What is going on? 'This whole procedure is a disgrace.'

What is Jack Straw up to now?  Why has appointing judges become controversial and political after the introduction of an apolitical appointments system?

I like the Earl of Onslow.  Pity Lord Woolf was stopped by the clock.

High Court: Appointment

Question

2.59 pm

Asked By Baroness Deech

To ask Her Majesty's Government when they will announce the successor to the President of the Family Division of the High Court, who retires on 31 March.

Lord Tunnicliffe: My Lords, the appointment will be announced as soon as possible.

23 Mar 2010 : Column 845

Baroness Deech: My Lords, I shall not thank the Minister for that Answer. However, what will he do to dispel the perception that senior judicial appointments are taking longer than ever to make and are more politicised than ever, even though the Supreme Court has been established and the Judicial Appointments Commission has been set up to promote the separation of powers?

Lord Tunnicliffe: My Lords, it may be true that senior appointments are taking longer to make than they did when they were within the sole discretion of the Lord Chancellor. Indeed, in his evidence to the Select Committee on the Constitution, the Lord Chancellor admitted that the new process is somewhat clunky. The process was decided by this House and the Lord Chancellor has an appropriate role in it. In the evidence to the same committee, it is interesting to note the extent to which the Lord Chancellor set out his two roles: the typical role of a Secretary of State and a special role as Lord Chancellor, principally related to the judiciary and the maintenance of its independence. In that special role, for which he takes a particular oath under the Constitutional Reform Act, he is involved, as Parliament expected, in the process of senior appointments.

Lord Henley: My Lords, this matter has been sitting on the Lord Chancellor's desk-somewhat clunkily, as the noble Lord puts it-for some three months. Does he think that a three-month delay, with its attendant uncertainty, is good for the Family Division?

Lord Tunnicliffe: My Lords, the Lord Chancellor's policy is to maintain strict confidentiality in relation to individual appointments. The appointment will be announced after the Queen has approved it. That policy has been adopted and adhered to by successive Lord Chancellors. Therefore, I shall not comment on how long it has been on anyone's desk. As far as we are concerned, the beginning of the process is in the public domain and it will end when the appointment is made. Other recent senior appointments, such as the President of the Supreme Court, Lord Chief Justice, President of the Queen's Bench and others, have taken between three and eight months. Today we announced the appointment of Lord Justice Dyson, as a justice of the Supreme Court and that process took seven and a half months.

Lord Thomas of Gresford: My Lords, the Lord Chancellor rejected the recommendation of the Judicial Appointments Commission in the appointment of Sir Nicholas Wall to the post of president. He is regarded as a most thorough and compassionate judge in the legal profession. Was that because, last November, he told the Association of Lawyers for Children that it was the duty of judges to come off the Bench and speak out about government changes to the law that were damaging the service to children and families, or because he warned that, without proper legal aid funding, the justice system would implode and that children would suffer the most? Was not the Lord Chancellor's decision entirely political?

23 Mar 2010 : Column 846

Lord Tunnicliffe: My Lords, I have said that it is this Lord Chancellor's policy, as it has been the policy of Lord Chancellors since time recorded, not to comment on individual appointments, and I certainly do not now.

Baroness Butler-Sloss: My Lords, I declare an interest as a former President of the Family Division. Does the Minister appreciate the importance of the outgoing president properly helping the incoming president to understand what is going on? That is absolutely crucial. I spent three months in effect training my successor. The president will be leaving on 31 March and will have no one to hand over to. Does the Minister also recognise the dismay of the family judges and the family Bar and solicitors at the situation?

Lord Tunnicliffe: My Lords, I am sure that the new president, when he is appointed, will be at pains to learn all he can from his predecessor. I can add nothing to that except to say that the process was started at a time when we hoped it would be complete. It is not complete and I will not be making further comments on the process.

The Earl of Onslow: My Lords, does the Minister's reply not show that the Constitutional Reform Act has made the administration of justice slower and much more expensive? For some reason, the Minister cannot explain what is going on without looking at his papers and mumbling. This whole procedure is a disgrace.

Lord Tunnicliffe: My Lords, the noble Earl can have his view of mumbling. I am making it very clear how we appoint people to virtually every job in the public or private sector, and I am insisting on that definition. As for the speed with which these appointments are made, I will again quote the Lord Chancellor, using reported speech as it will be quicker. In the processes below these senior judges, the new system is working efficiently and in a way that a Lord Chancellor could not do without considerable sub-processes. In the processes for the most senior appointments, I think he has said in passing that, looking at the Act, perhaps this part is "clunky".

