Weekly Notes: legal news from ICLR – 4 December 2015
Posted on 6th Dec 2015 in Weekly Notes
This week’s collection of legal news and comment includes a u-turn on criminal charges, a review of criminal appeals, a consultation over human rights, a diversity of judicial appointments and a block on anonymously tweeted information requests.
Unfair and unpopular Criminal Courts Charge dropped
Lord Chancellor Michael Gove, in a speech to the Magistrates’ Association on 3 December, thanked them in flattering terms for their contribution to front line justice and rewarded them with the news that the Criminal Courts Charge, introduced by his predecessor, Chris Grayling in the dying days of the last (Coalition) Parliament, and roundly detested by many members of this very association, would be abandoned. He said:
whenever I have had the opportunity to talk to magistrates over the last six months the Criminal Courts Charge has been raised and in almost every case it has been criticised.
I won’t rehearse or repeat all the criticisms now. You know the arguments well. They were very effectively summarised in a typically thoughtful report by the Justice Select Committee.
So I have today laid in Parliament an amending statutory instrument which will mean that – from the 24th of December – the criminal courts charge will no longer be imposed.
Not before time, one might add, given that the charge has been the subject of almost ceaseless critical comment since its introduction, and has been the cause or occasion of several magistrates resigning (in one case after paying, or attempting to pay, the charge on behalf of a defendant who was evidently unable to pay it). Gove also announced a holistic review of all financial penalties and fees:
I can also announce that the Ministry of Justice will be reviewing the entire structure, and purpose, of court-ordered financial impositions for offenders, with a view to considering options for simplification and improvement.
This was also the subject of a written statement to Parliament of 3 December.
Annual review 2014/15 released
With an introduction by the Lord Chief Justice, Lord Thomas of Cwmgiedd, this annual review (pdf) of the work of the Court of Appeal (Criminal Division) centred on an analysis of the key cases decided over the course of the last year.
They included the question, raised in R v Cojan  EWCA Crim 2512, whether the prosecution could make a closing speech in a case where the defendant having, dispensed with the services of counsel, was unrepresented. The court had given guidance, in R v ABC  EWCA Crim 539 (Reported as R v Chapman  3 WLR 726] , on the ancient common law offence of misconduct in a public office. And in R v Burton  EWCA Crim 1307 returned to the topic of second retrials – essentially whether and when it was proper to permit the accused to be subjected to a trial for the third time.
The Review also contains an analysis of the work of the court, the number of cases dealt with, the days spent dealing with them, and their results.
Grieve for the Human Rights Act
Former Attorney General spills the beans
Legal Hackette (aka Catherine Baksi) is a lady who lunches – with some amazing people. The latest to chew the fat with her (they ate “slow braised pork belly and sausage cassoulet”, at Portcullis House’s ‘Adjournment’ café) was Dominic Grieve QC, MP, former AG, and now chair of the ISC (Intelligence and Security Committee). The conversation, as recorded in her blog, Legal Hackette’s Brief, ranged widely, on a range of topical issues on which Grieve remains peculiarly well qualified to comment.
They included the Investigatory Powers Bill, the legality of drone strikes and of air strikes on Syria, rendition, the role of the security services, the role of the Lord Chancellor (for which he would have been well suited, many think), and, perhaps most crucially, the proposed repeal of the Human Rights Act 1998 for whose replacement with a Bill of Rights the Conservative government, having made it an election pledge, is now preparing a draft Bill.
Grieve is opposed to the repeal, and even more so any withdrawal from the Convention which it enshrines in domestic law. Even though the content of the recently leaked bill is “much watered down”, he thinks it is only now that “the government has begun to realise that its proposals are fraught with difficulty”. He identifies two key problems: first, adherence to international legal obligations, and second, the devolution settlements for Scotland, Wales and Northern Ireland, all of which would be affected by any redrawing of the human rights legislation.
