Weekly Notes: legal news from ICLR – 28 November 2014
Posted on 28th Nov 2014 in Weekly Notes
This week’s selection of legal tales from home and abroad looks at legal aid cuts, litigants in person and their McKenzie friends, and the government’s approach to internet crime and surveillance. Plus plebs at the gate and the five-a-day fruits of law enforcement.
Recent blogs etc of interest:
- David Allen Green on the FT blog, asks What is a ‘policy’ – and what is good policymaking? (A timely question, in view of the main parties’ apparent inability to distinguish between long term policies and short term politics, to which he provides a useful and clearly reasoned answer.)
- Melanie Davidson on the JustCite Blog, on the subject of Tesco’s little difficulty with its sums: Tesco: “every little helps”? Investigating the legal angle in the profits fiasco
- Speaking extra-judicially: On the benefits of foreign law and the dangers of expert evidence, an account on this blog of two recent speeches by members of the UK Supreme Court.
- Julia Powles, in the Guardian: Jimmy Wales is wrong: we do have a personal right to be forgotten (on why the Wikipedia founder’s support for unlimited free speech at the expense of data protection may be misplaced)
War of the Words
Plebgate judgment latest (warning – words unminced)
The conservative MP and former Chief Whip, Andrew Mitchell, lost his defamation action against The Sun, after the judge, Mr Justice Mitting, found on a balance of probability that Mitchell had called PC Toby Rowland a “fucking pleb” in a moment of irascible haste while trying to leave London’s most exclusive gated community on his bicycle. Rowland was not only vindicated in his account of the events known as “plebgate” but won his own defamation claim against Mitchell (for having called him a liar).
The costs (whose budgeting had been the subject of a notorious earlier judgment in the Court of Appeal: see Mitchell v News Group Newspapers Ltd  EWCA Civ 1537;  1 WLR 795) were widely but without much concrete evidence estimated to be in the region of £3m. If so, that’s roughly £1m for each time Mitchell was alleged to have used the word “fucking” during the 11-second argument. Cue the new-look Civil Justice case management practice note, “Legal costs: budget like you give a fuck.”
All right, I apologise. (I’ve seen worse.) In response to the verdict there’s been lots of commentary, as you’d expect. The bit I liked best was on a blog by the name of WTFfashionshark (yes really) who said this:
Some might think that Mr Justice Mittings’s conclusion that PC Rowland had neither the wit nor the imagination as well as the inclination to invent the use of the word “pleb” was more patronising than anything Mitchell said but when you wear a wig you can get away with all sorts.
Moreover, as the Spectator points out,
the police have not emerged from the episode with their reputations unscathed either, given five officers were sacked for gross misconduct and one sentenced to a year in jail for misconduct in a public office.
For a thoroughly detailed look at the whole sorry saga, see Class War by Distant Proxy in The Guardian.
LASPO, LIPs and more on McKenzies
(Careful how you say that.)
A top judge, Lady Justice Elizabeth Gloster expressed herself “horrified” at the vastly increased numbers of Litigants in Person now using the justice system. She made her remarks when speaking at the launch of a report, by the law firm Hodge Jones & Allen, entitled Innovation in Law.
The report looked at changes brought about mainly through the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and interviewed more than 500 senior solicitors and barristers to get a snapshot of the legal professions’ views on the judicial process. More than 80% of them thought things were now worse than five years ago, and over two-thirds would not recommend the law as a career. A particular effect of LASPO had been to swell the numbers of unrepresented litigants. Gloster LJ said:
“I’m horrified at the number of litigants in person [LIPs]. We are trying to provide them with [help]. The large number of LIPs leads to delay and is going to clog up the system. Cases with unrepresented litigants take longer.”
But is she right to suggest that LIPs lead to delay? Another report, published by the Ministry of Justice this week, seems to suggest otherwise.
LIPs or reps – who takes longer?