Baroness Howarth of Breckland: My Lords, I declare an interest as the chair of the Children and Family Court Advisory and Support Service. I have a very simple question. What will happen in terms of the continuity of the programmes that the present president has in place, and can we commend the work of Mark Potter for ensuring that the work of guardians and family court judges has continued at a time of unprecedented pressure?

Lord Tunnicliffe: My Lords, I am afraid that my brief is not to that level of detail.

Lord Pannick: Does the Minister accept that the high quality of the judiciary in this country is in part due to the willingness of the Lord Chancellor's predecessors, the noble and learned Lords, Lord Mackay 

23 Mar 2010 : Column 847
of Clashfern, Lord Irvine of Lairg and Lord Falconer of Thoroton, to appoint to high judicial office persons with whose views they did not necessarily agree?

Lord Tunnicliffe: My Lords, the present Lord Chancellor's praise of previous Lord Chancellors, and the way they executed their duty, is unreserved. He says in his evidence that he thinks they all did a good job under the old system. I am sure that he is committed to ensuring that the present process does an equally good job.

Lord Woolf: My Lords-

Lord Hunt of Kings Heath: My Lords, we have reached thirty minutes. We must move on.

Combined Court and Tribunal Service

This is an interesting development.  All you need to know is that it was announced in the Budget by the Chancellor of the Exchequer - for all Jack Straw's fine sentiments in his MoJ statement - there is only one reason for this - saving money.  Combined Court & Tribunal services will be a nightmare and resources will be tighter than ever.  Magistrates, Circuit Judges, Crown Courts, Employment Tribunals, County Courts and Social Security Appeal Tribunals (now the First Tier Tribunal) together with tax tribunals, care tribunals, school tribunals and the rest will all share staff, court/hearing rooms and the same budget.


I like this extract from Jack's statement:


The new structure will preserve the unique and distinctive features of both systems while taking advantage of the benefits to users, judges and staff from closer working. We will ensure that the statutory responsibilities of both the Lord Chief Justice for the courts and the Senior President of Tribunals for the tribunals are respected and preserved. There are also a number of important differences between the two organisations which will need to be given careful consideration in planning for the new organisation. These include the different territorial coverage of HMCS and the Tribunals Service, their different governance arrangements and judicial structures and the different regional and jurisdictional structures currently in place.


Indeed - so different in fact that Tribunals and Courts needed and had separate administrative services - until of course we ran out of tax payers' money and they were forced together.  


I predict divorce within 5 years.  


In the meantime it is only justice that will suffer...............

Sir John Dyson - not Lord Dyson?

The new Justice of the Supreme Court will not receive a peerage.  See earlier posts.  But will he receive some sort of title upgrade when he joins the other Lords and Ladies in the Supreme Court?  Scottish Senior Judges get a Lord or Lady upgrade but no peerage on promotion - the same could happen for Sir John?  Or will he be relegated to being merely Sir John (although always My Lord)?

Also see Rozenberg

NEW SUPREME COURT JUSTICE

THE PREDICTIONS WERE RIGHT:

The Queen has been pleased to approve the appointment of The Right Honourable Sir John Anthony Dyson as a Justice of the Supreme Court with effect from 13 April 2010 following the appointment of The Right Honourable The Lord Neuberger of Abbotsbury as Master of the Rolls.

Biographical Note

Lord Justice John Anthony Dyson (66) was called to the Bar (Middle Temple) in 1968, and took Silk in 1982. He was appointed as a Recorder in 1986 and was made a Bencher in 1990. He was appointed to the High Court (Queen’s Bench Division) in 1993 and was Presiding Judge of the Technology and Construction Court from 1998 to 2001.  Sir John Dyson was appointed to the Court of Appeal in 2001 and was Deputy Head of Civil Justice from 2003 to 2006.

Lord Justice Dyson was knighted in 1993.

SHOULD PRISONERS HAVE A RIGHT TO VOTE?