Gove admits consultation on bill delayed
Speaking to the House of Lords constitution committee this week, the Lord Chancellor admitted that the draft British Bill of Rights bill would not now be circulated for consultation this month, as planned, but would have to wait till the new year. As reported in the Gazette, he also said:
‘The good name of human rights has been tarnished – we can debate why and who is to blame if blame should be allocated.
‘Human rights have come to be seen as providing protection for people who are unmeritorious rather than safeguarding essential liberties which go to make the birthright of any individual of these islands.’
Or to put it another way, the problem is not with the rights but with the humans to whom they apply.
Freedom of Information
Twitter ye not!
An information rights tribunal has ruled that a man’s information request made to the UK government’s Department for Work and Pensions (DWP) from his Twitter account was not valid, under the Freedom of Information Act 2000 (FOIA), as the man’s real name was not detailed in “the request itself”.
In its 2014 guidance on handling FOI requests submitted via social media, the ICO confirmed that FOI requests via social media to accounts operated by public bodies on sites such as Twitter or Facebook can trigger duties to disclose information under FOIA, or its equivalent in Scotland. However, the First Tier Tribunal (General Regulatory Chamber) in Ghafoor v Information Comr (unreported, 9 November 2015) held that a request from a Twitter account whose handle did not reveal the sender’s real name was not a valid request.
See discussion of the case by Pinsent Mason’s Out-Law newsletter: Public bodies do not need to search for Twitter users’ real names when assessing validity of FOI requests, says tribunal
See also, 11 KBW’s Panopticon blog, Tweet Tweet? #silencingFOIontwitter
More female High Court judges (than ever before)
According to the Judiciary Tweetsperson, with the appointment of Her Honour Judge Juliet Mary May QC to the Queen’s Bench Division, there are now more women High Court judges than ever before – 23 to be precise, out of a total of, er… well, let’s see now: the Judiciary website has a current list of the Senior Judiciary. This shows the following numbers.
CA: 30 men, 8 women. 21%
Ch Div: 15 men, 3 women. 16%
QBD: 57 men, 14 women. 20%
Fam D: 13 men, 6 women 31%
So the three High Court divisions have a total of 108 judges, of whom 23 are women (21%) which is the same percentage as in the Court of Appeal. Then there are the twelve Justices of the Supreme Court, whose biographies are listed on the Supreme Court’s own website, and of whom only one (Deputy President Baroness Hale of Richmond) is a woman (8%).
Now for a bit of history – with acknowledgements to the Library of Congress website, where Kelly Buchanan posted this information under the title Women in History: Lawyers and Judges:
The 1919 Sex Disqualification (Removal) Act paved the way for women to become admitted into the legal profession. Women were first admitted to the Law Society in 1922. The first four women to be admitted were Maud Crofts, Carrie Morrison, Mary Pickup, and Mary Sykes. Carrie Morrison was the first out of the four to finish her articles and be admitted as a lawyer in England. Margaret Kidd was the first woman to be admitted by the Scottish bar in 1922 and later became the first woman appointed as King’s Counsel in 1948. The first appointed female judge was Elizabeth Lane in 1962.
- Little known fact: you can check a full list of the senior judiciary for any particular year by looking in the front of the relevant volume of The Law Reports, published by ICLR since 1865.
Law (and injustice) around the world
ISPs can be forced to block access to infringing content
Courts in Germany can grant rights holders an injunction that requires ISPs to block access to infringing sites, provided the rights holders have first made all “reasonable efforts” to get website operators and hosting providers to remove the infringing content. The Supreme Court so ruled in two joined cases, one of which involved music rights collecting society GEMA and Deutsche Telekom. GEMA wanted the ISP to block its customers’ access to 3dl.am, a website hosted in Armenia that allegedly enables users to download copyright-infringing music files.
Although the court refused to grant GEMA the injunction it was looking for in the case, GEMA welcomed the ruling as confirming the existence of a legal avenue of last resort.
