Weekly Notes: legal news from ICLR – 6 June 2014
Posted on 6th Jun 2014 in Weekly Notes
This week’s stories are mostly about speeches – including the Queen’s speech and the laws her government say they will make, free speech (under article 10) and the laws which interfere with it (especially on the internet), and speeches on the future of law by the Lord Chief Justice and the future of the legal professions by the Lord Chancellor. So top up your drink and settle back for a good read.
Updated with new link(s) as at: 23 June 2014.
Legislation, Legislation, Legislation
Some governments never stop legislating. The New Labour reign of Tony Blair was fairly notorious for the number of new laws, particularly criminal ones, it created. By contrast, Coalition Street has been littered with rather fewer new bills per year, though last year there were still 31 public Acts of Parliament and nearly 3,000 Statutory Instruments. But with an election coming up in less than a year’s time, and fears of a rout at the polls in favour of triumphant Little Englanderism (not to mention Wee Scotlandism), the Con-Lib pantomime horse has pulled a number of legislative rabbits out of a hat in the hope of persuading everyone that it is (they are) Doing Something.
The legislative programme was set out in the Queen’s Speech, which resembled more of a Queen’s Peach – looking good from a distance, but bland and pulpy when you actually get into the substance of it. Among the bills getting top billing were:
- Small Business, Enterprise and Employment Bill: a mixed bag of provisions to boost business and cut red tape while giving employees better protecton.
- National Insurance Contributions Bill: still tinkering with the income tax that everyone pretends isn’t an income tax and no party has the gumption to call a spade (digging in your coffers).
- Infrastructure Bill: to turn the Highways Agency into a company, and to sweep away planning and other restrictions on major infrastructure and utilities projects.
- Two Pensions Bills to further encourage people to save up for a rainy day in retirement
- Modern Slavery Bill: not a bill to modernise slavery, but to outlaw modern incarnations of the practice, including people trafficking, and provide a defence for victims of slavery involved in criminal activity.
- Serious Crime Bill: yet another one. (Sigh.)
- Recall of MPs bill: a bill to enable constituents to get rid of their MP, but only if (a) they are already in jail, and (b) the other MPs don’t mind losing them. (A good candidate for the Pretending to Do Something But Not Really Doing It Bill of the year. )
- Riot (Damages) Bill: to enable more small claims and fewer big claims for compensation after a riot, to be assessed by a riot claims bureau (probably a bit like the Criminal Injury Compensation Authority).
But the item that seems to have gotten the most publicity goes by the pretty name of Sarah – the Social Action , Responsibility and Heroism Bill.
This is the godchild of Chris Grayling, who wants to protect people who are doing good deeds and being heroic in a Big Society sort of way from being landed with liability for negligence and breach of statutory duty if they happen, inadvertently, to injure or endanger life and limb.
The Secretary of State for Justice explains the reasoning behind Sarah in a blog to Conservative Home, entitled Our Bill to curb the Elf and Safety Culture, saying he hopes
“she will finally slay much of the “elf and safety” and jobsworth culture that holds back so much of our society. The idea is a very simple one. [Yes, we were afraid of that.] All too often people who are doing the right thing in our society feel constrained by the fear that they are the ones who will end up facing a lawsuit for negligence.
We need a system that is rooted in common sense. Of course those who are negligent, or who act in a way that is foolish or reckless should be able to be punished by the law. But those who are trying to do the right thing should believe that the law will be on their side. And that is precisely what SARAH will do.
The best way to describe the proposed Bill is that it will serve as a signpost from Parliament to the Courts. It will set out very simple protections for those people who act in the interests of society, responsibly or heroically.
Questions have been raised about whether legislation should, in fact, provide street furniture along the Strand, or simply make new law.There have been questions, too, about how “hero” would be defined in the Act. By way of a helpful suggestion, human rights barrister Adam Wagner of One Crown Office Row chambers proposed on Twitter this somewhat poetic definition.
Other commentators were less complimentary. Carl Gardner in his Head of Legal blog described it, ironically we assume, as a “victory for common sense”, pointing out that much of the law required was already in force or rendered otiose by other provisions limiting litigious claimants’ access to courts or funding to pursue their bogus “compensation culture” claims.
