Annual Notes 2014: ICLR’s review of the year’s legal news (part 2)
Posted on 11th Jan 2015 in ICLR News
Concluding our review of significant trends and developments in last year’s legal news, part 1 of which covered from January to June 2014.
We reported in July (Weekly Notes, 4 July) that some high street banks were using the names of fake solicitors’ firms on the letterhead of their chasers-up to defaulting debtors. This followed the revelation that the, er, “bank of the year” Wonga had been using the same trick, and had had to pay compensation to distressed customers. (The SRA has a page devoted to “Bogus solicitors”.)
Still, the banks and lending institutions must be accounted mere amateurs next to Mazher Mahmood, the journalist formerly known as the “Fake Sheikh”, who was employed by the News of the World essentially to ensnare various celebrities into committing crimes and misdemeanours and then exposing them in his paper. (The word he himself used, in a BBC Panorama exposé, was “subterfuge”.) In July the prosecution of pop singer Tulisa Contostavlos collapsed after the judge decided he had strong grounds for believing that Mahmood, as the key witness in the case, had lied on oath and manipulated evidence. Subsequently, the CPS was forced to review some 25 other cases in which Mahmood had given evidence. (WN 8 August , WN 14 November; WN 5 December.)
After that, it was only to be expected that a lawyer himself would get in on the act. And so it proved when, later in the year, it emerged that a solicitor (Andrew Benson) had conducted entirely fake litigation, including fictitious hearings, judgments and fake telephone conferences involving the impersonation of his senior partner and leading counsel. And all this in order to justify a bit of extra billing.
You couldn’t make it up. Unless of course you were AP Herbert, to whose hilarious spoof “Misleading Cases” the extraordinary facts of this one were compared by the judge, Hamblen J, in Islamic Investment Company of the Gulf (Bahamas) Ltd v Symphony Gems NV  EWHC 3777 (Comm) . (WN 21 November.)
Less egregious, but still a little bit phoney, another solicitor, Alan Blacker (but calling himself Lord Harley, if you please), was given a bit of a dressing down by a judge in Cardiff Crown Court after he appeared wearing a barrister’s robes and wig and sporting medals and ribbons on his breast apparently awarded for valour by the St John Ambulance service. Judge David Wynn Morgan said Blacker looked like something out of Harry Potter and if he appeared in the same garb again he would decline to hear him. (WN 29 August.)
August: Copyrights and wrongs
Two big stories about copyright emerged in the heat of the silly season. The first was about a picture of a black macaque, a kind of monkey, which photographer David Slater had brought back from a trip to Indonesia in 2011. The problem was that he had not been holding the camera when the picture was taken. The monkey had. Cue lots of references to “simian selfie” and “putting the ape into aperture” ((WN 8 August.)
On that basis, Wikimedia commons, which runs Wikipedia, declined to remove the photo from being freely available on its sites, saying there was no copyright because it had not been taken by a human being.
The other copyright story was about short video loops, generally posted on Vine (a smartphone app designed for this purpose) showing football highlights (typically goals being scored). The Premier League, which makes lots of money from selling the broadcasting rights to football matches, issued a heavy-footed warning to fans, pointing out that however short such a film, it was still in breach of the law to upload and share it. Some commentators wondered whether what were essentially short extracts out of a longer broadcast event might fall within the “fair dealing” exception for news reporting (everyone now being an amateur reporter on social media). (WN 15 August)
September: Regulation, de-regulation and transformation
This was the month when a number of forces for change in the legal system seemed to hit the rocks, or collide with each other, prompting a review on this blog of the whole business of (a) liberalising legal services, while at the same time (b) tightening up the regulation of individual professions (two rather contradictory trends) and all of this against a background of (c) swingeing cuts to financial support while (again somewhat contradictorily) expressing lots of gung-ho optimism for (d) transforming the way the system works by harnessing technology and the much-vaunted digital revolution. And after the release of another instalment of Michael Bay’s film franchise this summer, what better excuse for probably my favourite image from the blog this year?
The individual stories prompting this review can be unpacked as follows.
Flagship ABS capsizes: one of the much-vaunted liberalisations ushered in with the Legal Services Act 2007 was the idea of Alternative Business Structures – quickly dubbed “Tesco law” – under which legal services could be provided to the public by lawyers as part of a wider business, such as a bank, supermarket, or estate agency. In 2009 the Co-operative Group’s launched its bid to conquer high street legal provision, but this month it was reported that its failure to live up to the hype was so complete that it had topped losses of over £3m in the first half of last year, with losses in the same period this year of over £5m.
