This thought has been prompted by two quite flagrant examples over the course of 2018.
The first is operation of the legal aid statutory charge (‘the charge’) in Human Rights Act 1998 (HRA 1998) damages claims; and, as it seems from the law reports, of the failure of the lawyers, judges and LAA staff involved to take any notice of Hanlon v The Law Society  AC 124,  2 WLR 756 (Hanlon).
The second is over allegations of disclosure by LAA staff of information in their files to government staff and ministers, right up to, it is said, the then Lord Chancellor, Mr Grayling. (Mr Grayling, a modern politician, denies any knowledge.) The disclosure allegations derive from a press report from Buzzfeed News (on 5 October 2018) that LAA had passed on confidential information to the Ministry of Justice such that legal aid was denied to ultimately successful applicants for judicial review against other government departments.
Hanlon v The Law Society and legal aid statutory charge
The question of the statutory charge and the LAA and judicial failures to take any notice of Hanlon has been considered exhaustively: see eg HRA damages and legal aid: a Pyrrhic exercise? (DB family law blog) and Statutory charge or Pyrrhic damages? (New Law Journal) both in March 2017; and Legal aid statutory charge: human rights damages in children proceedings in Family Law journal, November 2018. For a summary of the operation of the charge see Family Court Practice 2018 (aka The Red Book) under LASPOA s 25. It was all well tilled ground in other statutory charge case law such as Curling v The Law Society  1 WLR 470, CA; Watkinson v Legal Aid Board  1 WLR 419,  2 FLR 26, CA and Till v Till  QB 558,  2 WLR 447, CA.
The terms of the present “statutory charge” provisions in s 25 are the same, in their effect, as in Legal Aid Act 1974 (in operation at the time of Hanlon). In a nod to the House of Lords, the LAA position paper says:
“6. The application of section 25(1) LASPO contains two components: identification of the proceedings or dispute in which the damages are recovered and establishing the legal aid expenditure provided in connection with those proceedings or dispute….”
(1) The first component of these is correct (see Hanlon at 186G-H); but then the person diagnosing or advising whether the charge applies must take further steps:
(2) Identify the property (ie including money: eg damages or a matrimonial lump sum) which could later be subject to the charge in the proceedings;
(3) Work out, was the property in issue (or part of a compromise) in the proceedings (eg property will not be in issue in periodical payments only proceedings); and
(4) If the property was in issue in the proceedings – but only then – it will have been “recovered or preserved” in terms of LASPOA s 25(1) and the legal aid statutory charge will applies in respect of the costs of the proceedings.
Each of these four steps must be defined to decide whether the charge applies. Each can be deduced from, and be clarified by, Hanlon. The four steps were part of the standard training of 1980s legal aid staff. It is not clear why these steps were not outlined to the judges who dealt with the earlier HRA damages claims.
Confidentiality: a definition
In the Spycatcher case, Attorney General v Guardian Newspapers Ltd (No 2)  UKHL 6;  1 AC 109, 281 Lord Goff offered a definition of ‘confidentiality’, which has remained the bench-mark (see eg Confidentiality by Phipps and Toulson, (3rd Edition, 2012)):
“I start with the broad general principle (which I do not intend in any way to be definitive) that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others. I have used the word ‘notice’ advisedly, in order to avoid the (here unnecessary) question of the extent to which actual knowledge is necessary; though I of course understand knowledge to include circumstances where the confidant has deliberately closed his eyes to the obvious. The existence of this broad general principle reflects the fact that there is such a public interest in the maintenance of confidences, that the law will provide remedies for their protection.”
The issue of legal aid and confidentiality was raised by R v Snaresbrook Crown Court, ex p Director of Public Prosecutions  1 QB 532. There it was ‘legal privilege’ as it is called by Police and Criminal Evidence 1984 (PACE 1984) s 10(2). In Snaresbrook, in criminal proceedings, A had pleaded guilty to a charge of assault. He complained through his solicitors that at the time of his arrest he had been assaulted by a named police officer and his nose broken. A applied for legal aid to bring an action for assault. Police inquiries revealed that his nose had been broken two days earlier. He was charged with attempting to pervert the course of justice.