According to the Solicitors Journal, Jonathan Wheeler, vice president of the Association of Personal Injury Lawyers (APIL) questioned whether the introduction of new legislation really is a victory for common sense:
“The Government says it wants to protect “everyday heroes” from the risk of being sued for negligence. But how could someone who has negligently or recklessly caused injury to another be a hero in anyone’s eyes?
Once again we see the emphasis on protecting the negligent rather than the person who has been injured through no fault of his own,” he added.
Among the politer of the alternative meanings of the acronym “Sarah” posted on Twitter was “Silly and Ridiculous Aspirational Hotair”. It seemed a prime example to the kind of message-sending legislation satirised by David Allen Green via LegalCheek when proposing the Something Must Be Done Act 2014.
Social media offences: troll and error
On 4 June Jake Newsome was jailed for for six weeks after being convicted for making a “malicious communication” via Facebook. In a similar case, last month, Robert Riley was jailed for eight weeks for posting a message on Twitter of a “grossly offensive, abusive or malicious character”.
Both men had posted comments relating to the death of the teacher, Ann Maguire, who was stabbed to death by a pupil. The stabbing caused widespread horror and outrage, and the comments made by the two defendants (apparently expressing rude approval) were obviously hurtful and offensive to the family, friends and admirers of the deceased. But questions have been raised about whether they really amounted to a criminal offence requiring a custodial sentence, particularly as they did not seem to match the criteria for prosecution issued by the CPS in its policy guidelines on social media offences. Was this a justified interference with their (however obnoxious) exercise of the right to freedom of speech under Article 10 of the Human Rights Convention? Was the penalty prescribed by law “necessary in a democratic society” under article 10.2? According to the CPS guidelines (para 39):
A communication sent has to be more than simply offensive to be contrary to the criminal law. Just because the content expressed in the communication is in bad taste, controversial or unpopular, and may cause offence to individuals or a specific community, this is not in itself sufficient reason to engage the criminal law.
The remarks were certainly offensive and in bad taste, and would undoubtedly cause offence to many, but were they so grossly offensive as to be actually a danger to society calling for the protection of the criminal law? (They were not, for example, stirring up racial or religious hatred, or promoting terrorism or anything in that category.) Bearing in mind the new land of heroes for which the Coalition wants to make us fit, perhaps there should be an amendment to section 127 of the Communications Act 2003, or section 1 of the Malicious Communications Act 1988, to make an offence of “adding insult to injury (or death)”.
The question of social media and free speech is discussed generally by barristers at 5RB (Raymond Buildings) chambers in a blog entitled Free Speech Online.
New link: similar concerns aired in The Guardian, Is it right to jail someone for being offensive on Facebook or Twitter?
Technology and law: hi time for wifi
The Lord Chief Justice, Lord Thomas of Cwmgiedd gave a speech recently, to the Society for Computers and Law, calling for better provision of IT for the courts. He reported that funding was now in place and said he hoped it would help make the courts more efficient and avoid the loss of paper files etc which plague the current system.
“There is no reason why court proceedings cannot be commenced online and all communications with the court dealt with online. It is what people expect, and it enables better access to justice and to easier, and hopefully cheaper, resolution of disputes.”
This week the Supreme Court of the United Kingdom (UKSC) launched free Wi-Fi for court users on 4 June, with logins and passwords to be obtained from the Reception desk or Registry.
Unfortunately, not everywhere has enjoyed the same progress. According to the Law Society Gazette (Courts wi-fi rollout timetable slips) , although justice minister Damian Green had promised in April that all courts would be fully digital by 2016, there were courts in some areas, such as Devon, that would not get wi-fi till 2017 at the earliest, and HM Courts Service was not permitting the courts to set up their own local networks in the meantime.
Later this month, the Law Society is holding a seminar at The Hub in Liverpool, entitled 21st Century Legal Technology, to discuss how technology is starting to transform the delivery of legal services. Or in some cases not. This is a free CPD event.
A more general discussion of What Will the Future of Law Look Like? can be found on the Aderant blog.
Regulation, Regulation, Regulation
The Chartered Institute of Legal Executives (CILEX) hosted its annual dinner on 4 June, before an audience of senior legal professionals, including Lords Dyson, Bach, Leveson, Supreme Court Justice Clarke, and Chris Grayling, who defended his record as Justice Secretary and his reforms to the legal aid and judicial review regimes.
