The issue determined in these appeals was the scope of the Financial Services Authority’s power to prosecute.  The FSA brought charges against the appellant for money laundering offences contrary to sections 327 and 328 of the Proceeds of Crime Act 2002 . The appellant (and another) sought to argue that the FSA  power of prosecution was limited to the offences set out in sections 401 and 402 of the Financial Services and Markets Act 2000, which do not include offences under POCA 2002.

The FSA replied that sections 401 and 402 did not limit their prosecution powers, but rather limited everyone else’s power to prosecute insider trading.  In particular, it said, as a body corporate with legal personality it has a common law power to prosecute in respect of other offences.

Both the Court of Appeal and the Supreme Court have now upheld the FSA’s position.  The FSA does have the power to prosecute offences beyond those referred to in sections 401 and 402 of FSMA 2000 and, in particular, it has the power to prosecute the appellants for offences contrary to sections 327 and 328 of POCA 2002. 

What this case changes, more than anything, is the FSA’s prospects of sharing the cash bonanza which other prosecuting agencies have been enjoying under POCA.

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Most journalists don’t care much about the law. The finer points of multiple concurring opinions are hardly catnip for the press corps — if indeed one can talk of a corps covering the UK Supreme Court rather than a few isolated snipers. If the Supreme Court is ever to gain widespread media attention — and commentators have noted just how difficult this is — it will be through high-profile split decisions.

Bare majorities on the court, such as the 5-4 split seen in JFS, are rather exciting to the outsider who knows nothing about the law (and I include myself amongst that number). Put crudely, they provide a score-line, and aid a narrative of the court as engaged in a battle between sides, rather than a collaborative effort to divine the meaning of the law, whatever that might be.

There are good reasons for thinking that the new UKSC ought to be more dissentient than the Judicial Committee of the House of Lords. More judgments are heard by more judges, and research has shown that larger bench sizes tend to produce more dissenting opinions. The composition of the court is more consistent, and the circulation of draft opinions seems to be more extensive, both factors which could either promote consensus or, should a draft opinion strike a bum note, end up polarizing justices and creating clear lines of demarcation.

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Commentators on the US Supreme Court seem to enjoy statistics about reversal rates broken down by circuits, judges and categories of case. The UK Supreme Court does not yet produce the stats, but the time will probably come.

The subject of stats came to mind because in Morrison v Scottish Power ([2010] UKSC 37), for the third time in a row in a Scots Private Law case before the Supreme Court, the appellants won out and, in effect, the Court of Session lost. The run is made up of Morrison, Farstad and Inveresk.

The most recent case, that of Morrison, was concerned with the interpretation of the Electricity Supply Regulations 1988. The pursuer, whose shop had burned down, allegedly as the result of an electrical fault in apparatus controlled by the defender, wanted to sue under the regulations. The question was whether a breach of the regulations gave the pursuer a right of action or whether he was restricted to proceeding at common law. [read more]

As we previously reported here, Merrell Publishers have published a new book on the Supreme Court to commemorate its creation in October last year.  The Supreme Court of the United Kingdom: History, Art, Architecture focuses on the developments that lead to the creation of the Court – described by Jack Straw MP in his prologue as “a constitutional landmark” – and in particular on the “remarkable transformation” of the building, from its previous incarnation as Middlesex Guildhall, into the country’s premier Court. 

The book is edited by the architectural historian Chris Miele, and contains contributions from a number of distinguished legal figures, as well as more detailed architectural commentary.  In his foreword, the Court’s President, Lord Phillips, points out that whilst the current Guildhall was built in 1913, the site has been “associated with the administration of justice for over 200 years and one that has been subject to continual development as part of the precinct of Westminster Abbey since the Middle Ages“: thus “no better location could have been found” for the new Court.  Jack Straw picks up on Bagehot’s 19^th century comment that the UK deserved a “great conspicuous tribunal” that “ought not to be hidden beneath the robes of a legislative assembly“, and states as follows:

“Institutions have to adapt and change to survive and maintain their legitimacy.  The ability of the British Constitution to do this is, as Bagehot noted, ‘its genius’.  The Supreme Court is a perfect example of this.  It maintains the historic balance between Parliament, government and the judiciary – the bedrock of the British constitutional settlement“. 

