It was against that background that the Prime Minister’s Withdrawal Agreement was defeated for the second time in parliament the following day, 13 March. MPs voted down the prime minister’s deal by a margin of 149, which was smaller than the 230-vote defeat she suffered in January. Nevertheless, it signalled a period of intense parliamentary activity as a number of other options were mooted and voted upon.
After the defeat of her proposed deal for the second time, Theresa May promised MPs a vote on whether the UK should leave the EU without a deal and, if that failed, on whether Brexit should be delayed. The next day that vote was held, and did fail, by a narrow margin. So the next question was, to delay or not to delay? On Thursday, Parliament voted (by 412 to 202) for the government to ask the EU for a delay to Brexit. EU leaders will debate the matter at a summit next week. Unless they agree to a delay, the exit date of 29 March remains effective, by operation of law, despite the vote to take ‘no deal’ off the table.
At the time of writing, we don’t know whether the EU will grant such a delay, or for how long. What would be the point of such a delay? To get the deal approved (third time lucky) and implemented; or possibly to get a different deal agreed and then approved by Parliament. But one thing (at present) the delay will not be used for, and that is holding a second referendum, or a people’s vote on the deal (whatever it is), because on Thursday, in one of the other votes, with Labour whipping its party members to abstain, Parliament rejected that option. (So the position seems to be that Parliament can vote again and again on the same thing, as often as the Prime Minister likes, but the British people can only vote once, and that’s democracy, yessir.)
Pending the third and presumably final attempt to get the Prime Minister’s deal through Parliament, there have been reports (from Reuters, citing the Daily Telegraph) that Cox AG has new legal advice suggesting that Britain might be able to break off from the Irish backstop under the terms of the Vienna Convention. He seems to be saying that Britain would be able to end the backstop if it was having a “socially destabilising effect on Northern Ireland”. (Presumably that would be over and above the destabilising effect that Brexit is already bound to have.) Cox has earned or enhanced a reputation for succinct legal clarity in all this. Also for robust brevity, as this tweet exchange earlier in the week shows:
There is another way out of this impasse: to revoke (unilaterally) the art 50 notification, issued pursuant to authority conferred by the European Union (Notification of Withdrawal) Act 2017, which would stop the UK leaving the EU on 29 March or at all, unless and until a fresh notification under art 50 were served. Few think it a viable solution, but it remains technically possible. Other legislation, such as the European Union (Withdrawal) Act 2018 (which provides by s 20 that “ ‘exit day’ means 29 March 2019 at 11.00 p.m.’), would need to be amended (as indeed it might if the EU granted an extension of time).
Meanwhile, in the northern mist and rain of Sunderland, on Saturday 16 March a couple of hundred Brexit supporters rallied by Nigel Farage under the banner of Leave Means Leave began what some are calling a ‘pilgrimage of greys’, aiming to complete their dogged tramp across England all the way to London in time for the scheduled departure from the EU on 29 March. Farage is not planning to walk the whole distance; while ‘leave means leave’, it seems ‘walk’ doesn’t necessarily mean ‘walk’.
The massive £1bn HMCTS Reform programme to modernise the court system continues apace, or perhaps not quite as apace as it might like to, since we heard last week that HMCTS is giving itself an Additional year to deliver ambitious court reforms and that “Subject to cross-government approval the proposed finish date of the programme will be a year later, in 2023”.
This is the latest in a series of adjustments that has seen the budget expand to more like £1.2bn, and the finish date move from 2020, to 2022 and, now, 2023. The justification for the change is that lessons have been learned from the agile development process, feedback from users digested, and adjustments to the schedule will allow “more time to develop some of the shared systems that sit behind our next set of online services”.
While much of the progress made so far no longer seems particularly recent or exciting — we have heard repeated announcements about the online divorce and probate applications, benefit appeals, small claims and the single justice procedure for minor guilty pleas — there have been some new developments.
This week the CE-file digital case management system developed with Thomson Reuters and piloted in the Queen’s Bench Division was officially launched at the Royal Courts of Justice in London, with a speech by the Lord Chief Justice, and a promise that use of the online document platform would be compulsory for all professionals for filing claims, exchanging pleadings, documents and written arguments. Litigants in person will continue to be offered a paper-based alternative.
There is a “public search”, too, for non-parties, such as the media and interested members of the public. That could include academic researchers and legal bloggers. They can all search and retrieve documents (you have to download them, you can’t read them online) but they will have to pay for them. One also has to pay for time spent using the service: time can be bought in 15 minute slots (for £11) or by the hour (for £44). This is a source of anxiety for some: will HMCTS or the MOJ seek to monetise access to other people’s documents, just as they do with transcripts and court fees? It sounds as though they may. And if you’re paying by the minute or the hour, what happens if the system goes down? Announcing the development, Lord Burnett of Maldon CJ said HMCTS and Thomson Reuters had worked hard to ensure that problems associated with the “legacy systems” in the court service “will not recur” — but given the history of such problems, one could approach such a promise with caution.
Heathrow Claimants -v- The Secretary of State for Transport: uncorrected transcripts of the previous day's hearing for the judicial review applications into the Government’s policy on the expansion of Heathrow. From 11 March https://t.co/Whb0xH8ImNpic.twitter.com/3MDyvLY2eE
In an unrelated example of the use of digital technology to promote open justice and transparency, the Judiciary have been publishing daily case hearing transcripts of a hearing in the High Court that has attracted justifiable public interest, namely the judicial review of the government’s decision to proceed with an extra runway at Heathrow airport. Technically, the hearings are of applications by various named individuals, organisations and local authorities seeking permission to claim judicial review, against respondents including The Secretary of State for Transport, Heathrow Airport Ltd and Arora Holdings Ltd. (QBD Admin court applications CO/2760/2018, CO/3089/2018, CO/3147/2018, CO/3149/2018.)
The transcripts are published here, via the Judiciary website, in unapproved form. The speed of publication is highly creditable, but the fact that it has been done at all is a proof of concept that demonstrates how easy, in fact, it would be to do this for ALL major hearings, or indeed all hearings of any kind. The question is why this sort of provision should not be incorporated into the raft of case hearing documents lodged and published on CE-file (see above) or something similar. The answer might be that we would much prefer to access it free of charge via the Judiciary website than have it monetised by the Court Service, charging fees calculated by page count, which would only replace one barrier to public legal information with another.
Bloody Sunday prosecutions
The Public Prosecution Service of Northern Ireland issued its decision over prosecutions of British military personnel arising out of the events investigated in the Bloody Sunday Inquiry. Nineteen individuals had been reported for a range of potential offences including murder, attempted murder and wounding committed on 30 January 1972. However, in the end the PPS only decided it would be justifiable to proceed against one individual. The Director of Public Prosecutions for Northern Ireland, Stephen Herron said:
“It has been concluded that there is sufficient available evidence to prosecute one former soldier, Soldier F, for the murder of James Wray and William McKinney; and for the attempted murders of Joseph Friel, Michael Quinn, Joe Mahon and Patrick O’Donnell.
“In respect of the other 18 suspects, including 16 former soldiers and two alleged Official IRA members, it has been concluded that the available evidence is insufficient to provide a reasonable prospect of conviction. In these circumstances the evidential Test for Prosecution is not met.”
The press release explained that “The decisions announced today relate only to allegations of criminal conduct on Bloody Sunday itself. Consideration will now be given to allegations of perjury in respect of those suspects reported by police.”
In a Summary of Reasons, the PPS explained the criteria to be applied, including the evidential and public interest tests for prosecution, as well as the background of the Inquiry and the way the evidence, including that of the present suspects, had been gathered, the burden and standard of it, and the assurances given as to protection against self-incrimination.
The decision not unnaturally was met with disappointment by the victims and their families. The Irish Times reported that the “The Bloody Sunday families have vowed to continue their campaign for justice”, and there has been speculation that they might seek judicial review of the PPS’s decision. There have also been suggestions that the trial of Soldier F may have been prejudiced already, because of publicity given to remarks by cabinet ministers as to the legal status of acts by serving military personnel and their protection from prosecution in the future.
