Weekly Notes: legal news from ICLR – 4 August 2014

Posted on 4th Aug 2014 in Weekly Notes

The ICLR’s weekly roundup of legal news from home and abroad resumes after a brief holiday, with tales of legal aid, legal hindrance and a legal (omni)shambles, among other topical matters.

And don’t forget:

Legal Aid turns 65

The Legal Aid and Advice Bill received Royal assent on 30 July 1949, notes Legal Voice’s Justice Watch newsletter, which means that last week “our system of publicly-funded law (or what’s left of it) has reached retirement age”. The anniversary was marked mostly by observations as to how much the system of funding has been cut, or by complete (or perhaps embarrassed) silence, eg on the part of the Ministry of Justice.

In A Devastating Momentum, Jon Robins examines the rolling impact of the legal aid cuts in the New Law Journal, commenting:

The view from the frontline is unsurprisingly bleak. Ahead of the Justice Select Committee’s first LASPO evidence session earlier this month, Citizens Advice revealed in the 12 months immediately prior to last April’s cuts, its network of bureaux had provided specialist advice in approximately 136,000 cases. Funding has been cut for approximately 120,000 of those cases…

Cuts to legal aid have created “an advice gap stranding people with nowhere to turn”, said Gillian Guy, chief executive of Citizens Advice. You could call it “the justice gap”. “At precisely the time when people’s need for specialist advice on issues such as housing and welfare increased, provision for this support has been slashed,” she said.

The cuts and associated changes, such as the outsourcing of interpreting services, have played havoc with court services. In one recent case, a Crown court judge asked a defence barrister to trawl the Chinese restaurants of Cardiff to find an interpreter after Capita, the company contracted to provide translators, failed to do so on two occasions. Apparently Capita was unable to find a Mandarin speaker to represent the defendant, the Gazette reported. (It’s worth pointing out, however, that most restaurant staff are Cantonese, who speak a different dialect, and who read and write traditional rather than simplified characters.)

The state of legal aid in other countries was the subject of an article by Jonathan Goldsmith in The Gazette.

We know that the state is retreating from its obligations everywhere. Some welcome that – although there is an obvious penalty for those less able to cope. We see the retreat in all areas of what were previously considered governmental responsibilities. We in the UK are not alone in our experience; nor is Europe alone.

Indeed not. There have been similar issues, involving cuts or inadequate spending, in Australia, New Zealand, and Canada.

Google Spain – still not forgotten

A search on google for “right to be forgotten” brings up “About 205,000,000 results”, of which the top three seem to be ads for services dedicated to what one might call “reputational hygiene”. To the many commentators who have already flooded the internet with their views, both for and against the effect of the ECJ’s decision in Google Spain SL v Agencia Española de Protección de Datos (AEPD) (Case C-131/12); [2014] WLR (D) 202, ECJ, the following have recently been added:

The case arose out of links on google to news stories in a Spanish newspaper, and the relationship between google and the newspapers has now been the subject of legislative intervention in Spain (and elsewhere) affecting the scope for including links to news items and snippets of the sort which might be the subject of taking down applications (just as in the Google Spain case).  In effect, what has happened is that Spain has passed a law which enables publishers belonging to the  Association of Spanish Newspapers the right to charge a fee to anyone who adds “meaningful fragments” of description to content when they link to it. The effect is

“designed to prevent copyright infringements by news aggregators such as Google News who are seen as benefitting by including a few lines of description when they link to a news article.”

Apparently Germany is introducing similar legislation, which some experts have suggested could put the kybosh on routine linking via Facebook, Twitter and blogs. If true, that would be pretty devastating. However, it presumably depends on the relevant publisher deciding to charge people to quote bits of their copyright content in descriptive links to their content, and I do wonder whether any publisher would be so daft as to do that. One can insist on a proper link and/or acknowledgement, but to charge people for providing free advertising for your product (in the absence of flagrant abuse) seems, well, a bit perverse.

For more on this:

Links to news stories are the raison d’etre of roundups such as Weekly Notes, and although the internet needs to be policed and regulated, it should not be inhibited from doing what it does best, which is making useful information easily accessible.

