Published: Fri, 12 Oct 2018
Youth and Criminal Justice Act 1999
One of the practical realities affecting the criminal justice system is that the success or failure of many criminal prosecutions depends largely upon the availability, and quality, of evidence given by witnesses. It is also an unfortunate reality that, in many such cases, the witness or witnesses relied upon by the prosecution require assistance or, in extreme cases, protection so as to give the best testimony possible. The issue is perceived to be particularly acute where key witnesses are children and may be required to testify to abuse that they, themselves, have suffered, although the same difficulties often arise with adult victims, for instance in the context of domestic abuse. Securing a conviction, therefore, often turns on the ability of the court system to accommodate the special needs of vulnerable or at-risk witnesses, and in that respect the existing legal and procedural regimes were broadly considered to be inadequate. The Youth Criminal Justice and Evidence Act 1999 (YCJEA) was introduced as part of New Labour’s stated aim of modernising the youth justice system.
The YCJEA was introduced with a view to facilitating the ability of vulnerable and/or intimidated witnesses to give evidence efficiently and safely in criminal court proceedings. The principal aim, therefore, is to strengthen the hand of the prosecution in criminal cases by allowing vulnerable witnesses to access a range of measures designed to improve the quality of evidence given and to allow testimony from witnesses that might previously have been unable to participate, and so would have been considered incompetent to give such testimony.
In legal terms, as is indicated above, the methodology of the YCJEA revolves largely around the introduction of a series of ‘special measures’, introduced in Part II of the Act, as well as significant procedural reform of the youth criminal justice system, introduced in Part I.
Part I enacts a new sentencing disposal with respect to youth offenders, permitting referral to a Youth Offender Panel, with such referral being compulsory for first-time offenders. Part I also provides for the drawing up of ‘youth offender contracts’ and a ‘programme of behaviour’ with a view to lowering rates of recidivism. This aspect of the YCJEA has since been repealed and consolidated by the
Part II YCJEA introduces a number of provisions which are designed to facilitate the gathering and giving of evidence by assisting vulnerable witnesses. These measures apply to both prosecution and defence witnesses (but not the defendant) and include: provision of privacy screens (s.23), the ability to testify via live-link from an outside location (s.24), the ability to exclude members of the public and press (s.25), the use of intermediaries (s.29), prohibition of cross-examination, in person, by the defendant in certain cases (ss.34-36) and the ability of the court to enforce reporting restrictions (s.46).
Section 41 of the Youth and Criminal Justice Act 1999 is geared specifically towards the protection of complainants in proceedings for sexual offences by restricting evidence of a complainant’s sexual history, or questioning concerning said history, except for certain exceptions.
In essence s.41 institutes a structured approach to the exercise of judicial discretion in sexual offences cases, effectively limiting the circumstances in which evidence of a complainant’s sexual history can be admitted or examined.
In addition, the court must be satisfied that to refuse leave would result in an unsafe conclusion being drawn on a relevant issue of trial. Permission will also be refused by the court if it is considered that the principal aim of evidence claimed to relate to a relevant issue is simply to undermine the complainant's reliability.
Section 45, which disapplies section 38 of the Children and Young Persona Act 1933, provides that a court may direct that no matter pertaining to any person concerned in the proceedings can, while they are under 18, be included in any publication if said inclusion is likely to lead members of the public to identify them as a person concerned in the proceedings.
Section 45 should be read in conjunction with s.45A, which allows for lifelong anonymity to be granted if the requisite conditions of the section are made out. Such a direction may only be made if the quality of the evidence given by the person in question, or the level of co-operation given by the person as a party to the proceedings, is likely to be diminished due to fear or distress at their potential identification as a person connected with the proceedings.
Parliamentary Standards Act 2009
In 2009 the Daily Telegraph published a series of damaging reports cataloguing various revelations pertaining to the allowances and expenses claims submitted by a number of MP’s and members of the House of Lords. The expose revealed, amongst other alleged and proven misconduct, a culture of oppression with respect to the Fees Office and a series of claims for purchases and expenses which bore little or no relevance to the ability of said MP’s to carry out the functions of their office. Amongst the more spurious claims were those made with respect to the cleaning of a moat, the purchase of toiletries, the expenses incurred in employing domestic staff, bulk supplies of manure, a top of the line home entertainment system and an allowance for the cost of installing a floating duck house for a garden pond. It is worth noting that not all claims were allow, yet the fact that certain MP’s were prepared to make the attempt implied fundamental flaws in the operation of the allowances system and severely eroded public faith in the integrity of elected officials.
The resulting public outcry carried with it demands that Parliament take steps to reform the current system and introduce much needed independent oversight. The response came swiftly, with the Parliamentary Standards Bill moving through both the Commons and Lords in a matter of weeks before coming into force on July 21st 2009.