He also, perhaps unexpectedly, indicated a plan to cut back on legal profession regulation. In particular, he announced his proposal that the uber-regulator, the Legal Services Board, which has been agitating for a more powerful role as one-size-fits-all single regulator, should instead make plans for its own abolition. (Some sceptics have suggested this is because the MOJ would find it easier to deal with the different legal professions singly, than if they were all under one umbrella.) Grayling’s explanation was that he felt there were “too many layers of regulators” and he wanted to make life easier and simpler for the professions – deregulate a bit. What that means for, say, QASA, is anybody’s guess.
For more about the second CILEX event, see below (under Parish News).
We’ve had trials before in which defendants and witnesses have disappeared behind screens or codenames or alphabetical masks, and we’ve had secret hearings within open hearings; but this is the first occasion, apparently (only how, in fact, would we know?) that an entire trial has been held behind closed doors. It is not an encouraging precdent for anyone who believes in open justice and the fair and accurate reporting of legal proceedings. Sunlight is thebest disinfectant, as Supreme Court justice Brandeis so famously remarked. This hearing in midnight darkness could prove infectious and we don’t like it.
The case was the subject of commentary on social media, not surprisingly. We will try to add links as we find them. Adam Wagner on twitter reminded us of the comment in the Al Rawi judgment at para 35. See Al Rawi v Security Service  UKSC 34;  1 AC 531, para 35.
The Shadow Justice Secretary, Sadiq Khan commented in the Guardian that the secret trial carried the risk of a miscarriage of justice which it would be hard to detect and rectify.
“If these two men have a trial completely in secret – we don’t know their names, we don’t know the evidence against them – how can we ever have the confidence they were convicted properly?”
The appeal court has heard that the crown sought and obtained unprecedented orders to hold the trial in secret and to withhold the men’s identities, on the grounds of national security last month. The crown threatened that if the trial was held in public the case might have to be dropped.
John Cooper QC, a leading criminal barrister, said the orders granted had imposed “one of the most draconian provisions the system has ever know”.
UPDATE: A detailed comment on the issues raised was posted by Lawrence McNamara, Senior Research Fellow and Deputy Director, Bingham Centre for the Rule of Law, on Inforrm’s blog under the title: Secret Trials: Secrecy at the Expense of Justice. It is well worth a read. He concludes by saying:
This request for secrecy is a landmark in the trend to institutionalise and normalise secrecy. It will inevitably damage public trust in our justice system and our governments. It is difficult to see that damaging that trust will foster national or international security.
A cloak of secrecy in criminal trials will not result in ‘secret justice’. It will result in secrecy at the expense of justice.
Legal Aid Wars (contd)
Last week we reported (Weekly Notes 30 May 2014) on the response of Nigel Lithman QC as chairman of the Criminal Bar Association, opposing any development of the Public Defender Service to meet the shortfall in senior barristers capable of dealing with complex fraud cases, and the fact that criminal solicitors belonging to the Criminal Law Solicitors’ Association were withdrawing goodwill.
Since 9 April solicitors in Hull, as well as other parts of the country including Exeter, Plymouth and the Midlands, have refused to take new Crown court cases in protest over legal aid fee cuts. As reported in the Gazette, this having a serious effect on the management of the courts, and as a result, His Honour Judge Jeremy Richardson QC, sitting at Hull Crown Court, published a comprehensive 11-page practice statement detailing how the court will deal with affected cases that come before it.
Retiring and not so retiring judges
The recent retirement of two High Court judges, Sir Paul Coleridge and Sir Michael Tugendhat, calls to mind (again) the issue of freedom of speech – though from quite different points of view.
In case the case of Sir Paul, the issue is his speaking out, on the subject of the institution of marriage, of which he is a champion. In the case of Sir Michael, the issue is his record in not stopping others from speaking out – as he could have done, by slapping injunctions on them, in his capacity as Senior Media Judge, appointed from 1 October 2010.
