Weekly Notes: legal news from ICLR – 10 October 2016
Posted on 9th Oct 2016 in Weekly Notes
This week’s roundup of legal news and commentary covers the start of the new law term and the conclusion of the political conference season, with media, privacy and employment issues also discussed. There’s poetry amidst the pain, and content from home and abroad.
Or should that be the new low-budget Lord Chancellor’s coffee morning to promote an increasingly pro bono and make-do-and-mend justice system? But the dressing up box still comes out and the parade through the streets of London, so the rest of us can see how the quality keep up appearances.
Liz Truss, whose lacklustre performance at a parliamentary justice committee meeting was sadly all too confirmatory of the negative expectations bruited about at the time of her appointment, made a speech in which she correctly identified the antiquity and pre-eminence of the common law. Some other resounding phrases were included by her or her speechwriters:
Our common law system – founded on that precious asset, the rule of law – has been emulated for centuries by countless jurisdictions.
An immensely civilising influence on the world, it has spread liberty, order and prosperity to billions.
And she claimed to be the first Lord Chancellor to wear high heels. (How fully was that point researched? In days of yore, when gentlemen at court dressed more extravagantly even than they do on formal days such as this one, were some of them not high in the heel as well as mighty in the land?)
Stepping back for a broader view, it seems that two strong messages have been pumped out of the MOJ in recent years.
- First, that we have the best of all possible legal systems in the world.
- Second, that our legal system is the most expensive legal system in the world.
Neither is entirely true, but even if they were, any attempt to remedy the second will undoubtedly harm the first. And that is exactly what has been happening over the last decade, with reductions in legal aid, reductions in fees for legal aid lawyers, restrictions on access to justice by other means, such as increased court fees, and with cuts to services like prisons and probation which will lead to burdens on the system elsewhere.
Much of the story of fiscal responsibility in the last few years has actually been a story of making rash, ill-planned, under-researched, and ultimately false economies.
But Liz Truss inherits a system into which, at long last, a decent wodge of public money is being pumped for the stated purpose of modernisation. This will mean electrifying our currently not very paperless courts, to enable digital filing and sharing of files and documents and the eventual disappearance of those cumbersome “bundles” and fileboxes so beloved of chambers’ clerks, and replacing many of our solid old court buildings with virtual online dispute resolution services.
With the appointment of online arbitral facilitators and “registrars” we may also be moving more towards the kind of career judiciary that favours diversity of appointment and flexibility of work-life balance, something Liz Truss quite rightly finds wanting in our current arrangements (as her speech at the Conservative party conference – see below – demonstrated), though it’s not as though we haven’t all been painfully aware of it for some time.
Our anxiety about online courts is primarily one about open justice: how can an online court process be scrutinised by the public whose interests it serves to the same extent as a physical court with a public gallery offers access to public scrutiny, even if rarely now exercised? And, more crucially from our point of view, how are online court hearings reported in the media and by professional reporting services such as ICLR? Arguably, the cases involving points of law will eventually find their way to a real judge in a real courtroom with proper reporting facilities, but can we take that for granted?
As we hope most if not all readers of this blog will appreciate, ICLR does not just reformat judgments issued by the court into citable authorities. Our reporters watch the courts and attend hearings of the more important cases involving points of law with a view to reporting the argument as well as adding a headnote that properly encapsulates the points of law decided in them. Will virtual argument require a virtual law reporter to sit in and attend by Skype or something? Or will the MOJ seize the transparency agenda and make the digital justice system digitally visible to a virtual public gallery and press bench? ICLR will be lobbying the MOJ to ensure that this aspect of the matter is properly considered and taken account of. It would be shame if the great principle of open justice declared in Scott v Scott  AC 417 should be overlooked in the rush to digital judgment.
Labour languish while Conservatives show true colours
Over the summer the Labour party held a fresh leadership election, which resulted in a resounding confirmation of Jeremy Corbyn’s ascendancy. What worries most of his opponents is not Corbyn himself but the company he keeps, and the tendency to focus on rallies and other extra-parliamentary activity, rather than being an effective opposition at Westminster. Popular as the rallies and demos organised by Momentum might be, they have not resulted in voter sentiment returning to the Labour fold: polls put the Tories well in the lead.
Meanwhile, at their conference this week, the Conservative Party, boosted by Brexit and the positive polls, and basking in the late sunshine of a golden May in October, have let their guard down a little bit, and begun to reveal some of their true blue porphyrial mad blood. The low point was reached when Theresa May’s successor as Home Secretary, Amber Rudd, suggested that UK businesses should be required to list the foreign workers they employed, and May herself suggested foreign doctors and nurses working to save British lives in the NHS should be sent packing as soon as we had enough domestically bred replacements.