Regulatory overkill: One of the things the 2007 Act was supposed to bring about, though, was a more effective regulatory regime. To this end, the Act created an uber-regulator or “oversight body”, the Legal Services Board (LSB), with power to approve regulators for various types of legal activity. There are currently something like eight individual regulators, including the Law Society, Bar Council, Master of the Faculties, Chartered Institute of Legal Executives, Council for Licensed Conveyancers, Chartered Institute of Patent Attorneys, Institute of Trade Mark Attorneys and the Association of Law Costs Draftsmen.
In a drive to separate regulatory and disciplinary functions from professional promotion, these in turn have created or hived off further bodies, such as the Bar Standards Board (BSB) and the Solicitors Regulation Authority (SRA), thereby adding to the bewildering array of acronyms.
In turn, these have got together to create cross-professional regimes such as the hitherto unimplemented Quality Assurance Scheme for Advocates (QASA), which has been mired in controversy, bogged down by boycotts, and stalled by judicial review proceedings.
The QASA saga has been rumbling on for years now. Last year, in a series of linked blogs, we reported fairly comprehensively on the development of the regime (see QASA Hit and Myth) in which the art of advocacy has been distilled into myriad “performance indicators” like a sort of driving test, and reviewed the QASA handbook (The cart, the horse, the nut and the sledgehammer). The initial registration period was supposed to be 30 September 2013 to 10 January 2014, but has been postponed more than once pending consultations, protests and refusals to cooperate by barristers, and, eventually, judicial review proceedings. The Queen’s Bench Divisional Court rejected this challenge (see Court rejects legal challenge to QASA) but the applicants appealed, and the judgment of the Court of Appeal (dismissing the appeal) was not given until October 2014 (see WN 10 October). In the wake of that judgment, the BSB website is currently saying
The Bar Standards Board (BSB) has agreed to remove the [further postponed] deadline of 31 December 2014 for barristers to register under QASA while the board and other regulators consider how best to implement the scheme. The BSB has agreed to consider a detailed implementation proposal when the board meets in January 2015, following which further announcements will be made.
Regulatory consolidation. There has always been a strong perception among some critics of QASA that the whole thing is a skirmish in a bigger war between the legal regulators, with the individual professional bodies (BSB, SRA, Ilex) flexing their muscles to demonstrate that they are getting tough on their own members and defending their turf against the risk of encroachment by the uber-regulator, the LSB. There has been talk of unifiying the regulation of legal services under a single regulator, viz the LSB, and naturally the professional bodies are resisting that.
However, that seemed to be contradicted when the Lord Chancellor, the ever-popular Chris Grayling, suggested this year that the LSB should being to plan for its own demise (WN 13 June) declaring that there were now “too many layers of regulation”.
Unregulated amateurs. While it continues to exist, however, the LSB seems bent on a contradictory course, overseeing the regulatory overkill of trained professionals (see, generally, above) while at the same time countenancing the performance of legal services by rank amateurs without either regulation or the sort of protections, such as insurance, data protection etc, that the public ought to expect. I use the term “amateur” to indicate lack of legal qualification, because this does not stop Professional McKenzie Friends, as we are now to welcome them, from charging litigants (otherwise litigants in person) and other clients for their services. But the LSB, via its Legal Services Consumer Panel (LSCP), issued a report this year suggesting there should be room for these to operate in the market and fill the gap left, obviously enough, by the withdrawal of legal aid for so many categories of case, particularly in the family courts. (See, generally, McKenzie Frenzy: regulating the irregulars.)
Transforming justice. The T word is often used in a rather mealy-mouthed way to glorify what essentially amount to efficiency savings, or simple cost cutting measures (regardless of effect on quality). Witness, for example, the “Transforming Legal Aid” consultation process which ultimately seems designed to reduce the number of firms and practitioners able to do legally aided criminal work and resulted in yet more judicial review proceedings this year.
But it is also the buzzword when it comes to using technology to achieve a sea-change in court process, as envisaged by the new Lord Chief Justice, Lord Thomas of Cwmgiedd in a speech to Justice on 3 March 2014, to which barrister Tim Thomas responded on this blog and another speech in June to the Society for Computers and Law; and also by the CPS with its announcement in the same month of a plan for fully digitising the criminal justice system by 2016. That said, plans for a roll-out of wifi into all court buildings seem to have stalled, as our report on 6 June notes, with the timetable slipping by at least a year.
All in all, then, a rather mixed bag. Business, or lack of it, as usual.
