Weekly Notes: legal news from ICLR – 11 December 2015
Posted on 13th Dec 2015 in Weekly Notes
This week’s roundup includes Hacked Off being hacked off after hacking trial backed off, the future of press regulation, whether Janner is fit to plead and whether Trump is fit to lead. Plus votes for women and a trout in the soup.
Criminal law (1)
Phonehacking trials called off
The Crown Prosecution Service announced on 11 December that it would discontinue prosecutions involving corporate liability charges against News Group Newspapers Ltd and criminal charges against 10 individuals at Mirror Group. These were the result of Operation Weeting and Operation Golding investigations.
Reaction to the news was threefold. News Group newspapers clambered onto their high horses to denounce the whole investigation as a waste of public money, very selectively identifying a small number of successful prosecutions amidst what they painted as a picture of general failure. Piers Morgan, former editor the Daily Mirror, was reported as having tweeted that he proposed to go out and get “spectacularly drunk”. And the victims of the alleged phonehacking and their campaign group, Hacked Off, expressed disappointment that the police had not been able to gather sufficient evidence to justify a prosecution in the public interest.
For a list of the convictions obtained and some rather predictable quotes, the BBC report is quite good: Phone hacking: CPS calls end to prosecutions
See also Inforrm’s Blog: CPS announces no further phone hacking prosecutions against News Group or Mirror Group
Whatever happened to Leveson?
The conclusion of these criminal proceedings means that the Leveson Inquiry can, theoretically, now proceed to its next stage, what is dubbed “Leveson 2”. This was supposed to be a full inquiry into the criminal activities which, to avoid prejudicing or interfering with the criminal proceedings, was postponed until their conclusion. Hacked Off is urging the Prime Minister, who ordered the Leveson Inquiry in the first place, to ensure that it now continues to its logical conclusion. But there seems to be some doubt as to whether that will happen, given the sums already spent on the trials, and the collapse of the latest round. Added to which, the original Leveson Inquiry website – with its massive report, its numerous recommendations and all its volumes of tirelessly collected evidence – appeared last month to have vanished into thin air.
What happened was this. Less than three years after the Leveson report was published (on 29 November 2012), a well known legal commentator went to look at it on its usual URL at www.levesoninquiry.org.uk, only to find it, like the French horn in theFlanders and Swann song, “gorn”. Disappeared. Abducted from the information superhighway, and left to rot on some high and dry-way. (See the Jack of Kent blog, Whatever happened to the Leveson Inquiry website?)
After a brief and well publicised Twitterpanic, it turned up again. It transpired that it had simply been re-filed, or mothballed, in a virtual dank basement, bound and gagged in digital bubblewrap, an exhibit for the benefit of posterity and the document-hunters who haunt the stacks of the National Archives. And it’s actually quite easy to find it because the old URL www.levesoninquiry.org.uk now links through to its forwarding address, with a somewhat less snappy URL: http://webarchive.nationalarchives.gov.uk/20140122145147/http://www.levesoninquiry.org.uk/
IPSO de facto, Impress de jure
Meanwhile, the recommendations of the Leveson Report appear to have resulted in some rearrangement of the existing regulatory mechanism, but without necessarily effecting any improvement. So the old bulldog with rubber teeth known as the Press Complaints Commission (PCC) has been replaced by IPSO, the so-called Independent Press Standards Organisation, which is so independent it has a two-thirds majority of industry insiders (ten newspaper editors) on a panel of 15, the minority consisting of three lay members, a retired judge and a chief executive.
IPSO publishes an Editors’ Code which was recently revised. However, Evan Harris of Hacked Off is unimpressed, according to his review on Inforrm’s blog: Newspaper Industry releases revised “Editors’ Code”, more comfort for tabloids, nothing for the public “Inforrm” is short for the International Forum for Responsible Media and its blog is a useful repository of articles about recent cases on defamation and media law.
