Weekly Notes: legal news from ICLR – 2 October 2015

Posted on 4th Oct 2015 in Weekly Notes

This week’s sketch of key events in the legal calendar includes the Lord Chancellor’s breakfast, some regulatory news, new legislation, toytown terrorism and a classical philosopher’s retrial. Plus highs and lows of laws overseas.

Happy New Legal Year

Selfie at LC brekker

Image: Transblawg

New Lord Chancellor’s breakfast of judicial champions

Michael Gove, as Lord Chancellor, opened the legal year in the traditional way on 1 October with a service in Westminster Abbey for all the top judges, followed by a procession to the Houses of Parliament which always attracts photographers, because the judges are all dressed up in their ceremonial finery. (See, for example, Transblawg.)

Some of them are a bit self-conscious about this, but most of them will be used to it, having had to dress up for their jobs ever since wearing a gown just to eat dinner in their Inn of Court as a student, and a wig for most working days in court. Nevertheless, for the ironic observer there’s something a bit Gilbert & Sullivan about it all, and you feel it ought to be set to a jolly marching tune. In this operetta, they would process in their full bottomed wigs and academic dressing gowns to the Lord High Chancellor’s Breakfast, at the Woolsack Arms Hotel, for a slap-up feast. Only these days, what with the cuts, it’s probably just a networking buffet of egg sandwiches and bacon-wrapped sausage-on-a-stick, with tea or coffee to go.

Breakfast over, and the washing up done, the LC has plenty to get on with:

Solicitors are up in arms over Two tier contracts and other impositions, including am unexpected announcement (on 1 Oct) of another consultation – about the quality of criminal advocacy. This after two years of cuts, threats of cuts and unwanted restructuring. So the Law Society has responded with a strongly worded letter (PDF download).

And the Criminal Law Solicitors’ Association have issued an even more strongly worded Statement on MOJ Contract Delay.

The Bar, meanwhile, is pushing for revamped advocacy fees for complex and serious cases, according to the Gazette.

The draft proposal said that since the last revision there have been nine rounds of ‘largely unfocused’ cuts to fees, which it said has left the scheme unrecognisable from what was designed eight years ago. […]

The Bar Council has proposed recategorising offences in a way that reflects the complexity and seriousness of cases, introducing a single standard case category for basic cases and the restoration of separate payments for sentencing, plea and case management hearings and other ancillary hearings.

It also asked for advocacy fees to be ringfenced until the end of this parliament ‘to restore faith and signal a real commitment to long-term sustainability of quality advocacy in the Crown court’.

In prisons, while Gove has an ambitious plan for modernising them, old habits die hard, and old abuses harder still: so it turns out (says the Guardian) that prisoner’s confidential letters to their lawyers are routinely being opened and read by prison staff. No doubt reading matter in prisons is in short supply following Grayling’s disastrous and vindictive ban on books, but even so… you’d think the screws could smuggle in the odd comic instead of resorting to reading the legal correspondence of inmates.

Meanwhile, on the opposition benches, Gove’s new shadow, Lord Falconer has been setting out his stall, notably on the subject of the Human Rights Act, in a piece in Huffington Post, entitled “Standing Up for Human Rights Is Not Just an Essential Part of Labour’s Values – It’s Part of Our Character and Identity as a Country

It is key that the State cannot seek to dilute or change the citizens’ rights if those rights become inconvenient or unpopular. […]

So I reiterate today what I said to Labour conference earlier this week: we will fight as hard as we can to protect and preserve the Human Rights Act and we will do everything in our power to stop the Government walking away from the European Convention on Human Rights.

Standing up for human rights is not just an essential part of Labour’s values. It’s part of our character and identity as a country.

Maybe he shouldn’t be so exercised about it. After all, as Jack of Kent observes in his latest post, The “Bill of Rights” and a blank sheet of paper, there seems to have been a considerable degree of slippage in the programme of “reform”. It’s beginning to look like a case of not when, but whether.

