Weekly Notes: legal news from ICLR – 3 July 2015
Posted on 5th Jul 2015 in Weekly Notes
This week’s playlist of legal news includes a decision not to defend, a decision not to prosecute reviewed, a fretting over intellectual property claims, and a direction to save only the most expensive and interesting divorces for our top family judges. Plus the usual catalogue of dreadfulness from overseas.
Defence lawyers down tools
Last week we reported the decision of various groups of solicitors’ firms in different parts of the country (Liverpool, Birmingham, Cardiff) that that would no longer take on legally aided criminal defence work after 1 July, and the fact that meetings were being held by solicitors in London and elsewhere to determine whether to join what looked like becoming nationwide direct action: see Weekly Notes – 26 June.
This week, after the deadline, reports began to appear indicating that in most areas the direct action (it is not really a strike simply to refuse work on grounds it’s inadequately paid) was holding up. Legal Voice has a roundup of such reports. JusticeWatch: Do not cross the line
Although barristers in Liverpool were in on the action from the start, elsewhere they seemed to have been awaiting a ballot from the Criminal Bar Association (CBA), whose earlier “survey” (some thought it actually was a ballot) had been strongly in favour of action. Some barristers’ chambers, such as Exchange Chambers, declared their support for the action without awaiting a decision from the CBA, saying.
Although the result of the CBA ballot on these matters is yet to be announced, we feel it is important to set out our position now.
A spokesperson for the MoJ apparently told the BBC the cuts were
“designed to ensure… a system of criminal legal aid that delivers value for money to taxpayers”.
Some idea of how “value for money” works in practice may be gleaned from this blog post from Bindmans, about the way Criminal Legal Aid Reforms Penalise Success It tells of how the efforts of a barrister and the firm to avoid a costly trial ended up costing them, and saving the public purse. Ought they not be paid for their efforts at a fair rate – rather than incentivised to conduct their work in such a way as to ensure a trial takes place, at greater public expense?
However, not everyone agrees with the (in)action. See, for example, the post on DefenceLawyers’ blog, What Price Justice?
Janner in the Works (again)
DPP’s decision reviewed
The Crown Prosecution Service has announced that Lord Janner is now, after all, to face criminal proceedings for alleged historic sexual offences. (For background, see Weekly Notes – 24 April.) This follows a review of the case under the recently introduced CPS Victims’ Right to Review scheme, which allows victims to have their cases looked at again, no matter who in the CPS made the original decision not to prosecute.
The review was carried out by David Perry QC and followed widespread criticism of the original decision of Alison Saunders, the Director of Public Prosecutions, not to prosecute despite there being in her opinion sufficient evidence to warrant it, because of the mental condition of Lord Janner himself, who was considered, on the basis of strong medical evidence, unfit to plead and because he was not considered a danger to the public.
The problem was that the victims were said to feel deprived of their opportunity to be heard, to testify. The decision to proceed means that there will now at least be something called a “trial of the facts”, though it can hardly be a trial if the evidence is not tested by the defence and Lord Janner is supposedly not in any fit condition to instruct lawyers to prepare such a defence, or as to how to cross-examine the witnesses. It should probably just be called a “hearing of the allegations” – but that wouldn’t carry much conviction. (As it is, Saunders took into account that the victims would, in any event, have the opportunity to put their allegations to the public inquiry to be conducted by Justice Goddard.)
Following the reversal of her decision, Saunders has faced calls for her resignation. That seems absurd. Judges are reversed by the Court of Appeal all the time and no one calls for their resignation or suggests that confidence in the justice system will be rocked to its foundations if the judge below is not immediately sacked.
A measured and intelligent analysis of the whole issue may be found in Carl Gardner’s post on his Head of Legal blog, Of course the DPP must not resign over Janner. He points out that some sections of the press were keen to criticise Saunders for proceeding when the defendants were journalists or another MP, Nigel Evans; but equally critical when she decided not to prosecute Janner.
The subject is also dealt with, more robustly and trenchantly, by two pieces in the Telegraph.
- Matthew Scott, Lord Janner is a helpless, senile man who should not be prosecuted
- Dan Hodges: Lord Janner’s prosecution has nothing to do with justice. There’s also a handy timeline.
Uke v Uke
Orchestral Manoeuvres in the IPEC
Judge Hacon, sitting in the Intellectual Property Enterprise Court (IPEC, part of the Chancery Division of the High Court) has now given his judgment in The Ukulele Orchestra of Great Britain v Clausen and Another (t/a The United Kingdom Ukulele Orchestra)  EWHC 1772 (IPEC) (02 July 2015).
The dispute concerns their names. The longer established Ukulele Orchestra of Great Britain was founded in 1985 by George Hinchliffe and Marian Lux. I have seen this orchestra perform and they are thoroughly entertaining. They also have a knack of finding and building upon the musicological connections between quite different kinds of music, like string quartets and pop songs, and fashioning elaborate medleys which they play with virtuosic aplomb. They are the claimants in this action.
And here’s a video of them playing (in, I suspect from the credits, Germany).
