Chapter 3 Guidance to answering the practical exercises

You will clearly have your own views on this very emotive topic.

The issue needs to be defined first.

At 3.3.1 you read that if the police have reason to believe a criminal offence has been committed, they will arrest the suspect and investigate by questioning them and any witnesses, and by obtaining evidence. The CPS (rather than the police) will issue a charge if it decides there is enough evidence to ensure a realistic prospect of conviction. The suspect may be in custody whilst this evidence is obtained. The current maximum detention period is 3 days for most suspects, and 14 days for terrorist offences. During the summer of 2008 the government attempted to extend this period (at the time 28 days) to 42 days, but was ultimately unsuccessful.

Governments face a struggle: how to balance protecting its citizens from the risk of a terrorist attack without undermining the basic human rights of individuals.

One of the key principles enshrined in the Magna Carta was habeas corpus, or the idea that a state must justify the detention of an individual. Chapter 1 examined the importance of human rights such as this to the Rule of Law. During time of war this principle may be ignored in part, subject to some protections enshrined by the Fourth Geneva Convention, an international treaty.

In the UK (unlike in some other jurisdictions), criminal suspects cannot be questioned after they have been charged. This is why the issue becomes so sensitive. Once the suspect is charged, the die is cast. Lord Carlile of Berriew, Q.C., in his Report on Proposed Measures for Inclusion in a Counter-Terrorism Bill, 2007-08 (Cm 7262), said,

"In terrorism cases it is rarely wise or even possible for the police to allow a conspiracy to run, and then arrest at a late stage. The danger of terrorism is so unpredictable, and the potential threat so awful, that early arrest is generally regarded as safe and in the public interest. This can mean that the gathering of a substantial proportion of the evidence of guilty participation must take place after arrest. This can take months…" (Para 20)

Police procedure varies from country to country, but the underlying issue is that detention must be justified by the state. Detention without charge is to be contrasted with detention without trial, or detention without access to a lawyer. The import of these stages varies from country to country. For instance, in Germany, provisional police detention is limited to two days, but is not quite the same in nature as detention without charge in the UK.

Proponents of extended periods of detention without charge point to the protections built into such procedures, e.g. assessment on a case-by-case basis by judges, by Parliament, etc. Opponents maintain that the state must formally justify depriving an individual of their liberty as soon as possible, and that the mechanism in the UK for this is charging the suspect.

A very (in) famous case in this area is A (FC) and others v Secretary of State for the Home Department [2005] 2 WLR 87 (often referred to as the 'Belmarsh case'). The case involved a challenge to provisions in the Anti-terrorism, Crime and Security Act 2001 which permitted foreign nationals suspected of being involved in terrorist activities (but against whom there was insufficient evidence to bring criminal proceedings) to be detained indefinitely without trial. The House of Lords (now the Supreme Court) held that such detention was unlawful and a breach of the European Convention on Human Rights (ECHR). The right to liberty is also contained in Article 5 of the ECHR, which now forms part of UK law following the enactment of the Human Rights Act 1998.

Readers are referred to 3.1.5. There have been concerning trends in both the availability of judicial forums and the ability for citizens to access justice.
You will have read that funding for Her Majesty's Courts and Tribunals Service has fallen considerably in the 2010s. Physical buildings have been sold and courts wither moved or closed. The number of judges has fallen, whilst the workload has remained or risen. Concerningly the number of magistrates (remember these are volunteers) has around halved in the same period.

Legal Aid reforms, including those initiated by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), have seen the reduction in availability of legal aid. Because there is a reduced supply of finance, criminal defence lawyers have seen their working conditions compromised. As a result, there are fewer criminal defence barristers and a plummeting in the number of Legal Aid firms. Funding for Citizens Advice has fallen significantly. This could be argued to have reduced access to justice for those who need it most. As noted in the text, the Independent Review of Criminal Legal Aid reported at the end of 2021 with recommendations for a restructuring at all stages of the criminal process, including a re-examination of remuneration for those involved.
The reader will have noted measurable compromises in access to justice. A raft of civil (including, importantly, family disputes and welfare claims) claims no longer attract legal aid, and wait times for defendants in criminal trials have increased. Those who have to pay to use the justice system, where they might previously have received legal aid, have to make significant sacrifices to the detriment of their quality of life.
Whilst this answer paints a bleak picture of the last decade or so, it is instructive to set out the stated aims of LASPO: to discourage unnecessary and adversarial litigation at public expense, to target legal aid to those who need it most, to make significant savings to the cost of the legal aid scheme, and to deliver better overall value for money for the taxpayer.
Whether these aims, even if delivered, were worth the upheaval described above, is very much a matter of political outlook, but many would see the drawbacks as outweighing the benefits enormously.
Thankfully the increased availability of online courts and online dispute resolution (e.g. of straightforward issues like parking fines) is beginning to improve access to justice in certain areas. Parallels have been drawn to the rise in Alternative Dispute Resolution in the late 20th Century. The potential advantages and opportunities presented by digital courts were an important part of the Briggs Review (Civil Courts Structure Review, Lord Justice Briggs) as early as 2016. Whilst there have been few substantive studies relating to the use of such avenues, particularly since the Covid-19 pandemic, it is clear that this will to some degree mitigate some of the deleterious effects of the reforms set out above, if handled correctly.
Clear issues remain: it is unlikely that online courts can address structural issues in the criminal justice system, and family disputes are arguably not so well-served by the detached nature of online dispute resolution.