The MoJ’s report is actually quite self-deprecating in its title, “Experimental Statistics: analysis of estimated hearing duration in Private Law cases, England and Wales”, and description as an “Ad-hoc statistics bulletin”. What it purports to show, according to Family Law, is that hearings where neither party is represented have decreased in duration, compared to hearings where both parties are represented. “Private law” in this context means family law disputes that do not involve public authorities. The research also suggests that full hearings have decreased in average (mean) duration, particularly for hearings in which neither party were represented. Median hearing durations for these hearings have decreased from 300 minutes (2012/13 median) to 180 minutes (2013/14 median).
But as Prof Richard Moorhead points out, on his Lawyer Watch blog, in Litigants in person, never mind the quality – it’s length that counts
In presenting the findings of the research there has been an attempt to say the research shows that hearing times have not increased as a result of Litigants in Person. I do not know if this is the MoJ press office working its magic or the inaccurate interpretation of hard pressed journalists, but it is wrong. The research essentially says the analysis is inconclusive; some kinds of hearings may have increased. And some decreased. But they are not sure. Partly this is because the data is very basic … partly this is because one half of the analysis is based on hearing estimates not hearing times. And partly it’s because the (flawed) numbers they have do not suggest very much.
What does emerge from the report, says Moorhead, is that the number of LIPs has increased, though perhaps not from as low a base as the professions have believed, and the number of private law disputes has fallen by around 20%, as a result of the LASPO changes. But at the end of the day, the length of hearings is not a very relevant yardstick for justice policy.
Moorhead (as he declares) was party to earlier research into LIPs conducted by Liz Trinder, whose report, Litigants in person in private family law cases, was also released this week.
This study was commissioned by the MoJ to obtain evidence of the experience and support needs of LIPs in private family law cases. It is based on research relating to before LASPO came into effect, but was designed to help inform policy after the legal aid changes.
The reports makes various recommendations, including both the adoption of a more inquisitorial procedure by judges, and that
LIPs’ needs for emotional support can best be met by the admission of ‘volunteer’ (family member/friends/third sector) McKenzie Friends.
Professional – but unqualified: the ProMac phenomenon
This brings us to another, somewhat thorny, topic. The apparent willingness of the Legal Services Board (LSB), which promotes ever more stringent regulation of the legal professions it oversees, to promote, through its Consumer Services Panel (CSP) the idea of professional (ie fee-charging) but substantially unregulated, McKenzie friends.
According to Legal Voice (Justice Watch), Playing the man, not the ball:
given the devastating impact on ordinary people left to fend for themselves in our courts, how did lawyers respond to the prospect of a new trade association for McKenzie friends? The Society of Professional McKenzie Friends was formed earlier this year after the Legal Services Consumer Panel asked for greater self-regulation. The group has met twice, the Law Society Gazette reported. The Gazette seemed to read significance into the choice of venue for those meetings – ‘both times in the offices of the panel’. Cue a predictable outbreak of harrumphing from readers in the comments section…
But as the Gazette reporter John Hyde observed,
We should at least welcome attempts to self-regulate, with the new society for McKenzies insisting on PII cover and accreditation. It’s not much, but it’s a start.
The article goes on to suggest that the right solution might be to compete on price, but surely that would lead to a race to the bottom? At some point, professional services cost money. Overheads include the cost of proper training, proper regulation, and proper insurance. But if the money isn’t available, and the courts are as exasperated as Gloster LJ about LIPs and their need for assistance, maybe the professional McKenzie stopgap will gain greater favour – and respectability – as time goes on.
What would be interesting would be a comparison of the average length of similarly complex proceedings as conducted by (a) professional representatives, (b) LIPs, and (c) professional McKenzies (or ProMacs as we may learn to call them). Only then might we get some idea of the impact of LASPO on the legal landscape.
The only way is Ethics
Whilst we’re on the subject of regulation, the Solicitors Regulation Authority has recently called for a “major consultation on ethical values” with both lawyers and the general public next year. According to Legal Futures, SRA chief executive Paul Philip announced this week that he was keen to have a debate about
“What can you expect from us and what can the public expect in terms of terms of trust, confidentiality and most importantly integrity?