In that second case, the prosecution requested production by the Law Society (then responsible for administration of legal aid) of A’s application form. The office declined. The DPP sought an order under PACE 1984 s 9 on the ground that the form was ‘special procedure material’. The Crown Court held that the form was privileged under PACE 1984 s 10(1), that it was not held by The Law Society with the intention of furthering a criminal purpose within the meaning of s 10(2). The judge refused to order production.
PACE 1984 s 10 (as relevant) defines “legal privilege”:
“(1) Subject to subsection (2) below, in this Act ‘items subject to legal privilege’ means — …
(b) communications between a professional legal adviser … or his client … and any other person made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings; …
(2) Items held with the intention of furthering a criminal purpose are not items subject to legal privilege.”
The DPP application for judicial review was refused. A was the client of a professional legal adviser and the legal aid application a communication between him and The Law Society for legal proceedings. It was therefore within the definition of items subject to “legal privilege” under s 10(1), and could not be “special procedure material”.
Confidentiality, Snaresbrook and what can the LAA disclose?
So what may LAA release to anyone else and especially to Secretary of State for Justice (or Lord Chancellor). In Snaresbrook, Glidewell LJ considered in particular the extent to which The Law Society could disclose information. The Legal Aid Act 1974 s 22 said, so far as was material to that case:
“(1) Subject to subsection (2) below, no information furnished for the purposes of this Part of this Act to The Law Society, or to any committee or person on their behalf, in connection with the case of a person seeking or receiving advice or assistance or legal aid shall be disclosed otherwise than …
(b) for the purpose of any criminal proceedings for an offence under it or of any report of such proceedings.”
Subsection (2), to which reference is made, relates to disclosure of information where the person whom the case is against consents. By subsection (3) it is provided:
“A person who, in contravention of this section, discloses any information obtained by him when employed by or acting on behalf of The Law Society shall be liable on summary conviction to a fine not exceeding £100.”
So what about permitted LAA disclosure in 2018? LASPOA s 34 says that “information” provided by “an individual seeking or receiving” legal aid (s 34(1)) “must not be disclosed” (s 34(2)), save as set out in s 35.
“34. Restriction on disclosure of other information
(1) This section applies to information that is provided—
(a) to the Lord Chancellor, the Director, a court, a tribunal or any other person on whom functions are imposed or conferred by or under this Part, and
(b) in connection with the case of an individual seeking or receiving services provided under arrangements made for the purposes of this Part.
(2) Such information must not be disclosed, subject to the exceptions in section 35.
(3) A person who discloses information in contravention of this section is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.”
Under s 35 (referred to in s 34(2) and as relevant here) “disclosure of information” is not prevented to enable or assist the Secretary of State for Justice “to carry out functions” under LASPOA 2012 or otherwise; or to enable LAA to carry out its functions or courts or others “on whom functions are imposed or conferred by” the Act; or under a court order, in relation to a prosecution, or otherwise “for the purposes of instituting, or otherwise for the purposes of, proceedings before a court…”
If s 35 is not clear to a LAA employee, Spycatcher (cited above) provides the common law approach to confidentiality (which applies to any information on a LAA file):
“… A duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others….”
Surely any LAA person would know by reference to this and Snaresbrook that information passed to the agency was confidential, and that, accordingly, it could not be passed on?
Legal Aid Agency: ‘legal privilege’ and disclosure under LASPOA 2012 s 34
What does all this mean? Legal Aid Act 1974 s 22 is more restrictive than LASPOA 2012 ss 34 and 35 of what may be disclosed by legal aid authorities to third parties; but the meaning of s 22, and thus of the reach of LASPOA 2012 s 35 in terms of confidentiality, is explained by Snaresbrook. The case still applies to confidentiality, legal professional privilege and any legal aid application. Glidewell LJ explains this (at  QB 532, 536G) as, in effect, “litigation privilege”:
“The application for legal aid, on the face of it, is a communication between him and another person, namely, the area officer of The Law Society. Clearly it was made in contemplation of and for the purpose of legal proceedings. On the face of it the material does come within the definition of items subject to legal privilege in [PACE 1984] s 10(1).”
