This week’s roundup of legal news and commentary includes some of the sillier aspects of Brexit, along with judges behaving boldly, and a clearer view of transparency in the family courts. As the phoney war cools in Gibraltar the real one hots up in Syria.

Brexit

No feel for ‘no deal’

The Exiting the European Union Committee concluded in its report last week that the Government’s assertion that “no deal is better than a bad deal” could not be substantiated without an economic assessment of “no deal” having been done and without evidence that steps were being taken to mitigate what would be the damaging effect of such an outcome.

The cross-party Commons select committee were fairly damning of the breezily cavalier approach of the government’s Brexiteers in their white paper’s stated negotiating objectives. The committee’s chair, Hilary Benn MP said:

“The Government should conduct a thorough assessment of the economic, legal and other implications of leaving the EU without a deal in place. The public and Parliament have a right to the maximum possible information about the impact of the different future trading options being considered. Without an economic impact assessment of ‘no deal’ and without evidence that steps are being taken to mitigate the damaging effect of such an outcome, the Government’s assertion that ‘no deal is better than a bad deal’ is unsubstantiated. Parliament must be in an informed position to decide whether a proposed deal is, in fact, better or worse than no deal.”

Some idea of what “no deal having been done” might look like is, of course, available from Ian Dunt’s book, Brexit: what the hell happens now?

Between a Rock and a Hard Brexit

A small British enclave on the south coast of Spain continued to be the subject of anxiety in the Brexit negotiations last week, as Prime Minister Theresa May agreed in talks with President of the European Council Donald Tusk, to “lower tensions” on the topic of Gibraltar in the wake of “sabre-rattling” remarks by May’s one-time predecessor as unelected leader of the Conservative Party, Lord Howard, the previous weekend. A Downing Street spokesperson said:

“The PM also made clear that on the subject of Gibraltar, the UK’s position had not changed, the UK would seek the best possible deal for Gibraltar as the UK exits the EU and there would be no negotiation on the sovereignty of Gibraltar without the consent of its people.”

In other words, no one’s sovereignty is going to be sacrificed on the Gibraltar of Brexit, despite the fears which seem to have prompted a vigorous campaign in last week’s tabloids. The Sun began by trying rather feebly to recreate the glories of its 1990 “Up Yours, Delors!” headline (aimed at the then President of the European Commission, Jacques Delors) with a headline that went “Up yours, Senors!” (foreign accents not being admitted), with a huge picture of the iconic Rock painted in Union Jack colours.

Eggsit, pursued by a regulator (not)

If anyone makes a complaint about the tabloids it will probably be to their alleged regulator, IPSO (the Independent Press Standards Organisation) who this week issued their ruling on an earlier Brexit-related publication. This was the front page story in the Daily Mail commenting on negotiations over the future status of Scotland following Brexit, and the Scottish parliament’s desire to hold a second independence referendum. The talks were between UK Prime Minister Theresa May and Scotland’s First Minister Nicola Sturgeon.

The Mail’s important coverage of this summit between two national leaders was headlined “Never mind Brexit, who won Legs-it!” and was reported to have “prompted widespread outrage” (according to the Guardian). It was sexist and demeaning and trivialised matters of rather more importance, and few appeared to share the opinion of its author, Sarah Vine, that her commentary on female politicians’ legs was funny.

More to the point, it prompted complaints to IPSO by lots and lots of people, but since none of them was either Nicola Sturgeon or Theresa May (who presumably have less futile things to do) IPSO decided it was essentially a case of “third party” complaint about a matter on which it was ultimately for the first party (the alleged victim or subject of the story) to make a fuss. So IPSO, (whose editors’ code committee is chaired by the editor of, er, the Daily Mail), washed its hands of the whole business.

As it was not accepting jurisdiction to hear the complaint,IPSO made no ruling, but explained its position on its blog. It starts off in a style reminiscent of a “gosh-super” spoof diary in Private Eye:

This week has been a busy week for IPSO as we’ve received over 1,600 complaints from members of the public about the Daily Mail’s “Legsit” article. We are always grateful when people bring concerns to our attention. We review each and every complaint and inquiry we receive — and we respond to every single one.