The government has recently issued various forms of commitment to deal with violence. On 6 March, just ahead of International Women’s Day, the Home Office published its refreshed violence against women and girls (VAWG) strategy (first launched in 2016) in order to provide further support to victims and survivors of violent crime. This includes a cross-sector, end-to-end review into how rape and sexual violence cases are handled across the criminal justice system.
The following day the Home Office published its first cross-government position statement on male victims of VAWG-type crimes, which sets out the scale of abuse against men and the specific vulnerabilities they face. The Male Victims Position Statement sets out 12 specific commitments to better enable male victims and survivors to come forward and receive the support they need and bring perpetrators to justice. Minister for Crime, Safeguarding and Vulnerabilities, Victoria Atkins said:
“Men can, and do, suffer from crimes such as domestic and sexual abuse. It is a horrendous experience that often goes unrecognised and it is heartbreaking some men feel they cannot report their experiences because of societal views around masculinity.”
Finally, on 13 March the Treasury pledged a further £100 million funding to be made available to police forces in the worst affected areas in England and Wales for knife and violent crime. This was part of the Spring Statement from the Chancellor of the Exchequer, Philip Hammond. The funding will also be invested in Violence Reduction Units, bringing together a range of agencies including health, education, social services and others, to develop a multi-agency approach in preventing knife crime altogether. The units will be based on models used in Glasgow where homicide rates fell by 54% from 2006/07 to 2015/16. The announcement also pointed out:
“This is on top of the £970 million of additional money that policing is already due to receive from April 2019, including additional funding that the Chancellor announced at last year’s Budget. Police and crime commissioners have already committed to the recruitment and training of nearly 3,000 extra police officers. Longer-term funding for the police will be confirmed at this year’s Spending Review.”
Times Law Awards
At a dinner on 13 March the Times Law Awards 2019 student essay competition winner was announced in a speech by the Lord Chancellor, David Gauke, who chaired the judging panel. For this year’s competition, sponsored by One Essex Court, entrants were invited to write a 1,000-word essay discussing: “Brexit: A threat or an opportunity for UK lawyers and legal London?” Gauke said:
“Our winner this year made the argument that disentangling ourselves from the European Union represents an opportunity to underpin the Rule of Law, improve on legal clarity and improve access to justice. What’s clear is that this bright young man will have no problem whatsoever accessing career opportunities in the law.
Please join me in congratulating George Croft.”
In second place was Nyasha Weinberg, in third place Alexander Shaw, and the runners up were William Beddows, Sam Dayan and Elijah Bossa.
In his speech Gauke LC made a point of reiterating (as both he and the Lord Chief Justice frequently do) that
“Our justice system is one that is envied across the globe. So much so that the world looks to us to be their counsel and courtroom.”
No doubt the irony of the fact that many of those enviable counsel doing publicly funded work are struggling to cope with increasing workloads and decreasing fees while many of those enviable courtrooms contain buckets to catch the drips from leaking ceilings and long queues for broken toilets was lost in the glitter of the occasion. That is, as it were, the ‘Legal System for the Rest of Us’.
Perhaps next year’s essay competition (to be judged by the Secret Barrister?) can discuss “How can our legal system be the envy of the world if we don’t have enough judges and the fabric of the courts is falling apart?” But then again, a thousand words might not be enough.
Putney Debates 2019
ICLR’s Paul Magrath appeared on Thursday 14 March at this year’s Putney Debates, the theme of which was: The Courts — Friend or Foe? Hosted at St Mary’s Putney, the debates (which revive the notion of the original Putney Debates of the 17th century) are organised by The Foundation for Law, Justice and Society. They ask:
“Since the EU Referendum, the courts have been called upon time and again to make politically charged judgments to break the constitutional impasse. They have been branded ‘Enemies of the People’ and fêted as defenders of centuries-old constitutional principles in equal measure.
Now, as the UK approaches the most significant change to its constitutional settlement for decades, the Oxford Foundation for Law, Justice and Society revisits for the third time the historic Putney Debates, to ask:
What role do we want for our judges in the 21st Century?”
Magrath’s contribution formed part of Session III: How Can We Defend Judicial Independence? We will publish a summary of his talk on the ICLR blog, but the debates as a whole were filmed and will be broadcast via the FLJS site, and there has been talk of including all the talks in a book. If so, we’ll let you know.
Reporting restrictions and the James Bulger murder
In February 1993, two-year-old James Bulger was abducted, tortured and then murdered by two 10-year-olds, Jon Venables (JV) and Robert Thompson. As Sir Andrew McFarlane P says in the opening words ofVenables v News Group Papers Ltd  EWHC 494 (Fam) (4 March 2019): “The family of young James Bulger were and are deserving of the greatest sympathy as the indirect victims of this most horrific crime.” It was James’s father and his uncle who brought the question of publicity – or not – for JV back to court.
Their application was to vary a “confidentiality” injunction. The application was made on the basis – said the applicants – that JV’s name and image are now freely available should any member of the public undertake an Internet search. Details of his identity, and locations with which he has been connected in the past, have therefore become “common knowledge”.
JV, with Robert Thompson, was convicted in November 1993 of James Bulger’s murder. They were sentenced to be detained during Her Majesty’s pleasure. At that time injunctions were granted to restrain publicity as to their circumstances and throughout their childhood. When they reached 18 (in August 2000) both applied to extend their anonymity injunctions on into their adult life. That application was contested by a number of media agencies.
The applications for reporting restrictions and anonymity received extensive consideration by Dame Elizabeth Butler-Sloss, then President of the Family Division. In Venables v News Group Newspapers Ltd  Fam 430 she granted wide-ranging orders which were highly restrictive of publicity. The order was to run indefinitely. It prohibited publication of any depiction of either of JV and Thompson or any description of them, their voice or physical appearance; of any information which might lead to any new identity they might assume being discovered; or of any information as to their whereabouts. The order was not appealed against by any of the media who had opposed it.
In making the order, Dame Elizabeth considered that if no order had been made then, on their release, the men would be pursued by those intent on revenge. This was sufficient for her to believe their lives were threatened (European Convention on Human Rights 1950, Art 2) or that they were in danger of torture (Art 3). There was therefore sufficient evidence for her to find that there was a strong and pressing social need for their ‘confidentiality to be protected’. She regarded this as part of the developing law of confidentiality derived from a person’s right to respect for their private life (Art 8).
Application for variation of restrictions on publicity relating to Jon Venables
The present case relates to JV only. He had been released on licence in February 2010, but was recalled when child pornography was found on his computer. He was prosecuted, and when sentenced Bean J was asked to review the injunction. By then JV had assumed a new name; and Bean J was asked to protect him in that name. He did so on grounds arising from Art 2 and 3; or he said, he would have reached the same conclusion by application of ‘domestic law’ (Venables v News Group Papers Ltd  EWHC B18 (QB) at -).
Bean J continued the 2001 order. JV was released again in 2013, but his offending recurred. He returned to prison, and remained on licence. The father and his brother made their application in the context of JV’s re-offending and of the need, they said, for the public to be protected and to know when JV was not in prison.
In the present case the Attorney-General appeared at the invitation of the court. He argued that it was in the interest that the injunction remain in place, as did JV himself. The Attorney-General drew attention ( EWHC 494 (Fam) at ) to the exceptional nature of the case and to the need for the court to act compatibly with the variety of European Convention 1950 rights engaged by the application. He stressed that Arts 2 and 3 are at the top of the ‘hierarchy of rights and freedoms’; and that they are unqualified.
Human rights balance
Sir Andrew summarised the human rights balance, as he saw it, as follows:
“ … A balance must be struck between the competing rights of the applicants [Mr Bulger and his brother] and the wider public, which are in favour of openness and transparency, against those of JV. If JV’s rights under Article 2 and/or Article 3 of the ECHR are at risk of being breached, that factor is not a trump card and it remains necessary for the court to strike a balance as against the Article 10 rights of the Applicants and others.”
The purpose of the injunction was “to protect JV from being put to death”. He is, as Dame Elizabeth had said, “uniquely notorious”. So, concluded Sir Andrew:
“ … There is a strong possibility, if not a probability, that if his identity were known he would be pursued resulting in grave and possibly fatal consequences. This is, therefore, a wholly exceptional case and the evidence in 2019 is more than sufficient to sustain the conclusion that there continues to be a real risk of very substantial harm to JV.”