So far as the LAA leaks are concerned the material they include can be taken to include matters covered both by confidentiality (see Lord Goff’s definition in Spycatcher (above)) and by the more protective confidentiality provided by LPP. A person does not waive privilege because he or she passes documents otherwise covered by privilege to a third party (B v Auckland District Law Society (New Zealand)  UKPC 38,  2 AC 736), such as LAA.
The press report I have seen is not enough to tell me that s 34(2) (subject to the exceptions in s 35) has been breached; but, even with what has been said, there seems to be a slackness in LAA and a lack of stringency in its relations with Lord Chancellor and other government departments. Proceedings under s 34 can only be taken with the consent of the Director of Public Prosecutions (LASPOA 2012 s 34(5)). Should she be looking into this a little more?
If the LAA decides to review the limits on disclosure under s 34, perhaps at the same time they could check out a few cases (see eg ICLR reports) such as Snaresbrook (disclosure outside the director’s office) and Hanlon v Law Society (application of the statutory charge). Oh and, a little revision on the meaning of confidentiality and legal professional privilege wouldn’t go amiss.
6 October 2018
Featured image: Doors Open Toronto 2012: Osgoode Hall by Jackman Chiu, via Flickr creative commons, reproduced with thanks.
To mark the first anniversary of the launch of our legal information platform ICLR.3, we have been redesigning the blog pages and will soon be launching an exciting new Knowledge section with information about case law, legislation, the legal system and a growing glossary of legal terminology. Watch this space. [Update: this is now live.]
Law term dates
The Michaelmas Term begins Monday 1 October and ends on Friday 21 December 2018
Hilary term 2019 runs from Friday 11 January to Wednesday 17 April 2019.
Easter term runs from Tuesday 30 April to Friday 24 May 2019.
Trinity term begins Tuesday 4 June and ends on Wednesday 31 July 2019.
Most new pupillages start today. We wish all pupils the best possible experience of their training and the best of luck for their legal careers.
The Pupillage Fair run by the Bar Council in association with King’s College London is at Bush House in London on 27 October 2918 and is free to attend. For details, see Eventbrite.
As you may know, ICLR has a sponsorship programme to assist pupils engaged in a mainly publicly funded law set of chambers, for whom the pay may not be quite as munificent as in some of the more commercial private law sets.
The Bar Standards Board (BSB) has launched a consultation to seek views about its proposed new rules to improve transparency standards for clients of the Bar.
After a period of consultation last year in response to the Competition and Markets Authority’s (CMA’s) market study of legal services, the BSB published its revised approach to improving transparency for consumers of barristers’ services in February 2018. The new transparency standards relate to information about
the areas of law in which barristers practise,
the legal services provided by barristers,
what those services cost and
a client’s right to redress.
The deadline for responses to the consultation is Friday 14 December 2018. Following our consideration of responses to this consultation and approval by the Legal Services Board (LSB), the new rules will come into force by May 2019.
Accredited lawyer access pilot
After months of complaints about excessive and seemingly random security restrictions for lawyers entering court buildings, a scheme was launched by the Ministry of Justice over the long vacation to allow suitably accredited legal professionals to gain fast-track search-free entry to courts. The scheme announced in August was being piloted by HM Courts & Tribunals Service (HMCTS) in five courts, with registration beginning in August and fast-track entry from September.
The Bar Council has led the development of an app for its members to use as ID, through the MyBar portal, and Law Society members will benefit from the pilot, using approved photo ID.
While tightened security procedures introduced during the last year will continue, the ‘Professional Entry Scheme’ intends to ease queues to get into court buildings and allow easier and swifter access for legal professionals who come to court regularly. However, there was some annoyance from professionals that they might have to pay a fee to take advantage of the service, as the Law Society Gazette reported (Courts ID scheme hit by fees controversy ahead of pilot):
A Bar Council spokesperson confirmed to the Gazette that members will not have to pay a fee during the pilot. However, the spokesperson said:
“Depending on the outcome of the pilot and any subsequent national rollout by HMCTS of the scheme, the Bar Council will need to charge a fee to cover the costs involved in developing the app that enables thousands of barristers to have the appropriate ID system for fast-track court entry. The priority is to make sure barristers can access the courts through a system that works effectively.”
