For what it is worth, I was the instructing solicitor in Cart. it was on my drafted JR application for Mr Cart that the case went eventually to the Supreme Court. The judgment of Laws LJ in the Divisional Court as to why we have judges and what is meant by a 'superior court of record' (R (Cart & ors, on the application of) v The Upper Tribunal & ors [2009] EWHC 3052 (Admin) [2010] 2 WLR 1012).
Richard was a kind man and wonderful man to work with. He lead me in my first case in the House of Lords, namely Farley v Secretary of State for Department of Work and Pensions [2006] UKHL 31, [2006] FLR 12443, [2006] 1 WLR 1817 (I'll call (1)); though to get there we had to go through (2) Farley v Child Support Agency [2005] EWCA Civ 869, [2005] 2 FLR 1075.
The first Court of Appeal hearing was (1) Farley v Secretary of State for Work and Pensions [2005] EWCA Civ 778, [2005] 2 FLR 1059 - probably my best ever day as an advocate in any court. I was before three Lords (Woolfe CJ, Phillips MR and Lord Slynn on his last day in any court). Mr Farley was successful. Then the SSWP noticed we had no right in law to have appealed to the Court of Appeal. That said, they wanted the point in issue in the Court of Appeal cleared up and thus to go to the Lords. Richard, whom I had retained by then - 'that sounds rather fun' - had himself been in a case called Chief Adjudication Officer v Foster [1993] AC 754 (for anyone still interested in all this). He was able to tell their lordships in Farley (2) in the Court of Appeal (two by now) that they could take from us an undertaking (for which exercise I think the SSWP paid) to issue a judicial review application which they would allow in prospect, and the SSWP application to appeal to the House of Lords could then proceed. How many advocates would have argued the original Foster case and known of it for the Court of Appeal in Farley (2)?
We lost in the House of Lords; but I can remember Richard all but telling their lordships to shut up. 'Will you please listen to me' he said, at one point, and in a very firm tone...
The whole sentence on Laws LJ was intended to be: The judgment of Laws LJ in the Divisional Court as to why we have judges and what is meant by a 'superior court of record' (R (Cart & ors, on the application of) v The Upper Tribunal & ors [2009] EWHC 3052 (Admin) [2010] 2 WLR 1012) is brilliant; and a text which can be read on its own regardless of the facts of the case.
1. In a state of some trepidation I mention that I believe Lord Falconer to be of Thoroton, rather than “Thornton”. My spell check was most insistent that I also should type “Thornton”.
2. I applaud Kim Leadbetter’s initiative and wish her Bill well, subject to the inevitable devil in the detail. I do hope she can be successful also in resisting the blandishments towards encompassing also the “incurably suffering”. However unfeeling that may seem, I share the anxiety of many that it would give rise to an opening of a “Pandora’s box”, as I believe has tended to happen in other nations ahead of us in legislation over this anguished subject.
3. Please, pretty please, let the entire issue of sentencing NOT be relegated to the second division. I am already having waking nightmares over YET ANOTHER window of opportunity sliding shut. The LAST serious attempt to be wise and constructive about all this was, after all, in the EARLY 1990s.
AND: what about some RELATIVELY quick wins, for example, doing away with six months’ sentences, re-sentencing of IPP prisoners rather than yet more tinkering around and at least introducing more restrictions upon prison for shoplifting, perhaps up to a certain value. Joshua in his Gazette column is right: red necked States over sentencing in the US have HAD to temper ever longer sentences with sanity and here we have a virtue to be made out of a necessity with no prison capacity left. As Joshua says, the money thrown away for MOST of those counterproductively incarcerated would go a long way towards breathing life into a criminal justice system on life support. As a supporter -broadly- of our still new government, nonetheless if it is to be a former senior Parliamentarian for the sentencing review (where I have my doubts about that) of the two touted I favour David Gauke with Lord B- whatever the arguments for and against him-as Joshua says, still lugging punitive and sentence stretching baggage in his kitbag. Also how can it make sense for Shabana Mahmood to have reduced sitting days, given the parlous state of our system and scandalous delays over case disposals?
