Weekly Notes: legal news from ICLR – 27 June 2014

Posted on 27th Jun 2014 in Weekly Notes

A selection of topical legal news from the UK and around the world, including phonehacking, fraud and other wongadoing, and those dismal legal aid statistics.

Other recent posts from ICLR:

The Legal Aid diet

The stark reductions in the number of cases funded by legal aid, particularly in the family court, was evident from a perusal of statistics released this week by the Ministry of Justice.

legal aidThe significance of Legal Aid Statistics in England and Wales (Legal Aid Agency) 2013-2014 is that it covers the the 12-month period following the coming into force on 1 April 2013 of LASPO (the Legal Aid Sentencing and Punishment of Offenders Act 2012) whose effect was, in part, to cut down considerably the types of case for which civil legal aid was available. It is also a period during which the MOJ has tried, and in some measure (but not entirely) succeeded in cutting payments for criminal legal aid.

CRIME. Workload in the criminal justice system (CJS) generally has fallen, there are simply fewer cases coming to court. In magistrates’ courts, there has been a drop of more than 20% over the five years since 2008. There has also been a fall in the volume of representations in the Crown Court, in both the crime lower and crime higher categories.

Expenditure on Very High Cost Cases (VHCC) dropped by 16% compared to the previous year. And the volume of VHCC work has been falling steadily since 2008, when 63 new VHCC cases were opened, compared to 12 in 2013-14.

CIVIL. Here the reductions have been more stark. The number of certificates for civil representation has fallen by 30% since 2010-2011, and by over 80% since 2009. Family, in particular, has been hard hit: the drop just in the last year was 60%.

LASPO provides by section 10 for Exceptional Case Funding (ECF) in certain types of case. In the last year, 1,520 applications for ECF were received by the Legal Aid Agency, most of which were for family or immigration cases. Only 69 were granted.

PROVIDERS. The effect these reductions have had on providers is stark:

In the last year the number civil providers have reduced by almost a quarter compared to the previous year. Crime providers have decreased by five per cent in the same period.

The huge reduction in funding for family law cases, especially single mothers fighting contact and custody cases, was the subject of a comment in Legal Voice by Marc Lapotin, Low-income mums bear brunt of LASPO cuts

The Ministry of Justice has also released a statistics bulletin covering Court Statistics Quarterly January to March 2014 which highlights, somewhat irrelevantly a three-fold growth in judicial reviews since 2000.

Phone hacking and contempt of court

On 24 June the jury found Andy Coulson, former editor of the News of the World, guilty on count 1 of conspiracy to intercept communications, but returned a verdict of “not guilty” against Rebeka Brooks, another former editor, on this and other counts against her, and against Stuart Kuttner, former managing editor.

NoTW phone (3)However, the jury were still deliberating on two other counts against Coulson and against Clive Goodman, relating to conspiracy to commit misconduct in a public office when, in response to stories in the media about the initial verdicts, the Prime Minister, David Cameron made a statement apologising for having employed Mr Coulson, after he left the News of the World, as his director of communications. Other politicians also made comments about the verdicts already given.

This prompted the trial judge, Mr Justice Saunders, to ask the Prime Minister for an explanation for what appeared to be contempt of court and breach the sub judice rule; and, next day, to issue a ruling in response to an application, by the defence team, for an order discharging the jury.

Having given the matter careful thought, he decided not to discharge the jury, whom he considered sensible enough to discount any prejudicial content in the remarks made by Cameron and others; but he issued a public rap on the prime ministerial knuckles:

That does not mean that I am not concerned about what has happened in this case. I consider that what has happened is unsatisfactory so far as justice and the rule of law are concerned. The press in court have been extremely responsible in their reporting of this case but when politicians regard it as open season, one cannot expect the press to remain silent. I accept that this case is very unusual if not unique, but the situation could occur again and I would urge that discussions take place to try and set up a better system of dealing with it.

Nevertheless, it appears from the explanation given by the PM that he did take some sort of legal advice, it is not clear (yet) from whom, but it was not from the previous Lord Chancellor and Secretary of State for Justice, Kenneth Clarke, who (speaking to the Daily Telegraph) made this somewhat cryptic remark:

“Well, I think I know the source of ‘the best’ legal advice. I’ll have a chat with him and he can correct me in my feeling it would have been wise. I agree with the judge.” He added: “The sub judice rule is not talked about over the breakfast table, even among senior politicians, if they are not lawyers.”

Having expressed his confidence in the ability of the jury to reach a decision in spite of the PM’s blunder, the judge was nevertheless obliged to discharge them anyway – after it became clear that they were not going to reach even a majority decision on Coulson’s and Goodman’s guilt. The prosecution will now have to consider whether to go for a retrial.