Welcoming the pilot, Andrew Walker QC, Chair of the Bar, said:
“Barristers across the country have been telling us about lengthy delays and sometimes intrusive, unnecessary or excessive security measures being imposed on them when trying to enter to court buildings. We were hearing stories of barristers being forced to prove their drinks were not dangerous, having essential electronic devices confiscated, and having their private belongings searched in public. They are there to do their job, playing a key role in the administration of justice. They do not deserve to have that job made more difficult, or to have their time wasted. We made the Bar’s views clear to HMCTS, and took up the challenge of trying to find a solution. To HMCTS’s credit, they have worked with us to try to find a way forward that has the support of the judges, and does not jeopardise the need for tight security in our courts.”
If any readers have experience of the pilot scheme, we would like to hear how it has been going.
Legal bloggers pilot
Following representations by the Transparency Project, the Family Procedure Rule Committee have set up a pilot scheme to permit legal bloggers into family court hearings. The pilot launches today, 1 October and runs for 9 months until 30 June 2019. It will allow practising lawyers, academic lawyers and those under the umbrella of an an educational charity (like the Transparency Project) to attend family case hearings in private to which, under the rules, only accredited media representatives currently have any right of access (other than the parties and any professionals involved).
Access is also currently permitted on a discretionary basis for researchers, academics et al, but what the pilot will allow is legally qualified commentators and researchers to attend, unless any reasoned objection from a party is upheld by the court, and to write about it subject to any reporting restrictions.
“The action in question was an Enforcement Notice of the Information Commissioner, served under section 149 of the Data Protection Act 2018 (DPA18), on AggregateIQ Data Services Ltd (“AIQ”) requiring it to
‘cease processing any personal data of UK or EU citizens obtained from UK political organisations or otherwise for the purposes of data analytics, political campaigning or any other advertising purposes’
One could be forgiven, however, for overlooking the Notice. It is not, for some reason, listed on the Commissioner’s ‘Enforcement action’ page (which is stated to include ‘the latest…enforcement notices’). Rather, it was attached as an annex to the Commissioner’s report into its ‘Investigation into the use of data analytics in political campaigns’.”
This may not be the last we hear of this case (quite apart from the fact that the data controller in question is for various reasons quite ‘newsworthy’). Apparently, “it is understood that AIQ have exercised their right of appeal to the First-tier Tribunal, under section 162(1)(c) of DPA18.”
If so, some actual reportable case law might be generated and we’ll be able to index it on this platform.
Law (and injustice) from around the world
Hard not to be smug about our relatively discreet judicial appointments process, when you look at the US Supreme Court nomination hearings across the pond. Whatever the virtues of Judge Brett M. Kavanaugh as a jurist, it is going to be hard for him to look any litigant in the face without wondering what they think of him after all the alleged mud that has been flung his way up on Capitol Hill, and that through which his accusers have been hauled.
But perhaps we shouldn’t be too smug. How transparent is our own system? We may have come a long way from the ‘tap of the shoulder’ days, but how much of what the Judicial Appointments Commission does is accessible to public scrutiny?
Interesting to look at its website. Note that on “selection day”, properly dressed and suitably nervous, candidates may face something called “situational questioning” which “involves asking you what you would do in a specific situation, based on challenging, real-life scenarios. It may include a role play”. It may include dealing with litigants in person and McKenzie Friends. But is any of this done in public? Or are the decisions (the reasoning behind them) published? It doesn’t appear so. Should they be? For the most senior (appellate level) courts, in the interests of transparency and open justice, perhaps they should be.
That’s not to say we should involve politicians, or partisan questioning, or public voting, all of which seem to compromise the judicial independence on which the separation of powers depends. The Lord Chief Justice, Lord Burnett has recently said the judiciary should reach out more to the public, engage with the media, support public legal education. Perhaps public appointment sessions would enable ordinary people to engage more with who the judiciary are and what they do, and find out more about what makes them tick. You can’t just rely on TV documentaries, or feature films based on novels by Ian McEwan, however much they may help.