Mr Philip added that members of the public expected solicitors to be “a bit more ethical” than ordinary people, as well as more ethical than accountants.
Hmm. That suggests there might be a sort of pecking order of ethical expectations, begging the question of where judges, barristers and, in another part of the universe, estate agents, might come in the public’s perception of professional integrity. Or indeed journalists. I merely throw that out, as a topic for further discussion.
Social media offences: AG speaks out
Though speaking in somewhat Ladybird reader terms, a fresh-faced looking The Rt Hon Jeremy Wright QC MP (left) made a sterling effort to sound really quite well briefed and “with it” on the subject of “Navigating the legal challenges of exploiting social media and user-generated content” at the IBC Legal Conferences’ 8th Annual Social Media Law Conference.
Many may wonder how a group that regularly wear wigs and gowns to work keep up with the inexorable expansion of the internet and social media into our everyday lives.
Social media provides a remarkable platform for individuals to publish to huge audiences at the touch of a button, and, it allows publication without editorial oversight or censorship. However, with that capability comes responsibility and the potential to break the law in ways many individuals may not anticipate.
There’s more in this Look and Learn mode, as he gets down to discussing how the government plans to “navigate” the legal issues involved in four overlapping areas:
- revenge pornography;
- internet trolling;
- freedom of speech; and
- contempt of court in the digital age.
He explains that although some of these may sound like scary new developments (“revenge pornography … is an incredibly cruel breach of trust”) they are in reality just a different version of something that the law has long had to deal with. Where now we have revenge porn and trolling, in days of yore we had poison pen letters and people being rude to telephone operators, to deal with which predecessors of the Communications Act 2003 were passed. Nevertheless, where a message needs to be sent, the government is ready to provide a “bespoke offence” or increase the maximum sentence for an existing one.
He concludes, in singular fashion:
What I want to emphasise today is that, whilst there have been many challenges along the way, those within the criminal justice system has not stood by as social media has moved on and left them behind.
Unfortunately, that is exactly the attitude it (they?) sometimes seem(s) to convey.
New words: media (plural).
Law (and injustice) around the world
Court sentences 78 children to jail
Acourt in the Mediterranean city of Alexandria has sentenced 78 teenage boys to between two and five years in prison for taking part in Muslim Brotherhood rallies calling for the return of ousted president Mohamed Morsi, according to the Guardian, quoting judicial sources.
Egyptian authorities classified the Muslim Brotherhood as a “terrorist organisation” last December.
This follows other mass sentencings for alleged terrorist offences, in some cases to the death penalty, of opponents of the current regime in Egypt, whose record on human rights is now worse than it was before the so-called Arab Spring. See, eg, Weekly Notes – 7 November (and indeed many earlier editions, for barely a week goes by when we don’t have something about injustice in Egypt in this blog).
On a slightly more positive note, however, the Guardian also reports that
the parents of jailed the Australian journalist Peter Greste have cautiously welcomed news of a possible pardon by Egypt’s president, but warn that nothing has been finalised.
Juris and Lois Greste spoke to the media on Friday, shortly after the Egyptian president, Abdel Fatah al-Sisi, said he would consider releasing the al-Jazeera journalists – including Greste – who have been jailed in Cairo for nearly a year.
Police anti-rape advice appears to blame victims
A short information film entitled “You can do something about it, you can do something against it”, produced by police in Baranya County, Hungary and premiered on November 21, has been widely criticised for appearing to blame victims for male violence against them. It reiterates the “asking for it” message that Hungarian women should not invite rape by drinking, flirting, dressing scantily, or dancing suggestively. Common sense as this may be, it appears to avoid the obvious point that rape is best avoided by men not doing it. And that in many cases, rape victims are not drinking, flirting, dressing down or dancing, they’re actually running away or screaming.