Sir Andrew found “there is a profoundest sympathy” for the applicants; but their “basic premise” that the injunction should be varied (save in minute detail) was not made out on the evidence they had put before the court (paras  and ).
Anonymity and the law
The general rule is that those who appear before the courts do so without expectation of anonymity, even if – perhaps harshly – they are the subject only of police inquiries (Khuja v Times Newspapers Ltd  UKSC 49;  3 WLR 351, 19 July 2017). Children and those who lack capacity (Mental Capacity Act 2005) can expect anonymity.
In A v British Broadcasting Corporation  UKSC 25,  1 AC 558 (a case considered by Sir Andrew) the anonymity of a man was ordered to be protected where he was to be deported. He realistically feared victimisation and worse when he returned to his country of origin. Lord Reed set out the general open justice principle; but then went on to explain:
“ Exceptions to the principle of open justice were considered in the well-known case of Scott v Scott  AC 417, in which the House of Lords emphasised in the strongest terms the importance of the general principle, but also recognised that there were circumstances in which it was necessary to depart from it… Another example … of greater relevance to the present case, was litigation concerning a secret process, ‘where the effect of publicity would be to destroy the subject-matter’. All of their Lordships stressed the need for a compelling justification for any departure from the principle of open justice.”
Venables, with its reliance on the exceptional rights defined by Arts 2 and 3, sets up one of the compelling justifications for departure from open justice and the resultant restriction on freedom of information (Art 10).
When reading a full text case report on ICLR.3 you can now use the Table of Contents on the left to navigate to and within the individual judgments in the case. In the illustration above*, you will see that we have opened the case of R (Miller) v Secretary of State for Exiting the European Union (Birnie intervening)  UKSC 5 in The Law Reports (Appeal Cases) edition at  AC 61. This is a “combined report”, because it contains the judgments not only of the UK Supreme Court but also the judgment of the High Court (Divisional Court of Queen’s Bench) in the same report. You can navigate to different parts of the report by way of the Table of Contents display in the left panel. When first opened, this lists the following elements (relevant to this case):
Now you can not only navigate directly to the beginning of the judgments, but you can navigate to each separate judgment given in the case.
As will be apparent, JUDGMENT 1 in this report is the judgment of the court given by the three High Court judges collectively. JUDGMENT 2 to JUDGMENT 5 represents the judgments given in the Supreme Court.
You will also notice that there is a small (+) | (-) toggle at the top of the Table of Contents, and a separate (+) against each judgment element. Clicking on this will expand or contract the Table of Contents display, or of the particular judgment.
You will see that the judgment of Lord Reed JSC has been expanded and that a heading within it, The argument of the Miller claimants, has been highlighted. In fact, the precise location in the judgments has been identified (by changing colour, and/or an angled sign) at three levels, as the next image points out.
In European Court of Justice cases, although there is usually only a single judgment of the court, most cases also include an opinion of the Advocate General. These will appear as a separate element, labelled OPINION, followed by the court’s JUDGMENT.
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The expand/contract buttons which we’ve shows as (+) | (-) are also available when viewing legislation, which you can search via the Full Search page (click on Legislation to switch from Case Law in the full search form). In the example below, you can see how Schedule 1 to the European Union (Withdrawal) Act 2018 has been opened to view (but not expanded in the ToC), while Schedule 2 has been expanded to show its two component Parts, though these have not themselves been expanded. (It would have been possible, at the top of the ToC to expand the whole statute, in which case all the Parts, Schedules etc would be displayed in full, rather than collapsed, as in the default display.)
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The Putney Debates, organised by the Foundation for Law, Justice and Society, this year examine the issue of judicial independence and the rule of law, under the title The Courts — Friend or Foe?
Chaired by renowned legal commentator Joshua Rozenberg and the founder of the New Putney Debates Professor Denis Galligan, the three sessions will ask
• What role do we want for our judges in the 21st Century?
• Why is judicial independence necessary and in what ways is it under attack?
• What models exist for the best possible balance between judicial independence and accountability?
See full programme details. From these you will see that on the third panel, at 4.30 pm on Thursday 14 March, Paul Magrath of ICLR will be among those discussing How Can We Defend Judicial Independence?
We will publish his submission here in due course. In the meantime, by way of background, the organisers set the scene:
“The unprecedented scrutiny that courts around the world find themselves under has led many to question their neutrality and the nature of their position in relation to the elected government of the day and the electorate.
Yet courts inevitably occupy a precarious position. They are criticized for their unelected status and perceived lack of accountability, yet in their role as impartial arbiters of the law, they are nevertheless duty-bound to uphold the law and constitution, which demands that they examine and contest the decisions made by our elected representatives in Parliament.
As international and supranational institutions become ever more influential, courts such as the European Court of Justice (ECJ) have attained an uneasy prominence in determining issues that transcend national borders and restrict the actions of nation states.
These insecure foundations and increasing influence have lifted the institution of the judiciary above the parapet of popular opinion as never before. The courts are now targets for attack from dissatisfied governments and social movements with a vision for a direct application of the will of the people, yet remain an indispensable pillar of our democratic system.”
Featured image: the original Putney Debates which began at St Mary’s church on 28 October 1647 pioneered the liberal, democratic settlement: a written constitution, universal suffrage, freedom of conscience and equality before the law.
‘Right to rent’ checks scheme unlawful
The government’s Right to Rent scheme, which requires landlords to check the immigration status of tenants, with fines of up to £3,000 and a potential prison term if they fail to do so, was found to constitute unlawful racial discrimination in a claim for judicial review brought by the Joint Council for the Welfare of Immigrants (JCWI). The scheme was introduced by sections 20–37 of the Immigration Act 2014, and is a cornerstone of the government’s ‘hostile environment’ policy, which aims to reduce the number of illegal immigrants in the UK. But the JCWI claimed the scheme was “race discrimination against those who are perfectly entitled to rent”.
That does not mean the scheme is no longer in force: it means Parliament needs to change the law, but unless and until it does so, the law remains in force, as the Associate Professor of Property Law at the University of Leicester and author @ModernLandLaw pointed out:
I’ve seen lots of tweets today celebrating the fact the #righttorent scheme has been ruled unlawful and will no longer apply. But that is not true: a declaration of incompatibility has no legal effect, and the law will continue to apply until Parliament says otherwise. https://t.co/XUf5zTwfXo
The judge further declared that a decision by the Home Office to extend the scheme to Scotland, Wales or Northern Ireland without further evaluation of its efficacy and discriminatory impact would be irrational and would constitute a breach of section 149 of the Equality Act 2010. The Home Office said it was “disappointed” by the ruling. But the Residential Landlords Association welcomed the ruling, saying the policy had turned landlords into “untrained and unwilling border police”.
There are comments on the case from Free Movement, High Court finds Right to Rent checks discriminatory in landmark judgment (looking at the matter from the immigration point of view) and from Nearly Legal, Rights and Right to rent (looking at it from the landlords’ point of view).
Murder conviction quashed in coercive control case
Sally Challen, who in 2011 was sentenced to life imprisonment with a minimum term of 18 years for the murder of her husband, has won an appeal against conviction but (subject to any decision by the Crown not to proceed with the case) must now face a retrial. The Court of Appeal, Criminal Division gave an extempore judgment (per Hallett LJ, sitting with Cheema-Grubb and Sweeney JJ) on 28 February 2019, which was live tweeted throughout, but then imposed reporting restrictions, limiting what can now be said about their decision to a statement that (i) they had heard evidence from a pair of consultant psychiatric specialists who said Sally was suffering two mental disorders at the time of the killing, and (ii) this evidence had not been available at the trial.
Allowing an appeal on the basis of new evidence is not unusual, but the case is said to have made legal history by virtue of its raising the issue of domestic abuse by way of coercive and controlling behaviour, and its effect in diminishing the victim’s responsibility for a desperate act of homicidal violence against the perpetrator. (She bludgeoned her husband’s head with a hammer.) The case was the subject of a campaign by her sons and others, under the hashtag #FreeSallyChallen.
As The Guardian explained in its report, Sally Challen, had been married to Richard Challen for 31 years, but was separated at the time of the offence. She
“She admitted killing the former car dealer, but denied murder claiming diminished responsibility. Her case was that she had been subjected to abuse and intimidation by her husband, whom she met when she was 15.
