Weekly Notes: legal news from ICLR — 13 March 2017
Posted on 13th Mar 2017 in Weekly Notes
This week’s roundup of legal news and commentary features the Lord Chancellor, a crisis in the judiciary, libellous tweets, and the Lords and Knights of Brexit. In short, another mixed bag of goodies (and baddies).
Lord Chancellor interviewed, wriggles a bit, slips off hook
Last week’s BBC Radio 4 Law in Action programme was wholly taken up with an unintentionally revealing interview of the Lord Chancellor and Secretary of State for Justice, Elizabeth Truss MP (right). The questions asked by Joshua Rozenberg revolved mainly around the subject matter of the Prisons and Courts Bill that has just begun its journey through the legislative mill.
Dealing with prisons, while Truss blithely insisted that recruitment of new staff would help solve many of the prison service’s woes (which she acknowledged), Rozenberg kept reminding her that her own government had already shed far more staff since 2010 (seven thousand or so) than the two-and-a-half thousand now being recruited (to replace them. No wonder there was a prison crisis and some of the worst rioting in almost three decades. (Truss insisted that “80% of our officers have been with the Prison Service for more than five years” but of course that’s 80% of a much diminished overall staff.)
On the subject of the courts, it soon became clear that while the current Transforming our justice system development of an online court, where train fare dodgers and the fishing licence cheats would be able to plead guilty by smartphone, was effectively just a pilot for something much more extensive. Concerns have been raised elsewhere (eg by Penelope Gibbs) about the risks of being able to acquire a criminal record without perhaps understanding the potential consequences for future employment and credit reputation, but Truss seemed to think the risks fairly trivial at this level. (She didn’t seem inclined to take up Rozenberg’s suggestion of a “cooling off period” allowing those pleading guilty on a whim to recant.)
I happen to think there’s a different risk — that of guilt devaluation. What will happen is that offences of dishonesty will be downgraded over time, so that pleading to a few fare dodging and perhaps shoplifting offences will not in the end affect your employment and credit status any more than a few points on your driving licence. If so, and if certain crimes of dishonesty become normalised (as those of violence in some quarters, and financial crime in others, already have been), it is society in general that will lose.
On the whole, Truss answered the questions in a fairly straightforward manner, which was to her credit. But she lost our respect when, faced with a question about her lukewarm support for the judiciary at the time of the Divisional Court’s decision in the Miller “article 50” case last year, she obtusely (some would say disingenuously) swerved into a well-coached routine about how it was not for her to criticise the press or limit freedom of speech.
Some people have asked me to condemn what’s written in the press and I think that is wrong. I think as Lord Chancellor to say what the press should and shouldn’t print is problematic, and I think that the way we build judicial morale and judicial value is by the judiciary themselves talking about what they do. […] But that is not something I’m prepared to do by denigrating the free press.”
This was clearly not what she had been asked to do. She had been asked to stand up for the judiciary, defend their independence and integrity; and although she has since found her voice on that topic, no one can pretend she did what was required or expected of her at the critical time.
There’s more on what Joshua Rozenberg called the “Crisis in the judiciary” below.
You can hear the whole interview via the website or as a podcast on itunes.
Can they, should they, speak out?
One judge who might be thought to have taken the Lord Chancellor at her word was HHJ Lindsey Kushner Q.C. who, in passing sentence in her final case before retiring after 14 years on the bench, made some public remarks about rape cases and gave some helpful advice to women. You can read the remarks in full (it is worth doing do) on The Secret Barrister’s blog, Accusing this judge of “victim blaming” is unfair, wrong and dangerous — the title of which gives some indication of the (sadly predictable) “shoutstorm”, as we might spell it, that ensued.
It was reported fairly evenly and unhysterically in The Times, but the Guardian and the BBC picked up quotations from people who did not seem to have understood the point of the judge’s remarks.
According to the BBC, (Retiring judge Lindsey Kushner issues drunk women rape warning):
“Rape Crisis slammed her comments as “outrageous” and “misguided”. Yvonne Traynor, chief executive of Rape Crisis South East, said: “As a judge and a woman she should know better. “The only person who is responsible for rape, is the rapist. “Women are yet again being blamed for rape.”
The Guardian report, Judge’s warning to drunk women ‘will stop reporting of rape’, took its cue from the reaction of Northumbria Police commissioner Vera Baird, who “said the comments were “victim-blaming” and would stop victims coming forward.”