Blog citation

How does one cite a blog posting in a law report? Though it is not the first time a judge has cited a comment in a blog in his judgment – that distinction we believe goes to Lucy Reed’s Pink Tape blog, cited anonymously as “a legal commentator’” by the President of the Family Division, Sir James Munby, in P (A Child) [2013] EWHC 4048 (Fam) at [27] –  the issue has cropped up again with a blog post by Paul Bowen QC, on the UK Human Rights blog, on the subject of the “totally without merit” (TWM) bar to judicial review, which was cited by Maurice Kay LJ in R (Grace) v Secretary of State for the Home Department [2014] EWCA Civ 1091 at [12]; [2014] WLR (D) 249, CA.

In his article in April 2013, Bowen said, in words quoted verbatim by Maurice Kay LJ, that a

” … finding of TWM should not be made unless the claim is so hopeless or misconceived that a civil restraint order would be justified if such applications were persistently made.”

The Court of Appeal (as reported in the WLR Daily) decided that

The proper test to be applied by the Administrative Court under CPR r 54.12(7) when considering certifying an application for permission to proceed with judicial review as “totally without merit” was whether the claim was bound to fail. There was no requirement that the claim be shown to be abusive or vexatious.

The correctness of that decision (which will soon be reported in the Weekly Law Reports) was the subject of discussion on this Twitter thread.

Phone hacking trial

Two books on the eight-month long News of the World phone hacking trial (see Weekly Notes – 26 June, for verdicts, and Weekly Notes – 4 July for sentencing) will provide those with an insatiable appetite for the case with summer reading. They are:

At some point we will review these.

Law around the world

Afghanistan

Mullah rapist offers to marry ten year old girl victim to save her from honor killing by her own family.

According to the report in the New York Times,

It was bad enough that the alleged rape took place in the sanctity of a mosque, and that the accused man was a mullah who invoked the familiar defense that it had been consensual sex.
But the victim was only 10 years old. And there was more: The authorities said her family members openly planned to carry out an “honor killing” in the case — against the young girl. The mullah offered to marry his victim instead.
The accused mullah, Mohammad Amin, was arrested and confessed to having sex with the girl after Quran recitation classes at the mosque on May 1, but claimed that he thought the girl was older and that she responded to his advances.
The girl’s own testimony, and medical evidence, supported a rape so violent that it caused a fistula, or a break in the wall between the vagina and rectum, according to the police and the official bill of indictment. She bled so profusely after the attack that she was at one point in danger of losing her life because of a delay in getting medical care.

Short of murdering girls for wanting to be educated, it’s hard to think of a worse example of “traditional values” (if you can call them that) displacing not just progress but the rule of law itself.

France

A French blogger was ordered to pay damages because the title of her negative review of a meal at a restaurant was unfairly prominent in google search results. Ms Caroline Doudet was sued by the owner of Il Giardino restaurant in the Aquitaine region of south west France after she wrote a blog post entitled “the place to avoid in Cap-Ferret: Il Giardino”. The judge ordered that the blog’s title should be changed, so that the phrase: “the place to avoid” was less prominent in the results, and awarded damages to the restaurant, not because of the article itself, but solely because its title (coupled with her following of 3,000 readers) which apparently caused the article to gain unduly high rankings on a search for the restaurant on google.

Full story: BBC 

see also: Global Voices Online 

Greece

Two farmers, who admitted shooting 28 Bangladeshi migrant workers when they had the temerity to ask for their back pay as strawberry pickers, were acquitted by a Greek court. The verdict caused outrage and was widely criticised by trade unions and politicians.

Two of the attackers, including the farm owner, were acquitted; while two others were found guilty and jailed, one for 14 years, 7 months, and one for 8 years, 7 months, but both were freed pending appeal.

Full story: Guardian 

Thailand

A British human rights defender has been sued for libel and prosecuted by Thailand’s Natural Fruit Co after filing a report exposing allegations of modern day slavery in Thailand’s canned fruit and fishing industries. Andy Hall wrote a report for Finnwatch entitled Cheap has a high price, in which he alleged widespread violations of migrant workers’ rights in Thailand’s fishing boats and factories and in agricultural and construction work.

The International Transport Workers’ Federation (ITF) has now damanded that the proceedings against Hall be dropped and described the trial as “a national and international embarrassment” for Thailand. Full report: Guardian.