Will the Kavanaugh episode damage the Supreme Court? It isn’t over yet, but on the Constitution Daily blog Lyle Denniston, who has written about the Supreme Court since 1958, looks at the current contentious nomination process in the context of the Court’s long-term institutional strength.
Laurence H. Tribe, professor of constitutional law at Harvard Law School, comments on Kavanaugh in the New York Times that:
“His intemperate personal attacks on members of the Senate Judiciary Committee and his partisan tirades against what he derided as a conspiracy of liberal political enemies guilty of a “calculated and orchestrated political hit” do more than simply display a strikingly injudicious temperament.”
Homosexual acts decriminalised
The Indian Supreme Court has finally issued a judgment interpreting the law in such a way as to decriminalise homosexual acts. Section 377 of the Indian Penal Code 1860 (IPC), which dates from the British colonial era, provides:
“377. Unnatural offences.
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
It was that unscientific phrase “against the order of nature”, which previously allowed a prohibitive interpretation based on religious or cultural opposition to homosexuality, that in a more progressive and diverse era allowed the court to hold, on 6 September 2018, that sexual orientation is natural and people have no control over it. According to the Supreme Court said that consensual sex between adults in a private space, which was not harmful to women or children, could not be denied as it was a matter of individual choice.
The judgment is worth reading in full. It is full of citations from philosophy and other disciplines as well as legal writing and precedent.
While some may question the quality of the Parliamentary debates on the bill itself, the process of reviewing surveillance practices culminating in the enactment of IPA took some considerable time and involved a series of reports from a range a bodies — the most significant of which are ‘Privacy and Security: A Modern and Transparent Legal Framework’ (HC 1075, 12 March 2015) by the Intelligence and Security Committee (ISC); the Royal United Services Institute (RUSI) Review (A Democratic Licence to Operate: Report of the Independent Surveillance Review, 13 July 2015) and the report by the then Independent Reviewer of Terrorism Legislation, David Anderson QC, ‘A Question of Trust’ (June 2015) as well as the report of the Joint Committee on the Draft Bill. These reviews point out some of the political, technical and drafting complexities of the regimes. The end result of the process was a long, complex and difficult to understand Act — as the introduction to the Guide notes (at p 1), the IPA is many times longer than the acts it replaces ‘coming in at an eye-watering 272 provisions, ten schedules, and 305 pages’. Given this, some sort of map through the text to explain the meaning of the provisions and their interrelationship is desirable to help improve accessibility. It is this function that Simon McKay’s Guide carries out.
The Guide is split roughly in half, with the latter half of the book constituting an appendix containing the IPA itself; relevant codes of conduct were not included — at the time of writing most were in draft. The first half of the Guide constitutes the commentary which is divided into 10 chapters, which after an introductory historical chapter broadly follow the structure of the IPA, tackling each part of the IPA in chronological order. The tenth chapter is perhaps an exception as it covers the miscellaneous (but important) provisions at the end of the main text of the IPA but then tackles some provisions from the schedules, namely those dealing with the provisions dealing with the combination of warrants. It does not comment comprehensively on all matters found in the schedules but does, however, provide an overview of some of the law relating to covert policing found elsewhere — the Intelligence Services Act 1994 (ISA), Part II of the Police Act 1997 and the remaining Part II of the Regulation of Investigatory Powers Act 2000 (RIPA). This latter section is important as the IPA though it sought to provide a coherent, overarching system for state surveillance, did not constitute a complete system nor did it repeal all pre-existing provisions. It is therefore important to understand the linkages between IPA and the ‘old’ provisions remaining. In all, the Guide provides a complete overview of the IPA and places it against some of the existing jurisprudence.