If Judge Kushner’s attempt to speak out can have done nothing to boost judicial morale, in line with the Lord Chancellor’s pious hopes (see above), she would have received still less encouragement from the President of the Family Division, Sir James Munby, who this week rejected the notion that judges might go on TV to answer their critics and explain their decisions to the public.
Speaking at an event hosted by the Family Justice Council and Family Rights Group, Sir James “stepped into the controversy over press attacks on the judiciary”, according to Monidipa Fouzder in the Law Society Gazette, “telling solicitors that judges should not have to justify their rulings – while conjuring a dystopian vision of judges being hauled on to Newsnight to defend themselves.”
In response to a question about judicial involvement in serious case reviews, Munby said:
Judges explain their reasoning in their judgments. They are fair game for comment and criticism however vehemently and harshly expressed. But to challenge a judgment you go to the Court of Appeal.’
‘The principle that you do not justify your judgments is of importance. If you let that principle go… where does it stop? … You will end up with “why is the judge not prepared to come on Newsnight or Panorama to explain what happened?”
At the same event at which the President was speaking, Lord Justice McFarlane had earlier given the inaugural Bridget Lindley OBE Memorial Lecture, on the topic of Holding the risk: The balance between child protection and the right to family life, which is well worth reading.
Recruitment morale and diversity
A rather more encouraging example of judicial pronouncement, from the Lord Chancellor’s point of view, were the remarks of Mrs Justice McGowan, formerly chair of the Bar Council, in an interesting recent interview in the Chambers Student newsletter, where she said that diversity would come “much more quickly than some critics suggest”.
I think we will see at least one more woman in the Supreme Court in the next year or two. BAME is going to take longer – the available pool is smaller and younger. For the Court of Appeal and the Supreme Court, the pool that you draw from is made up of people who graduated in the 70s; so it’s still going to take some time because female and ethnic minority representation among graduates was just starting to open up then. The gender and ethnic balance of the new QCs is a real step towards broadening that pool.
She rejected the idea that having a career judiciary, as in some other jurisdictions, would help redress the gender imbalance more effectively.
Our judiciary is universally acknowledged as being very good. It would be a disaster to abandon a system that generally works very well.
Indeed. It would just be nice if the politicians and press could recognise that, and stop resorting to ad hominem attacks and fatuous slurs about “unelected” judges.
Finally, on the topic of judicial morale, see also Transform Justice, The crisis in judicial morale – is more money the answer?
Monroe v Hopkins  EWHC 433 (QB)
This week the libel case of the year, discussed in last week’s post, ripened into judgment. The claimant, Jack Monroe, won her claim for damages for defamation against the defendant, Katie Hopkins. The claim arose out of exchanges on Twitter where, by a series of ill-directed tweets, Hopkins implied that Monroe endorsed the vandalisation of war memorials as a form of political protest. Monroe gave evidence about, inter alia, the “serious harm” to her reputation this had caused. Hopkins did not even turn up at court, let alone try to justify her tweets, other than to suggest (via her counsel) that Twitter was a “Wild West” of free speech in which anything went and nothing mattered. The judge, Warby J, did not agree. He awarded Monroe £24,000 damages plus a payment on account towards her own costs of £107,000, though the true figure for costs may be much higher. (Significantly, Monroe had offered not to proceed if Hopkins paid £5,000 to charity and issued an apology.)
The judgment is worth reading in full, including the appendix on How Twitter Works. Key passages are at paras 34-49 on the principles of law on defamatory meaning as applied to Twitter and in the present case, para 71 setting out conclusions on “serious harm”, plus the Summary of Conclusions at para 82 and the following observation, at para 83:
the case could easily have been resolved at an early stage. There was an open offer to settle for £5,000. It was a reasonable offer. There could have been an offer of amends under the Defamation Act 1996. Such an offer attracts a substantial discount: up to half if the offer is prompt and unqualified. Such an offer would have meant the compensation would have been modest. The costs would have been a fraction of those which I am sure these parties have incurred in the event. Those costs have largely been incurred in contesting the issue of whether a statement which on its face had a defamatory tendency had actually caused serious harm.
And for anyone who is likely to get caught up in a future defamatory tweet situation, para 84 contains a crucial piece of advice: keep those tweets! (If, which is wise, you take a screenshot, make sure you back it up, email it to yourself or store in the cloud, so that if your device breaks or is lost you still have the evidence to pursue or defend a claim.)
Commentary on the case has been plentiful, particularly via Twitter, the medium on which it arose in the first place.