IPSO’s performance, criticised as lack-lustre, or even lackey-like, by some, was robustly defended by its “pugnacious” chairman, former Lord Justice of Appeal Sir Alan Moses in a lecture on the future of press regulation given earlier this year. He seems to be under the impression that IPSO is a work in progress and that progress is being made – but evidently not enough for the likes of Evan Harris.
However, IPSO is not the only press regulator. There is also IMPRESS, whose chairman, Jonathan Heawood, also writing on Inforrm’s blog,declares it to be the only fully Leveson-compliant regulator and the only one intending to seek recognition from the Press Recognition Panel – a body set up by Royal Charter after the Leveson Inquiry to give life to a new system of press regulation. It would appear to be a “regulator’s regulator” or “uber-regulator” after the style of the Legal Standards Board (LSB) which causes so much delight to the legal profession (see Weekly Notes passim). The charter bit is what the press don’t like, just as they don’t like anything that might be “statutory” because it smacks of bending the knee to Parliament, and that’s something only ordinary mortals obeying the law of the land should have to do.
Of course, no industry or profession can be regulated without the consent of a majority of its members, but most professions (the law being a prime example) now have to put up with much more objective and independent, not to say intrusive, regulatory bodies than seems to have been the case with the press. They seem to be able to rely on a form of benefit of clergy, according to which misdemeanours must be overlooked for the greater good of an accountable democracy.
Criminal law (2)
Janner in the works (again)
The allegations against Lord (Greville) Janner have been discussed here before: Weekly Notes – 24 April and 3 July 2015.) This week Mr Justice Openshaw, in considering whether Janner was fit to plead to an indictment charging him with historic sexual offences committed between 1963 and 1988, cited as the foundational authority for the relevant test a case dating from 1836: Rex v Pritchard, 7 C & P 303. This appears in Carrington and Payne’s Nisi Prius reports, which are one of the Nominate Series republished in the English Reports.
Many legal principles have their ancestry in the common law, some of it much more ancient than the reign of William IV. Much as we like to feel we are at the cutting edge of the lawmaking process, reporting freshly minted precedents adapted to the modern age, and while never confusing antiquity with authority, we still recognise the value of a coherent and comprehensive record of older case law. ICLR began in 1865 but the common law, haphazardly as it may have been reported in days of yore, is much older and some of it very venerable. Like Magna Carta, it is woven into the tapestry of English law, along with golden threads of presumed innocence and the like. (Grows misty eyed.)
Openshaw J said “I have attempted to modify the test as laid down in R v Pritchard… in accordance with modern conditions.”
That is how the common law develops and adapts, in a manner some might call Darwinian, and others Whiggish. Incidentally, the judgment or ruling as distributed on the Judiciary website contains neither Neutral Citation nor paragraph numbering. If it is to be reported, these will need to be included; but, since it adds nothing to the existing law which it applies, it is unlikely there will be any call to report it, despite the news interest. The ruling was issued in the Central Criminal Court, whither the case had been sent for trial, on the order, presumably, of the Divisional Court of the Queen’s Bench Division, whose judgment dated 13 August 2015 R (Janner) v Westminster Magistrates Court  EWHC 2578 (Admin) is available on BAILII. That was a challenge by judicial review of a decision of the Chief Magistrate that Janner was fit to attend the magistrates’ court for a brief hearing so as to be sent for trial to the Crown court. The Divisional Court held that the magistrate’s decision was not wrong. Again, the decision raised little in the way of new law and has so far only been reported in the Justice of the Peace reports: (2015) 179 JP 465.
Blog of the week
Sir Henry Brooke: Musings, Memories and Miscellanea
It would be inappropriate to suggest that Sir Henry Brooke, retired Lord Justice of Appeal and former chairman of the trustees of BAILII, had done anything so attention-seeking as to “burst” onto any “scene”, but his discreet arrival in the blogosphere has, in a few weeks, taken a great many readers by (deeply gratified) surprise.