The trial, which began last October, has received blanket coverage, some of it rather hysterical. The Murdoch press, unsurprisingly, have highlighted the acquittals, and the cost of the trial, most of which was money spent on the defence, funded by the Murdoch press; while the Guardian, which originally investigated the phonehacking scandal, concentrated on the conviction and – something often overlooked – pleas of guilty already given.

But for a handy summary of who was who and what they were charged with, we recommend the UK Criminal Law blog.

One aspect of the coverage is of particular interest.  The entire trial was covered by Peter Jukes in a feat of live tweeting the like, or at any rate the extent of which, has not been seen before. As reported by the New Statesman, Jukes obtained crowdfunding for a book about the case, and used it to support himself over the seven months of the trial, providing a blow by blow account of the evidence as the trial proceeded, often pipping his more established media rivals at the post with the speed of his updates on significant developments.

The book is being published by Martin Hickman, who was interviewed by the Media Reform Coalition last week, ahead of the verdicts.

For other comments on the case, see

The scandal has been a shameful episode that has revealed the presence of an arrogant political/media class who have been habitually contemptuous of ordinary people. They are still being called to account.

  • James Doleman in The Drum on Phone-hacking trial: Why was Rebekah Brooks found not guilty? (little direct evidence, except the assumption “she must have known” and the fact that she was in charge and should have asked more questions at the time of the most egregious incident, the hacking of teenage murder victim Milly Dowler’s phone).

Wonga woes

A high-interest story this week concerned Wonga, the so-called payday (or “mayday” – only desperate borrowers need apply) lender. To those who failed to pay back on time, Wonga sent letters purporting to come from two solicitors’ firms — “Chainey, D’Amato & Shannon” and “Barker and Lowe Legal Recoveries” — which didn’t actually exist. This came to light in 2011, and the FSA (now FCA) were notified soon after, but not much seems to have happened about the matter until this week, when it was reported that Wonga have undertaken to pay £2.6m in compensation to customers distressed and overcharged by their tactics. (See BBC report.)

The Times calculated that if Wonga had had to pay the same interest on this compensation as they charge their own customers (5,853 per cent per annum), they would have had to pay out £203,000,000,000,000. In fact, the average payout is something like £55, which some commentators think is too low, given that the FCA described the conduct as “very serious”.

Others have wondered whether Wonga could be pursued for fraud, eg Richard Murphy on behalf of Tax Research LLP

The UK Criminal Law blog lists fraud (by false representation, under section 2 of the Fraud Act 2006) as well as other possible offences, including impersonating or pretending to be qualified as a solicitor (under sections 20, 21 of the Solicitors’ Act 1974), blackmail (under section 21 of the Theft Act 1968) or harassment of debtors (under section 40 of the Administration of Justice Act 1970).

It also helpfully provides a link to the original FCA report.

Conservation covenants

The Law Commission published a report on 24 June recommending the introduction of a new statutory scheme of conservation covenants in England and Wales. As the project overview explains:

A conservation covenant is a voluntary agreement between a landowner and responsible body (charity, public body or local/central Government) to do or not do something on their land for a conservation purpose.  This might be, for example, an agreement to maintain woodland and allow public access to it, or to refrain from using certain pesticides on native vegetation.  These agreements are long lasting and can continue after the landowner has parted with the land, ensuring that its conservation value is protected for the public benefit.

Conservation covenants are used in many other jurisdictions, but do not exist in the law of England and Wales.

The report explains how, if introduced, they would work; how (eg by injunction) they could be policed and enforced; and how (by the Lands Chamber of the Upper Tribunal) they could be modified or discharged.

The Full Report includes a draft Conservation Covenants Bill. There is also an Executive Summary.

Law around the world….

Egypt

A sentence of seven years’ imprisonment imposed on three journalists working for Al-Jazeera has caused outrage and consternation around the civilised world – as much, if not more, than that sparked by the imposition of the death sentence on 183 Muslim Brotherhood activists, including its leader, by a court last week. (See Weekly Notes – 20 June 2014).

Given the widely expressed concerns about the fairness of the trials, the independence of the judiciary and the constitutional legitimacy of the present military government, it seems fair to say that Egypt (where this writer’s late father was born) is not currently a place where the rule of law holds much sway. The verdict “defies logic, sense, and any semblance of justice” according to Al-Jazeera.

One of the journalists, Peter Greste, commented in a message to his brothers quoted on twitter. Demonstrations of solidarity and support were made all round the world, often by people showing themselves gagged by black tape across their mouths, as for example in this film of Channel 4 news staff. (A former Channel 4 journalist, Sue Turton, has also been convicted, in her absence, to 10 years imprisonment.)

France

A decision will be given next week (on 1 July) by the European Court of Human Rights in Strasbourg, on the legality of France’s ban on the full-face veil ban, which was the subject of a complaint by a Muslim woman, as reported in Human Rights Europe. We will have more on this next week.