If we can have a British Bill of Rights, why not a British Health Service?
As numerous more eloquent commentators have pointed out, this has horribly vivid echoes of the fascism of the 1930s. Good news for the glaziers, and for the boarders-up of shop windows, but not so good for the country as a whole. And all this barely a week before the anniversary of the Battle of Cable Street.
As the Tory conference closed, UKIP grabbed the headlines with an altercation (physical assault was alleged and then denied and an investigation is now under way) between two MEPs following which one of them ended up in hospital; and Labour garnered mixed blessings from an shadow cabinet reshuffle, though Keir Starmer QC MP’s appointment as shadow secretary for Brexit was generally welcomed.
Various government ministers have been on the news today reverse-ferreting the listing foreign employees idea, denying they ever meant the information to be made public or to “name and shame” employers. So perhaps it was all just exaggerated by the press, so many of whose proprietors are not British residents? You can see for yourself by reading Amber Rudd’s speech in full (via Spectator). This says nothing about “naming and shaming” but apparently the suggestion was contained in a briefing paper distributed after Rudd’s speech.
Liars in the dock
A businessman has raised nearly £150,000 in crowdfunding in order to fund a prosecution against politicians from all parties across the political spectrum who lied during the Brexit referendum campaign. Marcus J Ball says he wants to use the donations to hire a legal team which would “prosecute Vote Leave leaders based upon fraud, misconduct in public office, undue influence and, possibly, inciting racial hatred.”
Nearly 5,000 people made donations, with ten people giving over £1,000. Ball has hired the London-based private prosecution specialists Edmonds Marshall McMahon (EMM), one of whose founding partners, Andrew Marshall, a barrister with thirty years’ experience, will be leading the claim. He has previously led prosecutions against Shell, Rolls Royce, and Luton Airport.
Ball’s mission to eradicate dishonesty from UK politics has plenty of public support, but the case will be expensive to prosecute and he reckons he will need at least £200,000 for a fighting chance to get it started, and more like £2m for a realistic prospect of success.
More on this: Business Insider
Celebrities in court (1)
When is a celebrity not a celebrity? Or to put it another way, is the press really justified in knowing all about the unfortunately divorce and child care arrangements of a woman who presents a children’s TV programme?
Sarah Phillimore (Throwing in my Transparency Towel) thinks not, and wonders if the mainstream media have completely missed the point about greater transparency in the Family Courts. It’s not about prurient gossip, it’s about opening the court process up to scrutiny so people have a better understanding of what goes on.
In this case, the press wasn’t genuinely interested in reporting the judgment or understanding better what was meant by the phrase “ordinarily resident”. Instead, they applied to the court for the right to name the individuals concerned, partly because one of them had been on television, and partly because the information had already leaked out in another part of the world. The judge gave way on the naming of the parents, but he refused to allow the child to be named (though they can easily now be identified from other information already on the internet) and refused to allow some of the more lurid evidence to be published. Nevertheless, his judgments are now on BAILII.
Family Court Reporting Watch
Meanwhile, the Transparency Project has now been given funding to further its work of correcting the misreporting of family court cases. The Family Court Reporting Watch Project is Go! funded by the Legal Education Foundation. If you see anything wrongly reported in the press, or that the press have missed an important case (or reported the first instance hearing without mentioning its reversal on appeal, as happened in another recent case) you can contact them here: email@example.com
Celebrities in court (2)
When a film star turns up at court, the press usually begin to salivate over the prospect of a juicy divorce or “custody battle”. But this week the appearance of the film star Emma Thompson (Sense and Sensibility, Nanny McPhee, etc etc) had nothing to do with a pending case. She was researching the atmospheric location of the Royal Courts of Justice in preparation for her appearance as a fictional judge in the film version of Ian McEwan’s novel, The Children Act. The story concerns a High Court judge at a professional crossroads, who gets emotionally involved in dealing with a case involving a teenage boy. We reviewed the novel here.
The Press Association report on Aol mentions the fact that a real High Court judge (Mr Justice Mostyn) thought the novel “excellent” but criticised the title, saying the relevant decision would have been made under the court’s inherent jurisdiction, not the 1989 Act. (See In re JM (A Child)  EWHC 2832 ;  2 FLR 235;  CN 1569 ).
