Weekly Notes: legal news from ICLR – 27 May 2016

Posted on 31st May 2016 in Weekly Notes

This week’s roundup of legal news and comment deals with crime, sentencing and legal services, among other matters. Best enjoyed over a cup of tea or coffee.

Law Com logoSentencing

Law Com paper on transition to New Sentencing Code

The Law Commission this month published their report, A New Sentencing Code for England and Wales: Transition – Final Report and Recommendations (Law Com No 365). It’s part of an ambitious but long overdue project to codify sentencing procedure in a new sentencing code, following a series of consultations, the first of which was launched on 1 July 2015. As the introduction to this report explains, at [1.9] and [1.10]:

 

the aim of the project is to introduce a single sentencing statute that will act as the first and only port of call for sentencing tribunals regarding the procedure to be followed at the sentencing hearing.

The current law is an impenetrable thicket, contained in hundreds of separate provisions scattered across dozens of statutes. … The provisions are often overlapping, technical and complex. They all have different commencement and transition dates, which are calculated from different points in the process (date of conviction, sentence and offence are three common ones).

Not surprisingly, all this has led to problems, including delay and errors in sentencing, causing additional costs, and leading to unfairness to defendants and confusion in the minds of victims and the general public. The complexity also impedes the rational development of the law.

The project, which is designed to reform the law in England and Wales (it has no application in Scotland or Northern Ireland) is currently intended to proceed in three phases.

  1. Transition to the New Sentencing Code and consultation on the scope and comprehensiveness of the commission’s compilation of the current law.
  2. Consultation on the appropriate structure for and the actual content of the draft new Code.
  3. Securing and preserving the coherence and comprehensiveness of the Code.

This report is concerned with the question of transition. One of the causes of the present complexity of the law on sentencing is that when changes are made they are often brought into effect in a piecemeal way, at different times for different classes of case, rather than in a consistent and obvious way. The proposed solution was first to gather together all the provisions concerning sentencing procedure in one place; secondly, to apply the new Code to all cases falling to be sentenced after its date of commencement, by way of a “clean sweep”. However, there are problems of retroactivity associated with this approach, as well as other problems. Hence the consultation. This paper analyses the responses to the consultation on the issues of transition, examines the practical implications of the clean sweep approach, and makes a number of recommendations.

You can READ THE REPORT HERE.

 

Slip rule stingback

One of the consultees who responded was Lyndon Harris, listed as editor of the text book Current Sentencing Practice and of the Criminal Appeal Reports (Sentencing). (No doubt his response was: “What do you mean simple logical sentencing code – are you trying to put me out of a job?” (I jest)). But Lyndon is also one of the editors of the UK Criminal Law Blog, so we’re wondering whether they might comment on this paper. If so, we’ll add a link.

While we’re on the subject of sentencing and that blog, readers of a karma disposition might enjoy its latest post, by Lyndon’s fellow editor Dan Bunting, on the case of R v Sledden & bro. The post is entitled Man who told Judge to ‘suck my cock’ after sentence loses appeal, which rather gives the game away (though we are certainly not talking about a brace of pheasant), but the details of the case demonstrate the stupidity of those who post on social media without realising that it is a bit like nailing your articles to the door of the local court. It follows an earlier post, by Lyndon, entitled Defendant who told judge “suck my cock” on Facebook to be re-sentenced.

The Sledden brothers appeared in front of HHJ Lunt for sentence for cannabis dealing in February 2016. They both received 2 years, suspended for 2 years, on the basis of expressions of remorse paraded in court. As the blog explains:

Daniel Sledden got out of Court and posted on Facebook –“Cannot believe my luck 2 year suspended sentence beats the 3 year jail yes pal! Beverly Lunt go suck my cock.”
Samuel commented “Bet we wouldn’t get a chance like this agen [sic], thumbs up’.”

Er, yeeeahs. Problem is, these days a lot of journalism consists of bored hacks or interns trawling the social net for anything goofy to “report” as “news” in their tripefeed. So this was picked up as something newsworthy along with “Celebrity goes shopping and we have no idea what she bought because she used a non-branded shopping bag, the crafty bitch” or “Man drinks pintz and fallz ova lols”. 

The posts quoted above having been brought to her Honour’s attention, the two defendants were brought back to court, where the judge corrected their sentence, under the “slip rule”, to two years immediate imprisonment. They appealed but the Court of Appeal were having none of it. The original sentence was based on a false expression of remorse, as demonstrated by the “disgraceful” posts on Facebook, and the judge was entitled to correct the sentence under the slip rule (which allows the court to re-visit the sentence within 56 days of the original sentence). The judgment transcript does not appear to be available yet, but when it is we will put in onto ICLR Online, along with all the other recently released CA Crim judgments (and those from other senior courts).