 

QASA saga continues

New consultation on further changes

Following the Supreme Court’s ruling in Regina (Lumsdon and others) v Legal Services Board [2015] UKSC 41[2015] WLR (D) 270 confirming the legality of the regulators’ decision to implement the Quality Assurance Scheme for Advocates, those regulators, acting collectively as the Joint Advocacy Group (JAG), have now issued a new consultation in respect of further but apparently minor changes to the proposed scheme. This may have something to do with the fact that the Ministry of Justice is now taking an interest in standards (rather than simply the costs) of advocacy. But it is also in response to the earlier Divisional Court judgment [2013] EWHC 28 (Admin) (ultimately affirmed by the Supreme Court), which made a number of suggestions for improvement. See:

 

Consumer Rights

New Act now in force

The Consumer Rights Act 2015, which took effect on 1 October, sets out rights for consumers, and responsibilities for businesses, in relation to the trade of goods, services and, for the first time, digital content. The Act consolidates 100 separate pieces of consumer laws into one and implements the EU’s Consumer Rights Directive into UK law, according to Pinsent Masons on Out-Law.com, who add:

The reforms bring changes to rules on business’ liabilities when supplying services to consumers. Traders can no longer exclude their liability for failure to perform a service with reasonable care and skill, or their failure to perform a service in accordance with information they provide about themselves or their service.

 

Socrates not guilty

Shock verdict of UK Supreme Court (Historic Retrial Division)

At a retrial organised by the Lawyers Group of supporters for Classics for All, and presided over by Lord Toulson, the jury of 60 citizens returned a verdict of “not guilty” to the charges levelled against the Greek philosopher, Socrates, of “not believing in the gods of the state” (ie apostacy) and corrupting the minds of young Athenians (probably “grooming for treachery” in modern parlance). Anthony Speaight QC was Counsel for the Prosecution with Richard Eschwege as Junior Counsel. Sally Howes QC acted for the Defence. According to the report of the proceedings provided by Classics for All, Lord Toulson said:

 ‘this successful appeal, quite some time after Socrates’ alleged wrongdoing against the state and subsequent death, is a sobering reminder of the concept that justice cannot be suppressed. It also proves the point that in every trial there is a system of justice itself on trial, and in this case, demonstrated the insights into human behaviour that can be gained from studying classical civilisations.’

 

Toys of Terror

Work depicting ISIS in model tableaux removed from exhibition over security fears

Je suis Sylvanian

Isis threaten Sylvania by Mimsy

An artist called Mimsy has created a series of model scenes using Sylvanian animal figurines in which the fluffy creatures going about their normal lives, having a picnic or a day at the beach, are menacingly threatened by black-clad jihadists (“Mice-IS”), also using animal figures (see image). The pieces were due to go on show in a London gallery at an exhibition celebrating freedom, which was billed as being “uncensored”. But (according to the Guardian) they have now been withdrawn by the Mall galleries, following concerns raised by the police over the works’ “potentially inflammatory content” – for which they would need to charge £36,000 for security for the six-day show.

This preposterous decision has drawn forth a good deal of critical commentary. The artist herself was scathing.

Mimsy said she had adopted a pseudonym because, as the daughter of a Syrian father whose Jewish family had to go into exile in Lebanon when he was a child, she was acutely aware of the potential risk of speaking out.

“I love my freedom,” she said. “I’m aware of the very real threat to that freedom from Islamic fascism and I’m not going to pander to them or justify it like many people on the left are doing.”

See comment by Douglas Murray in Spectator: in effect, the terrorists win because we are so spineless about defending our freedoms. (It was the same with Salman Rushdie and the Fatwah. A little feebleness goes a long way.)

 

Dates and Deadlines

Middle Temple Guest Lecture – 5 October 2015

The Rt Hon Sir Alan Moses, Chairman of the Independent Press Standards Organisation (IPSO), will be delivering the lecture on “Press Regulation: À Bout de Soufflé or a New Wave?”

To register please contact the Treasury on 020 7427 4800.

Galleries of Justice Education Open Evening – 7 October 2015

During the open evening attendees will be inspired to take learning outside the classroom and will consider how local heritage sites such as the City of Caves and Galleries of Justice Museum can inspire young people to learn from the past, act in the present and change their future.

Galleries of Justice, Nottingham. Click here for Details.

 

Some good recent reads:

Criminal law

A Tale of Everyday Life (via A view from the North blog) is a must-read for any starry-eyed student thinking of going into criminal law practice. This isn’t what you thought it would be like. It’s not Rumpole, and it’s not Jeremy Hutchinson, or even Michael Mansfield, these days. It’s the Ministry of Silly Excuses and the Department of Wasted Time, is what it is. Hilarious and scary.

