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Tag Archives: Kenneth Clarke

Why Ken Clarke is wrong on the veil in court

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Picture the scene. The UK Prime Minister, David Cameron, has called Ken Clarke in on Sunday morning for an important and urgent job. He is without portfolio but that doesn’t mean is without his uses.

“What ho, prime minister! Not chillaxing today?” asks the jovial former Lord Chancellor.

“No, Ken. There’s important business afoot. We need a little air cover. We want you to dominate the news headlines.”

“I’m the man for the job,” beams Ken, he of the “some rapes are more serious than others” claim.

“Great,” says Cameron. “Now, go out and say something about veils. Any old b– – – will do.”

Ken duly complies. It is not certain why he needs to do this important job. It may be a precursor to justice secretary Chris Grayling coming over all “tough on veils” by announcing a ban on them for witnesses giving evidence in court (though a ban is not really within his immediate powers); or it may be to deflect attention from the embarrassing U-turn on migrant visa bonds.

Whatever it is, Ken rises to the challenge. How did he approach this sensitive subject? By blundering in with his size 10 Hush Puppies. In passing he denigrated the attitude of women who wear veils as archaic and strange: “It’s a most peculiar costume for people to adopt in the 21st century.” Read the rest of this entry

Lady Neuberger condemns Constitutional Reform Act 2005 amendments in Crime and Courts Bill 2012

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Lady Neuberger has described as “a disgrace” the plans to put the Secretary of State for Justice on the commission appointing the President of the UK Supreme Court and the Lord Chief Justice.

Placing a government representative on the panel would breach the constitutional division of powers between the political executive and the judiciary, she said (reported here). She joins the chair of the Lords Constitution Committee, Baroness Jay, in criticising the plan set out in the Crime and Courts Bill 2012.

The Bill has important amendments to Britain’s Constitutional Reform Act 2005 that reduce the independence from the Government of judicial appointments in various ways.

In particular the Secretary of State for Justice (aka Lord Chancellor) is to sit on the appointment commission for the President of the Supreme Court (while the sitting president himself would be removed) and on the appointment commission for the Lord Chief Justice; there is to be a new requirement that he be consulted on other senior judicial appointments; whole sections of the 2005 Act on judicial appointments procedure are to be removed; powers to decide how to replace those sections are given to the Secretary of State; as are powers to decide the make-up of the Judicial Appointments Commission (with a view to increasing the proportion of lay members compared with judicial members); the Secretary of State will have the power to repeal or amend those sections.

It is intended that the 12 Supreme Court justices should become a “maximum” of 12 (or full-time equivalents) with the Secretary of State deciding exactly what number is required.

There are also amendments intended to increase diversity such as provision for part-time judicial posts and a “tipping point” provision whereby diversity requirements can come into play if two judicial candidates are deemed of equal merit.

According to the Home Office publicity the bill will “reform the judicial appointments process to promote greater transparency and improve judicial diversity”.

What it nowhere mentions is that it will bring the Lord Chancellor into a direct role in appointing the President of the Supreme Court and Lord Chief Justice. The ancient title of Lord Chancellor, once the highest judicial figure in the land and ranking after princes of the blood and the Archbishop of Canterbury, now hides the face of a purely political ministerial appointee, the Secretary of State for Justice, currently Kenneth Clarke. So the result (and intention) of the legislation is to gain a political handle on judicial appointments, taken away from the political realm by the 2005 Constitutional Reform Act.

The public statement (see below) makes no mention of this. Nor does it mention that in future the Lord Chancellor will be given powers to change the judicial appointments procedure at will (with minimal and passive oversight by Parliament).

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Judicial diversity: Lords call for positive discrimination and targets

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The Lord Chancellor and Lord Chief Justice should be under an obligation to encourage diversity in Britain’s judicial appointments – and targets for women and ethnic minority appointments should be set if diversity is not improved within five years, according to a House of Lords Committee.

