More blue sky thinking

Criminal law practitioners should have diarised a few key dates, including final prosecution guidance for assisted suicide cases, expected in March, and the government's follow up to the Law Commission's recommendation to reform conspiracy law. The Bribery Bill is another large item on the 2010 agenda, as is the implementation of the Coroners and Justice Act 2009 which will bring in new rules on witness anonymity and video evidence '“ among a whole host of others. But there are also a few less obvious but nonetheless potentially major developments.

Crime

The Supreme Court kicked off a major stand-off with the European Court of Human Rights last week when it ruled in Horncastle that it did not consider itself bound by the rulings of the Strasbourg court over the admissibility of hearsay evidence. The case is now likely to go to the ECtHR, with a showdown set for next year.

Other clashes involving human rights law could strike at the heart of the jury system. Two months ago, the ECtHR heard evidence in the case of Taxquet to the effect that putting questions to a jury where the answer could only be a monosyllabic 'yes' or 'no' was a breach of the right to a fair trial under article 6. The court has asked European countries with a jury system, including the UK, to make representations.

On the subject of juries, the first trial to take place without one is due early next year and will be watched particularly eagerly '“ will this work?

Sentencing generally could take a new direction under the stewardship of the new Lord Chief Justice, Sir Igor Judge, who is likely to take a more conservative approach than his predecessor, Lord Phillips '“ now president of the Supreme Court.

Local authority

From crime to the public sector, where lawyers have started wondering how the planned cuts in public expenditure will affect the sector.

Straightforward reduction in headcount is likely to trigger further employment-related litigation and could also have an impact on service delivery. Take, for instance, planning services, where decisions on applications could be seriously delayed or not made at all '“ leading to more challenges by developers.

As the government is cutting more management fat in the health sector, PFI administrators handling day-to-day management will go, possibly resulting in a rise in disputes with private sector partners over contractual obligations, payment, and other matters such as responsibility for repairs.

Care homes could also be affected by the pressure on budgets, with local authorities having to make more detailed assessments as to which individuals are eligible for public care, in turn leading to more judicial challenges.

But both here and in housing, lawyers expect more contract work as local authorities are outsourcing more and more of the service delivery. One minor spanner in the works, both for councils and the service supplier, could be the extent to which they are regarded as a public body having to comply with procurement and human rights rules.

A further problem will be how these organisations and society as a whole copes with an ageing population living longer. Which takes us to private client.

Private client

Proposed legislation suggests that more individuals should be eligible for homecare funding, but lawyers are concerned that implementation will depend on local authorities' interpretation of their budgetary powers.

More generally, however, lawyers expect to see a rise in Court of Protection work. One aspect they will like to be further addressed is the procedure, which many say remains too onerous and costly (issues that will be addressed in Sir Mark Potter's review started earlier this month).

On the tax planning side, the anticipated rise in capital gains tax and other tax rises should generate further work, including possible changes of country of residence.

One major change for lawyers involved in cross-border inheritance work will be the adoption of an EU regulation on the harmonisation of succession rules on applicable law and jurisdiction. While many charity lawyers are concerned about the possible impact on donations to charitable organisations, private client lawyers have welcomed the flexibility it brings for UK residents.

More immediately, however, charity lawyers will have other issues to contend with.

Charity

Arguably the most sensitive issue is contentious probate after the case of Gill v RSPCA. All the ingredients are there for a perfect thriller: mental capacity, undue influence, proprietary estoppels. The animal charity has appealed and the case will be heard later in 2010.

The other ongoing headache for charity lawyers will be the question of public benefit. The Charity Commission's main battle will continue to be with schools but, after it was made clear that mainstream charities such as the Royal Opera House would be included in the assessment, others will be concerned about how they can meet the new requirement. Among these will be care homes and hospitals, which, unlike schools, do not have bursaries they can readily use to demonstrate their wider contribution to the community.

Then there is also the threat by the Independent Schools Council that it is still considering bringing a judicial review of the very concept of public benefit. Many doubt it would succeed but it sends a pretty powerful signal that the charity sector will not take this lying down.

Finally, one small case a few months back has highlighted a fairly common but often overlooked problem: local authorities acting as trustees of charities which own land.

Dartford Borough Council, acting as trustee of the Newman Kidd charity, had sold land to developers in breach of the trust deeds.

The Charity Tribunal was not able to reverse the sale but has sent a warning to all local authorities in a similar position. Many councils seem to forget they hold land on trust rather than outright. They will have to take a lot more precautions when seeking advice from their lawyers, and these lawyers will have to ask themselves a lot more questions, including property lawyers '“ which takes us back where we started.

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