Weekly Notes: legal news from ICLR — 27 February 2017
Posted on 27th Feb 2017 in Weekly Notes
The theme of this week’s roundup of legal news and commentary is the Law and the Press, but we’ve included some other topical material, including important new draft legislation, and the quest for a new Lord Chief Justice.
HC Culture, Media & Sport committee slams press over regulatory failure
IPSO granted year-long extension to comply with Leveson Report — yet another last chance saloon?
Wander into the long grass these days and you might trip over any number of things (such as the British Bill of Rights, the third runway at Heathrow, and the HS2 rail project) among which, it now seems, Leveson-compliant press regulation, like a rusty old supermarket trolly, may be now be found.
That, at any rate, must be the hope of the Independent Press Standards Organisation, or IPSO, a body set up by the press, funded by the press and intended to (self) regulate the press, in the wake of the Leveson Inquiry into the conduct of the press following the phone-hacking and other mainly tabloid newspaper scandals.
The Leveson Inquiry Report made a number of recommendations about how the press should be regulated. Following its recommendations, a Royal Charter was granted to a body known as the Press Recognition Panel (PRP, though it should really be called the Press Regulator Recognition Panel) to assess and approve an independent press regulator. Late last year they recognised one such regulator, IMPRESS, as being wholly Leveson-compliant. IPSO is not recognised by the PRP nor does it wish to be, partly because it regards the Royal Charter and PRP route as a form of backdoor state or statutory regulation. It also points to the fact that the charity which funds IMPRESS is in turn funded in large part by Max Moseley, an individual who has fought the press in the courts and won substantial damages. He is therefore seen as an Enemy of the Press, or at any rate a vested interest. But he is not the state, nor does he represent the state. And IPSO can hardly be considered independent given that it is funded by the very publishers it regulates, and its Editors’ Code committee is stuffed full of industry personalities.
To enforce Leveson’s recommendations Parliament enacted provisions in the Crime and Courts Act 2013 including section 40, which imposes potentially punitive costs provisions on any publisher that does not belong to an approved regulator, but protectively caps the costs of any publisher that does. This section has not yet been brought into force: it was initially dependent on the PRP approving a regulator (subsection (6)) but since that has now happened, the appropriate minister, the Secretary of State for Culture, Media and Sport (Karen Bradley MP) must find another excuse to put it off. This she did by announcing that the government would “take stock” of press regulation by issuing a public consultation. The consultation closed on 10 January. Apparently, there were 140,000 responses, though the majority of these would appear to have been pro-forma click-n-sign jobs issued by the interested parties (IPSO and IMPRESS) as part of their public awareness campaigns.
The consultation (which we reported earlier in Weekly Notes — 23 January 2017) asked two questions: (1) whether the section 40 costs provisions should be brought into force; (2) whether to proceed with the second part of the Leveson inquiry (into misconduct by the police and press and questions of corporate governance). For more detail, see the Transparency Project blog, Press regulation: what are we waiting for now?
Last week, the cross-party House of Commons Culture Media and Sport Committee responded to the Department’s consultation. They suggested:
If the vast majority of newspapers and magazines continue to refuse, on principle, to accept regulation under the terms of the Royal Charter, then the government should create an alternative path, that would allow IPSO to become established as the preferred body to take responsibility for the self-regulation of the press.
However for this to be achieved, the committee believes that IPSO needs to make substantial progress in establishing a low cost arbitration scheme to consider complaints against the press, to increase the resources at its disposal to launch investigations, and to fund a campaign to inform the public about how and where to make complaints to IPSO.
If IPSO can make the necessary reforms to become compliant with the spirit of the Leveson recommendations, then the government should repeal the provisions within Section 40 that relate to the awarding of costs in court cases taken up against the press.”
The committee recommended that IPSO be given a year to make itself Leveson-compliant in the arbitration department, failing which section 40 should be enacted. Needless to say, the press reported this as a big win for self-regulation over what they unfailingly refer to as Moseley-funded regulation (boy, does Max get under their skin!). But the committee’s report [pdf] is worth reading in full because it is far more sceptical and critical of the unrepentant press than this one-year free pass would appear to suggest.
It notes at paras 15, 19 and 22:
 In response to the Secretary of State’s consultation, there was a high-profile campaign by the press protesting over the Royal Charter process, which they argued was the imposition of “state-backed” regulation. Some of the arguments put forward were, in our view, unconvincing and misleading…
 It appears to us that the press finds itself again confident of resisting substantial change four years after the Leveson Inquiry. […] By comparison, it is not clear to us why broadcasters should have to adhere to the Broadcasters’ Code and regulation by Ofcom but the press be allowed to define their own terms vis-a-vis the public.
 All of us are of the view that the press have been allowed enough time to create a fully Leveson-compliant regulator; it has chosen not to do so.
