Weekly Notes: legal news from ICLR – 9 October 2015

Posted on 12th Oct 2015 in Weekly Notes

The big news this week has been ICLR’s own birthday, and the book, the talk and the bursary which came with it. But we’ve squeezed in some other news as well.

 

“150 Not Out”

ICLR’s sesquicentennial celebration

 

BOOK 150newRecently (see below) a judge in the United States ruled that the tune of the popular song “Happy Birthday” was not after all protected by copyright, as has been claimed by publishers Warner/Chappell for many years. So when Lord Neuberger, speaking at an event in Lincoln’s Inn this week, said he congratulated ICLR on its 150th birthday and wished us well for the next 150 years, he could (without incurring any licensing fee) have sung the song instead. There was even a jazz combo standing by…

But the President of the Supreme Court is a busy man, and singing rehearsals may not fit into his hectic schedule. We were honoured indeed that he agreed to speak, as he did, on the subject of the Top 15 Cases published in ICLR’s 150-year history. The cases were those chosen by readers in a voting process carried out earlier this year, as explained elsewhere on this blog. Many of them were uncontentious as primal landmarks in the development of the common law, but there were some notable exceptions – not least anything from the Supreme Court of which his Lordship is President. It would certainly have been nice to have a case of his to include in the special Anniversary Edition which ICLR launched on the same evening, and distributed to all the guests in their goody bags as they left. (See image.) Instead, however, we had the benefit of his erudite and witty survey of the work of his judicial forebears and siblings in the cases from the last 150 years which a democratic process had promoted above all others.

Lord Neuberger’s reflections were well received in the packed Great Hall of Lincoln’s Inn, as were the introductory words of Clive Scowen, Editor of the Law Reports, who spoke on his distinguished predecessors and the achievements of ICLR since its foundation in 1865, and the exciting plans for its future; and the opening and closing remarks of Richard Fleck, chairman of the Council, announcing developments such as the launch of the ICLR Pupil Award.

You can read the speech here. Watch the videos of all the speakers here.

Afterwards the guests in their hundreds mingled in the Inn’s hall and reception rooms to the sound of the jazz combo, the tinkle of glasses and the laughter and chatter of the many judges, practitioners, librarians, academics and students, as well as a number of legal commentators and media reporters. Thanks to the latter group, the event thereafter received some excellent coverage in the print, online and social media, including:

And yet, there just had to be one sour croak in the chorus. The Daily Mail (Top judge praises Human Rights Act for keeping terrorists out on the streets!)  chose to pick up on Lord Neuberger’s observations on the theme of judicial independence and support for the rule of law in the face of executive curtailment of individual liberty (as reflected in the so-called Belmarsh case, A v Secretary of State for the Home Department [2005] 2 AC 68) which the Mail represented as a deliberate attempt by top judges to flood the streets with Al-Qaeda terrorists in blatant disregard of the prejudicial expectations of its own right-thinking readers.

Judges are used to being misrepresented in the press, but for ICLR it was rather annoying to be told the remarks had been made “In a speech to legal clerks”  and to  “the Incorporated Council of Law Reporting, which represents clerks who prepare reports for lawyers.”

Gratitude, then, that among the comments collected below the piece calling for judges to be strung up for treason, etc, etc, there was one by Aísling Selvakumaran, who pointed out that the ICLR

doesn’t represent clerks, it has barristers on its team who report important cases, and is one of the most reputable publishers of law reports used by practically every member of the legal profession, be it judges, solicitors, barristers, academics, students, and journalists who bother to do research before publishing articles.

The Times law reports

to be published in online newsletter

The first law report was published in The Times on February 23, 1785, according to the News UK archivist, Nicholas Mays. Since then, they have attained unique standing, being the only newspaper law reports that can be cited in court, according to a note in The Brief, the daily law newsletter email published by The Times, which will henceforth include the reports.