Whilst UK courts have issued a number of website blocking injunctions to ISPs upon the request of rights holders following the ground-breaking ruling in the Newzbin 2 case in 2011, no such injunctions have been issued against ISPs in Germany.
The ruling, announced but not yet published by the German Supreme Court, is written up in Pinsent Mason’s Out-Law newsletter: ISPs in Germany can be forced to block access to infringing content as a last resort, rules court.
drops religious excuse for inequality
Ireland has passed a bill removing religious exemptions from LGBT equality law, according to Pink News:
Aodhán Ó Ríordáin, the Minister of State for Equality, has pushed ahead with a bill this week that will alter the state’s Employment Equality Act.
Section 37 of the existing law grants specific exemptions from sections protecting LGBT people to “religious, educational or medical institutions” – permitting them to discriminate “in order to maintain the religious ethos of the institution”.
However, the Equality (Miscellaneous Provisions) Bill – which passed through its final stages in the Dáil late last night without opposition – strips the exemptions from the law.
The change comes in the wake of the historic 62% referendum vote in favour of legalising same sex marriage in Ireland earlier this year (see Weekly Notes 22 May 2015).
Prosecutor wins appeal in Pistorius case
The widely publicised trial of Oscar Pistorius last year resulted in a conviction for culpable homicide – a statutory alternative to the verdict of murder for which the prosecution had indicted him, following the fatal shooting of his girlfriend, Reeva Steenkamp. (See Weekly Notes 12 September 2014.)
The decision that the facts only justified the lesser charge was one taken by the judge on the basis of legal analysis which the Supreme Court have now decided was at fault, and they have now substituted their own verdict, based on the facts found by the judge, which they say amounted to murder. The appeal turned on the issue of dolus eventualis, the legal intent required for murder, as Leach JA (Mpati P, Mhlantla and Majiedt JJA and Baartman AJA concurring) explained, in giving judgment:
 In cases of murder, there are principally two forms of dolus which arise: dolus directus and dolus eventualis. These terms are nothing more than labels used by lawyers to connote a particular form of intention on the part of a person who commits a criminal act. In the case of murder, a person acts with dolus directus if he or she committed the offence with the object and purpose of killing the deceased. Dolus eventualis, on the other hand, although a relatively straightforward concept, is somewhat different. In contrast to dolus directus, in a case of murder where the object and purpose of the perpetrator is specifically to cause death, a person’s intention in the form of dolus eventualis arises if the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that death might well occur, therefore ‘gambling’ as it were with the life of the person against whom the act is directed. It therefore consists of two parts: (1) foresight of the possibility of death occurring, and (2) reconciliation with that foreseen possibility. This second element has been expressed in various ways. For example, it has been said that the person must act ‘reckless as to the consequences’ (a phrase that has caused some confusion as some have interpreted it to mean with gross negligence) or must have been ‘reconciled’ with the foreseeable outcome. Terminology aside, it is necessary to stress that the wrongdoer does not have to foresee death as a probable consequence of his or her actions. It is sufficient that the possibility of death is foreseen which, coupled with a disregard of that consequence, is sufficient to constitute the necessary criminal intent.
Having considered the facts, the judgment concluded:
 In these circumstances I have no doubt that in firing the fatal shots the accused must have foreseen, and therefore did foresee, that whoever was behind the toilet door might die, but reconciled himself to that event occurring and gambled with that person’s life. This constituted dolus eventualis on his part, and the identity of his victim is irrelevant to his guilt.
The court remitted the case to the trial court for re-sentencing on the basis of the revised verdict.
Note. The judgment in Director of Public Prosecutions, Gauteng v Pistorius (96/2015)  ZASCA 204 is published by SAFLII, the South African Legal Information Institute, which is affiliated to BAILII, as being part of the Free Access to Law movement, and which covers 16 mainly sub-Saharan jurisdictions, ranging (alphabetically) from Angola to Zimbabwe.
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.