The prosecution case was that it was the action of a jealous woman who suspected infidelity, and she was found guilty of murder and jailed for life with a minimum term of 22 years, later reduced on appeal by four years.”
At a press conference, her solicitor Harriet Wistrich said:
“Whatever may be the ultimate outcome, we have managed to raise awareness and a much deeper understanding of the concept of coercive control, which is such a recent one.”
Not everyone reported the case as calmly and humanely as the Guardian, with numerous headlines referring to ‘hammer killer wife’ and the like. At least the BBC changed its tune after numerous complaints:
In its latest report, Transforming Rehabilitation: Progress review (HC 1986) (1 March 2019), the National Audit Office is highly critical of the way that the Ministry of Justice under then Lord Chancellor Chris Grayling set about its Transforming Rehabilitation project in 2013.
The so-called reforms involved creating a two-tier probation system in England, under which serious offenders would continue to be dealt with by the national probation service, but less serious offenders would be managed by a number of private Community Rehabilitation Companies (CRCs) who would bid for the contracts and deliver probation services on a paid-by-results basis. They soon found that the results were poor and the pay was inadequate. Last July the Lord Chancellor David Gauke effectively admitted that the partial privatisation of probation services had not worked well and that CRC contracts would be terminated two years early, in 2020, with a view to a complete rejig of the system.
According to the NAO report:
“The Ministry set itself up to fail in how it approached the Transforming Rehabilitation reforms. Its rushed implementation introduced significant risks that its chosen commercial approach left it badly placed to manage. The consequences of these decisions are far reaching. CRCs have underinvested in probation services, which have suffered as a result. There is little evidence of hoped-for innovation and many of the early operational issues, such as friction between the NPS and CRCs, persist. Although the number of reoffenders has reduced, the average number of reoffences they commit has increased significantly. Transforming Rehabilitation has achieved poor value for money for the taxpayer.”
The report finds that the Ministry designed and implemented its reforms too quickly and without sufficient testing. Its chosen commercial approach proved to be inappropriate given the nature of probation services. The agreement last June to to terminate the contracts of Community Rehabilitation Companies (CRCs) 14 months early has cost to the taxpayer a further £171m at least. When added to the costs of changing the contracts in 2017–18 the total estimated additional cost becomes at least £467m. Although the Ministry has identified and acted on many of the shortcomings in the reforms, its proposals for probation services do not address all the risks, and they introduce some new ones.
Judiciary response to McKenzie Friends consultation
There was some disappointment over the long-awaited response of the judiciary to its own McKenzie Friends Consultation, in which they essentially kicked the can down the road to Westminster.
To recap, in February 2016, the Lord Chief Justice and the Judicial Executive Board (JEB) issued a consultation entitled Reforming the courts’ approach to McKenzie Friends. It followed an internal report by a judicial working group and sought responses to a number of proposals in relation to McKenzie Friends, including changing their name to ‘court supporter’, replacing existing practice guidance with rules of court, introducing a Code of Conduct for them, and imposing a bar on recovery of fees. The consultation closed in June 2016 year (extended from May 2016). In view of the large number of responses, the JEB decided to establish a further judicial working group to review the original proposals in the consultation paper in the light of those responses. That was in September 2017. It has taken until now for them to publish their response.
The Law Society Gazette reports that Judges duck sweeping McKenzie reforms, pointing out that “the judiciary has ducked the issue of banning fee recovery by paid McKenzie friends saying that is a matter for the government.”
In fact, they have ducked more than that, as Paul M points out on the Transparency Project blog. They have basically passed the whole problem over to the government, saying the problems with McKenzie Friends (about which they are “deeply concerned”) have in turn been caused by the massive growth in the number of litigants in person (LIPs) as a result of cuts to legal aid, and therefore “It is for the government to consider appropriate steps to be taken to enable LiPs to secure effective access to legal assistance, legal advice and, where necessary, representation.”
Accordingly, they are passing the whole file over to the Lord Chancellor at the Ministry of Justice. They do, however, recognise that it is time to update the Practice Guidance (McKenzie Friends: Civil and Family Courts)  1 WLR 1881 in line with more recent law. Though no more recent cases are cited in their response, they suggest that “To ensure that it properly reflects the current case law, it should now be updated and re-issued.”
Clifford Bellamy, who retired as the Designated Family Judge for Derby last month, has agreed to act as a patron of The Transparency Project, a charity which explains and discusses family law and family courts in England & Wales, and signposts to useful resources to help people understand the system and the law better. Read their announcement here.
Pupillage Award open
This year’s annual ICLR Pupillage Award is now open. If you are taking up pupillage in Autumn 2019, paid a total for the pupillage year of no more than £25,000 (including guaranteed earnings), you could receive our top-up award of a further £12,000.
For more information about the rules, the application process, and to download the application form or complete it online, go to the ICLR Pupillage Award 2019 page on our website.
Last year’s winner was Daniel Wand, at 4 King’s Bench Walk.
… was the name of one of our mystery donors for ICLR’s participation in the Great Legal Bake 2019, organised by the London Legal Support Trust. It is one of two ways in which we help raise funds to provide much-needed free legal advice in the desert left by savage legal aid cuts. (The other is the LEGAL WALK which will take place on Mondy 17 June 2019.)
With this year’s bake ICLR has so far raised a total of £121.50 (including Gift Aid for non-cash donations). It’s not too late to add to that, via ICLR donations page.
Overall, with all the law firms and chambers and other organisations taking part, the LLST Great Legal Bake has raised £10,000 to date.
Dates and Deadlines
Discussion: Diversity and Social Mobility
Bingham Room, Gray’s Inn, Monday 11 March, 6–8pm
Co-hosted by the former President of the Supreme Court Lord Neuberger and Pupil Barrister at 2 Hare Court Kawsar Zaman, the panel will share their own inspirational journeys to the law and/or the measures they have taken to champion issues of diversity and social mobility in the legal profession. With Mrs Justice Cheema-Grubb, Matthew Ryder QC, Sophie J. Lamb QC, Dominic Griffiths. Registration: 17:45.
This event is open both to members and non-members, but is now fully booked. Please contact Tom Charles(link sends e-mail) to be placed on the waiting list.
Prevention of recidivism: trends in Japanese criminal policy
Daiwa Foundation Japan House, Wednesday 13 March 2019, 6 to 7 pm
Seminar arranged in cooperation with the British Japanese Law Association, in which Andrew Watson of Sheffield Hallam University’s Department of Law and Criminology, and Taichi Yoshikai, law professor at Kokushikan University Faculty of Law in Tokyo, discuss the basics of the Japanese probation system and the challenges it faces, with comparison to probation in England and Wales (as to which, see above), in the light of a recent Japanese Act to Promote Prevention of Recidivism (2016).
Survive & Thrive: Co-operation and Compromise — Strategies for Success
Middle Temple, Thursday 21 March 2019, 5.30 pm
Speakers Adam Kay, comedy writer, author, comedian and former doctor, and Tom Tugendhat MP, son of the retired High Court Judge, Sir Michael Tugendhat, discuss how to compromise whilst maintaining authority, how to manage your client’s expectations vs. the reality, and share some effective communication techniques for successful compromise. Moderator, Dame Philippa Whipple, High Court judge.
Members of the Inn can buy tickets online by Clicking here. If you are not a member of the Inn you can purchase tickets from the Treasury Office in person or by telephoning 020 7427 4800.
Tweet of the week
is by the Cat from Greece
More importantly, this morning’s malarkey is in Croydon, home to the best bit of Court signage anywhere. pic.twitter.com/WYlHmPaP0d
Use of robots and algorithms under scrutiny
A report from Liberty reveals that 14 police forces are using, have previously used or are planning to use algorithms which ‘map’ future crime or predict who will commit or be a victim of crime, using existing police data. Policing by Machine — Predictive Policing and the Threat to Our Rights collates the results of 90 Freedom of Information requests sent to every force in the UK, laying bare the full extent of ‘predictive policing’ for the first time. The report highlights what it calls
“a severe lack of transparency with the public given very little information as to how predictive algorithms reach their decisions — and even the police do not understand how the machines come to their conclusions”.