At 3.3.1 you read the justifications for trial by jury. Jury trials exist in more than 20 jurisdictions around the World- mainly but not exclusively systems with a common law tradition. Some, for instance the US, use juries in a wider variety of contexts than England- for instance in many non-criminal law contexts. The idea of trial by your peers is certainly appealing.

You also read about the drawbacks of the jury trial. You may even have been a juror yourself.

The arguments concern several issues:

Justice: Do juries adequately achieve justice?
• Are normal people able to grapple with complexities of fact and law sufficiently well to determine the important question of liberty?
• Are members of the public sufficiently able to suspend personal prejudices? What about their use in areas of ethnic concentration? Might this adversely affect justice?
• Are they able to cut through advocates' rhetoric?
• In high-profile cases, how is it possible for jurors to adopt a truly objective approach?
• Is it desirable that their deliberations are secret?
• Is it desirable that their decisions bind the judge (in England)?

Practicalities?
• Are the logistics simply too costly?
• Is it unfair to require members of the public to suspend their daily routine including employment, childcare, etc. for two weeks or more, sometimes just to sit in a waiting room?
• How do you insulate jurors from outside influences?

Principles
• How important is trial by your peers?
• Is it intrinsically desirable for jurors to exercise their civic duty, as a means of engaging people in the society in which they live?
• Is it important for the Rule of Law in a state to place such an emphasis on Jury trial?
Whatever the argument, in England & Wales the momentum is in favour of increased limitations on the right to trial by jury, rather than its expansion.

This is possibly a less emotive question than the others in this chapter so far, but to a lawyer it is important. It concerns the separation of powers in a formal (rather than practical) sense.

The UK Supreme Court devotes some space to the issue, which must mean that it is not purely of academic value. It states 'The Supreme Court was established to achieve a complete separation between the United Kingdom's senior Judges and the Upper House of Parliament, emphasising the independence of the Law Lords and increasing the transparency between Parliament and the courts.'

You read at 3.4.2 that the House of Lords' Appellate Committee had for at least a century been in reality separate from the House of Lords in its legislative capacity—so the change was (in the true sense of the word) formal. This is not to belittle the change. It came as part of the Constitutional Reform Act 2005, which was designed to bring parts of the UK constitution up to date, to reflect the government's aspiration that the state be modernised in its form as well as its operation.

So, was it necessary? Not in the sense that the Appellate Committee couldn't do the job asked of it. But it was necessary in the sense that it was a statement about the constitution.

Since earlier editions of this book, it has become clear that the Supreme Court is more 'muscular'. Whilst not an overtly political entity like its namesake in the United States, it was not afraid to intervene in the tensions between the executive and legislature over Brexit.

This is another very emotive question, about which you will probably hold strong views. Several sources are quoted here, and the author does not necessarily agree with the arguments set out.

There are probably two related issues here:

1. Is religious law, in itself, a good thing in a secular society?

In favour of the use of religious law, many proponents say that, culturally, it makes sense for disputes between people of one culture should be settled by arbiters or judges sensitive to that culture. Two of the more notable examples are Sharia Law (in the Muslim community) and the Beth Din (in the Jewish community).

Interviewed by the BBC, the registrar of the London Beth Din, David Frei, said that the procedure, like any arbitration, was entirely voluntary, "There's no compulsion. We can't drag people in off the streets." Both sides in a dispute must have agreed to have their case heard by the Beth Din. Once that has happened, its eventual decision (as in any arbitration) is binding.

Similar logic applies to the Sharia courts.

Opponents would maintain that the cultural pressure to accede to the jurisdiction of a religious court must be immense. Those who oppose Sharia courts in the UK point to what they maintain; that there is an inherent prejudice against women and children in sharia law. An internet search will yield many articles on either side of the debate. Arguments against are clearly set out at One Law for All and in favour at the Muslim Arbitration Tribunal. This Guardian article from 2016 sought to sum up these views.

