Judiciary

Court of Final Resignation

Two top UK judges have resigned as non-permanent judges of the Court of Final Appeal (CFA) in Hong Kong. Both Lord Collins of Mapesbury and Lord Sumption, former justices of the UK Supreme Court, have recently withdrawn from serving on the Special Administrative Region’s final court of appeal.

According to Joshua Rozenberg (UK judges resign from HK court), Lord Collins of Mapesbury, who had been a member since 2011, gave a statement explaining:

“I have resigned from the Court of Final Appeal because of the political situation in Hong Kong, but I continue to have the fullest confidence in the court and the total independence of its members.”

A day later, The Times reported that Lord Sumption, who had also resigned, would issue a statement next week regarding his withdrawal from the Hong Kong bench. He duly did so, in a stinging broadside in the Financial Times: The rule of law in Hong Kong is in grave danger.

The Court of Final Appeal (CFA) was established on 1 July 1997, replacing the Judicial Committee of the Privy Council as the final court of appeal from lower courts in Hong Kong. In recent years Hong Kong has come under increasingly direct rule from mainland China, suppressing freedom of expression and attempts to preserve the modicum of democracy supposedly guaranteed under the Basic Law following the handover from UK rule in 1997. Just recently, the BBC reported, a court in Hong Kong found 14 pro-democracy activists guilty of subversion in the largest use yet of the National Security Law imposed on the region by China. (This case was cited as one of particular concern by Lord Sumption in his article.)

There have been repeated earlier calls for senior UK judges to cease being involved with the court, on the grounds that their presence lends legitimacy to a system that does not fully respect human rights. Lord Reed, the current President of the UK Supreme Court, and Lord Hodge, his deputy, both resigned from the Hong Kong CFA in March 2022. Former president Baroness Hale left in 2021. But three former law lords remain: former Supreme Court presidents Lord Neuberger and Lord Phillips of Worth Matravers, along with Lord Hoffmann. It remains to be seen how long they will now remain, given the continuing and mounting pressure not to do so.

Meanwhile, in Hong Kong itself, according to the Hong Kong Free Press,

“The Law Society, Bar Association, justice chief and justice secretary backed Hong Kong’s judicial independence, whilst Chief Executive John Lee said rights and freedoms were being maintained after Lord Lawrence Collins quit the top court citing the ‘political situation.’”

Courts

Single Justice Procedure

An investigation into “conveyor belt justice” by Tristan Kirk, courts reporter for The Standard, has been shortlisted for the 2024 Paul Foot Awards. This is an annual prize for investigative journalist set up by Private Eye in memory of its reporter, the late Paul Foot who died twenty years ago.

Kirk has been relentless in his coverage of the controversial procedure by which a single magistrate, in a remote sitting, can convict long lists of defendants who have pleaded guilty by post or online (often without fully understanding the implications of doing so, or that they might have a defence) or have failed to respond to a notice within 21 days. It’s been boosted by the Ministry of Justice as “an accessible, proportionate, effective and more efficient way — for both the defendant and the courts — to hear less serious cases”, such as non payment of TV licence, transport fare evasion etc, but the procedure has been criticised for failing to give magistrates sufficient time to properly consider each case on its merits. In March 2024 the Magistrates’ Association issued a Position Statement criticising the process and recommending a number of improvements. It said

“there is a concern that prosecuting authorities may sometimes pursue cases that are not in the public interest, particularly when the defendant is vulnerable. This could mean that the pursuit of legal action is disproportionate or unjust given the circumstances.”

Kirk’s reporting has highlighted a number of examples of cases where a defendant was either vulnerable or might have had a good defence, or been treated more fairly, in a system that seem more concerned with rapid disposal than individual justice: in short, a “conveyor belt” approach. Listen to his interview on the Private Eye Page 94 Podcast.

See also: Transform Justice, It’s never too late to prevent miscarriages of justice

Ethics

IOD consults on code

Corporate scandals — including at the Post Office, Carillion and BHS — have exerted a “negative effect on the esteem in which business leadership is held”, according to the Institute of Directors. Hence their decision to launch a public consultation on a new Code of Conduct for those who manage corporations. According to Jonathan Geldart, Director General of the IOD:

“The purpose of this Code is to help UK business win back public trust by embedding the ethics and values that are already adopted as a matter of course by most responsible business leaders. Written by directors for directors, it offers a roadmap that can help individual directors make the right decisions for themselves and their organisations, often in the face of complex challenges and trade-offs.”

The Code represents a voluntary commitment and is “not intended to hold back directors or create a new burden of compliance”, say the IOD. It is structured around six key Principles of Director Conduct:

  • Leading by Example — demonstrating exemplary standards of behaviour in personal conduct and decision-making.
  • Integrity — acting with honesty, adhering to strong ethical values, and doing the right thing.
  • Transparency — communicating, acting and making decisions openly, honestly and clearly.
  • Accountability — taking personal responsibility for actions and their consequences.
  • Fairness — treating people equitably, without discrimination or bias.
  • Responsible Business — integrating ethical and sustainable practices into business decisions, taking into account societal and environmental impacts.

The Post Office scandal, in particular, has also thrown a harsh beam of revealing sunlight onto the conduct of corporate lawyers, as well as those they instruct and outsource to, as Prof Richard Moorhead and others have pointed out. See, for example, his recent lecture, The Post Office Scandal & Lawyers: An Extraordinary Orthodoxy:

“The legal profession’s obligations to uphold honesty, independence, and integrity appear too routinely overcome; client interests overshadow ethical considerations. This is so whether or not one sees some of the problems as giving rise to criminal behaviour or more serious professional misconduct, as the Inquiry, regulators, and prosecutors might.”