Sir Paul is chairman of something called The Marriage Foundation, which champions “long-lasting, stable relationships within marriage”. He was also a judge in the Family Division of the High Court. Some people – principally the head of his profession (Lord Thomas of Cwmgiedd, CJ) – thought he could not hold two contradictory positions at once. Or at least not vocally and outspokenly.
Family judges are there to break up families – or at any rate help the parties after they’ve broken up. Sir Paul wanted to keep them together. Bit of a conflict. Something had to give. He said, on his retirement:
“Something can and should be done to stem the tide of family breakdown. Family judges have a unique experience of this and therefore a unique contribution to make. We should not be afraid to speak out.”
And indeed he has not been. But it has not gone down well. Last December he was given a “formal warning” from the Judicial Conduct and Investigations Office (JCIO) after saying in the press that couples should not have children if their relationship was not strong enough to support a marriage, and that the government’s focus on gay marriage was a “minority issue” of less importance than the breakdown of so many [heterosexual] unions.
Following his retirement, he gave an interview to the Sunday Times in which he criticised the Lord Chief Justice, saying the judiciary has been brought into disrepute by the way he had been treated for speaking out on the breakdown of marriage. And for this he has in turn been criticised, only this week, by the prominent family law practitioner Marilyn Stowe, senior partner at Stowe Family Law, and author of the book, Divorce & Splitting Up.
Writing in Solicitors Journal on 3 June, Ms Stowe said
Sir Paul’s achievements as a judge are respectable and he was an admirable Silk but you cannot criticise the unmarried in a newspaper article one day and then sit in judgment on them the next.
Now that he has retired, Sir Paul may say what he wishes. As have the press to a large extent over the last four years, when it comes to competing issues of privacy and public interest, under the comparatively more liberal reign of Sir Michael, as senior media judge. His predecessor, Sir David Eady, was generally suspected to be more in favour of privacy, but from the day he took over Sir Michael seemed to be on the side of press freedom, and his refusal to grant a superinjunction in one case led to an investigation into the whole business of these turbo-charged gagging orders. (A superinjunction is an order telling you not to talk about something you’re not even supposed to know about, and can’t be told what it is you’re not to talk about, because that would be giving the game away, wouldn’t it?) (Puzzled? Go figure. Or go Trafigura.)
At a media law conference in 2012, Sir Michael bemoaned the dearth of candidates and appointments of specialised High Court judges. But he can have no cause for complaint about his replacement on the media bench, Mark Warby QC, whose successful career as a media and sports law silk is not in doubt. And he is from the same specialised stable, 5RB chambers, as Sir Michael. We look forward to his judgments with interest.
The other major event this week was the annual Legal Aid Lawyer Awards, organised by the Legal Aid Practitioner Group, and sponsored by (among others) CILEX (who provided a pretty comprehensive twitter feed as the evening unfolded). As helpfully reported in the Gazette, this years awards went to the following deserving winners:
- Camilla Graham Wood, of Birnberg Peirce & Partners, won Legal Aid Newcomer of the year.
- Douglas Johnson, from Sheffield CAB and Law Centre, won Social and Welfare Lawyer of the year.
- Maud Davis, of TV Edwards, won the Family Legal Aid Lawyer of the year.
- Caroline Bowden, of Anthony Gold, won Family Legal Aid Mediator of the year.
- John Gallagher, of Shelter, won Housing Lawyer of the year
- Mark Scott, of Bhatt Murphy, won Immigration/Asylum Lawyer of the year.
- S Chelvan, of No 5 Chambers, who specialises in immigration work, won Legal Aid Barrister of the year.
- Charlotte Haworth-Hird, of Bindmans, won the Inquests/Actions Against the State Award.
- Mike Schwarz, of Bindmans, won Criminal Defence Lawyer of the year.
- Ben Hoare Bell won the Legal Aid Firm of the year.
- Matt Foot, of Birnberg Peirce, and one of the founders of Justice Alliance, won Legal Aid Champion of the year.
- Eljan Abrahamson, partner at Quality Solicitors Jackson & Canter won the Outstanding Achievement award for his work for victims of the Hillsborough tragedy.
ICLR is delighted to congratulate all the winners. [And thanks to Richard Doughty of CILEX for correcting a factual error in this report.]
The Friday Cartoon, by Alex Steuart Williams firstname.lastname@example.org from the Times law pages.