It explains how “opaque” predictive policing programs use “hordes of biased police data” to “assess a person’s chances of victimisation, vulnerability, being reported missing or being the victim of domestic violence or a sexual offence, based on offensive profiling”. By “entrenching pre-existing discrimination” in the data, they create a significant risk of “automation bias”, with a “decision-maker simply deferring to the machine and accepting its indecipherable recommendation as correct”.
Policing by Machine focuses on two specific types of predictive policing program:
(1) predictive mapping programs — which evaluate police data about past crimes and identify ‘hot spots’ or ‘boxes’ of high risk on a map. Police officers are more likely to patrol these areas, collecting in turn more data justifying their hot-spot status. If the area has significant racial minority populations, data about these will also be more concentrated, adding racial bias to the mix.
(2) individual risk assessment programs — which predict how people will behave, including whether they are likely to commit, or be victims of, certain crimes. Such programs base their predictions on 34 pieces of data, 29 of which relate to a person’s past criminal history, alongside things like their postcode (see above), which can act as proxies for ethnicity, adding to the risk of bias. Thus the simple elimination of explicit references to race is insufficient because the presence of proxy data often serves to generate the effect of a discriminatory profile.
The report raises timely questions about the sufficiency of human (preferably independent) oversight, as well as transparency, accountability and public scrutiny. The report suggests that section 49 of the Data Protection Act 2018 (Right not to be subject to automated decision-making) does not go far enough. It also draws attention to a wider issue with the transparency of profile datasets, and the use of big data to manipulate political messaging and influence consumer behaviour. It links in with issues about fake news (see below) as well as, more directly, the management of policing initiatives to deal with gang-related violence and knife crime (see below). It cites the report last year in which the Information Commissioner’s Office (ICO) found that the Metropolitan Police Service’s (MPS) use of the Gangs Matrix database led to multiple and serious breaches of data protection laws, and calls for review of the use of all such data.
Robots in law
Meanwhile, there is some rather more benign news of legal mechanisation. First, Legal Futures reports that
“A ‘robot mediator’ has been used to settle a dispute in the court system, for what is believed to be the first time. The online tool, which uses artificial intelligence (AI) algorithms in place of a human mediator, settled the three-month dispute in less than an hour.”
The parties were directed to the Canadian dispute resolution tool Smartsettle ONE, which was developed in British Columbia by ICan Systems.
Secondly, in India, police in the state of Kerala have introduced what is believed to be the first Indian use of a ‘RoboCop’ — a mechanical officer, known as KP-Bot, and given the rank of Sub Inspector (SI). According to India Today,
“The KP-Bot will be deployed to perform duties of the front office of the police headquarters which means that it will receive visitors and direct them to different places as and when required. … The robot is equipped with facilities to fix appointment with officers, provide them with identity cards and also open new files based on their grievances.”
The robot was given a female appearance, on the somewhat dubious basis, explained by Director general of police (DGP) Loknath Behra, that
“Women empowerment and gender equality were kept in mind while deciding on the gender of the first robot. Also, the fact that most front office jobs are managed by women was considered…”
Toasters, kettles and computers are not gendered; it seems rather absurd to impose such a distinction on a robot. Perhaps Siri or Alexa could provide an answer? Or even Judge Droid:
Funding to help beat knife crime and gang culture
The Ministry of Housing, Communities and Local Government has pledged to provide over £9.5m towards community-based projects across England aimed at enabling earlier intervention and support for children and families vulnerable to knife crime and gang culture, with a further £0.3m to train frontline staff.
The new funding will be channelled through the Troubled Families programme, according to an announcement by Communities Secretary James Brokenshire MP. The Supporting Families Against Youth Crime fund will enable keyworkers, community groups, teachers and other professionals working with children and young people at risk, to intervene early and help stop them from becoming drawn into gang crime, serious violence and the youth justice system.
As part of these further measures to intervene early, this spring will also see the launch of the next phase of the #knifefree campaign, which is intended to inspire young people at risk of being drawn into gang culture to pursue more positive alternatives.
Counter-Terrorism Bill passed
The Counter-Terrorism and Border Security Act 2019, which received the Royal Assent on 12 February, gives the give the UK greater powers to crackdown on hostile state activity, according to an announcement by the Home Office. It also ensures sentencing for certain terrorism offences can properly reflect the severity of the crimes, as well as preventing re-offending and disrupting terrorist activity more rapidly. In addition, the act updates existing counter-terrorism legislation to reflect the digital age including the way in which people view content online (eg by viewing or streaming rather than permanently downloading).
Among other things it will introduce an independent review of Prevent, the government’s strategy for supporting those vulnerable to radicalisation. The legislation is said to be the result of a review of the government’s counter-terrorism strategy, CONTEST, in June last year.
Voyeurism Bill enacted
‘Upskirting’, which typically involves someone taking a picture under another person’s clothing without their knowledge, with the intention of viewing their genitals or buttocks, is now a specific criminal offence under a new statute, the Voyeurism (Offences) Act 2019, which received the Royal Assent on 12 February.
Hitherto the behaviour was successfully prosecuted under the offence of Outraging Public Decency. However, following concerns raised by victims that not all instances of ‘upskirting’ were covered by current law, the government acted to create a new, specific offence. It creates two new offences under the Sexual Offences Act 2003 to capture this behaviour. The changes will cover England and Wales; ‘upskirting’ is already a specific offence in Scotland.
Almost a year ago, on 20 March 2018, the then chair of the bar, Andrew Walker QC, commented
“we strongly condemn any bullying or inappropriate treatment of our members by judges, or by any other legal professionals they encounter. We know it can happen, and we have resources available to support barristers on our Wellbeing at the Bar website, and we can give advice and guidance via our confidential helplines.
“Our advice is always to be civil but firm with any bullying judge, opponent or clerk; to seek advice about it; and to report it. Both the Bar Council and Bar leaders are committed to making sure that bullying is addressed and not tolerated.
Now the Bar’s Equality, Diversity and Social Mobility Committee has published Advice to the Bar about bullying by judges as a downloadable PDF on its Ethics & Practice Hub. The advice recognises that only a small minority of judges are bullies, and that judges work under significant pressures and stress. However, “there is no excuse for bullying, or for tolerating it. It has no place in the rule of law, in the legal profession or in our courts. It must be addressed if it happens.”
A major problem for victims is the risk that any attempt to complain or object to the judge in the face of bullying behaviour will adversely affect their client’s case or their own career advancement. This is where the senior members of the profession can help, the advice suggests:
“If you are a senior practitioner, or in a leadership position, and are in court at the time of the bullying then please consider taking issue with it at the time, especially if the target is a more junior practitioner. Your intervention may help to reduce the impact on the target and show them that the senior members of the profession are prepared to stand up and be counted in support of our more junior members.”
Bullying can come from other professionals as well, as can sexual harassment, and there is advice about this on the Ethics & Practice Hub as well.
“individuals’ rights over their privacy, how their political choices might be affected and influenced by online information, and interference in political elections both in this country and across the world — carried out by malign forces intent on causing disruption and confusion.”
At times the committee have had to use its powers to order people to give evidence and to obtain documents sealed in another country’s legal system. It has worked with politicians and parliaments from other countries, sharing the “worldwide appetite for action to address issues” relating to malign disinformation, propaganda and political interference. One of the problems has been the willingness of many (at all levels of intelligence and social status) to
“accept and give credence to information that reinforces their views, no matter how distorted or inaccurate, while dismissing content with which they do not agree as ‘fake news’,”
with a consequent “coarsening” of public debate. What needs to change, the report’s summary says, is
“the enforcement of greater transparency in the digital sphere, to ensure that we know the source of what we are reading, who has paid for it and why the information has been sent to us.”
The big tech companies, it says, “must not be allowed to expand exponentially, without constraint or proper regulatory oversight.” There is particular criticism of Facebook, whose founder Mark Zuckerberg showed “contempt towards the UK Parliament” in refusing to appear before the committee’s hearing:
“Facebook’s handling of personal data, and its use for political campaigns, are prime and legitimate areas for inspection by regulators, and it should not be able to evade all editorial responsibility for the content shared by its users across its platforms.”
