Weekly Notes: legal news from ICLR – 5 February 2016

Posted on 5th Feb 2016 in Weekly Notes

This week’s roundup of legal news and commentary includes the arbitrary detention of Assange; the ever-receding British Bill of Rights; a radio programme about divorce; matters of judgment, judgement (with an e) and instinct; and the future of electoral law. Inter, as they say, alia. [Updated 8 Feb].

 

Human rights

Assange UN

Assange: arbitrarily detained, says UN Working Group.

UN working group finds Assange in “arbitrary” detention

Julian Assange, who has evaded extradition to Sweden by seeking sanctuary in the Ecuadorian embassy in London, has complained about his situation to the United Nations working group on arbitrary detention. You can read his submission on the Head of Legal blog, where Carl Gardner has posted a commentary on Assange’s legal case to the panel, and on the panel’s surprising decision to accept it, on which he adds more in a second post. The UN working groups’s decision was formally announced today and finds, among other things, that:

Since August 2012, Mr. Assange has not been able to leave the Ecuadorian Embassy and is subject to extensive surveillance by the British police

(emphasis added, representing dropjawed astonishment). 

Given the amount of litigation the extradition proceedings have already generated, and all the judicial decisions going up to the UK Supreme Court’s against Assange, it seems somewhat topsy-turvy to describe his self-imposed exile in diplomatic premises in order to evade the proper enforcement of court orders as a form of detention by anyone else, let alone an arbitrary one over which he has no control.

Much as one wishes to support the UN, there are aspects of some of its collection of component organisations and bodies which do raise serious questions of credibility — one need only recall that the current nation heading its Human Rights Council is Saudi Arabia, a country whose own human rights record is questionable to say the least.

Gove appears at EU justice sub-committee

The ever-receding project of repealing and replacing the Human Rights Act 1998 came under scrutiny again this week when Michael Gove, the Lord Chancellor tasked with managing the process, appeared before House of Lords EU Justice Sub-Committee, together with junior justice minister Dominic Raab. A transcript is available here.

Reporting on the session, Ian Dunt, of Politics.co.uk said the proposals had been so watered down as to amount to a basic admission of failure on the part of the Tory party whose manifesto commitment had been to redraw the map of human rights in Britain with its British Bill of Rights, etc etc. His report is entitled “Gove has basically admitted the attack on human rights is dead”.

(To be fair, I don’t think it was ever an attack on human rights, per se; it was an attack of allowing anyone and everyone to rely on them, and perhaps a recalibration of the balance between rights and duties, and between the decisions of the UK courts and those in Strasbourg. That said, the whittling down of ambition has been marked and rapid since the election and the investiture of a more realistic and sensible Lord Chancellor.)  

 

Family law

Splitting the assets – without a lawyer

On 3 February BBC Radio 4 provided “a glimpse behind closed doors of the Family Courts to hear from divorcing couples forced to struggle – without the help of lawyers – through the complex and emotionally fraught court process of dividing their financial assets.”

(Actually, those doors are not always closed, and if they are they may still be open to accredited journalists; plus the judgments are generally published (or supposed to be), but at least the BBC didn’t use the trigger word “secret” to describe what is essentially, for confidentiality reasons, a matter of privacy.)

The programme featured family barrister Lucy Reed, of St John’s chambers in Bristol, who described the recording on her Pink Tape blogOther participants included Sir Paul Coleridge (retired HCJ, Marriage Foundation etc), Nicola Mattheson-Durrant (Professional McKenzie Friend) and Marc Mason from the University of Westminster.

You can listen to the programme here (BBC). 

 

Judiciary

A matter of judgment

Three recent items of interest on the business of judging. First, on writing good judgments, Mr Justice McCloskey in the latest issue of Counsel magazine (Cur Adv Vult – reserve thy judgment) discusses the continued use of Latin in the law, in the context of the need for judges to “reach a decision and to express it clearly and unambiguously in language which can be readily understood”. He warns judges not to be too prolix in their reasoning, but to ensure that all the issues have been conscientiously addressed and the path of reasoning is clear, not just to a higher court, but to the lawyers and (perhaps most importantly) the parties involved. He stresses the importance of good structure, and reminds us that many judgments would be better (and shorter) if judges were not so pressed for time and resources (a familiar, but nonetheless true, complaint).

