Jonathan Mitchell QC

R v Chambers, [2008] EWCA Crim 2467, is an English Court of Appeal decision (thanks to Ruthie for pointing to it) in which prosecuting counsel instructed by HMRC was eviscerated by the court for failing to do his homework: the prosecution was for a supposed breach of regulations which had effectively been repealed seven years before, as was discovered by chance when an appeal against conviction of this non-crime was about to be refused. The excuse was that, um, neither HMRC nor successive prosecution counsel knew, er, that the OPSI website only publishes subordinate legislation as originally passed, not as amended; so the prosecution was based on the original regulations. There seem to have been many such prosecutions:accused, defence solicitors and counsel, and courts had all guilelessly taken HMRC’s word for it that the regulations founded on were still in force.  Continue Reading »

Thanks to a rather inaccurate1 article in yesterday’s Guardian for pointing to a study by the Centre for Socio-Legal Studies of the University of Oxford on the comparative costs of defamation proceedings in eleven European jurisdictions, not including Scotland. The conclusion, describing the exorbitant cost of a decision to litigate in England rather than elsewhere, was this:

The data showed that even in non-CFA cases (where there is no success fee or insurance) England and Wales was up to four times more expensive than the next most costly jurisdiction, Ireland. Ireland was close to ten times more expensive than Italy, the third most expensive jurisdiction. If the figure for average costs across the jurisdictions is calculated without including the figures from England and Wales and Ireland, England and Wales is seen to be around 140 times more costly than the average².

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1. The author believes, for example, that we have Conditional Fee Agreements in Scotland. [back]
2. Page 3. [back]

It was reported yesterday that the Asylum and Immigration Tribunal had agreed to pay damages and costs to an eminent expert witness, Dr Alan George, who had been defamed in a recently-issued (but now withdrawn) decision of the Tribunal. This is, so far as I am aware, unprecedented; a decision of a tribunal might be expected to be protected by absolute privilege. It is however unsurprising that it is this particular tribunal which has established such an unenviable precedent. Continue Reading »

The Asylum & Immigration Tribunal website lists all current, or supposedly current, country guidance cases. These are, in effect, binding precedents on the facts, in terms of paragraph 18 of the Tribunal’s Practice Directions: ‘unless it has been expressly superseded or replaced by any later “CG” determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal: (a) relates to the country guidance issue in question; and (b) depends upon the same or similar evidence‘. At the time of writing, no less than 26 such cases are listed as current in relation to Iraq. An important one is SM & Others (Kurds – Protection – Relocation) Iraq CG [2005] UKIAT 00111 (note the initials; the Tribunal rightly anonymises appellants). Continue Reading »

I’m writing a fuller post on this, because it’s an important and topical judgment, but the Inner House decision in RAB v MIB referred to in the previous post was published on 12 September. See also the 11 September debate in the Scottish Parliament on family law issues, with particular reference to contact and cross-border disputes.

There was an odd story on the BBC Scotland website last night to the effect that a ‘Mr B’ had won an appeal against a sheriff court decision that a child residence case should not be determined in Scotland but in England. According to the BBC, ‘Three judges have ruled that an English Court without jurisdiction awarded the mother the right to keep her daughter. The judges also overturned rulings by sheriffs in Aberdeen that the case should be heard in the English courts.’ Although anonymised, this is fairly obviously a reference to the litigation previously in the Court of Session in RAB v MIB, Inner House, 12 August 2005, which gives its history¹.

Now, what’s odd about this is that there is no report of any such decision today on the Scottish Courts website² or on the noticeboard outside Court 1. Continue Reading »

1. See, for further background, a long series of Scottish and English judgments including Bennett v Bennett, Sheriff Principal, 20 January 2004; B v. B, English Court of Appeal, 28 May 2004; Bennett v Bennett, Sheriff Principal, 29 November 2004; Bennett v Bennett, Sheriff Principal, 18 January 2005; and Bennett v Bennett, Sheriff Principal, 15 January 2007. [back]
2. The BBC don’t link to any decision; following their usual idle practice when referring to Court of Session decisions, they link only to the Scottish Courts ‘welcome’ page. [back]

C v C, 2008 CSIH 34, a recent international child abduction case in which I was senior counsel for the petitioner, is, I understand, the first reclaiming motion in recent years in which the court ordered limits on how long the parties might address the court. The relevant part of the interlocutor of 23 April reads:

‘In respect of the Summar Roll hearing, direct the party reclaimer and first respondent¹ to address the court on 13th May 2008 from 10.30 am, or as close as may be, until one pm; allow the other parties² two hours each thereafter to address the court, with a right of reply if appropriate.’

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1. The same person. [back]
2. The petitioner and the curator ad litem to the children. [back]

It is twenty years since the United Kingdom introduced the principle of carriers’ liability for immigration, by which transport operators are penalised if they fail to operate an entirely effective system for policing immigration: see this article for a concise explanation of the legislation in its context. This principle has, however, a far more ancient ancestor in Scots law than is generally known.

On 21st June 1614 the Privy Council passed the following Act: Continue Reading »

From 1975 to 2006, the European Young Lawyers Scheme brought about ten lawyers from all over Europe to Edinburgh for six months. Universally known as the Eurodevils, they were welcomed to the Faculty of Advocates every May to July, and as their devilmaster it was a pleasure to work with Dorthe Pederson (Denmark), Katarína Lenghardtová (Slovakia), Gerda Vastagh (Hungary), Bora Balci (Turkey), Johanna Aho (Finland), Patrick Govaert (Belgium), and Serenella de Lucca (France). Continue Reading »