The following are from the press and legal bloggers:
The Secret Barrister in i-news (At £131,000, Katie Hopkins should realise trolling on Twitter is an expensive hobby) observed:
The judgment handed down by Mr Justice Warby is worth reading in full, for the entertainment value of witnessing a charmless, foul-mouthed Twitter spat gentrified with a judicious judicial gloss as much as for its educational worth. Monroe v Hopkins  EWHC 433 (QB), to give its full citation, is unlikely to set legal textbooks ablaze, adding little by way of principle to the existing body of law, but is instructive as an easily-relatable modern morality tale of the danger, and potential expense, of online trolling.
Nathan Capone, on Inforrm’s blog, Case Law: Jack Monroe v Katie Hopkins, Success for claimant in Twitter libel case, observed:
This was not the first Twitter defamation case, but the particular context which involved a well-known controversy-baiting public figure and the first application of the serious harm test to tweets make it significant.
House of Lords amendments to Brexit Notification Bill
Last week the House of Lords by 366 votes to 268 passed an amendment to the Bill at report stage. The amendment is aimed at securing Parliamentary approval for the outcome of Article 50 TEU negotiations with the EU. The prior approval of both Houses of Parliament shall also be required in relation to any decision by the Prime Minister that the United Kingdom shall leave the European Union without an agreement as to the applicable terms.
An earlier amendment passed by the Lords at the committee stage required Ministers to bring forward proposals to ensure that the “EU derived-rights” of European Union (or European Economic Area) citizens in the UK are protected.
These amendments demonstrate that the House of Lords is
- (a) performing its constitutional function as scrutiniser of draft legislation and guardian of the interests of the British state under our bi-cameral parliamentary democracy; or
- (b) a bunch of unelected busybodies standing in the way of the will of the people, as bluntly expressed in the EU referendum; or possibly
- (c) both of the above.
In any event, the Bill returns to the House of Commons this week, where timidity or the whips may prevent the majority who opposed Brexit in the referendum from preserving the amendments from reversal / rejection by the government and so much of the Opposition as remain loyal to the leadership of Jeremy Corbyn.
Discussing this and earlier amendments on the blog, Law and Lawyers, (to which this note is heavily indebted), Obiter J comments:
It may be worth noting that Article 50(2) requires the European Parliament to consent to a Withdrawal Agreement. Without consent, the European Council cannot conclude such an agreement.
The question of whether the UK could unilaterally revoke an Article 50 notice has not (yet) been answered. On this see The Three Knights Opinion.
That brings us by a commodius vicus of recirculation, or segue, or perhaps blogue, to
Article 50 revocability
According to Bindmans,
the UK’s most senior EU law experts, Sir David Edward, former judge of the European Court of Justice, Sir Francis Jacobs, that Court’s former Advocate General, and distinguished EU lawyer Sir Jeremy Lever, have provided a written legal opinion on the constitutional role of Parliament in future decision-making on Brexit and the linked question of whether an Article 50 notice can be withdrawn after it has been given.
This is what has been dubbed the Three Knights Opinion, referred to by Obiter J above.
Now Professor Mark Elliott on the Public Law For Everyone blog has responded with The ‘Three Knights Opinion’ on Brexit: A response.
Another response has been provided by Rosie Slowe, on the UK Human Rights Blog, Reflections on the ‘Three Knights Opinion’ and Article 50 TEU.
Also of interest, on the UK Constitutional Law Association blog, Mark Elliott and Stephen Tierney: The ‘Great Repeal Bill’ and Delegated Powers
Dates and Deadlines
Celebrating Women at the Bar: Past, Present and Future
15 March 2017 Lecture and forum at the Old Hall, Lincoln’s Inn
Doors open: 17:30; Start time: 18:00
CPD Theme: Developing awareness of Equality and Diversity (2 hours)
Cost: Free, but booking essential (via Eventbrite)
Justice: work for us
JUSTICE is expanding its legal team, to include a Lawyer focussed on strengthening the criminal justice stream of their work.
Location: JUSTICE, 59 Carter Lane, London
Salary: £36,519 at C5
Justice are also looking for students to apply for their “externships” programme. See their Work for Us page.
Law (and injustice) from around the world
New travel ban
Last week President Trump, with not much fanfare, signed a new executive order, banning travel to the United States from six (instead of the former seven) mainly Muslim countries in Africa and the Middle East.
ACLU (the Amercian Civil Liberties Union) in its response was unimpressed, contending that the revised ban is no more than an improved attempt to implement Trump’s loudly trumpeted campaign promise of a “a total and complete shutdown of Muslims entering the United States.”