The report (which we have not read in full) concludes with a number of recommendations, including:
a compulsory Code of Ethics, similar to Ofcom’s broadcasting code, overseen by an independent regulator with statutory powers
protection of “inferred data” (derived from monitoring a person’s online activity and preferences) under the law as personal information
a levy should be placed on tech companies operating in the UK to support the enhanced work of the ICO
the Competitions and Market Authority (CMA) should conduct a comprehensive audit of the operation of the advertising market on social media
Electoral law should be updated to reflect changes in campaigning techniques, and the move from physical leaflets and billboards to online, micro-targeted political campaigning
all political parties should work with the ICO, the Cabinet Office and the Electoral Commission, to identify and implement a cross-party solution to improve transparency over the use of commonly-held data
welcome and support for the Cairncross Review report on safeguarding the future of journalism, and the establishment of a code of conduct to rebalance the relationship between news providers and social media platforms
digital literacy should be a fourth pillar of education, alongside reading, writing and maths.
The second Kay Everett memorial lecture was delivered at the School of Oriental and African Studies (SOAS) by the President of the Investigatory Powers Tribunal, Sir Rabinder Singh, on Wednesday 20 February 2019.
Other speaks include Dr Paul Wragg, Associate Professor of Law, University of Leeds School of Law, Dr Laura Scaife, Dr Richard Danbury, ILPC Associate Research Fellow, Associate Professor of Journalism, De Monfort University, and as Chair: Dr Nóra Ni Loideain, Director of the Information Law and Policy Centre, Institute of Advanced Legal Studies. Advance booking required: here.
Legislation after Brexit — Are you prepared?
Middle Temple Library, Monday 4 March, 6 to 8 pm.
This event looks at retained EU legislation — what it is, where you can find it and why it is so significant. Speakers include Chair of the Bar’s Brexit Working Group & Leader of the European Circuit, Hugh Mercer QC, representatives from the National Archives who are tasked with archiving EU law, and representatives from Thomson Reuters.
If you would like to attend, please contact the Library at email@example.com. Places are limited.
Politics and the Legal Profession
Gresham College (Barnard’s Inn Hall), Thursday 7 March, 6 to 7 pm
Gresham Professor Jo Delahunty QC will be exploring the controversial issue of how the politics of the day or decade can affect the way in which the Justice system functions in private and is perceived by the public. The lecture forms part of a series on the family justice system. For more details, and access to streaming and written materials, see the Gresham College website.
WCWF International Women’s Day Conference
Armada House, Telephone Avenue, Bristol, Friday 8 March, 2 to 6 pm.
“Women in Law — Support, Retention, Progression.” An afternoon of inspirational speakers to celebrate International Women’s Day. Further details here. (NB seems to be fully booked now.)
Supreme Court judicial assistants recruitment
Deadline for applications is 20 March 2019.
The Supreme Court of the United Kingdom invites applications for up to 11 Judicial Assistants to support the work of the Justices. Fixed term contracts will start on Monday 9 September 2019 and finish on 31 July 2020. Applicants must be solicitors, barristers or advocates qualified in one of the UK jurisdictions, having completed a training contract or pupillage by the start of the appointment. Candidates can apply with CV and a supporting statement demonstrating how the key skills and behaviours are met. Full details here.
There are moments in On The Basis of Sex when you can imagine the lawyers in the audience — and there were probably quite a few of them in the local fleapit in Islington — wanting to punch the air with their fists and shout ‘yesss!’ But being lawyers, of course, they merely nursed a private grin of triumph.
The film charts the early life of Ruth Bader Ginsburg, the longest serving female justice of the US Supreme Court, from her arrival at Harvard Law School in 1956 to her first court triumph, in the Tenth Circuit Court of Appeals in Denver, in 1971. Together with her husband, Marty, and with the backing of the American Civil Liberties Union, she challenged an obscure tax law that discriminated against unmarried men, and won: Moritz v. Commissioner of Internal Revenue, 469 F. 2d 466 (1972). It was the first of a series of gender-discrimination cases that she fought with ACLU in a career that placed her in the vanguard of the legal struggle for women’s rights.
At the time she took on the Moritz case (prompted by Marty, an established tax lawyer), Ruth was working as a professor at Rutgers Law School teaching, among other things, a class on women and the law. But she hadn’t intended to teach. She always wanted to practise. The film shows clearly how many obstacles were ranged against her, and other women seeking to achieve that ambition, at the time.
When she arrives at Harvard she is one of only nine female students in her year. At a dinner to welcome them the dean, Erwin Griswold, asks each of them in turn to justify their taking up a place in the school that could have been occupied by a man. When her husband Marty is critically ill, she not only continues her own classes but sits in for him in his, enabling both of them to continue their studies. At the time they have a baby daughter; later they will also have a son. When Marty graduates from Harvard and gets a job in New York City, she leaves Harvard as well and completes her studies at Columbia, graduating equal first in her class. Despite her brilliance in the two years she spent there, Dean Griswold meanly declines to allow her to claim the benefit of a Harvard qualification.
Then she tries to get a job. But to no avail. Though her qualities as a lawyer are widely acknowledged, her characteristics as a person stand in her way. As she later explained at a Harvard reunion,
“I struck out on three grounds,” she said. “I was Jewish, a woman, and a mother. The first raised one eyebrow; the second, two; the third made me indubitably inadmissible.”
The film is eloquent on the second and third of these objections, less so on the first. But the patronising sexism of the 1950s is much in evidence, and there is none of the glamour of the New York depicted in Mad Men here.
By the time we jump forward to the 1970s, the Ginsburgs’ teenage daughter Jane has joined the student protesters, sneaking off school to listen to Gloria Steinem. Mother and daughter argue over the morality of To Kill a Mockingbird. Ruth complains to Marty about how stubborn Jane is. Marty says “Hmm. I wonder where she gets that from?” (Knowing smirk.) But come the Big Case, and Jane is on board along with the students from Ruth’s class at Rutgers, as they prep the case in the Ginsburgs’ living room. Later on, to test the case Ruth plans to argue, they set up a moot in this same living room. Melvyn Wulf of the ACLU chairs the bench, at the dining table, with a meat tenderiser as the gavel, while the TV serves as the advocates’ lectern and Ruth rehearses her submissions.
It’s probably my favourite scene in the film, because it’s touching as well as teaching. But a lot of the film is too predictably didactic to be genuinely enjoyable. It is not so much historical as ‘boo-hiss’-torical: imbued with a smugly triumphal hindsight. You know what’s going to happen, so the only question is how. Sometimes the facts seem to have been massaged to fit the narrative. For example, I was surprised that when Ruth steps into one of Marty’s second year classes they are discussing the doctrine of precedent: wouldn’t such a foundational topic be covered in the first year, the first term even, of an English law degree? Even more so at Harvard where, from day one, the law seems to be taught from the basis of individual cases. But there’s a quote about the common law they need to get into the script — about how judge-made law may not change with the weather of the day, but it does with the climate of the era — so that’s how they do it.
The film’s generally uncritical, if not wholly hagiographic, approach may owe something to the fact that the script was written by Ruth’s nephew, Daniel Stiepleman. Playing Ruth, Felicity Jones seems to have only two emotions: angry, or about to cry. As her husband Marty, Armie Hammer is unflappably urbane throughout. The rest of the cast is good, including Sam Waterston as Dean Griswold at Harvard, and Justin Theroux as Mel Wulf of the ACLU. And despite its limitations, the film has enough of those moments of recognition, if not air-punching legal triumph, for lawyers to not only enjoy but be inspired by it. Ruth Bader Ginsburg is an inspiration, after all. There’s no one quite like her, and if the film doesn’t quite do her justice, neither does it deny her appeal.
Paul Magrath hasn’t watched the ‘other’ film about Ruth Bader Ginsburg, the documentary RBG, which came out last year, but as soon as he has done, he will review and compare it here.
Featured image: Felicity Jones playing Ruth Bader Ginsburg, in the official trailer (Focus Features).