October: Judicial review reviewed
A busy month as the Michaelmas Term began. It was revealed in October that the number of judicial reviews involving government departments had almost doubled since 2010, according to a written answer in the House of Commons by Solicitor General Robert Buckland. What with judicial review proceedings concerning various aspects of the legal system and legal services including,
- QASA (see above)
- Duty provider work contracts (for solicitors’ firms at police stations: see Gazette)
- Prisoner book ban (WN 5 December)
- Employment tribunal fees (see R (Unison) v Lord Chancellor  EWHC 218 (Admin); (£)  ICR 498; (free)  WLR(D) 57, DC)
- Legal aid funding for inquest guidance (see Bindmans)
to mention but five … it is perhaps not surprising that the Lord Chancellor and his government should seek to limit the scope of the remedy. But that was not their stated reason for seeking to do so, in Part 4 of the Criminal Justice and Courts Bill, which was debated in the House of Lords in October. The real reason seems to be a general sense that JR is being abused as a form of procedural barricade on the road of executive activity, that special interest groups are exploiting loopholes and that it has become a form of forensic filibuster.
No doubt some applications are a bit bogus, as indeed are many actions in the courts, and many defences to criminal prosecutions. The system should be able to cope with that. But if you limit the right to bring judicial review, you remove an important check on the abuse of power, both in relation to the substantive decisions made and in the way they are arrived at (ie without taking illicit procedural short cuts). The knowledge that decision-making is being scrutinised is a great encouragement to do things properly, however tiresome that might be.
For these and other reasons, after five hours of debate in the House of Lords, on 27 October, the restrictions on the bringing of judicial review claims proposed in the Bill were roundly defeated by a majority of peers drawn from parties across the political spectrum who supported amendments led by the cross-bench peer (and peerless advocate) Lord Pannick QC. (WN 31 October ).
The Lord Chancellor has vowed to return to the fray when Parliament reconvenes early in the new year. Meanwhile, the outgoing chairman of the Bar, Nicholas Lavender QC, said in December that it was wrong for the Lord Chancellor to interfere with the judges’ powers of judicial review as it would amount to him being a “judge in his own cause”: Judicial Review: Common sense and the separation of powers).
CSA inquiry chair fiasco
October also saw the departure of a second appointee to chair the government inquiry into historic child sex abuse (CSA). In July we reported concerns expressed over the initial appointee, Baroness Butler-Sloss, whose late brother had been Attorney General during one of the relevant periods, and before long we reported that she had withdrawn from the inquiry. The Home Secretary, Theresa May, who set up the inquiry, then through her office not only appointed Fiona Woolf, a solicitor who was currently the Lord Mayor of the City of London, but also helped her draft a letter explaining away her apparently quite close connection with another former government minister who might come under scrutiny in the inquiry, namely Lord Brittan QC. Before long she, too, had bowed out. (see CSA Inquiry – will chair be shown the door?)
Since then, no further candidate has been nominated, though many suggestions have been put forward.
There are problems not just of bias but also suitability and credibility, and there has been some debate over the extent to which the alleged victims, who may be considered a class of beneficiary of the inquiry, should be entitled either to promote or to veto any proposed chair. But the purpose of the inquiry is presumably not just to assuage their hurt but also to grapple with the administrative and procedural failures of various agencies and organisations (police, social services, Home Office, etc) and ensure that in future they conduct themselves so as to minimise the risk of yet more scandals and yet more victims. That requires someone with clout and experience, but without the perceived taint of being too chummy with or part of the so-called Establishment. It’s all a bit of a conundrum and intimations that the Home Secretary would dearly love to forget all about it until after the election (when someone else may well be in her shoes) may contain more than a grain of perceived veracity.
And finally… the assault on Human Rights.
Cutting funding for legal aid, removing the right to seek judicial review – these limitations are mere child’s play next to the big beast of prey in the government’s sights: the Human Rights Act.
For those who approved the smack of firm government and a “least said soonest mended” model of democratic accountability, the domestic enactment of the European Human Rights Convention as part of the Human Rights Act 1998 has long been a thorn in the side. What is it, after all, that allows convicted paedophiles to enjoy pornography in their prison cells and prevents us deporting criminals, born in this country, who have already served their time, simply because they keep a cat?
Half-baked as these arguments may seem to anyone not taking too many tabloids, they were not that much worse than some of those deployed in support of the Conservative proposal to repeal the 1998 Act and replace it with a British Bill of Rights. This was, once again, the work (in part) of the brilliant strategist Chris Grayling. And the busy month of October was when it all came to a head (WN 3 October, WN 10 October, WN 31 October ).
November: Fools rush in
This year appears to have dragged on a bit, so I’ll [try to] be brief from now on. This was the month of the Sarah debate, the Emily tweet and the libel judgment in Plebgate.
