Weekly Notes: legal news from ICLR – 16 October 2015

Posted on 17th Oct 2015 in Weekly Notes

This week’s merry-go-roundup of legal news and events includes a U-turning Lord Chancellor, a truanting parent, a litigious aunt, a savvy data subject and his refusal to dock in an unsafe harbour.

UPDATED 22 October 2015

Ryanair Justice

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Gove – Font of justice, whence hope springs eternal, we hear.

Gove predicted to bin tax on guilt

After debating a motion of regret, members of the House of Lords voted by 132 votes to 100 to oppose the criminal court charge, which was introduced by Chris Grayling as Lord Chancellor in the dying days of the Coalition government. (Peers dubbed the charge “Ryanair justice” for reasons which this correspondent, never having been silly or desperate enough to fly on Ryanair, can only guess at.)

The charge is between £150 and 1,000, depending on the level of the offence, not the means of the offender, and guilty pleas are rewarded (as with early settlement of parking fines) with a discount – thus potentially dissuading innocent defendants from pleading not guilty, especially to minor charges.

At least 50 magistrates have resigned over the unfairness of it all, one of them after attempting to pay the fine himself; and it is widely reported that magistrates are levying lower fines or imposing lesser penalties in order to avoid or reduce the amount of the new charge, according to The Independent.

There has been a steady campaign on twitter and the blogosphere by lots of commentators, and now it looks as though this might be yet another brick in Grayling’s wall that his successor, Michael Gove may be planning to remove. So far he has only promised to review it. But there may be other reasons for dropping this dangerous firework before it blows up in his face. Estimates suggest that less than £300,000 has been collected of £5m charges imposed. So it doesn’t look as if it can even satisfy the Treasury’s gleeful hand-rubbing forecasts.

UPDATE: According to the The Times Law Brief newsletter, Gove’s alternative plan is to hit big city law firms with a 1% turnover tax.

A 1 per cent levy on turnover of the top 100 corporate firms – in excess of £19 billion – would raise £190 million, which is at least twice what the Mr Gove’s predecessor, Chris Grayling, hoped to reap from the courts charge. But any move to tax the big global players in the Square Mile would be controversial with a powerful lobby – city solicitors.

So good luck with that, seems to be the conclusion.

Saudi Prison Deal scrapped

All this follows the announcement on 13 October that the infamous Saudi prisons deal between the Ministry of Justice’s commercial offshoot, Just Solutions Inc, and the prison service of Saudi Arabia “to conduct a training needs analysis for the Kingdom of Saudi Arabia prison service staff” (see Weekly Notes – 11 September) will now be cancelled.

This was another little project promoted by former Lord Chancellor Chris Grayling (and his predecessor Ken Clarke) which Michael Gove wanted to ditch. But it has previously been thought that cancellation was precluded by a penalty clause in the agreement. Moreover, some voices in the government were against it, urging the importance of the UK sticking to its international commercial bargains, never mind who with, and remaining “engaged” with unsavoury regimes for the sake of improving their outlook.

Reprieve, the human rights campaigner organisation, welcomed the announcement, but noted that

The cancellation of the bid comes ahead of the planned execution of two Saudi juveniles, Ali al-Nimr and Dawoud al-Marhoon. Both were 17 when they were arrested and tortured into ‘confessions’ in the wake of protests in Saudi Arabia’s Eastern Province. Executions are shrouded in secrecy in Saudi Arabia, and it is possible that both juveniles could now be executed at any time, without prior notification to their families.

The cancellation of the contract is due in large part, we feel, to the tireless investigative reporting on the matter by bloggers such as David Allen Green, both on his Jack of Kent blog

and in the Financial Times.

Gove’s predecessor used to be known on Twitter as “Failing Grayling”. Gove seems to be succeeding Failing Grayling in more ways than one.

 

Unsafe Harbour

Fallout from ECJ ruling against Eu Com on data surveillance

The judgment given earlier this month by the Court of Justice of the European Union in the case of Schrems has blown a hole in the illusion that personal data exchanged using online apps such as Facebook can be protected against routine, wholesale surveillance. This was not, however, the issue in the case. That concerned the jurisdiction of a data protection authority to go behind the assumptions and assurances of a Commission Decision, which is a quasi-legislative instrument, and investigate for itself whether a bilateral agreement between the EU and the USA was actually worth the paper it was written on. The agreement in question was the so-called “Safe Harbour” scheme. This scheme, regulating privacy protection of data transferred from the EU to the US, was supposed to ensured an adequate level of protection in compliance with the Data Protection Directive (Directive 46/95 ).

But Maximilian Schrems, an Austrian user of Facebook, much of whose digital content is stored and processed on servers based in the United States, was concerned, following the revelations of fugitive whistleblower Edward Snowden about the untrammelled scrutiny of all data traffic passing through and within US digital space, as to how safe this virtual harbour really was. So he raised the matter with the Data Protection Commissioner (DPC) in Ireland, where Facebook has its European base. The DPC declined jurisdiction to investigate, citing and relying on the Commission Decision endorsing the validity and adequacy of the Safe Harbour agreement. Not so fast, said Schrems, appealing to the Irish High Court, who in turn referred the matter to the ECJ.