Kingsley Ezuego v Sawako Hara (unreported) 6 February 2019 before HHJ Saunders at the County Court at Central London
David Rosen, Solicitor-Advocate of Darlingtons Solicitors LLP for respondent wife Kingsley Ezuego, husband as litigant-in-person (‘LIP’) via video link
Brief summary of the case in context with other proceedings
Ezuego had brought an injunction against his wife, Hara, not to dispose of or otherwise deal with the family home or a commercial property. He brought that injunction in the County Court after divorce proceedings had been issued. Both the family home and the commercial property would be considered as part of the family estate and an issue was raised as to whether the County Court should continue to consider the issues or whether it was more appropriate for the Family Courts to consider these matters in the context of Family Financial proceedings, which were live and running in parallel to the County Court proceedings.
Ezuego complained that since he appeared by video link (having been imprisoned for contempt of court in relation to earlier proceedings) he did not have any papers with him and he would not have a fair trial. The judge accepted and agreed. Balancing the needs and requirements of both parties, however, (Ezuego sought to make his injunction final, and Hara sought to discharge the injunction), the matter was not heard but instead would be transferred to the Family Court at a later date.
All relevant papers would be sent to Ezuego so that he was ready to continue with his application and would have ample time to prepare on another day.
Judge Saunders held that the injunction in the county court was a stand-alone injunction and that, since it related to the family home and a commercial property which formed part of the matrimonial estate to be considered, the appropriate forum for such matters to be heard having regard to the balancing of needs and resources of husband and wife, would be subject to section 25 of the Matrimonial Causes act 1973.
Family Courts were seized of this matter and had inherent jurisdiction in relation to injunctions relating to land which formed part of the matrimonial estate. Section 37(2) of the 1973 Act did not allow for free standing applications and an application for avoidance of disposition of land must fall to the Family Courts to decide.
The case settles a point of practice which will be of interest to family practitioners. But it also offers an opportunity to reflect on some of the difficulties of litigating in the current climate, where lack of legal aid has forced many litigants to represent themselves, and the difficulty of their doing so via videolink.
A production order was not necessary and time and costs were not wasted for the courts to allow a party to attend;
The video was clear both in sight and sound so that the judge and advocates could all see each other when speaking;
Technology has come a long way to ensure good quality and connections
Everything is recorded and the microphones are very sensitive so any mutterings or comments made whether openly or not can be heard (good and bad point)
Once the connection is made, usually before the opposing/other party enters the court room, the person appearing via video link can talk away and do as they wish.
It is difficult for an advocate wishing to speak, to stop someone on video link to interrupt or make a point because when speaking a judge can miss reactions because it is difficult to look at a screen to the side of a court room and look in front of the Judge in the court room.
A LIP usually is unaware of court protocol and times when and when not to speak, and with video links it is easily done whether intended or otherwise to speak over the judge or the other side making a point.
LIPs in court
It is the way of the dystopian world in which we live that access to public legal funding is so restricted that people who cannot afford representation have no choice but to represent themselves.
All judges where I have attended with a litigant in person (LIP) as an opponent have been incredibly patient and courteous; have given them the benefit of the doubt in terms of procedures and timings and deadlines; and will give them additional time to make whatever points they wish to raise whether relevant or not to the issues being considered at that particular point in time.
Advocates facing LIPs need to remember that any case will be personal to a LIP and they are likely to be more subjective and highly emotional. That means that a LIP is more likely than a professional advocate to express any number of emotions at any one time, including shouting, screaming, crying, silence, and talking too much. Advocates need to also be patient with a LIP and not to interrupt when they are going ‘off piste’.
The courts dealing with LIPs generally
More time is afforded to a LIP in court. Therefore more court time is needed to allow additional time for a LIP to present their case and to consider their paperwork. This in turn drains resources and creates inefficiency within the court system. This has a knock-on effect to other cases and clogs up court resources.
There are fantastic resources available to LIPs including pro bono surgeries, lawyers who will give free advice, and organisations like CAB (Citizens Advice), and PSU (Personal Support Unit). Sometimes management of emotional intelligence just by having someone else come along, allows a LIP to better present their cases.
Personally, I am in favour of a policy of finding solutions to help the overwhelming and growing numbers of LIPs rather than discouraging them. Access to justice is supposed to be for everyone including the right to a fair trial. I would hasten to suggest to the Law Society, the Solicitors Regulation Authority (SRA), and to the Bar Council and Bar Standards Board (BSB), that they make it mandatory for all legal practitioners as part of their continuing professional development to allot a minimum amount of time to assist those who cannot otherwise afford legal advice or assistance even to just complete a form.
Professor David J Rosen is a Solicitor-Advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is an honorary professor of Law where he lectures at Brunel University regularly on practical legal skills and advocacy amongst other subjects and set up and runs a Pro Bono surgery with the students in Term 2 each year. The Pro Bono surgery has been in existence for eight years running and has assisted many thousands of people.
Today the Lord Chancellor David Gauke set out his vision of a ‘smart’ justice system to reduce reoffending, protect the public and ensure serious criminals receive the punishment they deserve. It comes at an awkward time, when good news about prison reform in ten key prisons has just been hijacked by a fresh outbreak of rioting at another one.
First, the vision. This includes, unsurprisingly since it has been canvassed before, the idea of abolishing short (less than six month) sentences of imprisonment, on the basis that they don’t give enough time to actually have any effect; and instead to roll out a “robust community order regime”. The problem will be convincing the pit-bull press that they are not a “soft option”.
New technology will help here. Two days ago Gauke announced the national roll-out of new GPS tags which will provide 24/7 location monitoring of offenders. But new tech can also monitor whether an offender on license has consumed alcohol, where that might be a driver of offending.
Progress on overhauling the probation system was also promised in the vision, but not just yet. Again, the recent news that one of the privatised operators of Community Rehabilitation Companies (CRCs), to which Gauke’s predecessor Chris Grayling outsourced probation services for lower level offenders, has just gone into administration won’t have boosted confidence in the current system. Russell Webster reports on the financial collapse of Working Links on his blog: First private probation provider goes bust. One of its CRCs, Devon & Cornwall CRC was rated in a report last year as “inadequate” (the bottom of four rating bands).
Probation will need to get much better, or even “smarter”, if it’s to cope with the management of a rebooted community sentencing regime, in line with Gauke’s high hopes:
“I am determined to strengthen the confidence courts have in probation to ensure we can make this shift away from short custodial sentences towards more punitive and effective sanctions and support in the community.”
The Lord Chancellor is also looking at more effective punishment for those convicted of more serious crimes such as fraud, where the custody rate has increased from 14.5% in 2007 to over 20% now. He said he was looking at ways to “continue to restrict an offender’s movement, their activities and their lifestyle beyond prison in a much more intensive way”, including restricting their financial activities, spending, saving etc, using new technology.
Not so smart prisons
The prisons minister Rory Stewart offered to resign if, after a year, significant reductions in violence were not achieved at ten listed prisons. Last week, he hailed the “significant progress” made at those ten most challenging prisons, in the six months since launching the £10m project aimed at reducing violence and drug use while improving decency. Among the innovations introduced are x-ray body scanners to help search for drugs and the introduction of “incentivised substance free living” units. Announcing his six-month review, Stewart said:
“I promised that I would resign if violence did not start to fall within a year. There is still much to do, and I do not underestimate the scale of the challenge, but the first six months have given us a solid platform from which we can set a more positive direction for all our prisons.”
With unfortunate timing, one of the prisons not on the list, HMP Bedford, suffered serious unrest over the weekend, requiring the intervention of a specialist riot unit known as the Tornado Team. Bedford, which regulators have compared to a “dungeon”, was put in special measures last May and back in 2016 saw serious rioting involving 230 prisoners causing £1m of damage to two wings. This weekend’s disturbance was confined to one wing and there were apparently no casualties, according to the BBC. It notes:
“A report from the prison’s independent monitoring board in October said prisoners had effectively taken control at the 487-capacity men-only jail.
It found that prisoners regularly ignored rules; the smell of drugs was ‘pervading’ some wings; and the segregation unit had a ‘consistent infestation of cockroaches and a plague of rats’.
‘The unit is simply appalling. It is a dungeon. These are not appropriate conditions in which to detain prisoners in the 21st Century,’ the report said.”
This latest review follows on from that. It looks at the Parole Board Rules and includes a commitment for a new reconsideration mechanism so if there is a seriously flawed release decision by the Parole Board it can be looked at again without the need for judicial review. Other key points include
The Parole Board will publish clear procedures and standard practice to support quality and consistency in decision making.