RICHARD DRABBLE
For what it is worth, I was the instructing solicitor in Cart. it was on my drafted JR application for Mr Cart that the case went eventually to the Supreme Court. The judgment of Laws LJ in the Divisional Court as to why we have judges and what is meant by a 'superior court of record' (R (Cart & ors, on the application of) v The Upper Tribunal & ors [2009] EWHC 3052 (Admin) [2010] 2 WLR 1012).
Richard was a kind man and wonderful man to work with. He lead me in my first case in the House of Lords, namely Farley v Secretary of State for Department of Work and Pensions [2006] UKHL 31, [2006] FLR 12443, [2006] 1 WLR 1817 (I'll call (1)); though to get there we had to go through (2) Farley v Child Support Agency [2005] EWCA Civ 869, [2005] 2 FLR 1075.
The first Court of Appeal hearing was (1) Farley v Secretary of State for Work and Pensions [2005] EWCA Civ 778, [2005] 2 FLR 1059 - probably my best ever day as an advocate in any court. I was before three Lords (Woolfe CJ, Phillips MR and Lord Slynn on his last day in any court). Mr Farley was successful. Then the SSWP noticed we had no right in law to have appealed to the Court of Appeal. That said, they wanted the point in issue in the Court of Appeal cleared up and thus to go to the Lords. Richard, whom I had retained by then - 'that sounds rather fun' - had himself been in a case called Chief Adjudication Officer v Foster [1993] AC 754 (for anyone still interested in all this). He was able to tell their lordships in Farley (2) in the Court of Appeal (two by now) that they could take from us an undertaking (for which exercise I think the SSWP paid) to issue a judicial review application which they would allow in prospect, and the SSWP application to appeal to the House of Lords could then proceed. How many advocates would have argued the original Foster case and known of it for the Court of Appeal in Farley (2)?
We lost in the House of Lords; but I can remember Richard all but telling their lordships to shut up. 'Will you please listen to me' he said, at one point, and in a very firm tone...
The whole sentence on Laws LJ was intended to be: The judgment of Laws LJ in the Divisional Court as to why we have judges and what is meant by a 'superior court of record' (R (Cart & ors, on the application of) v The Upper Tribunal & ors [2009] EWHC 3052 (Admin) [2010] 2 WLR 1012) is brilliant; and a text which can be read on its own regardless of the facts of the case.
1. In a state of some trepidation I mention that I believe Lord Falconer to be of Thoroton, rather than “Thornton”. My spell check was most insistent that I also should type “Thornton”.
2. I applaud Kim Leadbetter’s initiative and wish her Bill well, subject to the inevitable devil in the detail. I do hope she can be successful also in resisting the blandishments towards encompassing also the “incurably suffering”. However unfeeling that may seem, I share the anxiety of many that it would give rise to an opening of a “Pandora’s box”, as I believe has tended to happen in other nations ahead of us in legislation over this anguished subject.
3. Please, pretty please, let the entire issue of sentencing NOT be relegated to the second division. I am already having waking nightmares over YET ANOTHER window of opportunity sliding shut. The LAST serious attempt to be wise and constructive about all this was, after all, in the EARLY 1990s.
AND: what about some RELATIVELY quick wins, for example, doing away with six months’ sentences, re-sentencing of IPP prisoners rather than yet more tinkering around and at least introducing more restrictions upon prison for shoplifting, perhaps up to a certain value. Joshua in his Gazette column is right: red necked States over sentencing in the US have HAD to temper ever longer sentences with sanity and here we have a virtue to be made out of a necessity with no prison capacity left. As Joshua says, the money thrown away for MOST of those counterproductively incarcerated would go a long way towards breathing life into a criminal justice system on life support. As a supporter -broadly- of our still new government, nonetheless if it is to be a former senior Parliamentarian for the sentencing review (where I have my doubts about that) of the two touted I favour David Gauke with Lord B- whatever the arguments for and against him-as Joshua says, still lugging punitive and sentence stretching baggage in his kitbag. Also how can it make sense for Shabana Mahmood to have reduced sitting days, given the parlous state of our system and scandalous delays over case disposals?
Thanks, Malcolm. Spell-check typo now corrected
Your comprehensive commentary on RD is delightfully expressed and well-earned by Richard.
Thank you!
Just a polite note to say the hyperlink to the 'GCHQ' case doesn't seem to work.
Thanks. They work for me but I have changed the first one to a different version of the judgment on BAILII.