Weekly Notes: legal news from ICLR – 19 February 2016
Posted on 21st Feb 2016 in Weekly Notes
This week’s roundup of legal news and commentary includes the opening of the referendum season, the passing of two literary giants, the correction of a 30-year misdirection, and a new guide to Chancery practice. Plus Apple v FBI writ.
In / Out / Shake it all about
The Prime Minister David Cameron spent much of this week in negotiations with his European counterparts, attempting to get a “deal” he could present to the British people, demonstrating that whatever might be wrong with the European Union from Britain’s point of view, it could and would change for the better.
Some commentators have suggested that each time Cameron brings out this famous reform deal it seems to have shrunk a bit since the last time. (See for example this piece in Conservative Home, from which we have reproduced the adjoining image.)
Suffice it to say, the deal has now been brought back and presented, for what it’s worth, and the runners are now out of the traps in the Great Brexit Referendum Stakes.
Wearing the Out or Go colours (a lurid highlighter green from what I can tell – “day-go” green perhaps) are a motley crew of mixed intellectual respectability. They include the Cabinet Six (about whom more anon) as well as more predictable sideshow soapboxers such as Nigel Farage and George Galloway. The latter, with customary modesty, compared this alliance as akin to that of Churchill and Stalin during World War II, but without identifying who was who in the analogy.
As for the Cabinet Six, what gives this column pause for thought, indeed largely justifies this as a legal news item, is the fact that two of them are the present and previous Lord Chancellor. That the latter, now Leader of the House of Commons, should be of Brexit camp is not entirely surprising. He has always felt uncomfortable at the constraints the law has put on his notion of the mandate democracy confers – witness his irritation at the use of judicial review and freedom of information to impose scrutiny on executive action – and the requirement to comply with EU directives must seem like a more inflated version of judicial review by “unelected judges” drawn from foreign jurisdictions. But some of us had thought his successor might be more respectful of the rule of law – as I’m sure he is; however, his apparent irritation with the idea of a supra-national rule of law seems unworthy of him. He explains his position in The Spectator; Michael Gove: Why I’m backing Brexit.
Another of the Cabinet Six is Theresa Villiers, who unlike Gove and Grayling is a real lawyer, though she probably doesn’t have time to practice, being currently Secretary of State for Northern Ireland. She explains her reasoning (much of it to do with “taking back control”) in another article in Conservative Home.
As for the In crowd – well, David Cameron and the non-six cabinet must be supposed to be their vanguard, but the conservative party will not be the only divided by this issue. The risk is that the vast majority of the population do not really care one way or the other, or think it won’t make any difference, which comes to much the same thing, because it will mean that they don’t vote at all; and a low turnout will tend to favour the Out crowd, because they are more motivated. What the referendum should do, of course, is require an overall majority of those qualified to vote, before any change to the status quo; but that won’t happen.
In the meantime, expect a series of distracting sideshows, such as legislation declaring, for the avoidance of doubt, that the sun rises in the east and sets in the west, that parliament is the sovereign lawmaker for the United Kingdom, and that the Pope, for all the annoyance he may have caused Donald Trump during a recent trip to Mexico, is still Top Catholic.
Harper Lee dies, then Umberto Eco
We mourn the death this week of Harper Lee, author of To Kill a Mockingbird, the novel which for so many spells out the acme of legal professional ethics. The publication last year of her rather less impressive earlier work (Go Set a Watchman), gave rise to some speculation about whether Mockingbird, which involves some of the same characters at an earlier time, was really all her own work, so startling is the difference between the two works.
The suggestion has been made that her friend and neighbour Truman Capote, for all the difference in their styles of writing, may have had a hand in guiding Lee towards more interesting and satisfying plot, structure and characterisation, just as it seems she lent him help in writing his masterpiece, In Cold Blood. But it might equally have been another helper or editor, for it is not unknown for early works by new writers to be more than a little collaborative. It is also surprising that Lee seems not to have written any more novels. Would a “real” writer give up so easily or rest on her laurels? The Internet is full of speculation and rebuttal: go set a search-term. But this piece, from 2011, by Philip Hensher, himself a well established novelist and writing teacher, may answer some of the curiosities: Why Harper Lee kept her silence for 55 years.