Apparently a bit of the ECHR binding upon us in International Law but not incorporated by the Human Rights Act 1998 gives prisoners the right to vote.  So said the European Court of Human Rights on 6th October 2005 - see here. We were a bit French about the whole thing and ignored the judgment.  This had led to the Council of Europe getting a bit huffy with us and its Committee of Ministers' Deputies (Ambassadors) has issued the following condemnation of our behaviour (text below).  Apparently they want prisoners to have votes by the next general election.

The Deputies,

1. recalled that in the present judgment, delivered on 6 October 2005, the Court found that the general, automatic and indiscriminate restriction on the right of convicted prisoners in custody to vote, fell outside any acceptable margin of appreciation and was incompatible with Article 3 of Protocol No. 1 to the Convention;

2. recalled further that at the last DH meeting in December 2009, the Committee of Ministers adopted Interim Resolution CM/ResDH(2009)160, in which it expressed serious concern that the substantial delay in implementing the judgment has given rise to a significant risk that the next United Kingdom general election, which must take place by June 2010, will be performed in a way that fails to comply with the Convention, and urged the respondent state to rapidly adopt measures to implement the judgment;

3. noted that notwithstanding the Grand Chamber’s judgment in 2005, a declaration of incompatibility with the Convention under the Human Rights Act 1998 by the highest civil appeal court in Scotland¹ and the large number of persons affected, the said automatic and indiscriminate restriction remains in force;

4. reiterated their serious concern that a failure to implement the Court’s judgment before the general election and the increasing number of persons potentially affected by the restriction could result in similar violations affecting a significant category of persons, giving rise to a substantial risk of repetitive applications to the European Court;

5. strongly urged the authorities to rapidly adopt measures, of even an interim nature, to ensure the execution of the Court’s judgment before the forthcoming general election;

6. decided to resume consideration of this item at their 1086th meeting (June 2010) (DH) in the light of further information to be provided by the authorities on general measures.

Fat Chance I would say.  This is what the Govt said in Jan 2009 (below) and the second stage of consultation ended on 29/9/09 without no further response in sight.  Doesn't the Council of Europe know that giving votes to prisoners will not actually win votes from law abiding citizens.  Still I suppose we can't take voting rights from these amusing lunatics (the video is hilarious - but why didn't the Police just drag them out given the obvious contempt in the face of the Court?)  - see The Magistrate Blog for more details.

The Government remains committed to taking appropriate steps in respect of the judgement in Hirst, and to carrying out a second, more detailed, public consultation that takes account of the findings of the first stage consultation. The Government acknowledges that there has been a delay to the timetable originally envisaged for the conduct of that second consultation. The current intention is that the results of the first consultation will be published together with a second stage consultation document. Since the judgment, the Government has kept the Committee of Ministers updated, including a detailed note in April of last year. A further brief update noting the Government’s position was submitted in October ahead of the December meeting of the Committee of Ministers’ Deputies. We will continue to keep the Committee of Ministers updated on our progress on this case, and have undertaken to submit further information in due course on the form and timing of a further consultation. In implementing the judgment, the Government will need to take account of the wide spectrum of opinion on the issue, as well as the practical implications for the courts, for prison authorities and for the conduct of elections. The solution that we reach must respect the Court’s judgment, and must also respect the traditions and context of the United Kingdom. As noted in the April update, the Government will consider the outcome of the consultation and will bring forward legislation to implement its final approach as soon as Parliamentary time allows.

BACK FROM HOLIDAY

BACK FROM HOLIDAY.  WENT TO DEVON. FOWLESCOMBE FARM.  PARADISE IN DEVON.

TRY THIS FOR GETTING AWAY FROM IT ALL 

ON HOLIDAY....BACK SOON

The political parties will breath a sigh of relief - especially with an election in the offing....

The High Court has held that Election Courts cannot make orders for costs against third parties (like political parties or constituency associations) where it sets aside an election because a candidate is guilty of fraud.  Mr Election Commissioner Richard Mawrey QC (of Banana Republic fame) found terrible election fraud in local elections in Slough:


He found that Mr Khan and his agents had caused the names of non-existent people to be entered on the electoral register for the ward, and had then applied for postal votes in their names. In doing so they had been guilty of corrupt and illegal practices, including the corrupt practice of impersonation. These practices could reasonably be supposed to have affected the result of the election, and he therefore declared Mr Khan's election void. He ordered Mr Khan to pay Ms Simmons' costs of the petition, which were to be assessed on an indemnity basis unless otherwise agreed.