Jordan

Abu Qatada, the radical Muslim accused of conspiracy to carry out terrorist acts in relation to an alleged plot in 1998, has been acquitted by a court in Amman. He was extradited to Jordan a year ago after a treaty had been signed between Jordan and Britain precluding the use of evidence obtained by torture in any trial against him. He is still awaiting a verdict, relating to another alleged plot, which has been adjourned till September, according to report by BBC

For comment on this case, by Jonathan Miller of Channel 4 News: .Abu Qatada’s acquittal is a sign of difficult times in Jordan

Netherlands

Doughty Street chambers, whose members include former DPP Keir Starmer QC as well as a number of those appearing in the recent Nicklinson appeal in the Supreme Court, is opening an office in The Hague, seat of the International Court of Justice.  According to its website:

Doughty Street International – The Hague (DSI-TH) will be the first set of barristers’ chambers to have an office in The Hague, the capital of international law. The opening of an office in The Hague is a logical extension of Doughty Street’s international law practice, which sees some members of chambers permanently based in The Hague with others regularly travelling there to appear before the many international courts and tribunals based in The Hague.

The new office will be headed by John Jones QC from September 2014.

Sudan

Meriam Ibrahim, the woman born of a Muslim father but brought up a Christian by her mother, sentenced to death for the crimes of apostacy and adultery after marrying a Christian in a country which supposedly (under its constitution) protects religious freedom, and who was forced to give birth to her second child while shackled by the legs in prison on death row, having then been released in the wake of international criticism (see Weekly Notes – 30 May 2014), was apparently then re-arrested at the airport by 40 security agents as she tried to leave the country.

According to a BBC report, she was detained because her papers were not in order.

But she was subsequently released again, according to a report in Christian Post, which repeats suggestions in an earlier BBC report that the National Intelligence and Security Service (NISS) in Sudan, had intervened to express its disapproval of the government’s decision to release Meriam.

USA

The US Supreme Court has decided that police officers must first obtain a warrant if they wish to search a suspect’s mobile phone. In Riley v California  “We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime,” Chief Justice Roberts wrote at the close of his opinion. “Privacy comes at a cost.” Full story, The Atlantic. Also, this in The Guardian.

This decision echoes the decision in the Canadian Supreme Court (reported last week in Weekly Notes – 20 June 2014)  that the police needed a judge’s permission before asking internet providers for basic information that would identify their customers. It seems privacy rights are being upheld not just against commercial information gathering by the likes of Google, but also against law enforcement unless it complies with traditional regulatory requirements.

Parish notices

Nominations are invited for the position of Vice Chairman of the Criminal Bar Association (CBA).

Nominations must be received by 4.00 p.m. on Tuesday 1 July 2014. Those wishing to stand must be either Queen’s Counsel or Senior Treasury Counsel. The successful candidate will be expected to take over as Chairman in September 2015, having served as Vice Chairman for the previous year.

New chair for Solicitors Regulation Authority (SRA)

The SRA has named its first non-lawyer chair, Enid Rowlands, an existing member of the board, who will succeed Charles Plant from 1 January 2015. Among other posts, she is currently UK chair of Victim Support and a member of the General Medical Council (GMC). Full story: Legal Futures.

New president at BIALL (the British and Irish Association of Law Librarians) announced: please welcome Marianne Barber.

Full story and updated listed of council members here.

Civil Justice Council launches working group to keep Jackson reforms under review

The Civil Justice Council (CJC) has created a working group that will “consider and advise” the council on issues arising from implementation of the Jackson reforms. The group will be chaired by CJC member Alistair Kinley, a partner and head of policy development at defendant insurance firm BLM, and the only aspect of the reforms beyond its remit is damages-based agreements, changes to which is under consideration by the Ministry of Justice. Full story: Litigation Futures.

101-hole challenge for the Mzimkhulu Trust

Tim Thomas, of 1 Pump Court chambers, was sponsored to attempt to play 101 holes of golf on Monday 23rd June (walking with no cart will be at least 30 miles between 4.45am and 10.15pm) in a bid to raise £3,000 towards the enlargement of the Lorraine Poswa Mzimhulu Pre-School in Lidobe, Eastern Cape, South Africa, and buy a bus so children attending the school don’t have to walk 6 miles to get there.

Established in 1994 the school is the focus of the community in an area that was ravaged by apartheid. Because school age is 6 in South Africa the school is not-funded by the state but children will walk 6 miles just to attend. Many of the children have been orphaned because their parents have died from HIV and many have HIV themselves.

Tim completed the challenge on Monday, but you can still sponsor him after the event: via gofundme.

 

And finally…

From the inimitable Alex Williams’ Queen’s Counsel strip in Times Law, something topically sporting:

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