IPSO’s reprieve depends on it successfully getting people to use its low-cost arbitration scheme, the pilot version of which it has rather hurriedly been promoting in recent weeks. The problem is that no one seems to want to use it.
IPSO Editors’ Code consultation
Meanwhile, IPSO also launched a consultation, on the contents of its Editors’ Code. It’s chair, Sir Alan Moses (a retired Lord Justice of Appeal) said:
“The Editors’ Code of Practice is the cornerstone of IPSO’s contractual agreement with the press and is the document by which we determine whether standards have been breached by any of the two thousand publications we regulate. However, the Code cannot stand still and needs to evolve. A trusted, thriving and free press is vital to our national discourse and I encourage anyone with a view on how the press is regulated to respond to the consultation.”
The consultation was launched on 1 December 2016 and the deadline for submitting a response is the Friday 3 March 2017 — the end of this week. However, on 20 December 2016 IPSO announced it was launching a new edition of its Editors’ Codebook, which incorporates and explains the Editors’ Code.
So without waiting for anyone to respond to the consultation on what it should contain, IPSO has simply republished its Editors’ Code in its existing form. This is hardly an encouragement to engage with the consultation as Sir Alan exhorts us.
Anyone nevertheless wishing to respond should do so via this link.
You may wish to comment also on IPSO’s Rules and Regulations (2013), which govern the way complaints are handled (or not handled), and which are not particularly easy to find on IPSO’s website.
Facebook feed was contemptuous
Lord Denning MR called the court reporters in the press bench the “watchdogs of justice” and reported cases are replete with references to the importance of open justice and the need for justice to be “seen to be done”.
Scott v Scott  UKHL 2;  AC 417
R v Sussex Justices, Ex p McCarthy  EWHC KB 1;  1 KB 256, 259 per Lord Hewart CJ
That does not, however, entitle any member of the public to report court proceedings in any manner they see fit. In particular, it does not enable someone to live-stream a criminal trial on Facebook as someone called David Davies did in Cardiff last week, in breach of section 41 of the Criminal Justice Act 1925 (which forbids photography from a court hearing), for which he was sentenced the next day for contempt of court and jailed for 28 days (according to the BBC).
This case highlights the need for vigilance in ensuring not only that courts, including the online court (see Legislation below) are transparent and subject to proper public scrutiny, but also that the public is educated and understands not only what goes on in the courts, but the rules and restrictions that apply to their access to them.
For regular weekly analysis of good and bad court reporting, sign up to the Transparency Project’s weekly roundup.
See also Inforrm’s weekly roundup of media law matters.
Wanted: new Lord Chief Justice
As well as six new Court of Appeal judges (Lords Justices of Appeal or LJJ) the Judicial Appointments Commission (JAC) is advertising for a new Lord Chief Justice, to replace Lord Thomas of Cwmgiedd on his retirement later this year, and a President of the First-Tier Tribunal, Tax Chamber.
The salary for LJJ is £204,695 per annum and the deadline for completed applications is 6 March. But if you haven’t applied yet, it’s too late as the deadline for notice of intention to do so was last Friday. However, you still have time to apply for the post of President of FTT (salary £144,172) the deadline for which is 9 March and LCJ (salary £249,583), the deadline for which is 27 April.
There has been some speculation over who will be appointed, and also about a rule change that precludes anyone aged 66 or over from applying — thus, at a stroke, eliminating two of the prime candidates, Sir Brian Leveson, President of the Queen’s Bench Division, and Lady Justice Hallett, both now 68.
The rules require any candidate to be able to serve a four-year term, and this combined with the compulsory judicial retirement age of 70 ruled out anyone aged more than 65.
Joshua Rozenberg QC pointed out on Twitter that this would also exclude Fulford LJ but he presumably wasn’t considering the post as he is on the selection panel. Also, he must have his hands full helping to steer the HMCTS Reform programme that will be bringing us the much-vaunted Online Court over the next five or six years. (See also: Justice Online: just as good? Joshua Rozenberg on the online court.)
Leveson, Hallett (and Fulford) ruled out for appointment as next Lord Chief Justice. Need to serve at least 4 years. https://t.co/bil0OEUHOP
— Joshua Rozenberg (@JoshuaRozenberg) February 24, 2017
The Guardian, commenting on the surprise rule change, noted with interest how:
Upper age limits for judges have been coming down – from 75 to 70 – while the age limits for jurors have, conversely, been rising. Last December, members of the public became liable for jury service up to their 75th birthday.