Mr Khan did not pay the costs (£215,775.95):

Attempts to enforce payment were unsuccessful, and in due course Mr Khan was adjudged bankrupt on a petition presented by Ms Simmons as a result of this debt. The Official Receiver was eventually to say that there was no apparent prospect of the distribution of funds to creditors. 


So the winner decided to seek her costs against those who funded the action:

Accordingly, Ms Simmons decided to investigate how Mr Khan's defence of the election petition had been funded with a view to making an application for costs against, among others, the Conservative Party or the Slough Conservative Association, even though they had not been parties to the petition.

It turned out that the Conservatives had arranged some legal expenses insurance and Mr EC R. Mawrey QC made an order for disclosure of the policy and in so doing said this:

"… it would probably come as somewhat of a surprise to the general public that, where an official candidate of a national political party is the petitioner or the respondent to an election petition, that political party does not automatically assume responsibility for the costs of its own candidate in promoting or defending the petition and responsibility for the costs of the other side in the event of defeat. Given that the political party stands to gain or lose by the result of the petition, some degree of responsibility might be expected. This was especially the case in Slough where the success of Eshaq Khan in the 2007 election meant that the Conservatives had a small but controlling majority on Slough Council and his removal from office would (at least pending the by-election) return the authority into being a 'hung council'.

Having received no submissions and having carried out no research on the subject, I simply express interest in the question whether courts in the past have considered the extent to which an officially adopted candidate might expose the political party who adopted him to a degree of vicarious liability for any misdeeds on his part in the course of seeking election. It is not to be thought that I am necessarily encouraging Ms Simmons to attempt to mine a new lode of jurisprudence but, given the nature of the submissions on her behalf by Mr Millar QC, the question might arise in some form were this matter to be taken further."

An application for costs from the Conservatives then came before Keith J.   It failed (see judgment)  - essentially the ancient election petition legislation has no provision for making third party costs orders save in very special circumstances -  Keith J:

Finally, I return to the mischief which Mr Millar says should be avoided. The election petition is the only real weapon to combat electoral fraud in general, and registration and postal voting fraud in particular. Yet electors and unsuccessful candidates may be discouraged from bringing meritorious petitions if they know that, in the event of an order for costs in their favour not being met by an unsuccessful respondent, they will not be able to recover their costs from, say, a person or body which funded the unsuccessful defence to the petition, however unmeritorious that defence may have been. But it would be unwise to take that too far. Where the unsuccessful candidate is the official candidate of one of the major political parties, their petition will invariably be funded by the political party for whom they are standing. A major political party is less likely than an individual candidate to be put off funding an election petition simply because it may not be able to recover its costs later on. All the more so if there is a convention – which Mr Millar told me the Labour Party had hitherto thought there was – that if the defence of an unsuccessful respondent to an election petition has been funded by a political party, the political party will pay the costs of the successful petitioner. In any event, though, if it is thought that a political party which funds the costs of the defence of an unsuccessful respondent should pay the costs of the successful petitioner, that cannot be achieved by the courts grafting such a power on the Act when the language of the Act prevents that from being done. It is a matter for Parliament to legislate on, in the same way that if electoral fraud is to be combated, the real remedy, as Mr Mawrey said at the end of his judgment on the petition and in his report to the High Court, was to introduce proper measures which enables such frauds to be detected.

 

RIP LSC

Interesting news - The Legal Services Commission (successor to the Legal Aid Board) is being abolished and its functions brought within the Ministry of Justice - announcement here.

Is this good news or bad news?

I also wonder whether the Lord Chancellor can find parliamentary time for this before the election?

The government believes that this is the best option for the delivery of legal aid and has announced that a Bill will be brought forward as soon as Parliamentary time allows. 

Barrister goes to Court shocker

I am in Court for the next few days.

Normal service will resume shortly.

Fiat justitia ruat caelum

FARCE

Read this and then wonder at whether the administration of justice has been brought into disrepute.

What a mess.

Rozenberg gets it right.