An interesting remark in the context of the current debate concerning the shifting sands of power between executive and judiciary: if the predictions made by some distinguished commentators (including Lord Neuberger and Lord Phillips himself) of a more interventionist Court in the future become true, it may be that the Blair / Falconer / Bingham reforms – far from preserving a historic balance – have set the constitutional cat amongst the pigeons. [read more]

Since it was decided back in March, there’s been relatively little discussion of the case of Martin and Miller v. Lord Advocate, [2010] UKSC 10 (available here).  Apart from some news coverage (such as the Scotsman’s report, here), about the only person to comment on the case is Aidan O’Neill QC, whose 2-part post on  the UK Supreme Court blog is available here and here.  [read more]

Baroness Hale of Richmond makes a very unconventional Justice. She is the first and only woman in the Supreme Court (and as such, the most senior female judge in the United Kingdom); the Court’s only family law specialist; the first High Court judge to be promoted from academia; and a regular and passionate speaker about issues such as feminism, equality and human rights – qualities which have made her one of the Court’s most popular and well known figures. 

Brenda Hale was born in Yorkshire in 1945, the daughter of two headmasters. Perhaps unsurprisingly, education was greatly valued whilst she was growing up: she went to school at Richmond High School for Girls (a non fee paying school), and then went on to study Law at Girton College, Cambridge. She was recognised as a high achiever, gaining the only starred first (exceptional distinction) in her year at Cambridge.  Lady Hale has said that her “softline” feminist views developed as she progressed though her education. Firstly in grammar school she noticed there were only half the number of places available for girls as for boys.  Later, at Cambridge, she found that she was one of only six women amongst over 100 law students, and the ratio at the bar and the judiciary in the 1960s was similar if not worse.  Thus was born a life long interest in promoting women’s rights and social equality.  [read more]

As part of our analysis of the UKSC’s first year, we’re taking a more detailed look at some of the aspects of the Court’s annual report –  starting with section 4, Appointment of Justices. The procedure for appointing a Supreme Court Justice is governed by ss 25–31 of, and Sch 8 to, the Constitutional Reform Act 2005.

The appointments process in the 2005 Act was a substantial change from the previous system of appointment of Lords of Appeal in Ordinary. Such were appointed by the Queen on the recommendation of the Prime Minister, acting on the advice of the Lord Chancellor.

The 2005 Act sets out the statutory qualifications for appointment in s 25. An applicant must have held “high judicial office” for at least two years, or have been a solicitor or barrister for at least 15 years, who has been “gaining experience in law” during the post-qualification period. The establishment of a selection commission to fill a vacancy is set out in s 26, and s 27 determines the process, including the relatively extensive list of people who have to be consulted before a section can be made. All this is outlined in this section of the Court’s annual report. However, what the report doesn’t mention is the role of the Lord Chancellor, under ss 29–31, to reject or order the reconsideration of the selection made. Also missing from this description is the ostensible power of the Prime Minister under s 26 to make the recommendation to the Queen for appointment.

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On 28 July, in one of the last judgments to be handed down in the Trinity Court term, the Supreme Court dismissed the appeal brought by Mohammed Al-Fayed’s company, Bocardo SA, against a decision to award only nominal damages for trespass against an oil company that drilled without permission underneath Al-Fayed’s estate in Surrey.  

The Court of Appeal had reduced the damages awarded by Mr Justice Peter Smith at first instance from £620,000 to £1,000, and Mr Al-Fayed was hoping this would be overturned, despite the fact that the drilling had not caused any actual damage to his property.  By a 3-2 majority, the Supreme Court upheld the Court of Appeal’s award and confirmed that compensation for landowners who suffer trespass from oil exploration should be evaluated in the same way as in cases of compulsory land purchase (in other words, by applying a very limited statutory measure of damages). 

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After being nominated earlier this year, yesterday the Senate voted to confirm Elena Kagan as the 112th Justice of the Supreme Court.  Ms Kagan will be the fourth female ever to be appointed as a Justice in the US Supreme Court, and will join Justices Ginsberg and Sotomayor to be the third woman Justice currently on the bench.

63 senators voted in favour of her appointment while 37 opposed it.   All but one Democrat (Senator Ben Nelson voted against her appointment) were in favour, and five Republicans (Senators Susan Collins, Lindsey Graham, Judd Gregg, Richard Lugar, and Olympia Snowe) supported Ms Kagan’s confirmation.

The vote, Obama said, was “an affirmation of her character and her temperament; her open-mindedness and evenhandedness; her determination to hear all sides of every story and consider all possible arguments“.

Congratulations to Ms Kagan!

This decision represents a very welcome restoration of the principles underpinning the 1951 Refugee Convention.  It will impact beyond its immediate factual context which is refugees claiming a fear of persecution on grounds of sexual orientation.

 The issue at stake concerned the extent to which a refugee might conceal, or be expected to conceal, the behaviour or characteristic giving rise to his or her fear of persecution.  In these two cases, this meant concealing (or as it is more usually but more euphemistically put, being discrete about) being gay.  However, and as the Court noted in several places, it could also mean concealing political or religious beliefs, or indeed concealing race or ethnicity.  [read more]