 

Crime

Reporting restrictions

The Judicial College, in association with the Society of Editors, the Media Law Association and the News Media Association, have now reissued their April 2015 guide to Reporting Restrictions in the Criminal Court. The May 2016 revised fourth edition supersedes the April 2015 version and previous editions. The amendments chiefly relate to proceedings involving children, to emphasising the role of restrictions aimed at protecting the interests of children and victims and to improving the chances of rehabilitation, and to changes in the law which have come into effect since the previous version. You can read the revised version on the Judiciary website (PDF). 

 

McKenzie Frenzy (contd)

Professional Friend or Amateurish Foe?

The deadline for the Lord Chief Justice’s consultation on Reforming the Courts’ Approach to McKenzie Friends has been extended to 9 June.

We don’t know whether that is due to a lack of responses (in the hope of getting more) or an underestimation of the number of responses, leading to a longer processing time altogether. But several interested parties have already responded publicly with their views on some of the questions raised, notably the question whether McKenzie Friends (defined in the consultation as non-lawyers providing reasonable assistance to litigants-in-person (LIPs) in respect of legal proceedings) should be barred from charging money for their services (whatever those services might be).

On the question of charging, both the Legal Services Board (the regulators’ regulator) and the Solicitors Regulatory Authority (which regulates solicitors) came out this week against any sort of ban, according to the Law Society Gazette.

The LSB argued that there was not enough evidence that their existence was harming consumers. The LSB’s consumer panel issued a report in April 2014, in recommending that professional McKenzie Friends should get their own trade association and be recognised as “a legitimate part of the legal services market”, but that they should not require to be regulated. (See also, for background, McKenzie Frenzy: Regulating the Irregulars on this blog.)

The SRA apparently said that a blanket fee ban would mean litigants in person ‘may not get access to support, even where there are no quality issues’ and that the ban would prevent even charities making a small charge for administrative overheads in providing voluntary assistance.

In an article in Counsel magazine (Friendly Advice?the Bar Council’s head of policy: legal affairs, practice and ethics, Sarah-Jane Bennett, said:

Our current view is that there is already a sufficiently variety of regulated legal professionals, including barristers, who are able to meet market demand in flexible and accessible ways and who provide qualified, regulated and insured legal services. Adding another layer of regulated professionals will not be in the interests of the client or the court, and will not, therefore, be in the public interest of the interests of justice. …

Consequently we are inclined to agree with the proposal put forward in the judicial consultation … that remunerated Mckenzie Friends should not generally be permitted to exercise rights of audience.”

Also commenting recently:

  • Nicholas Diable, who blogs as The Defence BriefNo to a ban on fee charging McKenzie Friends (expressing his strong reservations about the LSB’s position, including from a criminal perspective, and pointing out that, but for strangulating cuts in legal aid, most people given the choice would prefer a properly qualified, insured and regulated lawyer. “But when somebody is conducting a business you have to ask yourself why have they not managed to qualify as a solicitor if they have sufficient legal skills to resolve this problem?”)
  • Giles Peaker, who blogs as Nearly Legal, on Legal Voice: Clients are at risk of getting burned by straw ‘legal services’ providers (pointing out that it’s not just in family law that McKenzie friends can operate, and highlighting the risk of self-styled but unqualified “lawyers” dealing with landlord and tenant work).

The other salient issues for decision are

  1. Whether the term McKenzie Friend should be changed to Court Supporter, as recommended by the judiciary, or some other term. (I admit my views on this have changed since my earlier post, and now think using a new term such as Court Supporter would, by sweeping aside all the myths and confusion that have grown up around the obscure old terminology, help to standardise and clearly define the limited role such a person can play.)
  2. Whether the existing Practice Guidance should be replaced with rules of court or updated Practice Guidance. (In my view Rules of Court would wrongly legitimise an unregulated profession through a sort of quasi-legislative back door. The proposed draft is poorly (and over-complicatedly) worded. A simple revision of the judicial practice guidance should be sufficient, even if the name is changed.)

 

Civil Practice

Unbundled services and non service of bundles

The LCJ’s working group on the McKenzie Friend consultation (above) has been convened by Mrs Justice Asplin, who has been in other legal professional news recently – for allegedly killing off the concept of “unbundled” legal services (by solicitors, at any rate) in her judgment in Sequence Properties Ltd v Patel (unreported) 18 May 2016.

According to the news report in the Law Society Gazette (there is also a summary on Westlaw / Lawtel) the judge refused the defendant’s application for leave to appeal  against a costs order imposed for the late filing of an appeal bundle that was not served on the opposing party, because of the applicant’s “serious failure” in serving the appeal bundle nine days out of time, and for not serving it on the claimant as required. Asplin J found that that although the defendant was apparently acting without a solicitor on record, and had instructed counsel by direct access shortly before the appeal hearing, he had previously had the assistance of a solicitor through ‘unbundled services’. It was not a case in which relief from sanctions ought to be granted.