Minorities should be given priority when the choice of appointee is between equally qualified candidates, says the report by the Lords Constitution Committee. Dubbed the “tipping point” procedure by the Lord Chancellor, Kenneth Clarke, it would utilise Section 159 of the Equality Act 2010 which allows an element of positive discrimination where candidates are equally qualified. It cannot be used for judicial appointments, some argue, since judges must be appointed “solely on merit”, according to s.63 (2) of the 2005 Constitutional Reform Act (as explained here).

‘We do not consider that the concept of merit should be narrowly focused on intellectual rigour … a more diverse judiciary can bring different perspectives to bear on the development of the law and to the concept of justice itself’ Lords Constitution Committee

The committee’s report wants changes in the career structure for the judiciary as well as in work conditions – allowing more part time working and careers breaks as well as encouraging non-barristers to apply for higher judicial posts. The committee, in a series of hearings (all reported on Alrich’s Weblog), has heard calls for a more structured career option for judges, drawing on the skills of lower tier tribunal judges and chairs as well as advocates and also putting in place formal appraisal procedures and career development. Retirement age for Court of Appeal and UK Supreme Court judges should rise to 75 in part to give opportunities later in life to those who haven’t followed a conventional career.

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Ken Clarke gets his Henry VIII clause into judicial appointments

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We need to talk about Ken – in particular the UK Lord Chancellor, Kenneth Clarke’s dangerous delusion that he has – or should have – Henry the Eighth powers.

As it happens, Clarke would make a rather good Henry VIII. Imagine Good King Hal as a bluff genial figure in the Carry On Henry mould, like the cigar-chomping Sid James, or perhaps with a bit of edge to him, something a little more like the Charles Laughton version – jovial but ruthlessness. Imagine, too, a man who by his proclamations can sweep away whole areas of constitutional law.

For this is what Clarke intends in his (as yet putative) Constitutional Reform (Reform) Act 2012 – the Act he is working up to “reform” the 2005 Constitutional Reform Act. This, for the first time in our history, enshrined separation of powers in our constitution – that the judiciary should be independent from the Executive and from Parliament.

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Ken Clarke defends plans for government role in judicial appointments

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The Lord Chancellor, Kenneth Clarke, has defended his proposals to give the government a bigger role in appointing senior judges, saying it would help in the important relationship between the executive and the judiciary.

Speaking at the 12th hearing of the House of Lords constitution committee into judicial appointments, he said: “I am in favour of no political patronage in appointments,” adding that his consultation paper, published late last year, makes it clear the Lord Chancellor would not take a direct role. “But with the [appointment of the] Lord Chief Justice and the President of the Supreme Court, there should be greater involvement of the Lord Chancellor because the executive should have more influence in that, but not a decisive one.”

The proposal is for the Lord Chancellor (now Secretary of State for Justice, Clarkes’s preferred title, he revealed) should sit on the panels appointing the two senior roles.

He said: “The one absolutely immoveable thing is that we appoint on merit … The second thing that I regard as absolutely immutable is the independence of the judiciary. No suspicion of political patronage should come back.” He added: “We now have a system that makes it absolutely clear that it is independent of the political sphere.”

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A lesson from history: don’t politicise judicial appointments, says senior judge

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Parliament or government should not be brought into Britain’s judicial appointments process, a senior judge has told a House of Lords committee. To bring politics back into appointments “would be against our own history,” said Lord Justice Toulson, vice-chairman of the Judicial Appointments Commission (JAC).

His comments follow suggestions from the Ministry of Justice that the Lord Chancellor, who is a member of Parliament and political appointee to the Cabinet, should have more power in judicial appointments. An MoJ consultation paper asks whether he should sit on panels appointing to the most senior judicial posts (President of the Supreme Court and Lord Chief Justice) and/or should have power to give his view on short lists of candidates for other senior positions (Lord Chief Justice, Heads of Division, Senior President of Tribunals and Lords Justices of Appeal). At present the Lord Chancellor simply has a limited veto of the single name presented to him in each case.