Further improvements to engagement with victims and the commitments in the Victims Strategy will be delivered.
A new operational protocol between the Parole Board and Her Majesty’s Prisons and Probation Service (HMPPS) will clarify roles and responsibilities within the parole system.
A new policy framework, published by HMPPS, will implement improvements to timescales which the review found could make the process more efficient.
A new Rules Committee will keep the Rules under review and enable quicker future changes if needed.
Chaired by Dame Frances Cairncross, the review was launched in March 2018, with a panel of advisors, mainly from journalism and media consultancy backgrounds (academics were notably absent), and terms of reference including “to examine the current and future market environment facing the press and high quality journalism in the UK”, and “to make recommendations on whether industry and/or government action might be taken to ensure a financially sustainable future for high quality journalism”.
“Cairncross identifies court reporting as one area in decline and in need of particular support. The overall result, published on the 12th of February, is a 157 page report with nine key recommendations to Government including:
New codes of conduct to ‘rebalance’ the relationship between online platforms and publishers;
– Investigation of the workings on the online advertising market to ensure fair competition;
– Regulatory supervision for online platforms’ efforts to improve users’ news experience;
– The development of a media literacy strategy;
– Assessment of the BBC’s market impact and role;
– Provision of Innovation funding;
– New forms of tax relief;
– Direct funding for local public-interest news;
– The establishment of an Institute for Public Interest News.”
One of the proposals discussed in the report is the charitable funding of public interest journalism, which Townend regards as “encouraging”, though there are “numerous practical and legal obstacles”. Court reporting is a key concern for the Review, she notes, “ within the broader category of public interest journalism”. While the court modernisation (HMCTS Reform) programme offers opportunities for increased public access to information about court proceedings, there remains a need for this to be properly considered and widely consulted upon. But one of the main obstacles to progressive policy-making remains the government’s tendency to be “heavily swayed by the large newspaper groups”.
You have only to see what happened to the Leveson Inquiry to see exactly what she means. Citing the House of Lords Select Committee on Communication report on the Future of Investigative Journalism in 2012 she points out how
“Cairncross’s recommendations on public interest journalism support are not so very dissimilar from those made by the House of Lords committee in 2012: what will make the Government take the proposals seriously this time?”
Trust or the lack of it is clearly critical. In her executive summary, Cairncross points out the “many national news publishers are viewed by the public with some mistrust (although mistrust for social media is much greater)”. This may be in part to do with the change in how people consume news (which in turn makes them more vulnerable to misinformation and ‘fake news’):
“Moreover, the switch to online has changed the way people find news and the way they absorb it. They are much less likely to see the mixed bundle of politics, finance, entertainment and sport that constitutes many papers, and more likely to see an individual story, chosen by a computer program and not necessarily clearly labelled with the name of a particular publisher. This ‘unbundled’ experience has implications for the visibility of public-interest news and for trust in news.”
We haven’t had time to read the whole report. But others have, including:
Brian Cathcart, via Byline, The Cairncross Report: what it says and first impressions, who, like Barnett, discusses the creation of the new Institute for Public Interest News as a source of subsidy and supervision. But he echoes Townend’s anxiety about what he calls the risk of “manipulation by corporate press bosses and their ministerial friends”. His article also carries an interesting footnote about the consultation:
“On the subject of vigilance, the report provides a summary of the public responses to the Review’s call for evidence last year. On page 145 you will find the following:
‘Approximately 85 per cent of the responses to the Call for Evidence were from the general public, and the large majority of those appeared to have been directly prompted by an article by Brian Cathcart, Professor of Journalism at Kingston University and founder of Hacked Off, a press campaigning body, claiming that the review was a vehicle for Government to subsidise the national press, by “pav[ing] the way for the delivery of public subsidies to the Daily Mail, the Sun, the Mirror and the rest of the national and corporate press”.’
If you were one of those who wrote in, and you really were prompted to do so by my article on Byline, then thank you.”
Press Recognition Panel report
The Press Recognition Panel (PRP) has published its latest annual report on the UK’s system of independent press regulation. There is currently only one approved regulator, IMPRESS, and a number of relevant publishers are not regulated (even by IPSO, some newspapers’ own rival [self-]regulator). According to the PRP’s announcement,
“The report notes that the boundaries between the press and some social media platforms is dissolving and that there is an ongoing national debate over how to regulate social media platforms.”
It quotes the chair of the PRP, David Wolfe QC warning:
“Ironically, some news publishers are calling for tougher regulation of the likes of Google, Facebook and Twitter despite themselves avoiding independent regulation. A potential consequence of this is that a system of state regulation for social media platforms could subsequently be applied to the press.”
This links back to the Cairncross Review (above) and its convassing of the idea of better supervision of social media news distribution.
Never imagined 4 years ago when I headed to Bristol Family Court to see a non mol application by a litigant in person – at the instruction of my wonderful @Guardian editor @SusannaRustin ! – that I might end up here, appealing what I believe is an unlawful RRO #RROAppealpic.twitter.com/GFT1N5x1kV
On Friday the Court of Appeal held a preliminary hearing in the appeal of a journalist, Louise Tickle, against a reporting restrictions order (RRO) in a child care case which she wanted to report. She wasn’t the only one, and the BBC successfully applied to be joined as an intervener. Although this hearing was mainly for directions, having heard counsel for all the parties, the court (Sir Andrew McFarlane, President of the Family Division, and Lady Justice King) decided to allow the appeal without the need for a further hearing, and on the undertaking by the President that some of the issues would be dealt with by way of practice guidance rather than a court decision.
The most important of these was the question of the procedure to be adopted when an accredited journalist or legal blogger attending a private hearing in a family court wished to challenge or seek to relax the automatic statutory restrictions normally imposed on reporting proceedings. Applications to impose or extend restrictions tend to be involve formalities, such as notice to the media, in part because they limit freedom of expression and require to be justified under the Human Rights Act 1998. The same considerations need not apply to a relaxation of the restrictions, and the procedural burden on journalists, who in most cases will not be legally qualified or represented, would be considerable. Such a process impedes transparency, the President observed in argument. (In this regard, he pointed out that the legal bloggers pilot had been informative because those participating tended to be barristers and could spot infelicities in procedure which a journalist might not.)
The problem is the present case was that the judge appeared to have imposed restrictions without properly considering and balancing the right to freedom of expression and the public’s right to know, on the one hand, against the right to private and family life, and the risk of ‘jigsaw’ identification on the other. The court accepted that the mere existence of such a risk was not simply a button to be pushed, mandating restriction in the absence of evidence to substantiate the risk. The balancing exercise still had to be performed.
Among those in court were two of the three authors of Transparency in the Family Courts by Doughty, Reed and Magrath (Bloomsbury Professional, 2018), who were duly gratified to hear the President (who, it is fair to point out, wrote the foreword) tell the court how “useful” it was. He also made a point of praising the lawyers who had acted pro bono for various parties.
Sir Andrew McFarlane, President of the High Court family division, says during a hearing that barristers are not thanked enough for providing high-level expertise to the courts “pro bono” (without charge). “We couldn’t function without it”, he adds.
A lot of relatively hot air has been expended on the question whether a British citizen, Shamima Begum, aka the “Bethnal Green Isis Bride”, should be allowed to return to the UK with her baby, after running away with two other teenage girls to Syria to join the Islamic fundamentalists fighting to establish a caliphate there. Some of it has been spectacularly ill-informed, if not ill-intentioned. But a number of commentators have addressed different aspects of what has proved to be a fast-moving story. (Updated 20 February.)
“In normal times we could simply ask the Independent Reviewer of Terrorism Legislation Terror Watchdog — Lord Anderson QC or Max Hill QC were the most recent holders of that office — but the post is currently unfilled, so perhaps a note of confusion has crept into the press coverage.”
Hill is now the DPP and Lord Anderson is now a cross-bench peer in the House of Lords, where his maiden speech concerned the impact of referendums on parliamentary democracy. Meanwhile, no replacement has yet been appointed, at a time when terrorism legislation must be much in need of watchdogging, or dogwatching, or whatever you call it.