Weekly Notes: legal news from ICLR – 5 December 2014
Posted on 5th Dec 2014 in Weekly Notes
This week’s roundup of legal stories from home and abroad includes a cutting critique of the MoJ, an “unlike” for the way Facebook is being blamed for a murder, a faker’s shakeup of criminal convictions and an immigration lawyer’s bear-faced cheek.
UPDATED 8 December 2014.
Recent writings of interest:
- Carl Gardner, on Head of Legal, reports (with full recording) the recent speech of former Attorney General Dominic Grieve QC MP on Why it matters that Conservatives should support the ECHR
- Martin Downs on UK Human Rights blog, Inherently Uncertain: Is there authority for that? Questions over Birmingham’s Grooming Injunctions
- Mark Elliott, on Public Law for Everyone, The Justice Secretary on Judicial Review: Five Basic Misconceptions
- Review of Kathy Lette’s novel Courting Trouble, on this site
Legal Aid Cuts – An evidence-based approach (not)
Amazing admission by chief civil servant at MOJ
Ursula Brennan, permanent secretary to the Ministry of Justice, told the House of Commons public accounts committee (PAC) on 4 December that the coalition government’s decision to cut £300m from the legal aid budget was ‘imperative’ and was therefore implemented without first gathering any evidence about the best way to do it or the likely effects it would have.
Brennan is quoted (by John Hyde in the Gazette) as saying:
‘The piece of evidence that was overwhelming was the level of spending. The evidence required was that government said we wish to cut the legal aid bill.’
The article goes on to say Brennan “rebutted the opinion that the measure had denied people access to justice”. I think the word “rebutted” here is wrong. She may be in denial, she may opine to the contrary, but it is unlikely that she could have actually disproved such an opinion, which is supported by a good deal of evidence (such as the findings of the National Audit Office) and the opinion of people (such as judges) who have rather more frontline experience of where justice is and isn’t being made available.
In its report the NAO said
the Ministry’s implementation of the reforms to civil legal aid cannot be said to have delivered better overall value for money for the taxpayer.”
It recommended that
The Ministry should develop measures to evaluate the impact of the reforms more fully, including estimating any wider costs to the courts system.
Sadiq Khan MP, Labour’s shadow secretary of state for justice, said:
“This damning report by the National Audit Office completely exposes David Cameron’s reckless assault on access to justice for what it really is; bad value for money and leaving hundreds of thousands without proper legal advice.”
In response to that soundbiting critique, the obvious question (and one which a lot have been asking) is: if Labour get into power, will they reverse the cuts? Answer, so far, has been unforthcoming.
And if they don’t, and George Osborne still has his hand on the tiller (rocks ahoy!), will he actually implement the 60% further cuts across all unprotected departments that he promised this week? If so, the MOJ will be expected to slash and burn the justice system still further.
One hopes, though, they might look at the matter in a slightly more evidence-based way. After all, a common complaint about the way it’s been done so far is that the net effect has been to increase waste and expense in other areas, eg by doubling the time taken to hear a case because the clients have no lawyers to help clarify their arguments – an idea not dispelled by Ad hoc stats attempting to show that without lawyers cases take less time (perhaps because you don’t need to go into all those pesky legal issues on which the proper administration of justice depends).
Of course, you could achieve the same objective in the NHS by keeping the surgeons but cutting out all the anaesthetists. You know what they say… No pain, no gain!
Blaming the messenger
It happened on our watch. So let’s blame Facebook
The investigation by the Intelligence and Security Committee (ISC) chaired by Sir Malcolm Rifkind MP into what was known by the intelligence services about the background and intentions of the murderers of Fusilier Lee Rigby identified a number of failures by the security services, but in the end suggested that it might all have been prevented not by the security services doing their jobs properly but by a third party, mysteriously referred to as “the company” (but quickly identified as Facebook), who should have spotted a dodgy exchange of views and alerted the (apparently uninterested) security services to it.
So in para 15 of the Report issued on 25 November, the committee states:
We have identified a number of processes that require improvement, as well as evidence that MI5’s and SIS’s traditional attitudes and preferred approaches would benefit from re-examination. The Agencies must ensure that these lessons are learned.
But then, in para 19, they appear to transfer the blame to “the company on whose [social media] platform the exchange [in which one of the murderers expressed an intention to kill a soldier] took place” without actually naming Facebook:
The party which could have made a difference was the company on whose platform the exchange took place. However, this company does not appear to regard itself as under any obligation to ensure that its systems identify such exchanges, or to take action or notify the authorities when its communications services appear to be used by terrorists. There is therefore a risk that, however unintentionally, it provides a safe haven for terrorists to communicate within.
Responding to the report on behalf of Liberty, director of policy Isabella Sankey said:
“This Report catalogues staggering Security Service failures in dealing with the men responsible for this horrific crime – countless missed surveillance opportunities; delayed investigations, dumping dangerous citizens abroad and ignoring allegations of MI5 mistreatment.