United States of America

The American legal system is well known for its ludicrous damages payouts, determined by jurors whipped into a righteous frenzy of punitive retaliation against corporations who seem callous in the face of single or group action plaintiffs’ claims. But even so, the award of $23.6bn to a single plaintiff wife of a former smoker who died of lung cancer, against the tobacco company RJ Reynolds for its negligence in failing to inform consumers of the health risks of its products, makes you gasp and stretch your eyes.

The plaintiff, Ms Robinson, brought the action in 2008, seeking compensation for the deaath of her husband, Michael Johnson Sr, from lung cancer in 1996, according to the BBC report.

“RJ Reynolds took a calculated risk by manufacturing cigarettes and selling them to consumers without properly informing them of the hazards,” Ms Robinson’s lawyer Willie Gary said.

“We hope that this verdict will send a message to RJ Reynolds and other big tobacco companies that will force them to stop putting the lives of innocent people in jeopardy,” he added.

Yet again, the law is seen as a messaging service, using damages, legislation and so forth as the medium. Well, with apologies to Simon & Garfunkel,

God bless you please, Ms Robinson / Heaven holds a place for those who, er, claim…

No doubt the appeals court will adjust the balance of retribution.

Parish notices

Some interesting judicial appointments

The Queen has been pleased to approve the appointment of the following as Lord and Lady Justices of Appeal: Mrs Justice King, Mr Justice Sales, Mr Justice Bean and Mr Justice Burnett. These appointments will fill forthcoming vacancies in the Court of Appeal arising in autumn 2014, following the retirement of Sir Alan Moses, Sir Colin Rimer, Sir John Goldring and Sir Maurice Kay.

Andrew Jeremy Coulter Edis QC, is to be a Justice of the High Court with effect from 1 October 2014 on the retirement of Mr Justice Owen on 19 July.

Judge Alison Jayne McKenna, currently Principal Judge (Charity) within the General Regulatory Chamber of the First-tier Tribunal, will also become President of the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal, with effect from 8 September 2014.

And in other judicial  news

we gather (from the Twitter) that media law supremo Warby J, appointed to the High Court Bench last term, is to hear the Mitchell libel action (without a jury) this November. Book your seats now (no plebs please). In a recent interlocutory judgment Warby J ordered three preliminary issues to be heard in the two actions (one brough by Andrew Mitchell against The Sun newspaper; the other brought by PC Rowland against Mr Michell): see Mitchell v News Group Newspapers Ltd [2014] EWHC 2615 (QB).

The Mitchell case is already infamous by reason of an earlier interlocutory judgment of the Court of Appeal concerning costs budgeting and relief (or lack of it) from sanctions: Mitchell v News Group Newspapers Ltd (Practice Note) [2013] EWCA Civ 1537[2014] 1 WLR 795; [2014] 2 All ER 430; [2013] WLR (D) 466, CA. The consternation to which this gave rise in the civil procedural circles led to the need for “clarification” and “further guidance” from the Court of Appeal in three cases heard together and reported as Denton v TH White Ltd [2014] EWCA Civ 906[2014] WLR (D) 299, CA.

For a slightly less than respectful survey of the background and ramifications of this litigation, plus copious other posts, links etc, see Kerry Underwood, Mitchell Revisited: Superomnishambles in Court of Appeal

Legal career moves

Meanwhile Sir Keir Starmer QC, former Director of Public Prosecutions, has confirmed that he will be standing in the next election as a parliamentary candidate for Labour.

Full story: Gazette

And with Vacation time upon us, thoughts naturally stray to holiday destinations such as islands in the southern seas where time stands still and the bustling Temple must seem a world away. If that’s your frame of mind, you might like to consider applying for the Dream Job of the month, Attorney General of St Helena, South Atlantic, via Legal Week Jobs.

A sub-tropical island of spectacular and beautiful landscapes in the South Atlantic with a warm and friendly population of 4,000, St Helena is a self-governing overseas territory of the UK, poised for transformation with the construction of an airport due to be operational in early 2016.

As Attorney General you will be principal legal adviser to the Governor and Governments of St Helena, Ascension and Tristan da Cunha. You will be responsible for all criminal proceedings and be the nominal party in civil litigation by or against the Crown. In addition, you will have overall responsibility for legislative drafting and for keeping laws up to date.

And finally…

A rather arresting picture, marking this month’s centenary of the start of the First World War, via @MajorPaulSmyth on twitter.

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