The Judicial Appointments Commission is an independent body set up under the 2005 Constitutional Reform Act. Toulson told the Lords Constitution Committee at its eleventh session on judicial appointments that the power the Lord Chancellor had over the JAC was a narrow one, deliberately limited by Parliament. The JAC was not a servant of the Crown.

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Ken Clarke’s piratical band hijacks judicial appointments inquiry

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What, it must now be asked, is the point of the House of Lords Constitution Committee hearings on judicial appointments?

The committee set out in fair weather in the summer on a stately voyage to explore the waters of the British constitution with the aim of balancing accountability, independence, transparency and the need to foster diversity in judicial appointments.

Meanwhile the oily-fingered engineers in the dark recesses of the Ministry of Justice, headed by the Lord Chancellor, Kenneth Clarke, were constructing a less majestic vessel which they launched as a public consultation document last week – Appointments and Diversity: A Judiciary for the 21st Century.

This seems not only to have taken the wind out of the Lords committee’s sails but to have hijacked the process altogether, with some pretty clear plans – among them proposals to bring a political role back into judicial appointments. Cap’n Ken and his piratical crew are steering the debate, full steam ahead, into waters very much of their choosing.

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Kenneth Clarke: there should be a positive duty to appoint women and ethnic minority judges

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Kenneth Clarke, the Justice Secretary, has announced a plan for “positive action” in judicial appointments to favour women and members of ethnic minorities and promote diversity. He wants to put an obligation into the appointments procedure to choose a person from an under-represented group when there are candidates of equal merit and increase posts for part-time judges.

Clarke told Woman’s Hour: “One of the more straightforward things I’m suggesting is that we enshrine in law for the resolution of doubt that other things being equal when you have two candidates of equal merit, you should prefer the under-represented group . There’s nothing wrong in that.”

The announcement suggests he will go further than Labour’s Equality Act of 2010, which allows employers, if they want, to choose a candidate from an underrepresented group in “tie-break” situations (see guidance note below). He envisages a change in the law for a “tie-break provision” making positive action in such cases obligatory for judicial appointments. Read the rest of this entry

Kenneth Clarke says stab a burglar. Is that reasonable?

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David Cameron is a reasonable man. So we know that if, with evil intent, we were to get past the policeman at the door of 10 Downing Street and find ourselves confronting the prime minister on the stairs, he would use no more than reasonable force to deal with us.

But he seems to feel that others, notably judges, are less clear than he about what reasonable force would be. Can you bash a burglar? Can you stab a burglar? Can you kill a burglar as he rifles through your treasures?

Mr Cameron seems to know the answer and has said: “We will put beyond doubt that homeowners and small shopkeepers who use reasonable force to defend themselves or their properties will not be prosecuted.”

Now the UK justice secretary, Kenneth Clarke, transformed from Hush Puppy to Rottweiler after the unpleasantness over halving of prison sentences, has bared his teeth.

We will make it quite clear you can hit a burglar with a poker if he’s in your house and you have a perfect defence when you do so,” he has said. “If an old lady finds she’s got an 18-year-old burgling her house and she picks up a kitchen knife and sticks it in him, she has not committed a criminal offence, and we will make that clear.”

One assumes that No 10 and doubtless the lord chancellor’s residence do indeed possess such retro items as pokers. Most modern centrally heated homes do not. The preferred means of self-defence in the contemporary Englishman’s castle is an American baseball bat hidden under the bed.

In the case of Lee Gapper who used just such a baseball bat on a burglar, he and his lodger were held and questioned for a time when the burglar alleged assault against them. Ultimately no charges were brought against the pair and the judge sentencing the burglar told him he had got what he deserved.

But it is a grey area since a baseball bat, particularly one under a bed, has little purpose within the United Kingdom jurisdiction but to hit people (burglars themselves sometimes use them). Will Mr Clarke’s new law stretch to allowing the keeping of offensive weapons about the place on the off-chance of a burglar’s visit?