That point was established in the case of West Derby Poor Law Guardians v Atcham Poor Law Guardians, reported on October 28, 1889, in which the Master of the Rolls ruled: “We have said that we will accept The Times Law Reports because they are reports by barristers who put their name to their reports.”

The Times law reports are supplied by reporters engaged by The ICLR, but they no longer (and have not for many years) put their names to their reports; nor is it not quite true to say they are the only newspaper reports which can be cited in court. I was for ten years a law reporter and editor of law reports for The Independent (example), and frequently heard my reports cited in court. Unlike those in The Times, they were signed by me as a barrister. Reporters from the ICLR have also at one time contributed law reports to The Guardian and Financial Times.

We welcome the additional coverage via The Brief, which is a lively source of legal intelligence.

 

Copyright – going for a song

Happy Birthday – now pay your dues

As explained in a blog post this week by IP solicitors Slater + Gordon, a US judge has ruled that the music of the popular song “Happy Birthday to You” is NOT covered by copyright. Copyright was thought to be owned by Warner/Chappell, as assignees of the original copyright owners since 1935, when it was filed (though the song itself was written in 1893). But it turns out that it only covered a particular piano arrangement. So £1.3million which Warner/Chappell have been charging in licence fees each year since acquiring it in 1988 may need to be paid back.

The ruling by district judge  George H King does not affect the words, which are different from those used in the original composition. Moreover, the ruling may only be effective in the USA, so Slater + Gordon recommend taking legal advice (no doubt they’ll be happy to oblige) if you’re planning to use the music in a public performance or recording.

Read the judgment (via Shades of Gray law.com)

 

Adoption

Alleged abusers exonerated too late to regain child

This is a perfect storm of a case, in which two systems designed to protect children have by acting too hastily created what looks like a dreadful miscarriage of justice, any attempts to resolve which are bound to harm the child.

Karrissa Cox and Richard Carter’s baby was taken from them after they took it to A&E having noticed bleeding in the mouth. They were accused of physical abuse. The criminal prosecution against them collapsed or was withdrawn after it transpired from medical evidence that the bleeding had an innocent explanation. (The child was suffering from a blood disorder, Von Willebrands II, which causes someone to bruise more easily, and a vitamin D deficiency that causes infantile rickets.) But in the meantime, the local authority had placed the child for adoption – very much in line with current practice of “speeding up” the adoption process to meet government targets.

Can they win back their child? And if they do, how will that affect the child? And what about the adopters, probably desperate to have a child, and believing their dream come true, only to have their baby taken away again.

According to the report of the case in The Independent, A Surrey County Council spokesman told the BBC:

“With any case like this,  we only have one thing in mind and that’s the welfare of the child.”

If this quote was really as unqualified as it appears, then I believe it reveals a serious flaw in the council’s approach. Section 1 of the Children Act 1989, read in compliance with the Human Rights Act and article 8 of the Convention, may still require the child’s interests to be paramount, but they surely can’t be exclusive. Besides which, the child is only a toddler. To suggest it is better off with adopters than its natural parents, even if they are innocent of any wrongdoing or lack of care, seems to play into the hands of the conspiracy theorists who accuse the family justice system of social eugenics.

But I’m not an expert, so I’ll refer you to someone who is: Lucy Reed, on her Pink Tape blog:  “Parents Found Innocent Of Child Abuse After Their Baby Was Removed And Adopted – an explanation

She explains that what may convince a family court on a balance of probabilities may not be enough to convince a jury to be satisfied so they are sure (or beyond reasonable doubt): so this case may simply have fallen into that narrow evidential gap. But the way the case is being reported, it looks as though there simply wasn’t enough expert evidence, or it wasn’t properly tested. There are also, inevitably, questions about whether the couple might have kept their child had they been given (which they were denied) legal aid in the family proceedings. All in all, a perfect storm, as I said before. And one which we feel sure Sir James Munby, as President of the Family Division, will waste little time in getting onto, and perhaps ordering release of the family judgments under his transparency agenda, so the press and public can see for themselves whether and in what manner justice was or was not done.

