Weekly Notes: legal news from ICLR — 20 March 2017

This is advance copy for the Weekly Notes blog post which will be published later at www.iclr.co.uk

Image from The Drinks Business website: adopted with thanks.

Brexit & Breakup

Parliament having finally voted to give the government power to issue notification under article 50 of the EU Treaty of Britain’s decision to leave the European Union, Scotland’s First Minister (Nicola Sturgeon) lost no time in announcing that her government would now hold a second Scottish independence referendum, with a view to Scotland remaining in or rejoining the European Union post-Brexit.

This raises questions about whether, if the vote supported independence, Scotland would retain some sort of relationship with the EU or would have to go and join the back of the queue, which might postpone any full re-entry for a decade.

As before, a big issue for any independent Scotland would be its currency and the management of its central banking and fiscal matters. Reports have suggested that some European leaders (all of whom would need to consent to any reintegration) are lukewarm, in party because they don’t want to encourage breakaway populations within their own countries. (Spain is the obvious example.)

If Scotland goes, can Northern Ireland be far behind? Brexit is adding to tensions in the north, and the prospect of a hard border with the south is not helping. A number of commentators have suggested that Northern Ireland might not only break away like Scotland but rejoin the south in a re-united Ireland.

In short, far from being the making of us, Brexit would have been the breaking of the United Kingdom.

In addition, there is the huge distraction this would present in terms of legislation, diverting resources away from other priorities of government, as the Institute for Government has pointed out in a new report, Legislating Brexit


FT: Northern Ireland shows the risks of a hard Brexit

Independent, Brexit ‘most dangerous issue for Northern Ireland since partition’

Jack of Kent blog (written by David Allen Green): On Brexit, the SNP and Sinn Féin have been waiting and preparing the whole time

Steve Peers, EU Law Analysis, Scotland, the EU and ‘indyref2’: the legal issues

Kevin Meagher, on politics.co.uk Northern Ireland is leaving the union — it’s only a question of when

On a lighter note… Chris Dale, Oxford Inciter blog: A team of not-third-raters dealing with a future which is not apocalyptic

Damn Fine Media animation of Ian Dunt’s book Brexit: What the Hell Happens Now?


The Conservative Party have been fined £70,000 over misreporting of its campaign spending in the 2015 general election. The Electoral Commission, having imposed the fine, referred one aspect of the case to the Metropolitan Police for further investigation.

A dozen police forces have already sent files to the Crown Prosecution Service following widespread investigations, prompted in large part by Channel 4 news coverage led by their reporter Michael Crick.

See Independent, Conservative Party fined £70,000 after investigation finds ‘significant failures’ in reporting campaign spending


Transform Justice published a briefing report last week providing more detailed analysis of the implications of the bill currently going through the parliamentary mill. The briefing focuses on proposals in the bill for criminal court reform and identifies four key areas of concern:

1 - The criminal court proposals seem to have been introduced in haste, in many cases without research, evidence or informal or formal consultation with experts and stakeholders.

2 - The government is committed to saving money through the court reform programme, but most changes have not been costed, and the impact on remand and sentences has not been modelled at all.

3 - The move to online and virtual justice threatens to significantly increase the number of unrepresented defendants, to further discriminate against vulnerable defendants, to inhibit the relationship between defence lawyers and their clients, and to make justice less open.

4 - Our criminal justice system is very complex and its fairness rests on parties understanding and participating in the process. This is difficult to achieve even when everyone is in a courtroom. Fundamental principles of justice and human rights are risked if we take justice wholly or partially out of the courtroom.

Transform Justice is a charity which promotes a fair, human, open and effective justice system. Read their report (pdf).


We covered the case of Marine A, now known as Sgt Blackman, back in 2014 at the time of his earlier, unsuccessful appeal against conviction for murder in respect of his shooting, while serving in Afghanistan, of an enemy prisoner: see Weekly Notes — 23 May 2014.

The case was reported at the time: R v Blackman (Secretary of State for Defence intervening) [2014] EWCA Crim 1029; [2015] 1 WLR 1900, Ct-MAC.

The case arose out of an incident in 2011 in Helman Province in southern Afghanistan, where British forces were quelling an insurgency, which had been captured on video via a camera mounted on another marine’s helment, in which the appellant shot a wounded prisoner and then told his comrades: “Obviously this doesn’t go anywhere, fellas. I just broke the Geneva Convention.”

This second appeal against conviction was heard by a 5-judge Court Martial Appeal Court on a reference by the Criminal Cases Review Commission, citing new psychiatric reports indicating that, at the time, he had been suffering from a form of combat stress that justified a finding of diminished responsibility. The new court accepted this and reduced the murder conviction to one of manslaughter.

A very thorough explanation of all the questions a puzzled lay person might be tempted to ask about this case has been provided on The Secret Barrister’ blog, The Marine A judgment — a handy 10-point guide.

See also: news report by BBC

Judgment: R v Blackman (No 2) [2017] EWCA Crim 190

Dates and Deadlines

New BBC 2 series starting Tuesday 21 March, in which a documentary film crew follow police and prosecutors in Jacksonville, the ‘murder capital’ of Florida, renowned for its tough approach to justice.


New podcast from the This American Life team that brought you Serial. This third season covers an unsolved murder in Alabama. Complete episode list will be released on 28 March. Here’s an article in The Guardian all about it.

This is advance copy for the Weekly Notes blog post which will be published later today at www.iclr.co.uk

The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.