Fake sheikh verdict
On 5 October, after two and a bit days of deliberation, a jury at London’s Old Bailey unanimously found Sun journalist Mazher Mahmood guilty of conspiring to pervert the course of justice. The conviction comes at an interesting time, so soon after yet another much-vaunted newspaper sting, this time against the one-match England manager, Sam Allardyce.
So Mahmood was by no means alone in conjuring up damning evidence of dismal doings by the high and mighty by provocative subterfuge. The problem in his case was the manipulation and suppression of some of that evidence in the case of singer and former X-Factor judge Tulisa Contostavlos, in deleting an exchange of emails with his driver containing evidence that would have been relevant in her Contostavlos’s defence.
The case is conveniently summarised by James Doleman in this article from Byline reproduced on Inforrm’s blog Mazher Mahmood: The evidence of absence.
In his book Confessions of the Fake Sheikh (2008), Mahmood boasted his investigative reports for the News of the World and Sun on Sunday led to nearly 100 convictions. but now some of these are being appealed. In his own trial, he confessed nothing and declined even to give evidence. But the jury were sufficiently convinced of his and his driver’s guilt to convict them on the inference of a cover-up.
Mahmood is also alleged to be a key link in the Daniel Morgan murder cover-up, according to the website of the Untold Murder podcast.
National Poetry Day
Reading the case of R v Brown
Causes students oft to frown
But what I want to hear them say
is: isn’t it just Fifty Shades of Grey?
Dates and Deadlines
The Right To Be Forgotten – should it be a right and does it work?
Reading and panel discussion
City University 6.30 pm, Wednesday 12 October 2016,
Raising the Bar – Annual Bar and Young Bar Conference
Westminster Plaza, Saturday 15 October 2016.
Get involved in the future of your profession and of your own career – and earn CPD points while doing so. Not just for barristers, it is open to anyone involved in the legal professions and legal activities.
To book your place: online form.
Law Brief Publishing is looking for legal authors. They are specifically seeking practising solicitors or barristers with a particular area of specialism which might benefit from a short book for practitioners.
Suitable topics might be a niche within a practice area or recent legislation or a significant case or line of cases which might be causing difficulty.
Law (and injustice) from around the world
Lawyers engaged in trial by battle
A Brisbane solicitor, Robert Hynes, 47, was this week charged with serious assault against a senior barrister, Peter Nolan, 65, after resorting to blows and leaving him with two black eyes, a broken nose and several stitches across his forehead, in a dispute over neighbourly noise. According to local press reports
The Courier-Mail understands the solicitor, who is the chairman and legal practice director of commercial law firm Hynes Legal, allegedly punched Mr Nolan a number of times before verbally abusing him for chastising his children about being too loud.
Hat tip: Paul Cutler @
Chess star refuses to veil
The Georgian-American chess champion Nazi Paikidze has refused to participate in the Women’s World Chess Championship in Iran because, she announced on Instagram, she refuses to comply with strict rules requiring her, like all women, to wear the hijab there. She said:
I think it’s unacceptable to host a WOMEN’S World Championship in a place where women do not have basic fundamental rights and are treated as second-class citizens.
Others have suggested it would help the Iranian women better to turn up and play chess with them. But this has echoes of the recent problems here when women were not allowed to watch men play international volleyball.
Source: Washington Post
Educational burqa ban
The Norwegian education minister, Torbjorn Roe Isaksen, has announced that the burqa (full-face) veil is to be banned in schools and universities across Norway following similar measures in other European countries, according to the Independent.
Other, less concealing forms of veil and religious clothing generally are not being banned in the same way or to the same extent as in some other European countries, like France, with its ludicrous “burqini ban” over the summer.
Even so, it is to be wondered whether banning the burqa will promote education among the people alleged to be oppressed by the requirement to wear it, or to be at risk of radicalisation, or perpetuate the ignorance in their community caused by them shunning schools and universities.
Journalists in prison for exposing judicial corruption
Human Rights Watch reports that three journalists have been sentenced by a court in Muscat, and the Azamn newspaper permanently closed down, after they published an article that alleged corruption in the judiciary. They were charged with “disturbing public order,” “misusing the internet,” “publishing details of a civil case,” and “undermining the prestige of the state”. It appears that they reported allegations that the chairman of the Omani Supreme Court had been involved in unlawfully influencing and overruling an appeal court’s verdict in a high-profile inheritance case.
HRW says “These broad restrictions on reporting appear to violate international standards of freedom of expression, including the right to criticize government officials.” But I would question whether a truly independent judiciary should be categorised as “government officials” in the first place. If they are not truly independent, and impartial, that would indeed be a matter for complaint, and not something to be swept under the carpet or locked up in the prison cell.
That’s it for now. 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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