It goes on to explain why, despite the acknowledged disappointment it causes, IPSO does not take forward third party complaints like this, blithely asserting:

The short answer is that the policy on third party complaints is bound into the legal contract that governs our relationship with the publications we regulate.

In other words, we’ve agreed not to do it. So there.

Family Law

Event: Reporting the family courts — are we doing it justice?

Paul Magrath of ICLR is also a member of the Transparency Project, a charity which promotes better reporting of the family courts, and which has just published a Media Guide for this purpose, which was launched last week with a panel discussion at Gresham College. The panel was chaired by Gresham Professor of Law Jo Delahunty QC (far left in the picture), and comprised (from right to left): Mr Justice Peter Jackson, Sanchia Berg (BBC), Brian Farmer (Press Association), Gill Phillips (Guardian News & Media), Dave Hill (Association of Directors of Family Services), Debbie Singleton (Association of Lawyers for Children), Will Moy (Full Fact) and Lucy Reed (Transparency Project).

You can follow the discussion as it unfolded via the Transparency Project’s own and others’ tweets on Storify, and there will be a full recording available in due course on the Transparency Project site.

The fundamental problem with reporting from the family courts is the tension between open justice and freedom of expression, on the one hand, and the need to respect the privacy of family life and to protect the interests of children and other vulnerable parties, on the other. A change in the Family Procedure Rules in 2009 enabled accredited journalists to attend private family hearings (to which the public are not admitted) but their ability to report what happens in those hearings is often severely restricted. In 2014 the President of the Family Division, Sir James Munby, issued practice guidance requiring the family courts (and the Court of Protection) to publish routinely the judgments delivered after private hearings, subject to specific exceptions. Those judgments generally appear on BAILII and/or the Judiciary website, and can be reported by ICLR and other publishers, subject to any restrictions identified in the judgment or the “rubric” at the top of it.

But that guidance has been patchily followed, as a recent report from Cardiff University demonstrated. That report followed research undertaken by three members of the Transparency Project (including Paul Magrath from ICLR) who analysed the judgments on Bailii, identified a number of issues with their routine publication and made a number of recommendations for improving transparency.

The discussion at the Gresham College event showed that despite the President’s guidance, there was still widespread uncertainty among the media and also academic researchers and interested members of the public as to what they could report from family courts. For example, there was an aggrieved parent who felt she was a victim of the system about which she could not speak out. There were journalists who felt it was not enough just to publish a few judgments: that might give a general picture of how the family courts worked, but it did not enable newspapers and broadcasters to tell people’s stories in a way that made them immediate to an audience. It was all very well being allowed into private court hearings, but how were you supposed to know which ones to attend if the published listings remained minimally obscure? You had to rely on a tipoff, in which case suspicions might be aroused among the other participants, or the luck of stumbling upon an interesting case by chance. For lawyers, too, there were problems in knowing whether and when to talk to the press.

Perhaps the most interesting remark was that by Peter Jackson J, to the effect that the children caught up in proceedings did not necessarily shun publicity — they might be glad for their tales (often of damage and woe) to be told, as some had told him themselves. So perhaps we have all been treading on eggshells unnecessarily? It’s a possibility, but we understand the President is due to revisit his guidance later this year, before he retires, and some readjustment may be in the offing. One can only hope all this useful research, and these interesting discussions, can somehow go into the mix.

Some of the key themes were picked out by Penelope Gibbs, of Transform Justice, who was in the audience, on her blog: How to increase trust in the family justice system

Judiciary

Judges speaking out

Judges are generally discouraged from speaking publicly outside the remit of their judgments, and two have recently been reprimanded for doing so. But a third made the news after he set the record straight when publishing revised sentencing remarks in a case widely misreported in the press.

Just not cricket

Faced with a situation where he was lied to by the defendant at the time, and widely misreported in the press thereafter, Judge Richard Mansell QC exercised powers under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 to recall the defendant Mustafa Bashir and correct the sentence imposed on him for offences of violence against a former partner. He had originally sentenced Bashir to 18 months imprisonment suspended for two years, which was widely considered too lenient: see Daily Telegraph, Abusive husband spared jail amid claims he lied about having a contract as a county cricketer. He now imposed an 18-month term of immediate imprisonment.

