Weekly Notes: legal news from ICLR — 1 May 2017
Posted on 1st May 2017 in Weekly Notes
This week’s roundup of legal news and commentary includes last minute legislation, legal services, law in the movies, and a survey of judgment opening lines. If there’s a theme, it’s “sieze the day” —or: fame may not be the spur, but don’t spurn it.
Washup and Go
Parliament was prorogued last week, to use the technical terms for the Queen’s formal shutting up of the nation’s democratic talking shop. Before all the Members could go back to their constituencies and start canvassing for the election on 8 June, they had to do what’s called the “washing up” — i.e. dealing with unfinished legislation.
Some Bills have been dropped, including as we reported last week the massive Prisons and Courts Bill 2017. But others have been completed, no doubt in some cases with a little extra bit of a rush and a push, to get them onto the Statute Book before the end of the current parliament. The following are among those who squeaked out under the dropping portcullis.
Much of the more complex technical legislation is going — for now. The Making Tax Digital clauses, 120 to 122, are being dropped, as are the penalties for enablers of tax avoidance provisions, the non doms provisions, the corporate interest restriction and carried forward losses provisions.
Although the Lords had tabled 50 amendments, the Criminal Finances Act 2017 has also received the royal assent. It includes new powers to oblige suspects to explain the origin of their assets and for the authorities to seize the proceeds of crime stored in bank accounts or used to purchase property or jewels, as well as measures to tackle tax evasion and combating terrorist finance.
A bill which has had an even more rocky ride is the Children and Social Work Bill — which has now also been passed, although not until it had been given a gruelling ride in the House of Lords and had to drop some of its more controversial provisions.
Other notable bills that have made it onto the Statute Book include the Digital Economy Act 2017, the Higher Education and Research Act 2017, and the Intellectual Property (Unjustified Threats) Act 2017. (Such is the rush, not all of them are yet available on the “Official home of UK legislation”, ie www.legislation.gov.uk, but they soon will be.)
Last, and probably also least (in terms of size — it only has two sections), the Merchant Shipping (Homosexual Conduct) Act 2017 corrects an anomaly which Rich Greenhill on Twitter noted a year ago, when the Armed Forces Act 2016 repealed section 146(4) of the Criminal Justice and Public Order Act 1994 enabling dismissal for “homosexual acts” of members of armed forces — but not of merchant navy. So homosexual acts in the merchant navy are no longer grounds for dismissal under section 146 and 147 of the 1994 Act.
Human Rights: Faulks at fault?
One thing that hasn’t even appeared as a draft bill yet, though promised by the Conservative government for many years, is the British Bill of Rights. The most we have is what’s contained in a campaigning document (which predates Brexit) called Protecting Human Rights in the UK, and various pronouncements, at various times, by conservative politicians.
The latest such comment was in the Times last week, when Lord Faulks, a former justice minister, wrote in the Thunderer column that “May must seize chance to repeal Human Rights Act” (£). He recommends taking advantage of the boosted mandate which the Prime Minister is expected to have after the election to implement the “full fat” option of not just repealing and replacing the Human Rights Act 1998, but also severing ties to the Council of Europe and the Court of Human Rights in Strasbourg.
The full fat option would allow our own courts and parliament to protect human rights as they did before 1998. A substantial majority after the election would enable the prime minister to do what she said she wanted to do. Such an opportunity may not come again.
However, when British courts and parliament protected human rights before 1998 they did so in the knowledge, or fear, that an applicant could still take their case to the Strasbourg court. So if we withdrew from the court and the Council of Europe we would be going back, not just to 1998, as Faulks suggests, but to before 1958, when the UK ratified the European Convention on Human Rights in the first place
- House of Lords Library research briefing, Wash-up: What Happens to Bills before Parliament is Dissolved (with link to Report covering Wash-up 2017)
- New Law Journal, The general election: an unwelcome interlude?
Family Law Café launch
Legal Futures reports (exclusively they say, so hat tip to them) about the launch of Family Law Café (FLC), “A novel online family law service that uses experienced lawyers to mentor and manage clients through the legal process”.
The new version, which has received financial backing, is no longer barrister-led, but offers an initial consultation with a “host” who then directs the client to an “expeditor” — an experienced family law barrister or solicitor — who then helps them plan the best way to proceed. A tailor made plan with a package of support is drawn up for the client at an agreed fee, and their case is then managed online.
Marine A movie?
