a young woman took her complaint of unwanted sexual misconduct to the Bar Standards Board after reading that the barrister had been reprimanded by the BSB for engaging in excessively physical and unwanted contact towards a male pupil barrister
Following a revenge attack between rival groups in October 2004, 17-year-old Sam Hallam was convicted of murder, conspiracy to commit grievous bodily harm and violent disorder, and sentenced to life imprisonment. His appeal was dismissed. Years later the Criminal Cases Review Commission took up the case and referred the case back to the Court of Appeal. Sam's case had always been that he was not present when the events took place. Hear how the identification evidence was shown to be unreliable, how mobile phones had not been interrogated and how the conviction was undermined.
An experienced commercial litigation solicitor, representing himself as an appellant against a decision of the Solicitors Disciplinary Tribunal, was unsuccessful in the Administrative Court in his attempt to overturn findings which resulted in his being struck off the Roll of Solicitors in respect of unauthorised transfers of money.
In this appeal by way of Case Stated against the decision of a District Judge, the Court of Appeal was asked whether the offence of encouraging or assisting the commission of an either way offence contrary to section 45 Serious Crime Act 2007 applied in relation to the possession of a mobile phone in prison when the phone was already in possession of the principal offender before any conduct was carried out by the defendant. It also considered whether the District Judge was wrong to conclude that the conduct of the defendant was capable of encouraging or assisting the offence of possession of a mobile phone in prison on the facts of the case.
The Lord Chief Justice, Lord Burnett, delivers the judgment of the Court of Appeal overturning a High Court Judge's decision to allow a claim for judicial review against the Minister for the Cabinet Office. The decision concerned the award of a contract to Public First Limited in the early stages of the Covid-19 pandemic. The judge had held that the decision to award the contract gave rise to apparent bias contrary to common law principles, based on a combination of the personal association between Dominic cummings and the directors and owners of Public First.
The Parliamentary and Health Service Ombudsman explains his combined complaints service against government and public organisations compared with those against the National Health Service. He speaks of the inevitable backlog created by the Covid pandemic and how his organisation expects to tackle it, as well as explaining the Venice Principles designed to promote and protect the institution of the Ombudsman. Also discussed is the provision of a safe space in the Health and Care Bill which fundamentally affects the Ombudsman's primary powers of investigation, and the condemnation of that proposal by the Venice Commission.
Solicitors Regulation Authority v Soophia Khan & ors [2022] EWHC 45 (Ch) is a case in which a solicitor was sentenced to a term of six months' imprisonment for failing to comply with two court orders to deliver up court documents to her regulator following intervention into her law practice.
The Court of Appeal Civil Division considers the applicable principles for judicial review of decisions made by the Criminal Cases Review Commission. In this case the Applicant had been convicted of murder and unsuccessfully appealed to the Court of Appeal Criminal Division in 1973. After five unsuccessful applications to the Home Secretary for a reference to the Court of Appeal he later applied to the CCRC who, ultimately referred his case to the Court of Appeal which again refused his appeal. He made 8 applications to the Commission between the dismissal of his appeal in 2002 and the application for judicial review in 2019 which resulted in the present appeal.
Maurice MacSweeney from Harbour Litigation Funding explains litigation funding, damages based agreements and the help that is available for litigants. He talks about the availability of funding for solicitors' firms, who may be handling a number of cases, as well as for the litigants involved in the proceedings, the types of cases that are suitable for such funding and those that are not.
Ian Forrester QC LLD, born in Glasgow and the United Kingdom's last judge at the General Court of the European Union before Brexit, has practised law in New York, London and Brussels.
He arrived in Brussels in 1973 as one of the first generation of UK lawyers as the UK joined the European Union.
As an advocate he participated in many leading cases concerning EU law such as Bosman, Bullock (Distillers), GlaxoSmithKline, Servier, Pfizer, Magill, IMS Health and Microsoft.
In this episode with Baines Law he compares and contrasts the different approaches of the EU and UK Courts, the reasons in the EU for the preference for a largely written as compared with oral procedure in the UK, the time permitted for oral advocacy in the EU and the approach to questioning of the advocates.
He gives a deeper insight into the way decisions are reached and talks about the merits, or otherwise, of delivering a unanimous judgment in all cases rather than permitting minority opinions.
And he has a word to say, too, about the difficulties which have emerged and those who have been forgotten by Britain's hasty exit from the Union.
The tale of Christopher Craig (aged 16) who shot a policeman in 1952 in the course of burgling a warehouse, and Derek Bentley (aged 19) who suffered the death penalty for the act his friend committed.
In this case the Lord Chief Justice misdirected the jury about the law and appeared to act as prosecutor rather than impartial judge. A public outcry and a petition from members of parliament was not enough to make the Home Secretary commute the sentence. But this case paved the way for the abolition of the death penalty in 1965. It was not until, rather too late, in 1998 Bentley's conviction was quashed.
His Honour Nigel Lithman QC retired as a Circuit Judge just a few months ago and has just released his book "Nothing Like the Truth: The Trials and Tribulations."
In his engaging style, Nigel Lithman tells Baines Law about the crisis facing the Criminal Bar and the Criminal Justice System: the lack of investment in the decaying court systems and the reasons why trials do not go ahead. He talks of the 60,000 backlog in criminal cases yet to be tried and suggests remedies of his own.
He explains that barristers are leaving the profession because they are grossly underpaid and, all too often, they are subject to bullying from some members of the judiciary who suffer from "judgitis".
What were the swinging sixties like? Was it all drugs and rock'n'roll, and did the leading pop groups at the time engender a culture of loose living? Discover how the establishment sought to defend the perceived morals of the time and how a police raid on Keith Richard's West Sussex mansion led to the discovery of a naked woman in a fur rug and the subsequent drug trial of Mick Jagger and Keith Richard on drugs charges.
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How was it that the death of a great dane in a remote part of the West Country sparked a political scandal and led to the Old Bailey trial of Jeremy Thorpe, then leader of the Liberal Party. Was a gunman hired to frighten or kill Jeremy Scott who had been a thorn in the side of Thorpe? Who was involved in this political intrigue? And was there, as the BBC has since implied, a political cover up to keep the true facts from the public?
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Listen in this episode to the tale of the Italian Banker linked with the Vatican and notorious P2 Masonic Lodge found hanging at London's Blackfriars Bridge. Was it suicide or was it murder? The first inquest recorded a verdict of suicide, but when that was set aside, a second inquest returned an Open Verdict. Was Roberto Calvi's death linked with the Vatican? Or was it linked with the Sicilian Mafia?
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In this introduction to our podcasts on Baines Law you will get a flavour of the first few podcasts and the guests we have in store.