Of course, Sir H has been tweeting for a while, somewhat confounding the customary prejudice that retired Lords Justices are too stuffy or remote to descend into the arena of not always pretty public debate that is Twitter (an online Open Mic session that anyone can join in and jump into, often to the annoyance of people who think they are just having a quiet chat in the corner of the tea room). Sir H is IT-savvy, having been a leading proponent and disappointed champion of IT in the law courts since a time when typewriters and dial phones were still being used. Now, instead of writing his memoirs in some port-infused seclusion, he is publishing them week by week, sometimes day by day, on his new blog. It’s been going about six weeks. And it’s fantastic.
Among the recent pieces is an account of the Chambers at 2 Crown Office Row he joined more than fifty years ago as a pupil in 1963, when lunch in hall cost five shillings and a lamplighter came round the Temple each evening to light the gas lamps. There’s also a personal memoir of Lord Denning, who mentored Brooke as a student of the law, and whom Brooke helped with a scheme of informal residential weekends at Cumberland Lodge to provide help and encouragement to overseas bar students, at a time when the Inns had a less inclusive and pastoral approach to them.
There are several pieces about IT in the courts, the disasters of the past, the hopes dashed, the dreams spurned, and more recently about the hopes rekindled in the Chancellor’s recent announcement of a £700m investment in court modernisation. There’s also a very interesting reprint of an article in which Sir Henry answered a number of frequently asked questions about BAILII (the British and Irish Legal Information Institute) of which he was formerly chair of the trustees.
Speech of the week
New Bar Council chair inaugural speech
At her inauguration on 7 December, the Bar’s new chair, Chantal-Aimee Doerries QC, set out her priorities for the coming year. She began by emphasising that the Bar is essentially a profession, not a business:
The more one encourages the professions to see themselves as purely businesses, or simply leave everything to market forces, the more we attenuate the idea of being a professional. The Bar is a profession. It is not simply a job. In many areas of publicly funded work there is no certainty of economic security and for many the rewards are relatively modest.
The difference is manifest in its ethics, which are not those of a business:
As well as owing a duty to the Court, and complying with our professional Code of Conduct, we are required to act in our clients’ best interests. In doing so, we may well act against our own best financial interests.
(Incidentally, a similar point was made by the pseudonymous Russell Winnock in his Confessions of a Barrister which is reviewed here ) Likewise, the Cab Rank Rule,
which reflects the profession’s belief that every client, however unpopular, deserves representation and that it is the client who chooses the lawyer, and not the lawyer who chooses his or her clients.
Doerries went on to discuss the Bar Council’s representative role, the value of the Bar Standards Board as an independent regulator, and the role of the Bar in society. You can read the speech (pdf) here.
Dates and deadlines
A theatrical production of Thackeray’s epic novel, adapted by Declan Donnellan, will be performed in Middle Temple Hall, 8-10 January 2016, with tickets at £45, £35 and £25.
All proceeds will go towards the Middle Temple Scholarship Fund.
Bookings via www.vanityfairplay.co.uk.
Old trout in the jug
This week’s slightly bizarre story
You know you’re probably on a hiding to nothing when your own counsel, by way of mitigation, calls you a ‘disagreeable old trout’. And so it was for Margaret Wooliscroft, according to the report of her case in The Stoke Sentinel. She was sentenced to 28 months in jail for five counts of breaching an anti-social behaviour order (or injunction) and one of racially aggravated alarm, harassment and distress. Most of the offending seemed to consist of obstructing lawful use of the lane she lived in, Bull Lane, Brindley Ford, which she treated as a private fiefdom, according to the judge. She would lay traffic cones across the road, shout at road users, call them names, accuse them of being paedophiles and drug dealers, and on one occasion allowed her geese to hold up the traffic.
Of course, you don’t have to have read Cold Comfort Farm to know that there are some thoroughly eccentric old people living in the countryside, and they’re not all lovable Larkins like the Darling Buds of May. But when counsel speaking up in your own defence says you were ‘persistent, outrageous and unpleasant’ and ‘about as popular as a diesel Volkswagen’ then you must know things are not so perfick and there’s probably something nasty in the woodshed.