To Kill a Mockingbird was turned (by other hands) into a play and a famous film starring Gregory Peck as the lawyer, Atticus Finch. It is an inspiration for lawyers everywhere, not because he wins the case (he doesn’t), but because of the attitude with which he approaches his task. However, the idea that attitude (or Atticus) alone will win the day is a dangerous one, especially where the system as a whole is corrupt or chaotic, as David Allen Green explained in his article in the New Statesman back in 2012, Atticus Finch is not enough.
See also, by Megan Garber in the Atlantic, Go Set a Legacy: The Fate of Harper Lee
Umberto Eco, who died barely a day after Harper Lee, was definitely more a writer, though he took to it later in life, being primarily an academic, including at the University of Bologna. He was well into his 40s when his first great success, The Name of the Rose, became a best seller. This philosophical murder mystery, which transported Sherlock Holmes’ methods to a medieval monastery, was turned into a wonderful film starring Sean Connery. There followed a string of other novels, one of which, Foucault’s Pendulum, played with some of the same ideas about the Knights Templar and their role in spreading heretical ideas in medieval Europe as The Holy Blood and the Holy Grail and The Da Vinci Code, two books (one fiction, the other claiming to be based on fact) whose authors clashed over copyright claims in the High Court before Peter Smith J, whose judgment in the case is itself famous for containing a coded message: Baigent v Random House Group Ltd  EWHC 719 (Ch).
Joint enterprise ruling
The UK Supreme Court has given a judgment changing the law on the doctrine of joint enterprise, which has been incorrectly applied for 30 years. In R v Jogee  UKSC 8  UKSC 8  WLR(D) 84 the court held, inter alia, that
Accessory liability required proof of a conduct element accompanied by the necessary mental element. The requisite conduct element was that the accessory had assisted or encouraged the commission of the offence by the principal. The mental element was an intention to assist or encourage the commission of that crime. Foresight that the principal might commit the offence charged was not to be equated with intent to assist.
For an explanation of the issues, background, and likely consequences, allow me to recommend two articles.
- First, by the Secret Barrister, Joint Enterprise: Just a few quick things
- Secondly, by Joshua Rozenberg, Correcting the joint enterprise law won’t lead to mass prison releases
In addition to its legal significance, this is apparently the first time a case before the Supreme Court has been crowdfunded. The campaign group JENGbA (Joint Enterprise: Not Guilty By Association), which has been campaigning for years to change the law, crowdfunded their intervention on CrowdJustice. Katrina Kilkenny, Intern at CrowdJustice, gives an account of attending the judgment on 18 February in her blog post, Witnessing history – what it was like to be in the Supreme Court when judges reversed 30 years of legal history:
The crowd listened intently, waiting for the moment when Lord Neuberger would deliver the crux of the judgment – is the way joint enterprise applied unjust to secondary parties? And when that moment arrived, it was met with gasps and tears in the gallery seats, as JENGbA supporters reacted to the Supreme Court’s unanimous determination that the courts have been interpreting the law “in error” for decades, in a way that may have resulted in the over-criminalisation of secondary parties.
Practice and procedure
Chancery Guide 2016
The March 2016 edition of the Chancery Guide is out. This link is to a PDF which is currently 129 pages of everything you ever wanted to know about practice in the Chancery Division of the High Court (except Chapter 30: “Chancery Business Outside London”, a blank section which is “to be added later” – perhaps when the fog around Lincoln’s Inn has lifted).
According to the introduction, the aim of the Guide is to provide practical information to complement, but not as a substitute for, the Civil Procedure Rules and Practice Directions thereunder. However, be warned (para 1.12):
This Guide does not have the status of a PD and does not have the force of law. But failure to comply with this Guide may influence the way in which the court exercises its powers under the CPR, including the making of adverse costs orders.