Though the transcript is not yet available, the case appears to have set alarm bells ringing:

the fact that it was framed with reference to the unbundled legal services being a factor in finding against the LiP is seen as highly significant. ‘It sends a signal that people should be very cautious about accepting unbundled retainers,’ one solicitor told the Gazette.

Parish Notices

LALYs awards

The shortlist of Legal Aid Lawyers of the Year Awards has been announced. They include the barrister who will be the next director of Liberty; a carpenter-turned-housing-caseworker; and the solicitor who won an historic victory at the Supreme Court in the Jogee joint enterprise case. You can read the full list here

 

Judicial appointment

There has been general approval and rejoicing at the announcement that Sir Terence Etherton, currently Chancellor (ie Head of the Chancery Division) is to succeed Lord Dyson as Master of the Rolls. However, the way it has been greeted in certain (non legal) quarters indicates the extent to which judicial diversity seems to be a matter of quite irrelevant perspective. Thus while The Guardian announced that “Britain’s first openly gay judge becomes master of the rolls“, the Daily Mail chose to concentrate more sportingly on the fact that “Ex-Olympic fencer Sir Terence Etherton to become Master of the Rolls” and Jewish News noted with pride that “Jewish judge Sir Terence Etherton rises to second-top position in England“, perhaps overlooking the fact the the top judge positions of Lord Chief Justice and President of the Supreme Court have already been occupied by Jewish men. (What we have yet to have, in any of these top posts, is a woman. So if diversity is your brief, or beef, let’s not get too excited just yet.)

Coming from a legal perspective, we have been more interested in Sir Terence’s qualities as a lawyer, and in some of the cases he has decided. One that’s been drawn to our attention (by Barbara Rich, of 5 Stone Buildings) as being interesting or controversial is Cobbe v Yeomans Row Management Ltd [2005] EWHC 266 (Ch), a case of proprietary estoppel by conduct. In that case the Sir Terence’s decision at first instance, that a developer could rely on proprietary estoppel to enforce an unwritten agreement by the owner to sell property on which he had then spent money in applying for planning permission, though affirmed by the Court of Appeal, was ultimately reversed by the House of Lords. The anecdotal interest stems from the conduct of the defendant owner who “later painted her house in red & white stripes” after another planning dispute: see Independent, Disgruntled Londoner has revenge on neighbours who objected to her basement extension by painting her house in bright stripes (though to be fair none of this can be laid at Sir Terence’s door, or wall.)

 

Law (and injustice) from around the world

Bolivia

New law allows transsexuals to change ID documents

The Telegraph reports that Bolivia has passed a gender identity law allowing transsexual and transgender people to change their name, sex and photo on official and private documents. The law had been opposed by Christian churches. LGBT associations welcomed the law.

 

India

Inconsistency in rape law

India’s penal code currently provides by s 375 that  “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape”. But by s 377 a husband can be guilty of “unnatural sex” with his wife. This can be used to criminalize marital rapes. The inconsistency has now been brought to the attention of the government following a petition  filed by a man, accused of committing unnatural sex with his wife, seeking that reference be sent to the Delhi High Court as the uncertain and unsettled position of law infringes the rights of a couple.

Source: Economic Times of India

For more on the inconsistencies in the code, see Nandita Saikia, What Indian Criminal Law Says of Marital Rape

See also this thread on Twitter

 

USA

Obama signs bill eliminating ‘Negro,’ ‘Oriental’ from federal laws

The PBS News Hour reports that after it was unanimously passed with 380 votes, President Barack Obama signed H.R. 4238, which amends two federal acts from the ’70s that define “minorities” with terms that are now insensitive or outdated.

The Department of Energy Act has for decades described “minorities” as, “a Negro, Puerto Rican, American Indian, Eskimo, Oriental, or Aleut or is a Spanish speaking individual of Spanish descent.”
The new bill changes the language to, “Asian American, Native Hawaiian, a Pacific Islander, African American, Hispanic, Puerto Rican, Native American, or an Alaska Native.” There’s also similar language in the Local Public Works Capital Development and Investment Act.

The word “negro” has not been used in UK primary legislation since the Finance Act 1908 (according to what I can discover using an n-gram on the www.legislation.gov.uk website) and its use in secondary legislation was only in relation to a placename in the South Shetland Isles in The Antarctic (Amendment) Regulations 2003. As for “oriental” the number of uses has been greater, but not generally as a human characteristic. (For example, the description “Oriental bluefin tuna” appears in the The Fish Labelling (England) Regulations 2010.)

 

That’s it for now. My thanks to all who led me to stories, mostly my followees on Twitter.

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.