“The ISC shamefully spins the facts seeking to blame the communications companies for not doing the Agencies’ work for them. But the findings speak for themselves – the UK anti-terror strategy is counterproductive and failing on almost every level; yet tomorrow the Government will offer more of the same.”
Commenting in The Conversation blog (Blaming Facebook for Lee Rigby’s murder is nonsense), Ray Corrigan, senior lecturer in technology, said:
Happy though I usually might be to criticise Facebook or big tech – if more for their own anti-privacy practices than their lack of co-operation in counter-terrorism – it’s a bit of a stretch to suggest a giant beam of enlightenment would have engulfed the security services if Facebook had only shouted loudly enough, “look at this!”.
They were already aware of extreme views expressed by Adebowale on the net – and even Adebolajo, considered the more dangerous of the pair, was providing no continuing indication of a national security concern.
He adds that for the government to exploit the soldier’s death for political ends is “unconscionable” and observes:
Of course, with an election round the corner, we should hardly be surprised that party managers might be encouraging senior figures to ramp up their “tough on terrorism” rhetoric. The sad thing is to see how the media has uncritically swallowed the “blame Facebook” mantra hook, line and sinker.
However, it seems not everyone in government agreed with the ISC either, as is apparent from an article in the Guardian, Facebook isn’t to blame for failing to prevent Lee Rigby murder, says [Nick] Clegg. The article quotes Richard Barrett, a former counter-terrorism chief at MI5 and MI6 as saying:
“even in the United Kingdom there are about 25 million users of Facebook and so let’s say possibly about 125m posts a day. And even if you take out all the pictures of kittens which were put up you’d still be left with an awful lot to go through and then quite a percentage of those perhaps would be passed on for the police or security services to look at. So it would be an enormous task, I think.”
The report and what it failed to disclose or discover are also the subject of an article in the Independent, Lee Rigby murder: Were we told the whole truth? Includes a useful timeline.
Right to light
Law Commission paper
Following consultation conducted over the last couple of years, the Law Commission has now published its final Report on Rights to Light (Law Com No 356), which contains recommendations for reform. These include:
- A statutory notice procedure which would allow a landowners to require their neighbours to tell them within a specified time if they intend to seek an injunction to protect their right to light, or to lose the potential for that remedy to be granted; and
- A statutory test to clarify when courts may order damages to be paid rather than halting development or ordering demolition.
Book ban banned
Court overturns ban on prisoners receiving books by post
Last month, the Justice Ministers made an important concession in the fight for books for prisoners, with an easing of the rules over how many books are allowed in cells. Now, the High Court on a judicial review, has ruled that the ban on receiving books in parcels was unlawful: see Regina (Gordon-Jones) v Secretary of State for Justice  EWHC 3997 (Admin). We hope to provide a summary of this in due course, but here is a link to analysis of the judgment by Politics UK.
UPDATE: quick summary of the judgment.
The claim challenged the lawfulness of Prison Service Instruction (PSI) 20/213 which amended the Incentives and Earned Privileges Scheme (IEP) which has been in effect since 1995. The challenge related to what were said to be unlawful restrictions on the ability of prisoners generally, and the claimant in particular, to receive or possess books. The justification for the change, which included books in a more general ban on receiving parcels, was said to be part of a system of making prisoners work towards their own rehabilitation. Prisoners can possess up to 12 books in their cells; subject to that maximum, they can buy books using cash subject to weekly spending allowances depending on their level, ranging from £4 (Basic) to £25.50 (Enhanced). Prisoners can borrow books from the prison library, and books not already in stock may be ordered in without cost to the prisoner, but the availability of these facilities is variable across the prison estate.
Collins J giving judgment accepted, at paras 18-19, that there was no intention to prevent prisoners having access to books and the policy did not go as far as the ban on books for prisoners described by some critics. The question was whether the severity of the restrictions was to amount to an effective ban on reasonable possession of books. Moreover, books for study would generally need to be owned, not just loaned (paras 20, 36).
The assertion, by the first defendant, in responding to concerns raised by the Poet Laureate about the alleged ban, that prisoners could always buy books “using their prison earnings or money sent in by relatives” was somewhat misleading, his Lordship said at para 23, since it seemed to indicate that such money could be used with no constraints, whereas in reality prisoners could only spend within their weekly limit, no matter how much was sent to them by relatives or friends.