The lies related to Bashir’s claims in mitigation to be about to take up a professional cricketing job (he was not, and the relevant club seems barely to have heard of him); and the misreporting took the form of misquoting the words which the judge himself had quoted from the relevant sentencing guidelines concerning the “particular vulnerability” of the victim. The judge now took the opportunity to set the record straight:

I now intend to revisit the comments I made on the last occasion concerning the vulnerability of the victim in this case, Fakhara Karim. I do so because there has been widespread misreporting of my remarks and widespread misunderstanding of why I made them.

“Particularly vulnerable” means especially vulnerable, exceptionally vulnerable or unusually vulnerable. The press selectively quoted the word “vulnerable” without any of these qualifiers, giving a wholly misleading impression of the judge’s assessment of the position of the victim. The problem is that the public understanding of the case is coloured by the selectivity of the press coverage, and this in turn fuels politicians to get up on their hind legs and “shoot from the lip” (ie make ill-informed pronouncements) without anyone taking the trouble to read the actual remarks of the sentencing judge.

See, by way of example, in Huffington Post, Jess Phillips Hits Out At Mustafa Bashir’s Sentencing Judge For Sending ‘Dangerous’ Message To Victims Of Domestic Abuse. These two paragraphs indicate succinctly the problem (and I speak as one who admires this MP enormously):

Phillips said she was not at court when Mansell made his remarks and was not privy to all the facts in the case, but added: “The details that we do have access to paint a very distressing picture.”

Phillips said: “The level of misunderstanding on the part of the judge as to what it is like to be a victim of domestic violence and the message that it sends is so very dangerous.

The best thing you can do if you want to know more about this case is to read the Secret Barrister’s blog, which includes the full sentencing remarks (which are also available on the Judiciary website, as controversial sentencing remarks usually are, though the press may not choose to tell you or link to them).

This case offers a rare example of an occasion when a judge, through the exercise of jurisdictional powers, was able to make a public statement setting the record straight. But all too often judges are discouraged from speaking out— despite the current Lord Chancellor’s urgings that they are the best people to inform the public about their work and thus raise the judiciary in the public’s esteem. And when they do, they provoke a storm of criticism (see, for example, Weekly Notes — 13 March 2017).

Judges in the dock

Two judges have recently found themselves on the wrong end of the disciplinary process. Recorder Peter Herbert OBE, who sits as an employment and immigration judge and is chair of the Society of Black Lawyers, was slapped down by the Judicial Conduct Investigations Office (JCIO) after making a public speech on a political issue. The JCIO said in its statement dated 6 April that Herbert had

“been issued with formal advice after making a public speech criticising the election commissioner’s decision in 2015 to declare Lutfur Rahman’s election as mayor of Tower Hamlets void. A disciplinary panel found that the recorder’s comments were inappropriate and put the reputation of the judiciary at risk, which amounted to misconduct.”

The following day Judge Jonathan Durham Hall QC was the subject of another statement by the JCIO, also for speaking out. You may remember that he was the judge who, a year ago, offered to pay the defendant’s victim surcharge if she were forced to pay it. See, eg, The Independent, Judge offers to pay court fine of abuse victim who stabbed her abuser on his doorstep after he avoided jail. According to the JCIO:

The Lord Chancellor and the Lord Chief Justice considered this failed to demonstrate impartiality, and that his comment amounted to misconduct.

Judge supports court protest

Although they have not been named in the press, a senior district judge is reported to have backed lawyers in their fight against plans to dramatically extend court hours at Highbury Corner, as part of a pilot scheme for late-sitting courts.