The principal aim of the PSA 2009 is to reform the procedure by which MP’s submit expenses and allowances claims, as well as the assessment of those claims, by moving away from the previous system of self-regulation (perceived to be a catalyst for abuse) and towards a system of largely independent oversight, with a view to ensuring transparency and discouraging the submission of spurious or fraudulent claims. The PSA 2009 also aims to reinforce the aspects of the new regime by buttressing the new regulatory framework with newly introduced criminal offences relating specifically to the submission of misleading or fraudulent claims, although the PSA 2009 as enacted does not go as far as the initial Bill, in that several proposed offences did not survive the passage of the Bill through the House of Commons.
The chief innovations of the PSA 2009 lie in the creation of a separate, independent regulator, the Independent Parliamentary Standards Authority (IPSA) to oversee the development and administration of a new scheme for MP’s allowances and for the determination of claims. The IPSA is responsible for drawing up rules concerning the disclosure of Members’ financial interests, superseding the operation of the register formerly established by Resolution of the House. The PSA 2009 also introduces the office of Commissioner for Parliamentary Investigations, with the Commissioner being tasked to investigate allegations of misuse of the allowances system and breaches of the financial interest rules.
Section 3(1) is the most significant provision, as it provides for the introduction of the Independent Parliamentary Standards Authority (IPSA), with section 5(3) imposing the relevant duty to prepare an appropriate allowances scheme and to subject this scheme to regular review and revision, if necessary.
Section 10 of the PSA 2009 introduces a criminal offence of submitting false or misleading information in the specific context of a parliamentary claim for allowances. Section 10(1) states that the offence will be made out with respect to the application of an MP where said MP:
Submits a claim under the MP’s allowances scheme, and
Provides information for the purposes of that claim the member knows to be false or misleading in a material particular.
The section 10 offence is triable either way, with the penalty in the event of both summary conviction and conviction on indictment being a sentence not exceeding twelve months imprisonment, a fine not in excess of the statutory maximum, or both.
Section 15, sometimes referred to as the ‘renewal’ clause, provides that a number of PSA 2009 provisions will cease to have effect two years from the date on which section 8 enters into force unless they are renewed by order of a Minister of the Crown. The introduction of s.15 is a hedge against the possibility that function of IPSA and the Commissioner may have unforeseen consequences, given the fast-track nature of the Act’s passage into law.
Localism Act 2011
The Localism Act 2011 was introduced as part of the Coalition government’s ‘Big Society’ initiative, which was predicated on a drive towards the integration of the free market within a theory of social solidarity based on increased decentralization and a greater emphasis on localism and voluntariness.
The stated summary given within the Localism Act 2011 itself provides that the purpose of the Act is, amongst other ‘general purposes’, to make provision for the functions and procedures of local and certain other public authorities; to make provisions regarding the functioning of the Local Commission for Administration in England; to enable the recovery of financial sanctions imposed by the Court of Justice of the European Union on the United Kingdom from local and public authorities; to make provision for local government financing; to make provision for town and country planning and the Community Infrastructure Levy; the authorisation of infrastructure projects of national significance; to make provision for social and other housing and finally, to make provision about regeneration in London. In keeping with the political background noted above, the focus of the aforementioned aims is very much upon facilitating the devolution of decision-making powers to local communities and encouraging the decentralization of central authority and government control.
The key aspects of the Localism Act 2011 are those which relate most directly to the statutory aims noted above, although the Act itself is a significant piece of legislation and covers a wide range of areas, some of which bear little relation to the principal aim of further and more efficient decentralization. That being said, a core concept introduced by the Localism Act is the ‘general power of competence’ newly conferred upon local authorities, which permits such a body to enter into certain transactions that would otherwise have been ultra vires, such as charging and trading. The extent of this power is, however, analogous to that of an individual with capacity which thus implies certain restrictions upon its exercise.
The Localism Act 2011 also simplifies the process by which councils and other local public authorities can alter their systems of governance, which may be amended by the passing of a resolution at a meeting of the Council to introduce the stated changes at the next annual meeting. In practice, depending upon when the initial resolution was passed, the entire process might take as little as four months.
Part 1, Chapter 1
Chapter 1, Part 1 of the Localism Act 2011 contains the most important provision of the Act, as it provides for a power of competence allowing local authorities “to do anything that individuals may generally do”. This power is extensive in scope and exercisable by local authorities anywhere within the United Kingdom, for commercial or other purposes for the benefit (or otherwise) of the local authority and its residents, or those visiting the area. Sections 5 and 6 do, however, allow the Secretary of State to fetter the exercise of the power by introducing regulations limiting the ability of local authorities to do anything specified in the order.
