Monthly Archives: March 2012

Justice and Security?

A further legal legislative controversy may be headed the government’s way once LASPO has finished it’s likely ping-pong between Lords and Commons.

The Justice and Security Green Paper published last year proposed introducing Special Advocates and Controlled Material Procedures (CMP) across all civil proceedings, including inquests.

The proposal in the Green Paper is to apply CMPs to “any civil proceedings in which sensitive material is relevant”. The CMP would apply on the decision of a Minister. The Minister’s decision would be challengeable only by way of judicial review. The government’s Independent Reviewer of Terrorism Legislation, David Anderson QC, has recently stated that he supports the measures: “it does not seem to me that the level of injustice inherent in the use of a CMP (closed material procedure) in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought”.

The argument the government rely on is the need to resolve a small number of cases which involve information which cannot, it is argued, be put before an open court for “public interest” reasons. Public interest is defined widely. The proposal has arisen as a consequence of the Binyam Mohammed case where the government argued that the security relationship between the UK and the USA was jeopardised by the decision of the Court of Appeal to require the trial of his claim against the UK government for complicity in his ill-treatment and unlawful detention by the US authorities to be held in public, and the High Court decision to require disclosure of documents to Mr Mohammed.

The measures are likely to be highly controversial amongst the legal community. Of the 69 Special Advocates currently acting in Special Immigration Appeal Commission (SIAC) and TPIMs (formerly control order) cases, 57 put their name to highly critical response to the Green Paper with the others having been consulted and not disagreed with their response. The SAs say in their response: “The introduction of such a sweeping power could be justified only by the most compelling of reasons. No such reason has been identified in the Green Paper and, in our view, none exists.”

It is notable that media as diverse as the Guardian and the Daily Mail have been campaigning against the proposals. The government’s response is expected to be a Bill included the Queen’s Speech in May.

Joanna Shaw

jshaw@1ec.co.uk

Joanna practices across matrimonial and family law,property, housing and employment law matters. She is a member of the Council and Board of Liberty, the organisation which campaigns for human rights and civil liberties.

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Caroline Waterworth Insolvency Article

Caroline’s article on the relevant law and considerations when one person is inadvertently made bankrupt twice by two separate orders has been published on Jordan’s Insolvency Law portal at the following address:

http://www.jordansinsolvencylaw.com/articles/guest-post-by-caroline-waterworth-two-bankruptcy-orders

Caroline Waterworth

cwaterworth@1ec.co.uk

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Financial Remedy Orders – an end to intervenor problem

In Goldstone v Goldstone [2011] EWCA Civ 39, [2011] 1 FLR 1926 the Court of Appeal identified a gap in the FPR as to joining parties (intervenors) to aplications for financial remedy orders under FPR Part 9. It appears that the Family Procedure Rules Committee have decided to add a new rule (provisionally 9.26B) to address this.

The court can exercise the new powers under it’s own initiative or at the application of a party, such application to be made under the Part 18 procedure.

The rule will provide – along the same lines as CPR r19.2 – that the court may direct that a person (or body) be added to proceedings for a financial remedy if:

(a) it is desirable to add the new party so that the court can resolve all matters in dispute in the proceedings; or
(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute and it is desirable to add the new party so that the court can resolve that issue.

The rule will also provide for a party to be removed where no longer desirable for them to be a party to the proceedings.

Joanna Shaw
jshaw@1ec.co.uk

Joanna practices across matrimonial and family law, property matters, housing and employment law.

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