In the first of these the Lord Chancellor’s hobby horse, or trick pony, SARAH (Social Action, Responsibility and Heroism Bill) had its second reading (or “drubbing”) in the House of Lords: WN 9 November.
While out canvassing in a hopeless (but perhaps not entirely vain) attempt to avoid a UKIP electoral mudslide, Ms Emily Thornberry, barrister, Labour MP for Islington South and shadow Attorney General happened to post on Twitter an image of a house festooned with St George’s flags, which was taken amiss and provided an excuse for a lot of manufactured outrage in the tabloids, whereupon her party leader panicked, and by the end of the day she was no longer shadow attorney general: WN 21 November .
Rather more hubristic was the conduct of another parliamentarian, the former Conservative chief whip Andrew Mitchell, whose libel claim against the Sun newspaper over some heated words spoken to a police officer while negotiating his exit from Downing Street one evening finally reached a judgment in the Sun’s and policeman’s favour: WN 28 November.
The moral of all these stories should be: Fools rush in, where cautious lawyers would prefer not to tread. If you’re a politician, think carefully before you speak, tweet or legislate. (Something to remember during the coming months, though no doubt it will be forgotten.)
December: Cuts were a stab in the dark
As the legal aid cuts introduced by the Coalition government have continued to take their toll, and the complaints, demonstrations (eg Grayling Day – see Annual Notes 2014 (part 1) and judicial review proceedings (see above) have multiplied, it was probably still assumed by most people that, tough as the decisions were, they had at least been taken after reasonable consideration of what their consequences might be. Not so.
The shock revelation (and it was a staggering admission) came in December when Ursula Brennan, permanent secretary to the Ministry of Justice, told the House of Commons public accounts committee (PAC) that the coalition government’s decision to cut £300m from the legal aid budget was ‘imperative’ and was therefore implemented without first gathering any evidence about the best way to do it or the likely effects it would have. (WN 5 December )
A common complaint about the way the cuts have been implemented is that the net effect has been to increase waste and expense in other areas. Judges have complained of longer hearings and practitioners have had to put up with shambolic case management by prosecutors and trials collapsing because of failures (owing to financial cuts) to provide proper jury catering or interpreter services. The net effect, the National Audit Office reckoned in a report, was that “the Ministry’s implementation of the reforms to civil legal aid cannot be said to have delivered better overall value for money for the taxpayer”.
The grim RIPA
December was also the month when the Intelligence and Security Committee (ISC) released its report on an investigation into the failure to keep tabs on the killers (who had been on the intelligence radar) of Fusilier Lee Rigby. It concluded that although the security services had fallen over, some blame could conveniently be put on the providers of social media platforms such as Facebook, which provide what was termed a “safe haven” for terrorists to exchange messages of hate, plans for atrocities, etc.
This came at the end of a year in which what one might call the Security Lobby had repeatedly tried to push for greater powers of surveillance – while those opposed to invasions of privacy wearily described their proposals as yet another “snooper’s charter”.
One of the most obvious examples of this was the relatively easy passage through Parliament (in just 8 days in July) of the Data Retention and Investigatory Powers Act 2014 (DRIP) under which contains sweeping and virtually untrammelled powers to retain personal data against a range of vague and supposedly imminent risks, ranging from paedophiles to terrorism.see WN 18 July.
DRIP was said (by the Home Secretary Theresa May) to build on the protections already afforded by an earlier piece of legislation, known as RIPA ( the Regulation of Investigatory Powers Act 2000) which was enacted in a frenzy of concern over terrorism, and then used (and abused) for all sorts of mundane snooping and evidence gathering processes, without the need for tiresome scrutiny or court orders. It was discovered in September that the Metropolitan Police and others may have been using the Act’s procedures, designed to protect society against terrorists et al, as a way of short-cutting to handy evidence for use in criminal trials, without much in the way of supervision. (WN 12 September )
Generally the press has been fairly complacent about the government’s plans to ramp up surveillance, perhaps embarrassed about the extent to which it uses or abuses surveillance methods itself to get those celebrity scoops without which it would have you believe it could never afford to provide proper responsible news coverage. But when it turned out the government and police were using the same powers on the press, for example by monitoring journalists’ phonecalls, all hell (or boilerplate indignation) broke loose: WN 10 October.
Well, that’s it. No doubt there are other topics one could mention, including some themes from overseas jurisdictions, such as the Pistorius trial in South Africa, and any number of injustices from Egypt, Iran, and other states where the rule of law does not enjoy the respect on which civilisation properly depends.
Next week, when the Hilary Term begins, I’ll resume Weekly Notes. Till then, enjoy the weekend and Happy New Year for 2015!
This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR. It does not necessarily represent any views of ICLR as an organisation.