The order backtracks dramatically — exempting not only green card holders but all current visa holders, delaying the implementation of the order, and eliminating some of its glaringly illegal elements.
They urge their supporters to contact their Senators imploring them to oppose the ban.
Trump’s newest executive order singling out refugees and people from six Muslim-majority countries has the same fatal flaws as his first attempt. It does not represent American values and it violates our Constitution.
The Guardian reports that Hawaii has become the first state to file a lawsuit against the new ban, saying the order will harm its Muslim population, tourism and foreign students.
See also: The Conversation, Trump’s revised travel ban still faces legal challenges
Military courts hear civilian cases in crackdown on dissent
Last week Bahrain’s justice ministry filed a lawsuit seeking to dissolve the National Democratic Action Society, or Wa’ad, the main remaining opposition group, on the grounds that it undermined security.
The previous day, the Consultative Council, the upper house of the Bahraini parliament, had approved a constitutional amendment that could allow authorities to run the country under an undeclared state of martial law. The change will allow civilians to be tried by military courts if the case involves the military, according to the Guardian (Bahrain moves to ban opposition party and let army courts try civilians).
On 8 March, during his annual report to the UN Human Rights Council, the UN High Commissioner for Human Rights, Zeid bin Ra’ad Zeid al-Hussein, called on the Al Khalifah regime to allow UN representatives swift access to the country.
Bahrain has been witnessing peaceful anti-regime protests since 2011. High-handed suppression of the rallies has led to widespread imprisonments and scores of deaths. Protesters are demanding that the ruling dynasty relinquish power and allow a just system representing all Bahrainis to be established.
See also: Press TV, Bahrain approves military trials for civilians
Was Trump’s terror incident really fake news?
At a post-election rally last month President Trump alluded mysteriously to an incident which he said had happened “last night in Sweden. Sweden, who would believe this?”
Well, practically no one, as it happened. Or rather didn’t happen. Swedes and others reacted with baffled anger and outrage to the suggestion that there had been some sort of terror incident, and many posted sarcastic tweets under the hashtag #lastnightinsweden referring archly to the Islamic terror groups “Al-Ikea” and “Al-Abba”.
“Sweden,” Mr. Trump went on. “They took in large numbers. They’re having problems like they never thought possible.”
He or his spokeswranglers later tried to clarify the meaning and context of Trump’s remarks: see New York Times, ‘Last Night in Sweden’? Trump’s Remark Baffles a Nation
The suggestion was that, even if there hadn’t been a specific incident, Sweden had experienced problems with mass immigration and was busy suppressing news and debate on the subject. However, after Trump’s own counsellor Kellyanne Conway appeared to have made up a fictitious domestic terror incident, the so-called Bowling Green Massacre, sceptics just treated it as more of the same, with meatballs.
As it happens, Brian McNair, Professor of Journalism, Media and Communication, Queensland University of Technology was, with what he calls “Zelig-like serendipity” in Stockholm when, as he writes, “#lastnightinsweden went viral”. His article for The Conversation has been reposted on Inforrm’s blog and makes interesting reading. In other words, nothing is quite as simple as it seems. In short, whatever else it was, it wasn’t “fake news” as that phenomenon should properly be understood.
Fake news, in the contemporary context, is simply this: intentional disinformation (invention or falsification of known facts) for political and/or professional purposes, such as the fabrications of Stephen Glass or the activities of paid-for Kremlin trolls trying to prove that Russian troops are not in Ukraine and that Russia didn’t annex Crimea. […]
Fake news is when organisations like Fox News and Breitbart report these stories as credible, knowing them to be fairytales.
So, what about #lastnightinsweden? Was that fake news, or just Trump being Trump?
He says not, having investigated the facts behind the Fox News story on which Trump relied in the “clarification” of his remarks.
In the end, it was just crap journalism, endorsed by a wannabee despot who knows that stirring up ethnic hatred is what his followers respond to best.
And finally … Tweet of the Week
In response to the Chancellor of the Exchequer’s budget announcement last week, of an increase in National Insurance contributions for self-employed, a (self-employed) barrister wrote:
Tax increase for the self-employed? No worries for junior crim bar – we can just pay it from long overdue fees increase in AGFS…Oh.
— Rachel Law (@crimcounsel) March 9, 2017
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.
Sign up now for weekly email alerts from this blog. Just put your email address into the box on the left.