 

Dates and Deadlines

Family Law Awards 2015

Sir Mark Hedley hosted the annual ceremony, at a gala event organised by Jordans publishing at the Grand Connaught Rooms on 8 October 2015, to award and reward those who had contributed the most to the practice and understanding of family law.

There is a full list of winners on the Jordan’s website

Barristers’ Panel & Networking Session

Queen Mary University London, Careers & Enterprise
Tuesday, 13 October 2015 from 18:00 to 20:00 (BST)

Details and tickets (Eventbrite)

Annual Bar Conference and Young Bar Conference 2015

The theme this year is “The Advocate: our role in the balance between state and citizen”.

Saturday 17 October 2015, Westminster Park Plaza, London

TrainingandEvents@BarCouncil.org.uk

T: +44 (0)20 7611 1329

 

Some good recent reads:

  • The transparency paradox: open justice versus closed minds” [2015] Fam Law 1237, by Paul Magrath of ICLR and Sarah Phillimore, of St John’s Chambers (in our capacity as members of the Transparency Project) in Family Law Journal, commenting on Sir James Munby P’s transparency drive and its effect in some recent cases, such as the Minnock (“missing mum”) case.
  • Open Justice Principle: Questions for the family courts”, by David Burrows on Jordans Online, expanding on his earlier comments made on the ICLR blog, To be heard in the Dining Hall.
  • Focus on victims is pushing up sentences“, by Professor Sir Mark Hedley, in one of Liverpool Hope University’s Distinguished Law Lecture Series, discussing sentencing policy, published via The Times.
  • Prisoner voting: ‘more an issue for the Daily Mail than the average prisoner’”, by Alex Cavendish, on the Justice Gap

 

Law (and injustice) around the world

Germany

VW emissions admissions likely to prompt litigation

LoveBug_GBQ

Open and shut case: it’s actually a feature, not a bug.

The original Volks Wagen vehicle (the pre-war prototype Beetle buggy) was nicknamed the Kraft durch Freude Wagen (strength through joy-car) but the motto now might be the Kraft durch Fraud vehicle.

The admission that pollutant emissions data for VW diesel vehicles had been gamed by fitting onboard software devices that rigged tests has sent shockwaves through the motor industry. This month German and French prosecutors have expressed an intention to proceed against the company, and there’s been a global interest in civil litigation since the scandal broke last month.

In the United States, as you’d expect, various class actions have already been filed, eg by law firm Edwards Kirby in North Carolina, in partnership with Blasingame, Burch, Garrard & Ashley in Athens, Georgia, according to Business Wire) and, in another report, by Girard Gibbs LLP in Oakland, California  while in Pensacola, Florida the firm of Levin Papantonio are also getting in on the class action game.

No doubt there’ll be a queue of potential plaintiffs, in the Home of the Brave and Land of the Free-Initial-Consultation-for-Class-Action-Litigation. But as with all claims it’s worth asking: what’s your loss? (For this and other questions, Hagens Berman have provided a handy FAQ)

If it ever comes to trial (and VW would be mad not to settle), you’ll need a jury of petrol drivers or on-road bicyclists (do they exist in America?) to ensure objectivity, and showing them old Herbie movies (see picture) isn’t going to make them any more sympathetic to defendant’s position. (Recommended reading on civil jury claims in USA: “King of Torts”, and the “Runaway Jury”, both by John Grisham.)

Returning to the calmer realities of the English legal system, the Law Society Gazette reports that

In the UK, national firm Slater and Gordon said that thousands of people and car dealerships who had bought cars whose value had plummeted since the revelations could have a group claim against Volkswagen and possibly other manufacturers. Shareholder fraud specialist Edwin Coe said that VW shareholders could also sue.