What of the feisty old lady, simply resorting to kitchen implements for her defence against that most reviled of human being, an 18-year-old? Will the new law also sanction a 21-stone muscles-in-his-spit bruiser, perhaps also aged 18 or thereabouts, reaching for the cutlery canteen for his weapon of choice?

Those demanding tougher laws (or should that be weaker laws? It depends which way you look at it) may be surprised that current law does answer these and other questions – and generally falls down on the side of the householder, though not regarding the keeping of offensive weapons.

A householder has the right of self defence (and defence of another person) under common law and also some right to defend his property since reasonable force is acceptable to prevent a crime.

The statute law is in the Criminal Justice and Immigration Act 2008 Section 76 This builds on the common law of self defence – that reasonable force can be used against a potential attacker. You can even use such force if you are mistaken about the threat to yourself. The 18-year-old might be a wretched coward who would run for the door at the sight even of a little old lady, but if she genuinely thinks he is a danger, she can defend herself.

We are assuming the lady is not drunk. If her mistaken belief is “attributable to intoxication that was voluntarily induced” (too many port and lemons before bedtime) she would lose the defence against a wimp, though not against an actual vicious brute.

A person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose. S.76 (7)(b)

Although you must use only reasonable force, you are not expected to make a perfect surgical strike, enough only to temporarily disable your attacker rather than maim or kill. It is accepted “that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action” S76 (7)(a).

The bruiser is also covered. If, rather than a timid old lady, you are just the sort of person who is up for a fight and might relish the ingress of villains to practise your pugilistic skills, you will still have a good legal defence against allegations of assault assuming you act reasonably given an honest belief about the threat you are under.

However, once you have struck a disabling blow or one sufficient to send the burglar scuttling, you cannot follow it up with further beating or stabbing just because you are so angry at the burglar or the state of the law that you simply want to get revenge. Hence the case of Munir and Tokeer Hussain, jailed for chasing a burglar, dragging him back and subjecting him to a “dreadful violent attack”. You do not have a right to kill or maim someone just because that person has burgled you or even threatened you with death (as had the burglars in this case).

Much is made of the Tony Martin case by those calling for “clarification” of the law. If there was ever a bad case (potentially) making bad law then this is it. The farmer was in illegal possession of a shotgun. He became aware of intruders and armed himself with the gun to confront them. He told the court he had been coming down stairs, was blinded by a flashlight, feared whoever was holding it and fired three times. He denied hearing the burglars before they entered his home, arming himself and lying in wait downstairs with intent to shoot them. Forensic evidence, however, suggested two shots could not have been fired from the stairs, though the fatal one might have been. Any self defence claim rested on Martin having come down the stairs, not his being ready downstairs for the intruders.

Ultimately a murder verdict in the Tony Martin case was changed on appeal to manslaughter by reason of diminished responsibility. Martin’s depression “exacerbated his paranoid personality disorder”. It follows that he did not act “reasonably” to defend himself – far from it.

We know that a clarification of the law is coming because the government keeps saying it is coming. This clarification may be in the new justice bill – or not; Downing Street is being unclear on the matter. But, short of a law saying that “anything goes” within the home, nothing is likely to avoid debates in criminal courts and beyond about the reasonableness of a defensive action. Certainly nothing said by Cameron or Clarke should encourage little old ladies or anyone else to tool up ready to waste anyone found on the wrong side of the door.

Note: Since publication of this piece, the government has produced new self defence legislation, discussed here: After Trayvon Martin, Britain’s ‘stand your ground law’

The new Justice Secretary, Chris Grayling, has also had his two penn’orth and is saying he will tighten the law further to allow “disproportionate” force to be used against burglars as long as the householder acts “honestly and instinctively”. This, on the face of it, is exactly the state of the law at present on the basis of the “can’t be expected to judge to a nicety” doctrine on the level of response necessary.

Here is a brief but clear statement of the law from a criminal QC: Self-defence, an idiot’s guide

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