We are ICLR have noticed over the years the tendency for judgments to increase in length, which we attribute to three factors, mainly. First, the increasing tendency to reserve judgments and give them in writing (allowing leisure to include additional and more lengthy reasoning); second, IT which permits cutting and pasting from electronic resources, rather than more laborious retyping of quoted passages; third, an increasing anxiety about rendering all judgments appeal-proof. This last is the judicial equivalent of barristerial zeal in over-citation of authorities, which lengthens hearings as well as the consequent judgments, again out of anxiety about supervisory complaint.

But we salute McCloskey J and share his desire for quality rather than quantity.

A matter of judgement

On a different note, the Public Lawyer blog (by Matthew Stanbury of Garden Court North chambers) has an interesting post this week entitled Wiki-Justice: Should judges be allowed to carry out Internet research?

Mr Justice Langstaff in East of England Ambulance Service NHS Trust v Sanders (UKEAT/0217/14/RN) [2015] ICR 293, EAT apparently thought not, and an employment tribunal’s decision was reversed as a result. In a more recent case, Thakrar v Secretary of State for Justice [2015] EW Misc B44 (CC) a more junior (less authoritative) court resorted to Amazon to check the price of some property of a prisoner which had been damaged by prison officers (the subject of a claim). But other courts, including in America, have endorsed the practice. The post concludes that it should be permitted, provided the parties are informed and have an opportunity to challenge the information derived from any judicial research.

A matter of instinct

Meanwhile, on the Transform Justice blog, Penelope Gibbs asks Should judges use evidence or instinct? The question arises in the context of naming child convicts as a means of deterrence, for which there doesn’t appear to be any actual evidence, and although there is “some room for instinct in judging”, 

Naming a child is a huge decision which can blight a child’s life, and that of their family, for ever.  A judge should not be able to make such a momentous decision on the basis of their hunch or opinion.

She suggests criminal judges should first

“do a course in criminology before sitting, and learn the importance of challenging assumptions and unconscious bias”.

Electoral law

Law Commission interim report

Three law commissions, the Law Commission of England and Wales, the Scottish Law Commission and the Northern Ireland Law Commission, have jointly published an interim report on 4 February 2016 on the subject of electoral law reform. The Law Commission announced that:

The twin aims of the current project are to ensure, first, that electoral laws are presented within a rational, modern legislative framework, governing all elections and referendums under statute; and second, that the law governing the conduct of elections and referendums is modern, simple, and fit for purpose.

The interim report contains a large number of proposals, the first of which is that

The current laws governing elections should be rationalised into a single, consistent legislative framework governing all elections (enacted in accordance with the UK legislatures’ legislative competences).

The report states that:

The Law Commissions’ immediate aim is to publish a report and a draft Bill for the United Kingdom Parliament in 2017 in order to allow sufficient time for implementation before the scheduled UK general election in May 2020.

The next step is for the Government to respond.

 

Legal research

Can you help?

Daniel Hoadley, Research and Development Manager at ICLR, has devised a quick online survey to help understand how lawyers, academics and librarians use legal materials in print and online for their research. You can complete the survey here:.

 

Parish news

Law Society diversity access scheme now open

The Diversity Access Scheme aims to improve social mobility in the legal profession by supporting talented people who meet the necessary criteria, but face exceptional social, educational, financial or personal obstacles to qualification as a solicitor. In addition to financial assistance to undertake their Legal Practice Course (LPC), the scheme offers awardees high-quality work experience, a professional mentor and networking opportunities.

Click here for more information.

SRA independence

How independent should the regulator (Solicitors Regulation Authority) be from the profession’s representative body (The Law Society)? That was the subject of a survey which has, apparently, reported that most people think it should be more separate than it currently is. (See Legal Futures, SRA and Law Society at loggerheads again over independent regulation.)