In Schrems v Data Protection Commissioner (Case C-362/14) [2015] WLR (D)  403 the court of justice held that the adoption of Commission Decision 2000/520/EC, by which the European Commission found a third country (ie the USA) ensured an adequate level of protection for personal data, did not preclude a supervisory authority (in this case the Data Protection Commissioner in Ireland) from investigating and examining an individual’s claim that such protection was inadequate. In so holding, the court affirmed Advocate General Bot’s Opinion of 23 September 2015.

The court then went on to hold that the Commission Decision was invalid, and in adopting it the Commission exceeded its powers under the Directive, construed in accordance with the EU Charter.

The fallout from the decision will, however, go much further. For one thing, it’s a great big “I don’t believe you” from Europe to the USA, with the NSA peeking out from behind a curtain and pretending no one knows it’s there listening the whole time. But secondly, perhaps more profoundly, it’s an example of the Court of Justice telling the EU Commission it frankly isn’t doing its job properly. Nor for that matter are many of the supposedly supervising but in reality buck-passing data authorities in the member states, particularly the DPC in Ireland. In fact the whole Safe Harbour scheme is a massive buck-passing exercise, allowing US companies to box-tick their own adherence to adequate protection of privacy. (Yeah right.)

Commentary on the case includes the following:

For a handy explainer on digital privacy rights generally, Graham Smith of solicitors Bird & Bird has put together a set of slides, Right to Privacy in the Digital Age 

And for a bit of a pre-Halloween scare (the ghosts of data passed), you are strongly recommended to watch the series by Journalist Aleks Krotoski in The Guardian (sponsored by Silent Circle) on The Power of Privacy. In a series of short films, she explodes the idea that our digital footprint cannot be detected and exploited, from seemingly harmless interactions. It’s quite an eye opener. HT to @juliapowles for tweeting this.

 

 

Vacation Vacation Vacation

“We don’t need no educayshun” say vicariously truanting parents

Holiday truanting seems likely to rise again after a determined dad went to court to fight the fine his daughter’s school imposed on him for allowing her to miss school for 6 days while the family attended an 8-day holiday in Disney World in April. The school refused to permit it, saying the circumstances were not exceptional, and he was fined £60 rising to £120 on non payment.

Jon Platt had spent around £1,000 in legal fees before a magistrates court accepted a submission of no case to answer, having decided that the statutory requirement of “regular” attendance in section 444 of the Education Act 1996 was met despite occasional absences for private or family reasons.

Mr Platt said he had “relied on a High Court case involving the London Borough of Bromley for legal precedence”, according to the Telegraph (Parent wins term-time fine victory after taking daughter to Disney World). I’d be interested to know what case that was.

Some newspapers (eg the Mirror – Parents ‘can take their kids on holiday’ in term time after dad wins landmark court battle) are presenting this as though it sets a precedent but of course it is only the decision of one magistrates’ court in one case. And it was in the Isle of Wight. If the local authority or school appeals to the Divisional Court, I imagine we will get a more authoritative (and sensible) interpretation of the statute. Indeed, a spokesperson for the Department for Education was quoted in the Telegraph as saying

“the case does not set a precedent because it was made in a magistrates court and is not binding in any other court.”

But precedence apart, what is sauce for the goose is sauce for the school and its staff. If teachers miss days, or schools close for some reason, they should compensate parents, eg by returning or opening the school another day. Otherwise, it is hardly fair.

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Image: Governors State University, Illinois.

Awards

Bristol Law Society 2015 awards

BBC Correspondent Clive Coleman hosted the Awards ceremony at the Bristol Law Society Annual Awards Dinner. Chambers of the Year went to St John’s Chambers, and Law Student of the Year to Sarah Carter (University of Law). Click here for a full list of winners and the prize sponsors for each category.

 

Recent good reads:

McKenzie Friends: a litigant’s guide by Sarah Phillimore and Paul Magrath

The ICLR Anniversary Edition is now for sale (containing the Top 15 cases voted for by ICLR readers on this website)

 

 

Law (and injustice) from around the world

Australia

New South Wales courts selloff

In a move that seems to echo what is happening here in the UK, the Attorney General of NSW, Gabrielle Upton had indicated that some of the state’s courts, many of them dating from before independence, will be sold off to rationalise the geographical distribution and efficiency of the court service, according to the Sydney Morning Herald.

The design of courts needed to evolve, Upton said. “Going to court is stressful enough, without the added pressure of feeling like you are caught in a colonial-era rat warren.”

The speech had Labor Opposition justice spokesman Paul Lynch warning against a “fire sale of assets”.

Speaking (in The Times) about the similar plans for court closures in the UK, Jonathan Smithers, president of the Law Society, said:

“A majority of these proposed court closures will make it more difficult for a significant number of people to get to court, and the closures will more adversely affect people living in rural areas, those with disabilities and lower-income families.”

Bahrain

Call for opposition figures to be freed

Bahraini authorities should immediately release the unjustly imprisoned political opposition leaders Ibrahim Sharif and Sheikh Ali Salman, says Human Rights Watch. Both have been arrested for speech related offences.