The imposition of a compulsory retirement age of 70 does seem a waste of often considerable accrued judicial wisdom, but there are problems when no such (arbitrary) limit is imposed. Justices of the US Supreme Court are appointed for life, which can lead to problems if they fail to acknowledge their own failing mental or physical capacity, as these two posts* by American legal commentators have pointed out:
- John Dean, on FindLaw: When Supreme Court Justices Refuse to Retire
- Jonathan Turley blog: Through Addictions to Dementia: Supreme Court Justices Have Refused to Step Down — The Need for Reforming the Supreme Court
* With thanks to Barbara Rich for flagging these up during a Twitter discussion of this topic on a rainy Saturday afternoon (the fun we have!)
Prisons and Courts Bill
The Government published a major new piece of draft legislation intended to reform the prison system, curb some perceived abuses of personal injury litigation and to make provision for the online courts which have been the subject of consultations and various public lectures in recent months.
I have not had time to read the bill but it has been the subject of this analysis by the Transparency Project (with particular attention to open justice and family law):
The government has published a bill that covers prison safety and reform; court reform; the judiciary; and whiplash compensation. Of relevance (or potential relevance) to transparency and courts access in a family court context is Part 2 of the bill, which creates new procedures in civil, family, tribunal and criminal matters. Proposals include ‘virtual’ hearings via video or telephone conferencing and the creation of a new online procedure rules committee that will be able to create new online procedure rules in relation to the civil, tribunal and family jurisdictions. Here are some preliminary observations:
Virtual hearings: Part 2 concerns provisions for virtual hearings. It will enable criminal and civil courts and tribunals to make directions to live-stream a hearing, which is not taking place in a physical courtroom. Additionally, the Government intends to make it possible for these to be viewed by members of the public and media using a screen in a court building.
Offences of ‘recording or transmitting’: The Explanatory Notes accompanying the Bill explain that legislative provision is required to create offences that protect participants and prohibit ‘recording or transmitting live-streamed proceedings photography and sound recordings in the context of virtual hearings and live-links’. They mirror existing offences in physical courts under Section 41 of the Criminal Justice Act 1925 (prohibitions on photography in courts) and the Contempt of Court Act 1981 (prohibiting the making of unauthorised sound recordings).
A government factsheet on open justice here confirms the measures will extend to all courts (civil, criminal and family) and tribunals.
Online listings: The Bill appears to contain no direct mention of online listings, though makes reference to these in the explanatory notes (paras 33-34), saying that the Government intends to ‘maintain’ transparency by ‘regularising listings and publishing results online’.
(In its consultation on ‘Transforming Our Justice System’, the Ministry of Justice touched on the prospect of publishing online listings and results for online convictions but without providing full detail. In response to the consultation, the Transparency Project group raised concerns about the lack of detail provided and mentioned issues that need further open consultation in relation to transparency and access, as well as privacy and data protection. See post here.)
See Prison and Courts Bill: What do plan mean for courts access here for more information.
(More widely reported in the legal and other press are the provisions to prevent cross-examination in family courts of domestic violence accusers by their alleged attackers. See for example the Solicitors Journal report here).
Dates and Deadlines
ICLR Pupillage Award
Last year we launched our pupillage award to support a barrister training in a set of chambers focusing primarily on publicly funded case work, and being paid no more than £14,000. This year, that limit has been raised to £18,000. Applications open on 1 March and must be submitted by the end of that month.
Old Bailey retrials
Forever Trial and Error. March 13-15.
Annual fundraising revue devised by His Honour Judge Peter Rook QC, involving re-stagings of famous trial scenes in the court (Court No 1 at the Central Criminal Court) where they were originally tried. Details.
Family Law Bar Association
The Annual Dinner took place on 24 February but we mention it here because Philip Marshall QC’s chairman’s speech is now available, and includes a lovely tribute to the later Sir Nicholas Wall, former President of the Family Division, whose sad death we reported last week.
See also this tribute by Wall’s successor, Sir James Munby, on the Judiciary website:
Professionally and personally he was known for his precision, clarity and commitment to openness and transparency with a parallel dislike for euphemisms, secrecy and obfuscation. He spent much of his life challenging stigma and speaking professionally and publicly and with great humanity about subjects that others found difficult or emotionally challenging. Those of us who enjoyed the privilege of working with him, appearing before him, sitting together with him on the Bench, mourn the loss of a good man, a great family lawyer and an immensely valued colleague.
(Let’s hope this link remains good, though we have had problems linking to items on the Judiciary website in the past, owing to their habit of moving content around and failing to provide adequate redirect facilities.)
Law (and injustice) from around the world
Journalists barred from WH press briefings
Following a speech at the Conservative Political Action Conference (CPAC) on Friday in which President Trump was highly critical of those sections of the media which were critical of him, and which he called “fake news” organizations, his press secretary Sean Spicer announced that reporters from The New York Times, BuzzFeed News, CNN, The Los Angeles Times, Politico, the BBC and The Huffington Post among others would be shut out of his daily press briefing.