The first chapter provides a succinct and clear overview of the development of legislation in this field from Malone v United Kingdom (1984) 7 EHRR 14 and the Interception of Communications Act 1985 (IOCA) onwards and including judicial challenges both domestically and before the European courts. This then provides a helpful background to a discussion of the IPA, some provisions of which show a close family resemblance to that which has gone before. The preliminary assessment of the IPA (at Part E, Chapter 1) similarly usefully synthesises both the strengths and challenges to the regime established by IPA. Most of the chapters carry an introductory section, providing some history as well as identifying key points of dispute. In some later parts of the Guide, the substance of the IPA is set against the context of existing jurisprudence as can be seen, for example, in the discussion of journalists’ sources/journalists’ materials (paras 4.83 et seq.; para 6.60), the development of the use of a single point of contact (SPOC), and the introduction to the oversight arrangements. In general, the Guide sticks closely to the text, paraphrasing the text, albeit often highlighting structural or thematic aspects, for example making it clear that there are three categories of communications data made up of entity and events data (para 1.79, see for other examples 3.154, 3.158, 4.15); or identifying where there are commonalities in approach between provisions. It does so in appropriate detail, precisely referenced. In organising the material the Guide makes the connections between sections and parts more obvious, making the text a little more accessible (the IPA will never be easy to understand). The section on Part 7 IPA on Bulk Personal Data sets, for example, is helpful in establishing clearly when the provisions are engaged and the similarities to and differences from the regimes in relation to other forms of surveillance — the IPA is particularly opaque in this area.
While this approach is helpful in understanding the operation of the IPA, and what the function of the sets of provisions is, sometimes this sort of opportunity is unfortunately missed. For example, in para 3.83, dealing with modification of warrants, does not make it clear that there are two types of modification; this point is much clearer in para 3.95. Further, if a general criticism might be made it is that, although the structuring of the material may help comprehend the requirements of particular provisions, the significance of those provisions or of any change from the previous regimes is not always made explicit. So the concerns surrounding the use of regulations, particularly in relation to codes of conduct is only hinted at (e.g. s. 267(1) IPA discussed para 1.73; see further discussion 4.58 et seq ). While there are instances when the similarity to or difference from the previous regimes is noted (see e,g, 3.45, 3.121, 3.152, 4.05), this is not always the case. For example, the Guide, in its discussion of the generally applicable definitions, contrast these definitions with those used in previous legislation — which would give us an idea of whether there had been an extension of scope here as well as through an extension of powers. While some of the evidence submitted to the Joint Bill Committee may have been non-technical or lobbying, there was some that dealt with these definitional issues from a legal analytical perspective that could well have been drawn on here and which would have added greater analytical depth to this section (e.g. Graham Smith’s written evidence on the difference between content and communications data).
There are unfortunately some production errors. All books contain typos but they seem quite numerous in this text (see e.g. paras 1.36; 1.58). There seems to be some repetition (compare paras 2.03 and 2.08; 3.06 with material in chapter 1) and sometimes even the same phraseology is repeated throughout the book (see discussion of legal professional privilege). Presumably this is a result of the speed at which the Guide was produced.
While this Guide goes some way to providing a framework to assist understanding what the IPA is about and places it to some extent in context, all of which is useful, there are some weaknesses too, perhaps as a result of the Guide coming out quite soon after the enactment of IPA. While Simon McKay’s expertise in the law relating to secret policing and surveillance is evident, it is not consistently brought into play. While accurate description is essential and neutrality as to whether surveillance powers are good and proper things is understandable if not desirable, this Guide would have been improved had it been clear about where controversies and uncertainties lie. Given the range of legal challenges against it recently decided * and currently underway, not to mention Brexit, it may be that no Guide could currently provide a full and enduring picture. Nonetheless, the Guide provides a useful starting point for someone seeking to understand the IPA in its entirety or how particular powers are structured.
Filmed on location in the Lord Chief Justice’s court and elsewhere at the Royal Courts of Justice, ITV’s documentary, Inside the Court of Appeal, offered viewers the first real opportunity to see how criminal appeals in England and Wales are presented and decided. While some criminal cases involve points of law of sufficient importance to warrant an appeal to the UK Supreme Court, for the vast majority of cases the Court of Appeal (Criminal Division) is the end of the road.