CONGRATULATIONS TO YOU ALL

QUEEN'S COUNSEL 2010

(appointees in alphabetical order)

Mr David Jeffrey Aaronberg

Mr Piers Dyke Acland

Mr Mark Roger Anderson

Mr Mohammed Jalil Akhter Asif

Mr Nicholas Michael Bacon

Mr Alexander Bailin

Mr Rupert Patrick Craig Baldry

Mr Charles Jefferis Woodburn Benson

Miss Jane Bewsey

Miss Zia Kurban Bhaloo

Miss Claire Blanchard

Ms Veronique Eira Buehrlen

Mr John Malcolm Burton

Mr David John Cavender

Mr Patrick Chamberlayne

Mr Jeffrey Paul Chapman

Mr Julian Mark Carmichael Christopher

Mr Michael Jeremy Patrick Coburn

Mrs Michelle Diane Mary Colborne

Mr John Gordon Cooper

Mr Nigel Stuart Cooper

Miss Jane Elizabeth Cross

Mr Derrick Ralph Dale

Miss Katharine Louise D'Arcy

Mr Arthur Alan Dashwood

Mr Michael James Davie

Ms Anuja Ravindra Dhir

Mr Paul Simon Downes

Mr Michael Simon Edenborough

Mr Philip Douglas Edwards

Miss Naomi Lisa Ellenbogen

Mr John Cowie Elvidge

Miss Susan Louise Carr Evans

Mr Francis Thomas Feehan

Mr Francis George Herbert Dillon FitzGibbon

Mr William David Wingate Flenley

Mr Steven Charles Ford

Mr Gerard Forlin

Ms Isabella Louise Forshall

Mr Rudi Fletcher Fortson

Mr Kerim Selchuk Fuad

Mr Joseph John Bela Leslie Giret

Mr Paul Richard Greaney

Mr Andrew James Dominic Green

Miss Sally Harrison

Mr Neil Ashley Hawes

Ms Sioban Mary Healy

Mr Kevin John Hegarty

Mr Mark Adrian Heywood

Mr David Seymour Hislop

Miss Katharine Jane Holland

Mr David John Hooper

Mr George Hugh-Jones

Mr Syed Raza Husain

Mr Paul Richard Hynes

Mr Thomas Victor William Kark

Mr Lee Nadesalingam Karu

Mr Christopher Laurence Paul Kennedy

Ms Judith Khan

Mr Charles Dominic Kimmins

Mr Cyril Kinsky

Mr Jonathan Kirk

Mr Stephen Knafler

Mr Steven Laszlo Kovats

Mr Sean Larkin

Mr Nicholas Peter Le Poidevin

Mr Thomas Alexander Crispin Leech

Mr Robert Stuart Levy

Mr John Letablere Litton

Mr Andrew James Lloyd-Eley

Mr Andrew William Jardine Lockhart

Mr Amjad Raza Malik

Mr David Buchanan Mason

Mr Harold Nsamba Matovu

Mr Richard Andrew Matthews

Mr William Thomas McCormick

Mr Angus Maxwell Thomas McCullough

Mr Bryan Nicholas McGuire

Mr Manus Anthony McMullan

Mr Alexander Hugh Milne

Dr Timothy John Moloney

Mr Neil Robert Moody

Ms Helen Mountfield

Mr Gordon Lawrence Nardell

Mr Cairns Louis David Nelson

Mr Andrew Bennett Newcombe

Mr Peter Robert Oldham

Mr Brian Patrick O'Neill

Mr Daniel Richard Oudkerk

Mr Benedict Joseph Patten

Mr Robert Roger Peel

Mr Simon Benjamin Phillips

Mr Julian Mark Picton

Mr Timothy Sheridan Pitt-Payne

Mr Nigel John Power

Mr Piers Charles William Pressdee

Mr Thomas Price

Mr Philip Carslake Rainey

Mr Paul Stuart Malcolm Reed

Mr Jonathan David Rees

Mr Andrew James Rigney

Mr Jonathan Huw Sinclair Russen

Mr Matthew Conrad Ryder

Mr James Timothy Norman Scobie

Mr Akhil Shah

Mr Andrew John Short

Mr Richard Penkivil Slade

Mr Marcus Alexander Smith

Mr David Hugh Southey

Mr Paul Mallalieu Stanley

Mr Daniel Malachi Stilitz

Mr Christopher Paul Stoner

Miss Jemima Lucy Stratford

Mr Jonathan Mark Swift

Mr David Travers

Mr George Marcus Arthur Trinick

Mr Paul Geoffrey Tucker

Mr Ian Stephen Unsworth

Mr Adam Skanda Vaitilingam

Mr Ian Wade

Mr Robert Thomas Macdonald Weir

Mr Martin Trevor Westgate

Ms Philippa Jane Edwards Whipple

Mr Jonathan Whitfield

Miss Anne Lynne Whyte

Miss Joanne Wicks

Mr Sean David Henry Wilken

Mr Rhodri John Williams

Mr Ian Wise

NOTES

I warned medical regulators to be ready for a new appellate force and indeed I see that Nicola Davies J has granted the first professional discipline appeal to come before her......