The Times reports somewhat breathlessly that the story of Marine A, who was released from prison last week, could be made into a film starring, inter alios, Al Pacino.
Alexander Blackman, initially tried under the nom de guerre Marine A, has now served the requisite part of a sentence for manslaughter by reason of diminished responsibility, as substituted by the Court Martial Appeal Court (R v Blackman (No 2)  EWCA Crim 190) on a second appeal, advanced with the help of the Criminal Cases Review Commission, against his original conviction and sentence for murder arising out an incident in Helmand Province in Afghanistan, where Blackman was among British troops fighting Taliban insurgents. (See Weekly Notes — 20 March 2017 for our earlier coverage on this case.)
The Times, 29 April 2017, reports that
His lawyer, Jonathan Goldberg, QC, said that he had had a meeting in Hollywood, with the focus on the story of how Claire Blackman, the wife of the former Royal Marine, led a campaign for his release. Kate Winslet has been discussed for the part of Mrs Blackman, 45, and the name of Tom Hardy was raised as a possibility for the role of Blackman, 42. … The QC said that there had been talk of approaching Al Pacino to play him if the project went ahead.
No doubt there was tut-tutting at this along the judicial corridors of the Royal Courts of Justice, just as there was among lawyers on Twitter (see thread), but I fear the most anxious among us will be @igavels — not at the prospect of members of the Judiciary and the Bar of England and Wales being played by Hollywood hunks — no doubt delightful in some ways — but at the risk that THERE WILL BE GAVELS.
(This did not stop the lawyers on Twitter spending the rest of the afternoon speculating about courtroom epics and their own geeky plot ideas for them.)
Holloway Prison redevelopment
HMP Holloway closed in summer 2016. The Centre for Crime and Justice Studies are conducting a survey to elicit views from locals and others interested in the fate of this historic women’s gaol, as to how it should best be redeveloped. Although the prison is still owned by the Ministry of Justice, Islington London Borough Council is consulting with the public on planning guidance.
There is a risk that this large site will be snapped up by a private developer to build unaffordable luxury flats. This doesn’t have to be the case.
In their project page, Justice Matters: A community plan for Holloway, the CCJS point out that:
The redevelopment of prison land is an important opportunity to offer a bold and ambitious vision of what can physically replace prison sites — to think creatively and concretely about what could sit in their footprint. It could involve services, facilities, homes, spaces for the community.
Picture from The Justice Gap, A History of Holloway.
Battle of the BAILII — the best opening lines of a judgment
One evening last week, barrister Gordon Exall posted a tweet suggesting that a recent case (which presumably he was digesting for his well known blog, Civil Litigation Brief ) was a “Candidate for best opening lines of a judgment”. It set off a thread, in which numerous other practitioners and commentators offered their own examples of judgments, mostly published on BAILII, quite a few also in the ICLR law reports, whose opening lines were arresting, intriguing or just plain weird. Often they told or hinted at curious human stories behind the dry deliberations of the law, which of course are often far from dry — and by no means just for law geeks.
We collected all the tweets in the main thread and various tributary threads, and organised them by a mixture of timeline and theme into a post, which we published on ICLR’s Medium account here. Battle of the BAILII — the best opening lines of a judgment makes for an entertaining read. Widely picked up and shared on Twitter, no doubt thanks to the quality of its many contributors and the original judgments quoted, it sent our readership stats rocketing.
By way of an example, drawn from the Weekly Law Reports, and suggested by Philip J Taylor (@PhilipJTaylor1), here is In re Flynn, decd  1 WLR 103, a decision of Megarry J, whose opening para reads, in full (and with obvious relish):
Errol Flynn was a film actor whose performances gave pleasure to many millions. On June 20, 1909, he was born in Hobart, Tasmania, and on October 14, 1959, he died in Vancouver, British Columbia. When he was seventeen he was expelled from school in Sydney, and in the next 33 years he lived a life which was full, lusty, restless and colourful. In his career, in his three marriages, in his friendships, in his quarrels, and in bed with the many women he took there, he lived with zest and irregularity. The lives of film stars are not cast in the ordinary mould, and in some respects Errol Flynn’s was more stellar than most. When he died, he posed the only question that I have to decide: where was he domiciled at the date of his death?
Sir Robert, later Megarry V-C (the judge in charge of the Chancery Division, now styled the Chancellor but in those days Vice-Chancellor) was not only a fine judge but also a noted anecdotalist, who published a series of books under the title Miscellany-at-Law — a diversion for lawyers and others. These are full of stories and incidents drawn from legal history, ancient and modern, and retold in Sir Robert’s evidently readable and entertaining style.