However, Prof Richard Moorhead, on his Lawyer Watch blog (What to make of the SRA’s Independence Survey?seems to think the questions were asked in such a way as to suggest that the profession was still self-regulated and independence was being considered. In his view:

What the SRA and the Law Society are really fighting about is the difference between substantial independence and total independence from the profession’s representative body.

He thinks it has more to do with the regulator’s promotion of itself and empire building, but nevertheless draws attention to some interesting percentages in the responses.

 

Dates and deadlines

The View from the EU Bench: Judge Allan Rosas (European Court of Justice)

6 pm Wednesday 10 Feb. Entrance free.

Where: City Law School, College Building Northampton Square London EC1V 0HB

Social Media Evidence in Family Proceedings

The London Family Justice Board will be holding a training event at the Law Society on Wednesday, 24 February 2016 from 6:30pm until 8:30pm (2 CPD points). 50 seats will be allocated to barristers and it will be attended by solicitors, Local Authority practitioners, CAFCASS, Magistrates and the Judiciary. Please click here to download the flyer.

 

Law (and injustice) from around the world

Canada

Privacy tort recognised

On 21 January 2016, in Doe 464533 v. ND (2016 ONSC 541) the Ontario Superior Court of Justice recognized, for the first time in Canada, the privacy tort of “publication of embarrassing private facts”, report Ryder Gilliland and Thomas Lipton on Inforrm’s blog this week. The link from the citation is to CanLII, the excellent Canadian equivalent of BAILII. 

The case involved an occasion of what might be called “sexting” – the sending of a sexually explicit video for private purposes, only for it to be published online on a porn site. The court found a tort established where the facts included:

(1) publicizing a matter concerning the private life of another, (2) if the matter publicized or the act of publication is highly offensive to a reasonable person and (3) the matter is not of legitimate public concern.

The court awarded the plaintiff the maximum available damages of C$100,000 plus full indemnity for legal fees. Gilliland and Lipton explain that “the case signals an increasing willingness on the part of Canadian courts to find civil liability for privacy breaches” after earlier finding established the tort of “intrusion upon seclusion” in Jones v. Tsige  (2012 ONCA 32). 

 

Egypt

Christian students charged with insulting Islam

ABC news reports that  three Coptic Christian students face charges of insulting Islam and will stand trial this week after appearing in a video mocking Muslim prayers, one of a series of court cases that reflect lingering religious intolerance and Muslim-Christian tensions in Egypt. According to the ABC report, via Associated Press:

The 30-second video, filmed by the teacher, showed the students pretending to pray with one kneeling on the floor while reciting Quranic verses and two others standing behind him and laughing. One waved his hand under a second’s neck in a sign of beheading. …

The video prompted calls by angry Muslims to evict the students and the teacher from their village. …

“The students couldn’t attend school and remained indoors to avoid insults, beating and harassment,” said [Maher] Naguib, [their] lawyer. “This is all because of random and spontaneous action by some youngsters inside a bedroom and for only few seconds.”

It seems they were just goofing around, but the fact that the teacher was involved probably doesn’t help their case. Also, it comes at a time when authorities in Egypt and elsewhere are cracking down on things like blasphemy because of the risk to social order. Even so, any reaction needs to be proportionate and rational.

 

New Zealand

No sheep for the wicked

Roll-on Friday reports that “some sheep in New Zealand have unwittingly done the police a massive favour and stopped a car chase”. It seems the cops were hot on the tail of some speeders in a Honda but after a 90-minute chase:

The Honda was eventually forced to stop when its route was blocked by a flock of over 150 sheep that were being herded onto the road. Police arrested the fugitives on the spot. It later emerged that the woolly mob belonged to a police officer, although the official line is that the sheep had not been deployed as back up.

it only remains to remind readers of the UK’s own proud representative of ovine law-enforcement, Shaun in the City (aka Justice Lamb), thanks to St John’s Chambers in Bristol. (See Weekly Notes 3 July 2015 for more.)

Lamb J icon

 

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.