Family

Fact Finding in Care Proceedings” CPC Resource (via Children in Law website curated by Jacqui Gilliatt) by DJ Simmonds at Central Family Court 

Judicial Diversity

Following last week’s story on Lord Sumption’s pessimism about the prospects of female equality in the higher reaches of the judiciary, here’s an article by Kcasey McLoughlin in the Alternative Law Journal about “The politics of gender diversity on the High Court of Australia

 

Law (and injustice) around the world

Some overseas legal stories from the last month or so

Egypt

Jailed journalist set free under so-called “pardon”

Mohamed Fahmy (one of the Al-Jazeera 3) has supposedly been pardoned by the Egyptian president, Abdel Fattah el-Sisi, and sent home to Canada, where he holds dual (with Egyptian) nationality. Thus ends for him a saga which began when he and two others, Peter Greste and  Baher Mohamed, were arrested in December 2013 on charges of spreading false news, belonging to a terrorist organisation and operating without a permit. In February this year Peter Greste was deported to Australia, and has not returned. The trio was represented during earlier court hearings by human rights barrister Amal Alamuddin of Doughty St Chambers.Although their retrial last month was not successful, she has pursued the matter of a pardon in Fahmy’s case, with evident success, according to CBC News.

 

Italy

Amanda Knox final aquittal

Last month Italy’s highest court, the court of cassation in Rome, formally acquitted US student Amanda Knox and her Italian former boyfriend Raffaele Sollecito, of the murder of  British university student Meredith Kercher in 2007 because of ‘stunning flaws’ in the investigation, and a complete lack of biological evidence, according to the Guardian, which also recaps the earlier history of the case.

 

Saudi Arabia

British Foreign Office view of human rights abuses

We tend to complain about the apparent amorality of diplomatic activity, lying for one’s country to boost its commercial interests and protect its security. But cynicism aside, there has been a lot of criticism of the way the UK Government seems to pander to Saudi Arabia, selling it not just fighter jets and other weaponry and arms, but even prison service advice (via a somewhat ad hoc commercial offshoot of the Ministry of Justice promoted by the previous Lord Chancellor, Chris Grayling). The latter story has been mercilessly covered by David Allen Green, aka Jack of Kent, on his blog (see, for example, “Exclusive” – the Home Office has a MoU with Saudi Arabia about which it is keeping quiet ) but last week he also pointed to this page on the Foreign Office website which shows that the government, or civil servants at least, are very well aware of the dichotomy between our standards of human rights and those of a country which doesn’t basically bother much with them.

It would be trite to say the situation is actually a bit more complex. It always is. The question is where your moral compass is pointing and whether there are some things you just won’t swallow. We don’t seem to have got to that point with Saudi Arabia. Instead, we seem to be proceeding on the basis of engagement leading to change. But the rate of change is pretty glacial – a bit like judicial diversity in this country. I just wonder whether there is actually a regime that the UK Government would not do business with, under any circumstances. Well, is there? North Korea perhaps; but even of that I’m doubtful, if an opportunity for “engagement” came up and we thought it might lend us a bit of regional influence. So it’s back to self-interested cynicism, I’m afraid. Or realpolitik as I think the term is.

 

United States

Another month, another mass shooting

It is probably time for America to institute an annual Mass Shootings Day. America already has a Tax Free Day, and a Labor Day, and a few other national public holidays. Isn’t it about time it also had a day to reflect on the stupidity of gun violence and the stupidity of the gun laws which encourage it? A kind of Independence (from Rationality) Day. It’s by no means America’s only National Embarrassment. The death penalty does its bit, as does the blatant lobbying by overmighty corporations, such as the food industry interests which Keep America Obese, and the health system (what health system?) and the (lack of) welfare system.

And yet there are so many great things about America. I’ve lived there for a time and would love to do so again. I found the people charming, courteous and in many ways far more rational than their European counterparts. Many of them, in the areas where I lived and travelled, were appalled by the abuses of the political system by big corporations and interests like the gun lobby and dumb-time religion; and the idea that the English are more polite (or more sincere in their politeness) is, frankly, a bit of a myth. The English can be cold and standoffish in ways Americans never would.

I just find their gun-toting constitutional fundamentalism, if that’s what it is, beyond bizarre. Even the ever-creative Supreme Court, which can erode death penalties and enact equality measures that stump the legislature, has not been able to fix this one.

End of rant.

Here’s an article [in the Guardian] about how they like to put out this bush fire of gun death with the gasoline of mass gun ownership

And here’s a brilliant cartoon in the Times by Peter Brookes, which says it all much more eloquently than I have.

 

 

That’s it for this week. Enjoy the week ahead. And if you’re coming to our event on Tuesday night, we look forward to seeing you there and telling you about ICLR Vote, our 150th Anniversary Edition, and the Past, Present and Future of ICLR.

 

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.