The programme, broadcast on 23 August, focused on three such cases. One of them involved a 14-year-old boy who had been convicted, on the basis of joint enterprise, for his part in a killing carried out by teenage gang in Liverpool. He had been just 12 at the time, but was tried with the other members of the gang in an adult court because they were charged with an offence of homicide.
Another involved a man convicted of causing death by dangerous driving, who had already served his two-year prison sentence, but wished to clear his name by establishing, on new evidence, that he had lost control of his vehicle by reason of an epileptic fit that had come on before, not during or after, the fatal collision.
The third case was an appeal (or a referral by the Attorney General) on the ground that the 12-year prison sentence given to a joy rider whose car had mounted the pavement and killed two people had been unduly lenient.
In the film, we met the victims and their families and some of the barristers and solicitors involved. We watched the lawyers talking to the clients and putting on their wigs and gowns, and we saw them addressing the court. There was a certain amount of explanation of what was going on, but probably not enough. As the voiceover said at the beginning, “This film follows the human stories behind the courtroom drama.” It seemed rather less interested in explaining the legal issues the cases raised.
There was, it is true, a basic outline of the doctrine of joint enterprise, which was the subject of a well publicised campaign around the time of the Supreme Court’s hearing and decision in R v Jogee  UKSC 8;  AC 387. The argument in the teenage gang member’s appeal was that, having run away before the fatal stabbing of the victim by another gang member, he had not had the requisite intention under the revised rule laid down in Jogee’s case. There was also some basic explanation of the defence of automatism, ie lack of control negativing intention, in the case of the fatal accident driver.
But for the most part it was all about the human element, often resorting to that pedestrian and slightly patronising tone of reality TV. Early on someone asked one of the participants:
“So it’s your first time being in the Royal Courts of Justice?”
“Do you find it scary?”
The main hearing took place in Court 4 (the Lord Chief Justice’s court, with Lord Thomas of Cwmgiedd CJ, as he then was, presiding) while other cases were heard down the corridor in one of the other courts. (The other courts don’t have that massive carved wooden royal coat of arms behind the bench. The voiceover dished out little soundbites of fact:
“For 140 years”, we were solemnly informed, “all kinds of criminal case have passed through the hallowed courtrooms of the Court of Appeal”.
“Criminals that feel they’ve been wrongly convicted can come to the Court of Appeal, which has the power to overturn their convictions.”
“Appeals eligible for legal aid costs the taxpayer nearly £3m a year… But the judgments of this court have rewritten the course of legal history.”
Then, having watched the stories unfold, we saw the court giving judgment. This was where, I think, a trick was missed. You saw the disappointment of the losers, but most lay viewers would not have been able to understand the reasons why their appeals had been refused. This can look like an unimaginably perfunctory process, when it’s just handed down, though not for the reasons given by the voiceover:
“After months of waiting and years of fighting on both sides, the verdict is delivered in a matter of seconds.”
Moreover, there was little sense of why the judges had decided the way they did, even when they didn’t hand it down in writing. Not surprisingly, this lack of understanding was manifested in the reactions of the victim’s families. A victim’s mother said:
“Twelve years. That’s the value they put on two people’s lives… We’ve got to serve our sentence now. That’s never going to go away.”
Another family member said:
“You go through life thinking we’ve got the best justice system in the world and you remain that way until you actually get involved with it.”
One longed for some explanation of sentencing policy, of the discount given for early pleas, of the fact that it’s not just about an eye for an eye, and so on. If someone eventually explained this to the victim’s family, it certainly didn’t emerge for the benefit of viewers of the programme. This is a real failure of public legal education, when the opportunity was right there to put things right.
Aside from understanding their judgments, it might have been nice to hear the judges speak about their role and watch them put on their robes and wigs. But there was no access to the judiciary. We saw them come in and sit down, comment on the air conditioning (or lack of it) and, momentarily, we saw them delivering judgment. But otherwise they ignored the cameras and remained, essentially, remote.
Someone we only caught a very brief glimpse of was the ICLR law reporter, who is also editor of the Criminal Appeal Reports. But she was there, as this freeze-frame records, sitting in the well of the “hallowed court”, waiting to see if the case might “rewrite the course of legal history”. (It didn’t.)