For all I know, the United Kingdom Ukulele Orchestra are just as amusing and talented, perhaps even more so; but I have never seen them so cannot comment. That’s not the issue. The issue is what they have chosen to call themselves. Founded in Germany in 2009, they are managed by Yellow Promotion, a partnership run by the first defendant, Erwin Clausen and his partner Dieter Tings. Though based in Germany, the orchestra is composed of British players.
The claimants complained that the defendants were infringing a Community Trade Mark based on their name which the claimants had registered for live musical events and recordings. But the defendants sought a declaration that it was invalid. The claimants also relied on passing off. A claim for an injunction was refused last year by reason of delay (Weekly Notes – 26 Sept 2014)
The judge rejected the claim based on the CTM, finding in the defedants’ favour that the mark was invalidly registered, largely for want of distinctiveness, acquried or otherwise, and he also rejected a claim for breach of copyright, but he did uphold the claim based on passing off. We await to hear what consequential orders may follow.
Moral of the story: don’t fret, but pick your battles carefully.
For more erudite commentary: IPKat, Ukunono, The Battle of the Ukulele Orchestras Plays its Last Tune
Family Division: practice
Efficient conduct of Financial Remedy hearings
Mr Justice Mostyn has with the approval of the President of the Family Division issued a Statement on the Efficient Conduct of Financial Remedy Hearings Allocated to a High Court Judge Whether Sitting at the Royal Courts of Justice or Elsewhere. In other words, a practice direction, in all but (rather long) name. You can read it here.
The essential point is to ensure that only cases of exceptional complexity or involving novel points of law are allocated to a High Court judge, who is an Expensive Resource, and whose time should not be wasted on trivial matters or those not properly bundled.
“14. The court bundle for the final hearing must scrupulously comply with FPR PD27A.”
The Statement is followed by Guidance, which appears to be a more formal, practice-direction like set of paragraphs, to which is appended a draft certificate.
Incidentally, am I right in thinking that Mostyn J is shaping up as heir apparent to Sir James Munby, as President, or is that (a) ridiculous, or (b) has been obvious for ages and I’ve only just noticed?
Dates and Deadlines
Liberty Human Rights Awards
The nominations for the 2015 awards are now open. Nominations should include the full name and contact details of both the nominee and the nominator and be supported by a brief statement (of no more than 500 words), and should then be emailed to email@example.com by 5pm on Friday 17 July 2015.
We’re looking for the NGOs, the national campaigners, the local activists, the volunteers or professionals who are working on human rights issues – whether it be inspiring or organising, providing support or challenging misconceptions.
Past award categories have included Human Rights Lawyer of the Year, Human Rights Young Person of the Year, and our ‘Close to Home’ award, which acknowledges those who battle for the rights and freedoms of their own families, streets and communities.
National Child Sex Abuse Inquiry to open
The Statutory Independent Inquiry into Child Sexual Abuse will formally open on Thursday 9th July, at 10am at the Queen Elizabeth II Conference Centre (QEII) Centre, Westminster.
The Chair of the Independent Inquiry, Hon. Lowell Goddard will give an opening statement that will set out the Inquiry’s guiding principles.
Details from the Inquiry website
Further information can be gleaned from this report by the BBC.
For ongoing and background coverage, we recommend the Researching Reform blog by Natasha Phillips
Legal Aid Lawyer of the Year award
The LALYs as they are known were awarded at an event on 1 July, the hottest day of the year and for some perhaps the hottest date. There are full lists of winners, on Legal Cheek and Legal Voice among other places, and you can watch the evening unfold (in reverse) on Twitter by searching the hashtag #LALY15
Memorial Service: Anthony Scrivener QC
Also on 1 July, in a warmly packed Lincoln’s Inn Chapel, was the memorial service for Tony Scrivener QC, often known as Scriv, who died earlier this year. (See Weekly Notes 27 March 2015). Though the occasion was a solemn one, the service included some lighter moments, including a poem, Man and Dog, by Siegfried Sassoon, read by Scrivener’s brother in law, Ying Jien Tan, and a story by James Thurber, The Unicorn in the Garden, read by Scrivener’s secretary, Ellen Staples.
The address was given by his former pupil, now member of his chambers, Anthony Dinkin QC, who described Scrivener as “a true legend at the Bar” and paid tribute to his “prodigious capacity for hard work” and his “ability to master his brief”, enabling him to “get quickly to the heart of the case and plan his strategy”. Sometimes he was so busy, the only way to draw his attention to new work was to place the papers on his chair. That way, he’d have to see them if he was going to sit down.
Dinkin recalled an incident when, as a pupil, he had accompanied Scriv to the House of Lords. But his hopes of watching the master put their party’s case to the Appellate Committee were dashed when it transpired that Tony has forgotten his dress shirt. Though Dinkin was of a lesser build, he was forced to yield his shirt so Tony, comically short of sleeve, but properly wing-collared and banded, could appear, pupil-less, before their Lordships. He thought it hilarious.
But if he took his shirt, he gave Dinkin something far more valuable: the confidence to continue at the Bar, despite initial nerves, and thus to succeed.