These are clearly very controversial issues, and you will have their own views.

2. Are religious courts in some way 'bad' for the English legal system? One important aspect of this is whether the decisions of a religious court are compatible with the law of England & Wales. The Muslim Arbitration Tribunal website adopts a consistent policy of being in accordance with the 'law of the land'.

One facet of the Rule of Law is the protection of human rights, including religious freedoms. If a religious community chooses to allow its members to resolve their disputes in culturally appropriate forum, then (the argument goes) this must be good for the Rule of Law. Opponents of religious law maintain that (on the contrary) because of an inherent bias against sections of the relevant community, another fundamental principle of the Rule of Law, that laws should apply equally to all, is infringed by religious courts. Again, this argument is something that you may have your own views on.

Another aspect is the degree to which decisions of religious courts are formally subject to the oversight of secular courts. If an English Court has the realistic ability to scrutinise rulings of a religious court, then this must operate in favour of the religious court having no negative effect on the English Legal System. The converse must also be true.

On 23 October 2008, Bridget Prentice, then Justice Minister, said in Parliament,

"We do not issue any guidance on the validity of fatwas or other rulings by a religious authority because there is no need for such guidance. Sharia law has no jurisdiction in England and Wales and there is no intention to change this position. Similarly, we do not accommodate any other religious legal system in this country's laws. Any order in a family case is made or approved by a family judge applying English family law.

If, in a family dispute dealing with money or children, the parties to a judgment in a Sharia council wish to have this recognised by English authorities, they are at liberty to draft a consent order embodying the terms of the agreement and submit it to an English court. This allows English judges to scrutinise it to ensure that it complies with English legal tenets.

The use of religious courts to deal with personal disputes is well established. Any member of a religious community has the option to use religious courts and to agree to abide by their decisions but these decisions are subject to national law and cannot be enforced through the national courts save in certain limited circumstances when the religious court acts as arbitrator within the meaning of the Arbitration Act 1996. Arbitration does not apply to family law and the only decisions which can be enforced are those relating to civil disputes.

Religious courts are always subservient to the established family courts of England and Wales." (from House of Commons Hansard Daily Answers 23 Oct 2008)

So- formally speaking, the English legal system is not undermined by the use of religious courts. Does this reflect reality? One response might be that if either party would choose to use a 'normal' court or tribunal to pursue their claim or to defend against a claim, but is unable to do so because of pressure to accede to a religious court, then the legal system is undermined.

Ms. Prentice's statement was met with some criticism at the time, on the grounds that the formal ability of English judges to scrutinise Sharia rulings was not practicable. A very strongly worded rebuttal was written in the Telegraph, by Chris Hastings (25 October 2008), who quoted Dr David Green, the Director of the Civitas think tank, said:

"I think there are a number of problems with regards to Sharia law. These Sharia councils are supposed to operate under the Arbitration Act which allows citizens in a free society to settle their disputes on a voluntary basis if they so wish. … But that legislation assumes that both parts are regarded as being equal. I think the problem is with tribunals like these you can't always be sure that women would be treated equally."

It is notable that, when the Appellate Committee of the House of Lords was replaced by the Supreme Court, the Privy Council's Judicial Committee (the JCPC) remained.

Certainly, if one reads about the JCPC, it is steeped in history. It bears all the hallmarks of an institution clinging onto the patina of history. The slightly esoteric relationship of the JCPC with the Privy Council as a whole (the body empowered to advise the monarch on the exercise of the royal prerogative, among other functions) further enhances this impression.

A detailed account of these arguments can be found in A British Empire Court - A Brief Appraisal of the History of the Judicial Committee of the Privy Council by Thomas Mohr.

Its jurisdiction is varied. Mainly it remains the final court of appeal for some Crown Dependencies and Commonwealth states, providing what can be viewed either as a final court of appeal, with the backup of the resources of the UK Supreme Court (sometimes with local judges seconded into the bench), or as an interfering relic of Empire. Many countries have opted out- notably the larger Commonwealth states. However this may be more reflection of those states' mature appellate systems, than any desire to rid themselves of influence of the old colonial power.

Another jurisdiction is to hear various UK appeals, for instance for some ecclesiastical cases. It performs a function when there is no adequate alternative- and as such can sometimes seem a little out of step- for instance it was for a while the court for hearing devolution matters, until the UKSC was created.

So, although it may have the features of a relic, and while its jurisdiction may be an accident of history, some commentators argue that it performs a useful series of functions, and that getting rid of it as some kind of modernisation exercise may be a retrograde step.

Again, you may disagree.