Stuff and Silk: A pleading too far
To take an example (of which Gordon Exall with his expertise on civil procedure must we feel sure be aware), in an essay entitled Stuff and Silk in the first of his Miscellanea (published in 1955) Megarry says the
“general present-day ignorance of Mylward v. Weldon (1596) [cited from Spence’s Equitable Jurisdiction, Vol 1 (1846) p 376] among both pleaders and laymen is much to be deplored. In that case … the plaintiff employed his son Richard (instead of counsel) to draw the Replication. This occupied ‘six score sheets of paper, and yet all the matter thereof which is pertinent might have been well contrived in sixteen sheets of paper’. Richard was committed to the Fleet, and the Warden was ordered to take him to Westminster Hall at 10 a.m. on the following Saturday, ‘and then and there shall cut a hole in the midst of the same Replication which is delivered unto him for that purpose, and put the said Richard’s head through the same hole, and so let the same Replication hang about his shoulders with the written side outward, and then, the same so hanging, shall lead the said Richard bareheaded and barefaced round about Westminster Hall, whilst the Courts are sitting, and shall shew him the Bar of every of the three Courts within the Hall, and then shall take him back again to the Fleet, and keep him prisoner until he shall have paid 10l. to her Majesty for a fine, and twenty nobles to the defendant for his costs in respect of the aforesaid abuse.”
And to think our own day’s wretched pleaders worry about a mere wasted costs order!
More of the best?
Following the success of Battle of the BAILII, and in view of the various post-publication suggestions for inclusion in the thread, we may (like Sir Robert Megarry V-C) need to produce another roundup to collect them. Perhaps it should no longer be confined to first paragraphs or opening lines, but include ANY particularly amusing or intriguing paragraph. All suggestions to be sent via Twitter @TheICLR or the present blog editor, @maggotlaw.
One was proposed in a tweet from barrister Barbara Rich, who said “This must be the best paragraph 46 of a judgment anywhere in the English-speaking world”. It comes from Quijarro v Robson  NSWSC 818 (via AustLII, the Australian precursor to BAILII; also on Barnet Jade here), where Windeyer J says:
46. It is an extraordinary relationship where a man can share a bottle of champagne by candlelight in bed and have sexual relations with one woman on the morning of his trip north to visit another woman and yet will die the next day in bed with that other woman to whom he had proposed marriage and with whom he has discussed a marriage date to take place some months later. Strange as it is I am of the opinion that whatever commitment there was to a joint life as a couple by the defendant, there was no such feeling or interest by the deceased at the time he died, who by then used the defendant as he wished and did as he wished.
To understand how we got there, and what happened next, you will of course need to read the rest of the judgment.
STOP PRESS: Imagine how flattered we were when, late on Saturday night, Sir Henry Brooke published his own take on the discussion: Judgments: the best opening lines — and a few more, which adds a few more by Lord Denning, and one of his own. Then, blow me down, if he didn’t publish another one, the next day, entitled Miscellany of the Best Opening Lines etc — Part 2
Some other recent reads
- Jack of Kent (David Allen Green’s non-FT blog): Was a “soft” Brexit ever possible for the UK government? (Looks at how, since the EU referendum result, the government has, by incompetence or design, limited its options for a softer Brexit than that with which it is now effectively stuck.)
- Forbes magazine: The UK Government Is Completely Deluded About Brexit (an account of Theresa May’s disastrous dinner with European Commission President Jean-Claude Juncker at No 10 last Wednesday)
On legal services
- Justice Gap, A Cut too Far: LASPO four years on
- ICLR blog: The legacy of LASPO
- Nick Holmes, Legal Web Watch April 2017: Robots and the law (And don’t miss other recent articles from the Internet Newsletter for Lawyers on digitisation of the courts, cyber justice etc.)
On transparency and family law
- Transparency Project, Family Court Reporting Watch Roundup
Tweet of the week…
Combining two of this week’s themes of legal services and movies-at-law, @BPTC_Lecturer was less than enchanted by the Hogwarts set.
That’s it for now. (We’ll have some more overseas news next time, hopefully.) Our thanks to all who flagged up stories, via their blogs (which we always try to acknowledge) and via Twitter (where useful tweets are retweeted).
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.
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