Sections 21-24 of the Localism Act 2011 are largely governance provisions and make amendments, both major and consequential, to the Local Government Act 2000. The essence of these provisions is that they endow local authorities with greater flexibility with respect to their governance and executive arrangements, including detailed provisions relating to, amongst other things, the ability to return to a committee structure, the sharing of services, the joint exercise of functions and the creation of oversight and scrutiny commissions.
Section 25 is designed to address the difficulties encountered by local authority elected members, particularly following several legal decisions, such as Condron v National Assembly for Wales  GR 87, which suggested that decisions of such members may be construed as predetermined when made with respect to constituency campaigns that they themselves had participated in. Section 25 states that a local authority member is not to be assumed to have a closed mind, or the appearance thereof, solely because said member had done something, directly or indirectly, in relation to subject-matter relevant to the decision required.
Section 38 addresses concerns over levels of public sector pay by obliging local authorities to prepare a policy statement for each financial year, beginning with the year 2012/2013, in relation to senior pay packages. This statement must set out the policies of each authority with respect to the remuneration of chief officers, including factors such as performance-indexed bay and the use of bonus structures.
European Union (Amendment) Act 2008
The European Union (Amendment) Act 2008 (EUAA) was introduced as a precursor to the United Kingdom’s ratification of the 2007 Treaty of Lisbon. As such, the EUAA 2008 makes a series of amendments to existing domestic legislation concerning the recognition and ratification of the Lisbon Treaty, including modifications to the European Communities Act 1972 so as to include the Lisbon Treaty within the list of ‘Community Treaties’, as well as other amendments to the 1972 Act designed to give the Lisbon Treaty legal force within the United Kingdom. The principal effect of the EUAA 2008 is, therefore, to ensure that the Lisbon Treaty is granted overriding legislative force with respect to past and future domestic legislation.
The Treaty of Lisbon
The Treaty of Lisbon is an international agreement between member states of the European Union, entered into in Lisbon, 2007, which amends the two treaties which form the constitutional foundation of the Union; the Treaty of Maastricht (now referred to as the ‘Treaty on the European Union’) and the Treaty of Rome (now referred to as the ‘Treaty on the Functioning of the European Union’). The Lisbon Treaty also modifies some of the ancillary treaty protocols that attach to the Maastricht and Rome accords.
Purpose of the Treaty
As is indicated above, the Treaty of Lisbon is primarily an ‘amending’ Treaty, in that it seeks to streamline the operation of existing treaty provisions and the operation of important European Union institutions, such as the Commission, the Council of Ministers and the European Parliament; it is not intended to be read as a fully autonomous text. The Treaty of Lisbon itself gives its stated aim as being to “complete the process started by the Treaty of Amsterdam  and by the Treaty of Nice  with a view to enhancing the efficiency and democratic legitimacy of the Union and to improving the coherence of its action”.
Notable Institutional Amendments
European Central Bank
Under the Treaty of Lisbon the European Central Bank is elevated to the status of a full institution, with the European Council being given the right to appoint presidents by the mechanism of a qualified majority vote.
The European Council is also elevated to the status of a full institution and is separated in its function from the Council of Ministers and the procedure for appointing a President is set out, as well as limitations on reappointment. The Treaty of Lisbon provides that the Council is to set the ‘strategic priorities’ of the Union and is expected to engage in practical crisis management. The Council also plays a key role in appointing members to other important Union institutions, including the Commission, members of the Board of the European Central Bank and the High Representative of the Union for Foreign Affairs and Security Policy.
Formerly the Commission of the European Communities, the newly renamed European Commission is reduced in size from one Commissioner per member state to one Commissioner per two thirds of member states, with a new system of equal rotation over time.
The European Parliament
The legislative power of the European Parliament is enhanced by the Treaty of Lisbon, which extends the co-decision procedure exercisable with the Council of Ministers to include most policy areas. The procedure itself is also modified and renamed as ‘ordinary legislative procedure’. In those areas which require ‘special legislative procedures’ the Parliament now generally retains the power of veto over a Council measure, and vice versa.
The Treaty also alters the manner in which MEP seats are allocated between member states. There is no longer a prescribed number, with the power to apportion MEPs now being set by the European Council, acting on the initiative of the European Parliament but otherwise autonomously. The Treaty does, however, provide that the number of MPs to be degressively proportional to the population of each member state.
Perhaps the most important amendment introduced by the Treaty of Lisbon, particularly in light of recent events, is the procedural process for leaving the European Union set out in Article 50.
Prior to the enactment of Article 50 the Treaties of Rome and Maastricht made no provision for the voluntary withdrawal of a member state from the European Union, which was considered previously to be legally possible but fraught with technical difficulties. Article 50 now enshrines the ability of member states to exit the Union by providing that “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”
This unilateral right to withdraw has recently been invoked by the United Kingdom following the so-called ‘Brexit’ referendum, and the negotiated withdrawal provided for by Article 50 is now underway.
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