What was objected to here was the virtual ban on receiving books since they were not given any special consideration, despite their value to rehabilitation. The key paragraphs in the judge’s decision to grant judicial review on this issue are paras 35 to 38 and 46, in the last of which his Lordship says:
46. For the reasons I have given, I am satisfied that in so far as it includes books in IEP schemes PSI 30/2013 is unlawful. It is perhaps worth noting that the PSI refers to the obtaining by prisoners of privileges. In the light of the statement made about the importance of books and the absence of any intention to prevent or interfere unreasonably with prisoners being able to have access to books, to refer to them as a privilege is strange. As I have said, I am concerned only with books. The precise extent of any relief or court order I will leave to submissions of counsel. I would only say that the removal of books from the items included as earnable within the IEP, and excluding them from the items which cannot be sent or brought in should suffice. The volumetric limit will apply and is likely to put a limit on the numbers a prisoner can have in his or her possession and 12 as a usual limit is not at all unreasonable. Equally, there will remain restrictions on the number of parcels a prisoner can receive. The amendments will not be extensive and will in no way undermine the new approach in the PSI.
The word “strange” has been highlighted by critics of the policy. It is certainly a setback (another one) for the Secretary of State for Justice. No doubt he will want to appeal, and my guess is that he has a good chance of succeeding.
It is worth adding that other claims failed: at paras 41 to 45 of the judgment, his Lordship rejected challenges to the policy under article 8 (right to private and family life) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and under the public sector equality duty, and the challenge against the second defendant prison governor’s exercise of discretion (since he was bound to act in accordance with the policy).
Feikh Shake-up of past cases
CPS to provide disclosure packs where safety of conviction may be undermined
On 4 December the Crown Prosecution Service announced that it had been investigating cases both current and past in which Mazher Mahmood, the News International investigative journalist known as the Fake Sheikh, had been involved as a key prosecution witness, in the light of a judge’s finding that he had probably lied on oath in another case.
(See Weekly Notes – 14 November and 8 August.)
Having disclosed that three current prosecutions have effectively been halted, the CPS spokesperson continued:
“We are now considering past cases which resulted in a conviction in criminal courts in England and Wales based on evidence provided by Mr Mahmood, and have identified 25 cases. As part of this process, over the coming weeks, CPS Areas will be contacting representatives of the defendants – or defendants themselves as necessary – convicted in these cases in order to provide them with a disclosure pack – details of material which they may consider undermines the conviction in a specific case.
There are further details of the statement on the CPS website. The item concludes with a warning about the risk of prejudice – because Mahmood, just like the subjects of his stories, is entitled to a fair trial.
“Care should be taken when reporting matters relating to Mr Mahmood to ensure it does not affect the fairness of future proceedings as a police investigation in remains ongoing.”
Legal Essay Competition
Law students, trainee solicitors, pupil barristers and junior lawyers (current, prospective or inbetween stages) are invited to enter the Law Society’s annual Graham Turnbull essay competition.
This year’s essay title is:
“The roots of many of our basic rights go back to the Magna Carta whose 800th Anniversary is being celebrated in 2015. Given this important legacy, to what extent would proposals to repeal the Human Rights Act 1998 and pull out of the European Convention on Human Rights impact on the protection of human rights in the UK and around the world?”
The first prize is £500 and the deadline for entries is 13 February 2015.
New Shadow Attorney and Solicitor General
Lord Willy Bach is to be new shadow attorney general following the decision by Islington MP Emily Thornberry to step down following the furore over her ‘white van’ tweet. According to the BBC, Lord Bach is a former legal aid barrister who has served as a junior minister in the Lord Chancellor’s Department, the Ministry of Defence, the Ministry of Justice and the Department for Environment, Food and Rural Affairs. Lord Bach describes himself on Twitter as “still fighting the good fight against legal-aid cuts”.
Karl Turner, MP for Hull East, becomes shadow solicitor general, while retaining his role as an opposition whip.
Law (and injustice) from around the world
Dissident jailed for tearing up royal snapshot
Middle East Eye reports that an opponent of the current government, Zainab al-Khawaja, whose activist father is serving a life term, has herself been sentenced to three years in prison for insulting the king by tearing up a photograph of him. The Bahrain court, where she was convicted in October, has also fined her $8,000.
“Amnesty International is calling for this and all of Zainab al-Khawaja’s other convictions to be quashed and all outstanding charges to be dropped,” said Said Boumedouha, deputy director for the Middle East and North Africa. “If she is imprisoned on the basis of this conviction, Amnesty International will consider her a prisoner of conscience and campaign for the authorities in Bahrain to release her, along with her father Abdulhadi al-Khawaja and all the other prisoners of conscience languishing behind bars,” said Boumedouha.
(Not knowing much background about Bahrain, the CIA website proved useful. )
Blogger death penalty “shocking” say lawyers
On 24 November Iran’s Supreme Court upheld a criminal court ruling sentencing Soheil Arabi to hang for the crime of sabb al-nabbi, or “insulting the prophet,” which carries the death penalty, after he had shared Facebook posts containing what the authorities regarded as offensive content. Arabi’s legal team has now asked the judiciary to suspend the death sentence and review the case. Human Rights Watch has lobbied for the sentence to be vacated.