The clip, which was released to mark the International Day for the Elimination of Violence against Women, was meant to be a public service announcement, but in the words on one commentator (in The Atlantic) it “smacks more of satire”. (Slightly unfortunate choice of words there.) The same article also points out that Hungary’s ranking in the World Economic Forum’s gender-equity ranking, which measures the quality of life for women around the world, has fallen from 55 in 2006, to 93 this year. “Sure, the number of ranked countries expanded from 115 to 142 during that same period, but the trend is not encouraging.”
Lydia Gall of Human Rights Watch also commented, saying
As shocking and victim-blaming as these campaigns are, the attitudes that underlie them don’t surprise me. They are consistent with findings of a 2013 Human Rights Watch report on domestic violence in Hungary.
During my research for that report, women victims of domestic violence in Hungary complained to me about hostile and negligent police behaviour, including incidents where police would blame the women for the abuse they were subjected to by their partners. Women told me that when they reached out to the police for protection against an abusive partner the standard response was that “unless blood flows” there was nothing police could do. These women lost confidence in the willingness of police to help them.
Since the report was published, the Hungarian government has signed the Council of Europe Convention on the Preventing and Combating Violence against Women (although it has yet to ratify it). And the police have published training materials on domestic violence for students at police colleges.
But these videos show that a lot more work is needed to change attitudes within the police, and to give women who experience violence the confidence to come forward and seek help.
Sedition Act retained and reinforced
The widely criticised law, which makes it illegal “to bring into hatred or contempt or to excite disaffection” against the government or the country’s royalty, was enacted in 1948 when Malaysia was still a British colony and was facing a Communist insurgency. In 2012 the prime minister, Najib Razak, said he would get it repealed.
Yet in a recent speech to his political party he has now said the law would instead be reinforced with new provisions, including one “to protect the sanctity of Islam and other religions.” This year alone, about a dozen prominent people have been charged with violating the Act, according to the New York Times.
The development appears to be part of a trend towards Islamisation of the country’s legal system, originally protected since independence by its Constitution, also drafted by English lawyers, under which freedom of religion and religious worship is protected. In a number of controversial recent decisions the courts have given increasing prominence to Sharia compliant laws and courts, for example denying Muslims the right (apparent under the Constitution) to convert out of their faith.
Incidentally, this week members of the Malaysian Bar are meeting at Inner Temple, with which they retain strong links. We hope to bring more news of this next week.
New law will block sites with more than one copyright infringement
Under a stringent anti-piracy measure first proposed by President Vladimir Putin in 2013 and signed into law this week, websites which have been found to have committed more than a single copyright infringement, will be permanently blocked. But there appears to be a risk of sites being blocked, extra-judicially, even on suspicion of infringement, according to Future of Copyright, which commented:
The bill, which is the second version of several new anti-piracy measures that were introduced in Russia in the last year, has been under severe scrutiny by Internet companies and online freedom activists, including representatives from search engine Yandex and the Russian Wikipedia. An online petition against the amendments had already gathered 100.000 signatures in August, calling for a governmental review of the law. Thus far, the Russian government has ignored the petition.
It’s worth pointing out that copyright infringement and piracy are major problems in Russia, which (as FoC points out) is one of the countries listed on the priority watch list for worst copyright offenders in 2014’s ‘Special 301 Report’ by the Office of the U.S. Trade Representative.
Women not equal to men, says President
In a bid to outdo for political incorrectness Hungary’s inappropriate police warning video, President Recep Tayyip Erdogan has marked the approach of International Day for the Elimination of Violence against Women by declaring, at a women’s conference in Istanbul shortly before, that
You cannot put women and men on an equal footing. It is against nature. “
“In the workplace, you cannot treat a man and a pregnant woman in the same way.
He also said feminists did not grasp the importance of motherhood in Islam, according to the BBC report. Mr Erdogan has previously urged women to have three children, and has lashed out against abortion and birth by Caesarean section.