The ban caused a storm of protest among those excluded, and many were incensed not only by the selective ban, but also by the failure of those NOT banned to demonstrate solidarity with their banned fellow (albeit rival) reporters. However, reporters from Associated Press and Time decided against attending the briefing in protest of the exclusion of other news outlets.The Washington Post did not have a reporter present at the time of the “gaggle” (as it is called).
The ban may prove counterproductive and bodes ill for democracy, which depends on a free and responsible press. That means fair regulation, not random censorship. Nothing daunted, and perhaps before his own invitation could be rescinded, President Trump tweeted his intention NOT to attend the annual press dinner. (see Tweet of the Week below).
For more on this see
- New York Times, Trump Intensifies His Attacks on Journalists and Condemns F.B.I. ‘Leakers’
- New Yorker, Can the White House Pick its Press?
- Washington Post, CNN, New York Times, other media barred from White House briefing
Poison plot at the airport
In what appears to have been a carefully plotted assassination, Kim Jong-Nam, the half-brother of the North Korean president, Kim Jong-Un, was poisoned at the airport in Kuala Lumpur. Earlier this month, North Korea launched yet another missile test — during the Japanese prime minister, Shinzo Abe’s visit to the United States to chew the fat with president Donald Trump. The result has been a good deal of nervousness and scrutiny.
In an article on the Lawfare blog, The North Korean Missile Launch, the Assassination of Kim Jong-nam, and the U.S.-China Relationship, Stephen Haggard examines the political ramifications of these recent events.
Journalists’ (not so) jolly
Here’s a good moot question. Someone on twitter writes: “Any journalist claiming Sweden is safe; I will pay for travel costs & accommodation for you to stay in crime ridden migrant suburbs of Malmo”.
Someone else, believing they conform to the conditions (that they are a journalist, that they claim Sweden is safe), responds with a tweet saying “Paypal please”. By the time he does so, however, the original tweeter has already agreed to fund one journalist for a trip to Malmo.
The question is, does the first tweet constitute a contractual offer, intending to create legal relations, and not merely a puff or invitation to treat; and does the second tweet constitute acceptance thereof? If so, would the original tweeter be in breach of contract if he refused to honour the acceptance by the second tweeter of his alleged offer?
The background to all this was the bizarre statement of President Donald Trump in a speech in America asserting that there had been a terrorist atrocity in Sweden when it transpired that there hadn’t. See Reuters, Trump baffles Sweden with crime comment, says it was based on TV report
But Sweden may nevertheless not be the completely tranquil paradise for refugees, nor free of racist resentment of immigrants generally, as it is sometimes portrayed as being. See the Boston Globe, How wrong was Trump about Sweden?
There have been quite a few other, generally conservative news sources, making the same point. Sweden has immigrants and sometimes they make trouble. And sometimes, even if only by accident, Trump’s pronouncements coincide with reality.
Be that as it may, the Moot question described above may actually come to court: a crowdfunding application has been launched to fund a claim by someone whose attempt to accept the tweeted offer was rejected. Make of it what you will. It’s been the subject of a good deal of discussion on Twitter.
Threat to list gay people
Dr Hamisi Kigwangalla, a deputy health minister in the East African nation has been accused of homophobia and abusing the right to freedom of expression online after proposing to publish the names of suspected homosexuals. Homosexual acts are illegal in Tanzania and punishable by up to 30 years in jail. He argued that homosexuality could only be associated with an urban lifestyle. He said that in the small town in central Tanzania where he came from, there were no homosexuals.
Dr Kigwangalla’s outspoken comments on Twitter follow the health ministry’s move last week to suspend the activities of 40 drop-in HIV/Aids clinics, accusing non-governmental organisations of using them to promote gay sex.
Full story: BBC, Tanzania threat to list gay people
German court refuses extradition request
German Higher Regional Court of Schleswig-Holstein (the Schleswig Court) recently found that extradition requests from Ankara are currently inadmissible. According to a guest post on the Fair Trials blog by Dr. Anna Oehmichen,
Following the attempted coup earlier this summer, the Turkish authorities have arrested and detained thousands of journalists, judges, prosecutors, lawyers and human rights activists suspected to be somehow involved in the insurgency. Emergency provisions, currently in force at least until January next year, are seriously undermining fair trial safeguards and protections against the risk of torture in detention, as recently denounced by an international coalition of civil society organisations, including Fair Trials. A recent report published by Human Rights Watch on 25th October 2016 confirms the torture allegations facilitated by the Emergency Decrees.
And finally … Tweet of the Week
Please make this happen. pic.twitter.com/djq9DBW2ht
— Nick Harvey (@mrnickharvey) February 25, 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.
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