“It is simply shocking that anyone should face the gallows simply because of Internet postings that are deemed to be crude, offensive, or insulting,” said Eric Goldstein, deputy Middle East and North Africa director. “Iran should urgently revise its penal code to eliminate provisions that criminalize peaceful free expression, especially when they punish its exercise with death.”
Vahid Moshkhani, Arabi’s lawyer, told Human Rights Watch that instead of upholding or overruling the lower court verdict, the Supreme Court unlawfully added the charge of efsad-e fel arz, or “sowing corruption of earth,” to Arabi’s case. In addition to carrying a possible death sentence, the charge also forecloses the possibility of amnesty, he said.
Withdrawal of ICC case against Kenyatta
Prosecutors at the International Criminal Court (ICC) in The Hague have withdrawn charges of crimes against humanity against Kenya’s President Uhuru Kenyatta, reports BBC.
He had been indicted in connection with post-election ethnic violence in 2007-08, in which 1,200 people died.
With a show of reluctance, the chief prosecutor, Fatou Bensouda,on Friday filed a notice withdrawing allegations against the president, Uhuru Kenyatta, said The Guardian. She accused the Kenyan government of harassing and intimidating potential witnesses. The prosecutor’s office said the Kenyan government had refused to hand over evidence vital to the case.
Fergal Gaynor, the lawyer representing the victims, told Al Jazeera the Kenyan government had done their utmost to obstruct the case.
“Frankly the victims have been trying to get justice in Kenya, and failed. They tried to get justice from the ICC, and they failed. It is a sad day for them,” he said.
But Mr Kenyatta, who had denied the charges, said he felt “vindicated” and “relieved” at the dropping of charges. Kenyan Foreign Minister Amina Mohamed said their government would try to have two other similar cases thrown out including one involving Deputy President William Ruto.
A bear-faced illegal immigrant
Paddington Bear, who escapes from a natural disaster in Peru and makes his way to this country without passing through immigration control, is effectively an illegal immigrant, writes Colin Yeo in his blog post for Free Movement.
Not only does he commit an offence under section 24 of the Immigration Act 1971, punishable by up to six months in prison, but so do Mr and Mrs Brown, the kind family who give Paddington a home in London, or harbour him, thereby “assisting unlawful immigration to member State” in breach of section 25 of the 1971 Act and rendering themselves liable to a maximum of 14 years in chokey.
And you thought this was a nice kids’ story written by Michael Bond and turned into a film starring Julie Walters and Hugh Bonneville, alongside a wee fluffy bear with a blue duffle coat and a red floppy hat!
Nor it seems would poor Paddington and his marmalade sandwiches qualify for assistance under the UN Convention Relating to the Status of Refugees or even under that “family life” get-out-of-jail-free card known to tabloid politicians as article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, even assuming we were to treat the ursine as having equivalent rights.
A grim future awaits the poor Peruvian runaway, according to Yeo:
If detected by the authorities, perhaps in a dawn raid on the Browns, the authorities having been tipped off by Mr Curry on David Cameron’s ‘shop-a-neighbour‘ hotline, Paddington would in all likelihood be detained in one of our virulently multiplying private immigration detention spaces.
It gets worse, but if you want to know more I think in all fairness you should be reading the original blog. Inspired by the film, it shines a light in some pretty dark and forbidding places — darker even than “darkest Peru”.
Having taken my family to watch the film over the weekend, I can now add my own review. The film is funny, charming and sentimental, just as you’d expect; but it is also, as I think Colin Yeo identified in his review, quite subversive. It challenges the assumption that immigration is a Bad Thing, satirising the curtain-twitching scrutiny of nosy neighbours (the only thing missing being a St George’s flag or UKIP flyer) and subliminally suggesting, in the Cruella de Vil character played by Nicole Kidman, the view that the only good immigrant is a dead one (stuffed) or at any rate one imprisoned in a heartless museum (detention centre). Perhaps I’m reading too much into it!
At any rate, it’s fun for all the family, lawyers and unlawyers. I liked the pointed references to earlier waves of immigration, the Jewish refugees of the 30s and the Caribbean influx of the 1950s – the latter reflected in a welcome revival of one of my favourite songs from the 50s, Lord Kitchener’s calypso “London is the Place for Me“. (A welcome riposte to the ludicrous and tasteless UKIP calypso of recent times.)
I now look forward to a sequel in which Paddington follows the Brown kids to uni, reads law, and has a successful career eventually being appointed to the bench. They might even let him into the Garrick! As a foretaste, here is one of Isobel Willliams’s marvellous drawings, showing a certain bear considering the purchase of a full bottomed wig. Hold that thought.
That’s it folks. Have a great week. And don’t forget to sign up for weekly Case Law Updates. Click here for last 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.