The new QC list will be out tomorrow - good luck everyone.

This is good on Binyam Mohamed http://www.headoflegal.com/2010/02/24/binyam-mohamed-finally-an-end/

And did it really take 8 Lords and 1 Lady to decide this:

it was more accurate and helpful to say that the consequences of interference with art.8 rights had to be exceptionally serious before they could outweigh the importance of extradition, 

If being away from your family meant that you shouldn't face criminal prosecution (whether here or abroad) then we wouldn't have prisoners on remand nor anybody awaiting extradition (and consequently no countries prepared to extradite people to us).  I can't really understand how Mr Norris was going to succeed on this point,  absent some evidence of exceptionally serious interference with his family life?

CAN YOU BUY YOUR WAY OUT OF A FINE?

I am a bit disturbed by this decision (19/2/10) from the Criminal Division of the C of A:


Thames Water has a sewerage works in South Croydon.  It wanted to clean them out using highly toxic chemicals (essentially bleach) and then this happened:

1. The sodium hypochlorite cleaning process was begun at about 10 a.m. on 17 September 2007. It was carried out by two of the Appellant's employees. They had not been given any training in the risks involved, nor were they supervised. The first three tanks were, however, cleaned without incident. When the penstock valve to the fourth tank was closed it registered as being fully shut. However it was not, and effluent continued to flow into the tank. No dipstick test was carried out as to the level inside the tank, nor was a lookout posted on the weir, and therefore the two employees failed to notice the continuing ingress of effluent. Mr Barnard for the Appellant conceded that a moment's reflection would have revealed the need for safeguards, and that the mistake in failing to post a lookout on the weir was a 'juvenile' one. Thus when the 1,600 litres of sodium hypochlorite was poured into the tank, the great majority of it was flushed out over the weir and into the main effluent carrier. Although the employees realised that some of the chemical had been flushed out, it appears that they thought that it was only a small proportion, and thus the matter was not reported.
2. Downstream however, the catastrophic consequences soon became obvious. Within half an hour, local residents noticed a very strong and nauseating smell of bleach coming from the main effluent carrier, that the  water  in it had turned cloudy and was bubbling, and that fish were dying in numbers. Police officers were called to the scene and, as one of the officers put it, saw that the chemical was killing the fish and stripping the river of life. The public had to be kept back from the river bank for their own protection from the effects of the bleach. Suspecting that the problem had come from the Works, an officer went there and was informed about the cleaning process. The officer contacted the Environment Agency and they attended the affected area (which, by then, extended along the whole of the main effluent carrier, and also about 2.7 kilometres downstream from its confluence with the river). The officials from the Environment Agency were eventually joined by a senior employee of the Appellant company.
3. A sample of the polluted  water  was taken by a member of the public. Analysis of the sample showed that it contained 150 milligrams of bleach per litre. The Environment Agency's recommended limit for discharge from the Works was .005 milligrams per litre.

The River Wandle is one of those suburban London Rivers which the Enviornment Agency has managed to salvage from its post industrial state to water which fish actaully live in:

1. There then followed a significant operation to clean up the damage to the main effluent carrier and the river. It involved the Environment Agency, the Appellant's contractors, members of angling clubs and members of the public. The clean up operation lasted several days.
2. A report prepared by a Fisheries officer indicated that, on a conservative estimate, over 2 tonnes of fish had been killed by what was, in environmental terms, a short sharp shock to the controlled  waters . Substantial quantities of the fish were of very high quality, with many of the larger specimens likely to be over 10 years old, and thus effectively irreplaceable. Also killed were the vast majority of the  water  hog lice, fresh  water  shrimp and other invertebrates in the affected area, along with all the flora touched by the pollution. Further destruction at Morden Hall Park had been averted by closing sluice gates after information from an alert member of the public about events upstream.
3. The Chairman of the Trustees of the Wandle Trust (otherwise relied upon by the Appellant – see paragraph 24 below) described the offence as follows:-

"The pollution event from [the Works] was completely inexcusable; a tragedy for the Wandle that with one wrong turn of a stopcock destroyed many years of hard work by local people to restore the river".