The BBC added, by way of explanation:
The Turkish leader often courts controversy with his statements. Earlier this month, he claimed that Muslims had discovered the Americas more than 300 years before Christopher Colombus.
Scores of activists in the United Arab Emirates (UAE) have been harassed, arrested and in some cases tortured in custody according to a new report by Amnesty International that sheds light on the repressive tactics widely used by the government to silence its critics.
The report, entitled “There is no freedom here”: Silencing dissent in the United Arab Emirates (UAE) can be downloaded as a PDF.
Anyone who has been to Dubai, for example, as a team of us from ICLR did in 2011 for the International Bar Association’s Annual Conference, will know that the place bears all the appearance of modernity, in terms of architecture and infrastructure, yet culturally it is somewhat at odds with this futuristic vision, struggling (not very effortfully) to modernise attitudes which seem to belong, in our eyes, to the middle ages. It is a place where female victims of male violence are not just blamed for their misfortune (see Hungary, above) but are actually prosecuted, eg for fornication, etc. Yet it’s also an international centre for commercial arbitration.
Amnesty International’s Deputy Director for the Middle East and North Africa Programme, Hassiba Hadj Sahraoui, confirmed this disturbing duality:
Beneath the façade of glitz and glamour, a far more sinister side to the UAE has emerged showing the UAE as a deeply repressive state where activists critical of the government can be tossed in jail merely for posting a tweet. Those targeted include lawyers, university professors, students and civil society activists, some of whom are linked to the Reform and Social Guidance Association (al-Islah), a peaceful grassroots organization that the government claims has links to Egypt’s Muslim Brotherhood. The clampdown has also targeted their family members.
The clampdown dates back to a petition signed in 2011 calling for democratic change. I think this may explain why, by the time of the IBA conference in October, things had changed for the worse, so that some events advertised by the IBA could not take place, and some delegates were harassed and obstructed even within the conference centre itself. In that year, notwithstanding the country was hosting one of the most prestigious global legal conferences, the authorities dissolved the boards of both the UAE’s independent Jurists’ Association and Teachers’ Association.
As the report notes, despite a provision in the Constitution, which guarantees the independence of judges, the judiciary is not independent. In February 2014, the United Nations (UN) Special Rapporteur on the independence of judges and lawyers issued a statement following an official visit to the UAE, in which she expressed concern that the UAE’s judicial system remains under the de facto control of the executive branch of government. The President appoints the Prime Minister and all judges of the Federal Supreme Court, subject to approval by the Federal Supreme Council, and the Council of Ministers, whose members are mainly drawn from the seven ruling families.
In short, there’s considerably more transparency in the famous aquarium in the biggest shopping mall in the world, at the foot of the world’s tallest building, the 829-metre high Burj Khalifa in Dubai (see image) than there is in its system of government.
And finally, this week’s slightly silly story
USA: a banana for justice
A comedian in Colorado, USA has been arrested for threatening police officers with a banana. He appeared to reach for a gun – which was yellow and edible. Nevertheless two officers were sufficiently apprehensive for their own or the public’s safety to consider Nathan Channing a threat, and they arrested him. As quoted by the Daily Telegraph:
“Based on training and experience, I have seen handguns in many shapes and colors and perceived this to be a handgun,” officer Joshua Bunch wrote in his affidavit. “Nathan by physical action, knowingly placed Deputy Love and I in imminent fear by use of an article fashioned in the manner to cause us to reasonably believe it was a deadly weapon.”
The newspaper article concluded, drily,
Other unconventional weapons in the United States in recent months have included a burrito, which was used by Travis Micho to assault a worker at a care home in Hayden, Idaho.
All I’d say at this point, to anyone thinking of doing the same, is for heaven’s sake use your loaf.
That’s it folks. Have a great weekend. And don’t forget to sign up for weekly Case Law Updates. Click here for this week’s alert.
This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR. It does not necessarily represent any views of ICLR as an organisation.