The report implies that he tried to suggest she might not be quite as bad the her evidently toxic reputation, which preceded her, or that she spoke without fully considering what she was saying. All to no avail, unless perhaps an even worse sentence was, by this candid deprecation, averted.
However, I find his description of his client unfair to the trout as a species and have chosen a rather more engaging one (to my ear, at any rate) by way of illustration.
Law (and injustice) from around the world
Laws against journalists challenged
On 7 December 2015, the Federation of African Journalists (FAJ) and three exiled Gambian reporters filed a legal claim against The Gambia to challenge the pervasive culture of persecution, violence, and injustice towards journalists in The Gambia, according to Inforrm’s Blog. The case has been brought before the Court of Justice of the Economic Community of West African States (ECOWAS) seated in Abuja, Nigeria, with the support of the Media Legal Defence Initiative (MLDI).
The applicants argue that laws, which have their roots in colonial times when they were used to suppress dissent, are now specifically used to target journalists and human rights defenders. The applicants have asked the Court to make a declaration that their very existence violates the right to freedom of expression.
Women can vote and run in elections
In what may be considered a positive bit of news from the Kingdom, Saudi women will vote and run in municipal elections for the first time on 12 December 2015. However, in reporting this development, Human Rights Watch points out that women faced a number of barriers in registering to vote and in promoting themselves as candidates.
Election officials set up single-sex voter registration centres, but only one-third were for women. Further difficulties include obtaining the necessary identity papers and proof of residency, and dependence on the goodwill of male family members to cooperate.
Despite these and other difficulties, the final list of 6,917 candidates, released on 29 November, included 979 women standing in the municipal elections. Campaigning for office involves further difficulties such as strict sex-segregation rules on both men and women being addressed at the same time and the fact the vast majority of voters are still men.
See also Foreign Policy: On the Campaign Trail with Saudi Arabia’s first Women Candidates
UPDATE: The Independent reports Sunday evening that Women win 17 seats in Saudi Arabia’s first elections with female candidates.
United States of America
Trump still ahead in Republican race
Despite a series of racially divisive proposals, apparently put forward in all seriousness, the Republican candidate Donald Trump remains a front runner to be either the Republican candidate in the forthcoming presidential elections in 2016 or, if not selected, a dangerous “rogue elephant” Independent. His stock in trade seems to be the most extreme imaginable solution to any problem, such as building a vast wall to stop anyone crossing the border from Mexico, or banning any Muslims from entering the United States to prevent terrorist attacks on American soil, while studiously avoiding any more reasonable, necessary or proportionate proposals, such as better gun control. (For example, Time magazine reported that a recent Study Says White Extremists Have Killed More Americans in the U.S. Than Jihadists Since 9/11.)
Quite apart from any question of common sense, the legal implications of Trump’s proposals are fraught with difficulty. But the response from Republican-minded supporters has been positive to an extent that seems to be in inverse proportion to the reasonableness and feasibility of the proposals, which may indicate that they are purely rhetorical or “aspirational” and not intended to be acted upon.
There remains a risk that the momentum of public support, however ignorant, could prompt Trump, if elected, to put his proposals into action, and then what begins with a wall to keep people out, becomes a series of other walls (or internment centres) to keep people in – with “race” laws to identify exactly who is to be kept “in” or “out”. First the Mexicans, then the Muslims, then who? The Canadians? The Catholics? People with bouffant blonde hair?
In the UK, a petition to Parliament in favour of banning Donald Trump from entering the country has, at the time of writing, received over half a million signatures.
Even so, comparisons between Trump’s ideas and those of Adolf Hitler have been cold-watered. The Telegraph quotes a commentator called Rob Crilly on something called The Malcontent saying this:
Trump certainly lacks the authoritarian, collectivist spine that runs through fascist movements from history. He remains an individualist and capitalist at heart. And Trump’s confused grab bag of policies is a long way short of the ideological framework that would make him part of a fully fledged fascist movement.
That’s it for now. My thanks to all who led me to stories, mostly my followees on Twitter.
This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.