4. In terms of the 5 kilometre area affected this was plainly therefore a catastrophic event. It is clear that it will take many years to restore the fishery of the river to its pre-pollution condition. Nevertheless, happily, re stocking of the river was able to begin some three months after the offence.

So Thames Water could see a public relations nightmare on the build and no doubt also a prosecution in the offing. So what did they do?

1. In the aftermath of the incident, the Appellant opened the Works to the Environment Agency, and co-operated fully with the Agency's investigation. At a public meeting on 3 October 2007 the Appellant's Chief Executive Officer accepted responsibility, and pledged £500,000 in compensation to restore the river.
2. In the result, the following sums have been paid or pledged:-
• £7,000 project funding for a local education project;
• £10,000 in compensation for the two local angling clubs;
• £30,000 to meet the costs of restocking and an ongoing survey to assess damage to the river's ecology;
• £200,000 core funding for the Wandle Trust to include support for the cost of an employee who will raise additional project funding to deliver access and habitat improvements along the length of the river;
• £250,000 to be paid over 5 years for a restoration fund to support local projects to improve the river environment

The inevitable prosecution came before Daphne Wickham (sitting as a Recorder rather than in her usual place as extradition and terrorism specialist and national Deputy Chief Magistrate at Westminster Mags Court).  She took into account the £500k of reparations and other matters (e.g. a guilty plea) and reduced the fine from a starting point of £250k to £125k.  Thames Water appealed the sentence.  The Court of Appeal reduced the sentence to £50k:

i) As we have already indicated, it seems to us that on its facts, including consideration of the aggravating and mitigating features of the offence itself, this was an extremely serious offence of its type. Thus the learned Recorder was plainly entitled to regard it as such.
ii) Given that assessment, and after consideration of the Appellant's very considerable means, it seems to us that on the facts of this case the appropriate notional fine after a trial, combining both the punishment and deterrent elements of sentence, was a notional fine in the order of £250,000 to £300,000 (with the punishment element of that sum being in the order of £75,000 to £80,000). Thus the learned Recorder's starting point of £250,000 was within the appropriate bracket.
iii) It was not possible to make a compensation order, as the total sum of £30,000 to £40,000 in compensation that might have been the subject of such an order, or orders, had already been paid as part of the voluntary reparation, and thus fell to be considered as part of it.
iv) The nature and amount of the voluntary reparation made and pledged in this case was clearly exceptional. It was, in all, substantially more than the amount of the notional fine after a trial that we have identified above. Although there was an obvious element of public relations gain, and also payment (in substantial part) over a longer period than would have been the case under a court order, the Appellant had thereby clearly brought the necessary deterrent message home to its managers, to its shareholders, and (as a result of the attendant publicity) to others. In the result, the nature and amount of the reparation in this case was such, in our view, as to mean that the proper course should have been for the learned Recorder, in consequence, to have reduced the deterrent element of the notional fine to nil. She therefore fell into error by making a much smaller reduction. We have further considered, with particular care, whether this is one of those rare cases in which the learned Recorder should have gone even further and reduced the punishment element of the notional fine at this stage of the process too. Given, in particular, the extreme seriousness of the offence, it would not have been right for her to have done so, in our view, in this particular case.
iv) We have not identified any further mitigating feature which ought to have reduced the punishment element of the notional fine.
vi) Taking the figure at the bottom of the bracket that we have identified above for the punishment element, namely £75,000, and applying (as she otherwise rightly did) full discount for the early plea, the learned Recorder should thus have arrived at an actual fine of £50,000.


Just a minute - if a corporate defendant does something incredibly stupid which causes a lot of damage and which amounts to a serious criminal offence  - should the fine be reduced because it is has voluntarily put its hand in its pocket to put right the damage it has caused?  The answer is probably yes - it must be a material mitigating factor - but can it really always just be mathematically deducted from the deterrent element of the fine to reduce it to nil?  Can you essentially buy your way out of the deterrent element of the fine?  I'm not sure this sits easily with me?