“Salman and Sharif have consistently supported peaceful political reform and should be at a negotiating table with Bahrain’s government, not languishing behind bars,” said Joe Stork, deputy Middle East director.

China

Commerce and the Rule of Law

The visit to Britain of the Chinese Premier, Xi Jinping, following the chancellor George Osborne’s recent trade visit to China, has focused attention on the Chinese legal system and its support (or otherwise) for fair trade and human rights.

Writing in The Brief, the Times law newsletter, on Monday, Lord Woolf, former Master of the Rolls and Lord Chief Justice, discussed how the Chinese legal system had improved in the 30 years since he first visited the country. He gave a lecture to members of the Chinese judiciary in the Beijing Supreme Court and his discussions after that gave him the

“clear impression that it was the policy of the central committee and the judiciary to achieve a system of justice in China that complied with the rule of the law and met the needs of those from abroad involved in commerce with the jurisdiction. Establishing the independence of the judiciary constituted an important part of this policy.”

He also said that:

Although the PRC’s justice system was originally based on the German system of civil justice, there is recognition of the virtues of the common law and appreciation of the benefits that were flowing from the current collaboration between our judiciary and theirs. A judicial training board exists and a massive number of law students receive excellent training in many countries, including the UK.

This all sounds very positive, and it is true that last year China announced legal reforms to help fight corruption (see Weekly Notes – 31 October 2014 ) but the fact remains that China is very far from respecting the rule of law when it comes to democracy in Hong Kong or human rights and the freedom of expression of artists like Ai Weiwei (see Weekly Notes – 18 September ).

Let’s hope the Chinese judges heeded the words of Lord Neuberger, given in a speech last year to the Hong Kong Foreign Correspondents’ Club (see Weekly Notes – 29 August 2014) in which he said:

[A] judge has no more important function than to protect citizens against abuses of power of an increasingly mighty executive branch of government.”

[PS I would link to Lord Woolf’s piece but I don’t know how to link to The Brief and I can’t find it on the online site.]

 

Scotland

Cyclists’ petition for presumed liability of car drivers

A private members bill is proposed by Cycle Law Scotland “to pass a member’s bill for presumed liability between motorists,cyclists and pedestrians”. According to a petition lodged via Change.org:

The bill is designed to protect the most vulnerable road users and to reflect a hierarchy of road users. It would be applied in Civil Law cases for road traffic collisions between motorists and cyclists and similarly between cyclists and pedestrians.

The petition notice also states:

We are only one of a very small number of countries across Europe (Romania, Cyprus, Malta and Ireland) who do not operate such a system of strict liability for vulnerable road users and yet it is not unprecedented in UK law.

I think they need to decide whether they want strict liability (no defence) or presumed liability (shifting burden of proof to defence) for motorists in collision with cyclists, cyclists with pedestrians etc.

Presumptions can have counterproductive effects. A law in Brazil requiring motorists to report collisions carried with it a presumption of liability: consequence was a massive increase in hit and run incidents.

They should perhaps study this Guide to making legislation (via Gov.uk) , before drafting a bill.

And read their (Francis) Bennion.

 

United States of Litigation

They Should Have Gotten Aunti-Suit Injunction

This story began, absurdly enough, as a tale of the excessive litigiousness of the American citizen. A woman in a wealthy suburb of Well-Connecticut, as you might call it (Reader, I have lived there), had sued her nephew over an incident, when the child was just 8 years old, when he had accidentally broken her wrist in an over-boisterous hug. Jennifer Connell, 54, filed a $127,000 lawsuit against Sean Tarala, holding him responsible for the injury. Connell testified: ‘

All of a sudden, he was there in the air, I had to catch him and we tumbled onto the ground. I remember him shouting, “Auntie Jen, I love you!” and there he was flying at me.’

She also gave evidence of the severity of her injury by declaring it made it difficult to hold up her hors d’oeuvre plate at a party (and that was just for starters).

So far, so typical of the compensation culture fuelled by the jury trial system for civil tort claims in the United States. And serves you right, was the sentiment, when the jury then turned round and after no more than 25 minutes rejected her claim.

But then it transpired that there was more to this than met the eye. There was insurance, or the lack of it, for medical cover. In Connecticut, those who are not covered by medical insurance might be able to pay medical bills if they are covered under homeowners insurance and can prove liability. So the whole action was by way of being a device to secure proper medical provision of the sort we take for granted in Europe.

A statement from law firm Jainchill and Beckert, reported by Fox CT, read:

“From the start, this was a case… about one thing: getting medical bills paid by homeowner’s insurance. Our client was never looking for money from her nephew or his family. It was about the insurance industry and being forced to sue to get medical bills paid.”

So what began as a searing indictment of the American legal system turns out to be a searing indictment of the American health system. Or lack of it.

Sources:

 

Okay, that’s all for now, folks. Enjoy the weekend and try not to incur any liability for family hugs and take care what you share online.

 

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR. It does not necessarily represent the opinions of ICLR as an organisation.