I think anyone who knew Tony Scrivener, or watched him in action, would agree that he epitomised the ideal of a fearless advocate, strenuous defender, unswerving upholder of the best traditions of the Bar (such as the Cab Rank Rule) but, in spite of his success, completely lacking in any kind of pride or pomposity. He never wanted to become a judge.
Law (and injustice) from around the world
Elections in climate of fear
Presidential elections are due to take place on July 15 and senatorial elections on July 24. However, after weeks of police violence, fierce clashes between demonstrators and the police, scores of deaths, and the closure of most private radio stations (the main source of news in the country), Human Rights Watch says there is an atmosphere of tense fear in which most voters do not feel confident to take part in the election process. It calls on the government and police to take immediate action to relieve the tensions and relax the clampdown on freedoms of assembly and speech.
The UN secretary general, Ban Ki-moon, has also called for a postponement (reports the Guardian).
Could crisis lead to litigation?
Though it sometimes seems to be making its way down an interminable corridor of last chance saloons, Greece must eventually reach the end. Either it will be extended a longer financial lifeline, possibly on slightly less impossible terms, in which case it may well simply loop back and rejoin the same corridor a year or two hence; or it wil leave or be ejected from the Eurozone.
The question Carl Gardner asks in an interesting post on his Head of Legal blog, is Could Greece take Europe to court? He says there might be a couple of ways it could:
So there are two types of legal challenge open to Greece: against the EBC’s restriction or withdrawal of ELA, under the main TFEU Treaty; and an ESM Treaty challenge to the refusal of (or refusal to consider) an ESM loan.
But he doesn’t rate its chances of being able to do so in time for it to make any difference to political events. You should read the post to understand why he says that and what all those acronyms mean.
New law could put refugees at risk
Hungary received some 61,000 asylum applications in the first six months of 2015. Around 80 percent of asylum-seekers are currently coming from conflict zones – Syria, Afghanistan and Iraq – and many are likely to be in need of international protection. Hungary is proposing to change its law on asylum to introduce a fast-track screening process but the United Nations High Commissioner for Refugees (UNHCR) is urging Hungary not to adopt the changes without proper consultation.
According to UNHCR,
Hungary’s proposed controversial changes include fast-track screening of asylum claims without proper due process; sending asylum-seekers back to third countries that may not be safe for them; allowing prolonged detention of asylum-seekers – including women, children and people with special needs.
“Adoption of these proposals would have devastating implications for thousands of people seeking safety in Hungary,” a regional UNHCR representative said. “We understand Hungary’s national security concerns, but this should not victimize the victims.”
Sharia court condemns nine to death for blasphemy
According to Global Voices, nine people have been allegedly sentenced to death in the ancient city of Kano, north-west Nigeria, for blaspheming against Prophet Mohammed. African Spotlight reports that the judgement was passed by “an Upper Sharia Court, Rijiyar Lemo, in Kano State”:
Section 10 of Nigeria’s 1999 Constitution (as amended) provides thus: “the Government of the Federation or of a state shall not adopt any religion as state religion.” The question asked by some was whether this makes Nigeria a secular state, or simply a state in which no single religion has any more influence or establishment than any other.
The sentence was widely condemned on Twitter, but supported by some.
See also: Nigerian Monitor
Ohio woman’s parking ticket tossed over missing comma
A court in Middletown, Ohio has tossed (presumably cancelled or discharged) a woman’s parking citation (ie ticket, penalty notice) on the grounds that the law it sought to enforce was poorly drafting for want of a comma.
The story, as reported in Associated Press’s Big Story website, said Andrea Cammelleri argued that her pickup truck did not fit the description in the law enacted by the village of West Jefferson, which listed several types of vehicles that could not be parked longer than 24 hours, including a “motor vehicle camper,” with the comma missing between “vehicle” and “camper.”
Presumably, it meant to say a motor vehicle or [motor] camper. In American usage, a comma can have an alternative or cumulative effect, I believe, but in its absence the noun described is a single concept. Her vehicle did not fit that description.
“Judge Robert Hendrickson of the 12th Ohio District Court of Appeals says in last week’s ruling that West Jefferson should amend the law if it wants it read differently.
Though the brief news report does not record any more of the judgment, I assume the good judge was intending to apply the contra proferentem rule, according to which any ambiguity in a penal provision (or indeed any detriment) must be construed against the person who seeks to rely on it.
Incidentally, the defendant’s name is quite similar to that of the famous Sicilian detective novelist Andrea Camilleri, author of the Montalbano series on BBC 4, which is required viewing in our house.
Shaun in the City goes legal (it’s all for charity)
Shaun the Sheep sculptures, created by artists, designers and celebrities, are grazing green spaces and iconic locations in both cities before going to auction to raise funds for The Grand Appeal and Wallace & Gromit’s Children’s Charity, supporting children in hospitals across the UK. From 6th July to 31st August, the charity are bringing 70 b-ewe-tiful giant Shaun the Sheep sculptures, created by artists, designers and celebrities, to green spaces across Bristol for the public to enjoy. (You may have seen some similar colourful creatures in London earlier this year.)
This one is sponsored by St John’s Chambers and features the very judicious Mr Justice Lamb.
That’s it for now. Enjoy the week ahead, and check for any updates in the next day or two.
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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.