So effectively if you practice in Chancery in London you need to master not only the labyrinthine interminabilities of the White Book (“bigger every year” is the publishers’ boast) but also this 129-page supplement. All fine and dandy if you are a barrister or solicitor with leisure and appetite for the reading. What if you’re not?
Chapter 4 deals with Litigants in Person, who need “to be aware that the rules of procedure and of practice apply to them in the same way as to lawyers”, and to comply with the Guide as well as the CPR. This will be a daunting prospect for most litigants in person, though the Guide lists or links to places where they can get more advice, such as the CAB, PSU and AdviceNow which provides “survival guides” to various kinds of legal problem.
There is also the “CLIPS” (Chancery bar Litigants In Person Support) scheme, under which barristers provide free advice to LiPs. I assume this is something the BSB has permitted as licensed access, because otherwise, in the absence of instructions from a solicitor or public access, I don’t think you are entitled as a barrister to provide advice (a professional service) to a member of the public. This is a complaint made by Lucy Reed on her Pink Tape family law blog, in the context of providing small pieces of generic advice by way of a discussion forum: see A little professional restraint.
Law (and injustice) from around the world
Child sentenced to life
A four-year-old boy, Ahmed Mansour Karni, has been convicted of committing four murders, attempting another eight, vandalising property and threatening police officers – all before the age of two, reports the Independent. And for this he is being sentenced to a life in jail.
Ahmed was one of 115 defendants who were all handed life sentences at the same time at the court in western Cairo for crimes allegedly committed in early 2014. It appears his name may have been added to a list of defendants by mistake but although his birth certificate was presented to the court, the case was transferred to a military court without the judge taking proper notice of his age.
A slap in the face for justice
Slapping a judicial officer hurts the entire justice delivery system, an offence which cannot be pardoned, the Supreme Court of India has said while upholding the sentence of six months’ imprisonment and a fine of Rs 2,000 imposed on a lawyer who had slapped a magistrate when the latter refused his plea for exemption from appearance. The Times of India quoted the Supreme Court saying:
“The answer again cannot be in the affirmative. Our justice delivery system would be in a swamp if this conduct of an advocate slapping a judge in an open court goes unnoticed and unpunished.”
Volleyball ban continues
A ban on women spectators watching the Beach Volleyball World Championship in Iran has persisted, despite assurances given to the International Volleyball Federation (FIBV) as a condition of hosting the event that no such ban would be imposed. Officials have sought to explain the ban on “misunderstandings” by individual security officers, but the International Campaign for Human Rights in Iran reports that the ban appears to have continues on a widespread basis with the tacit acceptance of the Federation.
Apple’s Cook defies Fed’s back door begging
On 16 February the CEO of Apple Inc, makers of the iPhone, published an open letter to customers explaining why, following the mass-shooting at San Bernardino in December, Apple would refuse a request by the FBI to “make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation”. Such a development would, said Cook, “build a backdoor to the iPhone”, an “unprecedented step which threatens the security of our customers”.
Short of that, Apple have been happy to help. But the Government have been pressing for more, and in doing so relying on a somewhat antiquated piece of legislation, the All Writs Act of 1789. Whatever the drafters of this widely worded enactment had in mind, it cannot have included requiring a tech company to create a custom operating system to help the government crack an encrypted phone. As the New Yorker asks, if it could do that, what else could it do?
For more on the issues, see, on the Just Security blog, A Quick Update: Apple, Privacy, and the All Writs Act of 1789.
UPDATE: more links, as of 22 February 2016. (This may run and run, so more may be added from time to time.)
- Maria, on Crooked Timber, That Apple FBI back door thing
- Cyrus Farivar, on Ars Technica, Judge: Apple must help FBI unlock San Bernardino shooter’s iPhone
- The Grugq, Feeble Noise Pollution: FBI, Apple, liberty, security, blah blah blah
That’s it for this week. Thank you for following ICLR on Twitter, Facebook, LindedIn and this blog.
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.