Finally, this week AutoTrader published what it called

“Everything you need to know about the VW emissions scandal: 1.2m UK cars to be recalled, websites to check affected cars now live”

It includes the announcement that

Paul Willis, managing director of Volkswagen Group UK will appear before the House of Commons’ Transport Select Committee on October 12th to answer questions about the diesel scandal.

Ghana

Judges suspended

Ghana suspended seven justices on the High Court as part of a corruption investigation that already led to disciplinary action against 22 judges and magistrates last month, reports Bloomberg Business.

The probe against members of the judiciary began in September after a petition was filed to the council that claimed 22 judges and magistrates in the circuit court system and 12 justices from the High Court were involved in corruption and graft. The committee suspended the 22 officials from the circuit courts. It did not name who was suspended last month. The council then said it would continue to investigate the case against the High Court judges.

 

Saudi Arabia

Human rights record challenged

In an interview that to my mind justifies the licence fee on its own, Emily Maitlis on BBC Newsnight took to task the Saudi Ambassador to the UK, on the subject of his country’s abysmal human rights record and the outrage many feel at its role as head of the UN Human Rights council. The ambassador, Abdallah Y al-Mouallimi, defended Saudi Arabia’s Sharia legal system and its role on the human rights panel upholding “the highest standards” but the admission of vote-trading and behind-doors deals at the UN (in which the UK is evidently complicit) tells its own story. Watch the interview (via BBC on YouTube)

Among the cases Emily Maitlis referred to were that of the teenaged alleged offender Ali Mohammed al-Nimr  who was to be executed (beheaded) and THEN crucified (see Weekly Notes 25 September), and that of the blogger Raif Badawi imprisoned and sentenced to 1,000 lashes (Weekly Notes 6 February). She also raised the recent case of an Indian maid who allegedly had her hand chopped off by her employer when she complained about her working conditions and tried to escape: the ambassador gives an undertaking that the matter will be full investigated and, if appropriate, the man duly prosecuted. (See, on this story, Huffington Post.)

Maitlis also touched on the conflict in Yemen, in which the Saudis are playing a supportive (of the government) role. A more detailed description of the background and of the human rights abuses going on now is given by Andrew Mitchell in a piece in The Guardian titled “Britain seems to have outsourced foreign policy to Saudi Arabia” in which he castigates Britain’s complicity in abuses perpetrated or tolerated by the Saudis. He notes that

“the Saudi air force now has twice as many British-built warplanes as our own Royal Air Force. We must take seriously the possibility that British-made arms are being used to kill civilians in Yemen.”

 

United States of America

Black Americans failed by inherently biased legal system

The American Bar Association’s first black female president, Paulette Brown, hopes to change the legal system’s bad reputation for discrimination against black defendants, reports Own Bowcott in The Guardian this week. Brown, who earlier this year met the Queen when she attended the ceremony at Runnymede to mark the 800th anniversary of Magna Carta, said the ABA (which sponsored a memorial at Runnymede) is supporting efforts to redress the “implicit bias in the justice system”.  The mediaeval charter remains a more potent cultural icon for Americans than for Britons. “We were taught about Magna Carta at my elementary school,” Brown said with pride.

Inmates beat Harvard at their own game

In a cheering bit of news, we hear that the debating team of a maximum security correctional facility (or “prison” as we’d call it over here) in New York have beaten their opponents on a team fielded by Harvard, according to the Washington Post. The prisoners had signed up for something called the Bard Prison Initiative that seeks to give a second chance to inmates hoping to build a better life. Methinks Lord Chancellor Gove, with all his experience as a former education minister, could learn something from this about rehabilitation.

 

That’s it for this week. Thank you to all those who came up to me personally and said you enjoyed these legal roundups. It’s both humbling and gratifying to know that one’s efforts are appreciated, and if you wish to comment, please do so via Twitter @maggotlaw or @TheICLR

 

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.