Under proposals announced by HM Courts and Tribunals Service (HMCTS), the magistrates’ court in Holloway Road will sit for three sessions between 8am and 6.30pm, or from 10am until 8.30pm. According to the Islington Tribune the judge, who did not wish to be named, said:

“I took part in the trial of evening courts some years ago. I characterised them as ‘a scandalous waste of public funds’. They were abandoned after a short time. Defence lawyers will have to spend even more demoralising and unpaid time waiting at court for matters entirely beyond their control. That is both inefficient and unfair. Similarly, I wonder how much thought has been given to the inevitable change of working conditions for court staff.”

The pilot has been opposed by barristers and solicitors, as well as representative organisations like the London Criminal Courts Solicitors’ Association (LCCSA), who say they were not consulted in advance, unlike the police, Crown Prosecution Service, magistrates and the prison service.

Law (and injustice) from around the world

America

Trump’s Supreme Court nominee approved

Neil Gorsuch, the judge nominated by President Trump to fill the vacant seat on the US Supreme Court bench, was finally approved by the Senate Judicial Committee last week, after a change in the rules to counter filibustering from the Democrat side. The Democratic opposition seems to have been partly to the man himself, and partly by way of a tit-for-tat after Republicans effectively blocked former President Obama’s nomination early last year, Judge Merrick Garland, to fill the seat on the bench vacated when Justice Scalia died.

An editorial in NorthJersey.com probably speaks for many when it said:

On a purely partisan level, Trump and Republicans won. Democrats lost. The final vote for Gorsuch was 54 in favor, and 45 opposed.

But in reality, we all lost, because years of political gamesmanship connected to U.S. Supreme Court nominees, scheming machinations from both sides of the aisle, caught up with us.

The bitterness that played out in connection to the Gorsuch confirmation will leave a sour taste in the mouths of conservatives and progressives alike, not only in Washington, but around the country.

Sweden

Stockholm terror attack

Any notion that IS-inspired terror attacks are intended as a response to military interference in Middle Eastern politics and civil wars, or hostility to migrants or refugees, would appear to be disproved by the events last week in Stockholm. Sweden has remained neutral in relation to the conflicts into which some other European countries have been drawn, and its policy on refugees and immigrants has been generous and open-hearted, though not supported by all the people all the time. However, the likelihood of a murderous attack on shoppers in Stockholm, by driving a hijacked beer lorry into a mall, actually achieving anything useful in political terms was probably not at the forefront of the perpetrator’s poisoned mind.

A man has now been arrested, apparently from Uzbekistan. According to the New York Times, he was an asylum seeker whose application had been rejected and who in December was given four weeks to leave the country, the Swedish police said on Sunday. He was apparently known to the security services but considered a low risk.

Syria

Legality of US missile strikes

Reports of the horrific use — attributed to Syrian government forces (although their Russian allies denied this) — of chemical weapons against civilians including children and babies seems to have triggered an event in the mind of US President Donald Trump, or his military advisers, who sanctioned the use of force against and within the sovereign territory of Syria. Trump said last week that the chemical attacks against civilians had “crossed a lot of lines for me” and changed the way he views Syria and leader Bashar al-Assad. Trump’s predecessor, President Obama, had said in 2013 that the use of such weapons would cross a red line for him, but if it ever did he never took any action in consequence, which may explain Syria’s willingness to push the envelope this time. They may have gambled on Trump’s stated isolationism but in doing so they failed to predict his unpredictability.

However well deserved, the bombing of a Syrian airfield raised questions about the legality of the unilateral US action. There’s a fair amount of commentary as to this on the Opinio Juris blog here.

Turkey

Chronicle of a crackdown

The Committee to Protect Journalists is publishing a week by week chronicle of the crackdown against opposition or supposed or anticipated opposition to President Recep Tayyip Erdoğan following last year’s disastrous failed coup, and in advance of a referendum on the Turkish constitution by which he means to secure his position.

The Committee to Protect Journalists is an independent, nonprofit organization that promotes press freedom worldwide.

You can read the chronicle here.

Tweet of the Week …

comes from Alternative Law Journal. For when a bat is an alternative snail…

That’s it for now. Our thanks to all who flagged up stories, via their blogs (which we always try to acknowledge) and via Twitter (where useful tweets are retweeted).

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.

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Weekly Notes: legal news from ICLR — 10 April 2017