Crime

Miscarriages of justice

The BBC recently screened a documentary, The Wrong Man: 17 Years Behind Bars, about the wrongful conviction of Andy Malkinson, on flimsy identification evidence, for a rape he did not commit, and the long battle to get it overturned. The heroes include the organisation APPEAL, who finally forced the Criminal Cases Review Commission (CCRC) to reconsider the case, having let him down previously, and the villains include Greater Manchester Police who failed to investigate properly, failed to disclose important facts and material, lost or destroyed vital evidence, and have probably left the true perpetrator (another man whose DNA was eventually found on the victim’s clothing) at large for two decades.

It’s sobering and often heartbreaking viewing, especially for the effect on Malkinson himself and his family (in various ways); and also enraging. For more on Malkinson’s case and other miscarriages of justice, see the latest issue of PROOF, reviewed here.

ICLR News

AI Case Summaries on ICLR.4

ICLR have partnered with Canadian law tech developer Jurisage to provide natural language summaries of unreported judgments.

The summaries are created by a customised large language model (LLM) using artificial intelligence, responding to specially designed prompts. They offer a brief overview of cases to help ICLR.4 subscribers to sift the results from either a conventional case search or the similar cases suggested by our AI-driven Case Genie tool.

The summaries are around 100 words long and are designed to provide a quick run-down of what the case is about, who was involved, and what it decided. Each summary is accompanied by a list of the key legal issues in the case.

The Jurisage summaries will only be accessible to paying subscribers of ICLR.4 and are intended to assist them in selecting cases for research. They are not a headnote and should not be quoted or cited in oral or written submissions. 

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.4

(NB these ones are written by human law reporters and can be cited in court): 

CONTEMPT OF COURT — Committal application — Fitness to plead: Solicitors Regulation Authority Ltd v Khan, 23 May 2024 [2024] EWCA Civ 531; [2024] WLR(D) 242, CA

DISCRIMINATION — Indirect discrimination — Contract workers: Boohene v Royal Parks Ltd, 24 May 2024 [2024] EWCA Civ 583; [2024] WLR(D) 246, CA

ENVIRONMENT — Pollution, control of — Water: R (River Action) v Environment Agency, 24 May 2024 [2024] EWHC 1279 (Admin); [2024] WLR(D) 244, KBD

EVIDENCE — Expert evidence — Single joint expert: Stellantis Auto SAS v Autoliv AB (PSA Automobiles SA v Autoliv AB), 05 Jun 2024 [2024] EWCA Civ 609; [2024] WLR(D) 256, CA

HOUSING — Homeless persons — Appeal: Fertre v Vale of White Horse District Council, 22 May 2024 [2024] EWHC 1234 (KB); [2024] WLR(D) 235, KBD

JUDICIAL REVIEW — Permission to proceed — Jurisdiction: R (Karim) v Upper Tribunal (Immigration and Asylum Chamber), 06 Jun 2024 [2024] EWHC 1368 (Admin); [2024] WLR(D) 261, KBD

LEGAL AID — Availability — Civil legal aid: R (Oji) v Director of Legal Aid Casework, 24 May 2024 [2024] EWHC 1281 (Admin); [2024] WLR(D) 255, KBD

MENTAL HEALTH — Practice — Deprivation of liberty: Surrey Police v PC, 24 May 2024 [2024] EWHC 1274 (Fam); [2024] WLR(D) 253, Fam D

PLANNING — Development — Planning permission: R (Parkes) v Dorset Council, 23 May 2024 [2024] EWHC 1253 (Admin); [2024] WLR(D) 243, KBD

SOCIAL SECURITY — Bereavement benefit — Unmarried heterosexual couple: Kelly v Secretary of State for Work and Pensions, 05 Jun 2024 [2024] EWCA Civ 613; [2024] WLR(D) 260, CA

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:

Out-Law: UK Court of Appeal decision highlights scope of VAT recoverability: Revenue and Customs Comrs v Hotel La Tour Ltd [2024] EWCA Civ 564, CA

Law Society Gazette: Judge stays divorce financial proceedings to allow non-court dispute resolution: NA v LA [2024] EWFC 113, Fam Ct

Financial Remedies Journal: Standish — the Narrowing of ‘Matrimonialisation’: Standish v Standish [2024] EWCA Civ 567, CA

Inforrm’s Blog: Summary Judgment applications fails in Qualified Privilege case: Hawrami v Journalism Development Network Inc & Ors [2024] EWHC 389 (KB), KBD

Law Society Gazette: Court of Appeal reverses stay of criminal trial over lack of counsel finding it ‘based on mistakes of fact’: R v Ng (Katie) [2024] EWCA Crim 493; [2024] WLR(D) 206, CA

Law & Religion UK: Jehovah’s Witnesses and blood products: University Hospitals Plymouth NHS Trust v J [2024] EWHC 1034 (Fam), Fam D

Nearly Legal: Don’t dilly-dally on appeals, and mortgage lender paying service charges: Santander plc v Harris [2024] EWHC 351 (KB), KBD

Nearly Legal: Decisions, decisions (and not automatic ones) — Ending the main housing duty: R (Bano) v Waltham Forest London Borough Council [2024] EWHC 654 (Admin); [2024] WLR(D) 152, KBD

Local Government Lawyer: Court of Appeal finds judge fell into errors of principle when making finding of ‘inflicted injuries’: In re W (A Child)[2024] EWCA Civ 418, CA

Mountford Chambers: Beyond the boundaries of time — Haden, Luxton and section 14 of POCA: R v Haden [2024] EWCA Crim 344; [2024] WLR(D) 187, CA

Nearly Legal: Homelessness eligibility and the Withdrawal Agreement — two (contradictory) appeals: C v Oldham Council [2024] EWCC 1, County Ct

Nearly Legal: Suitability, reports in Family proceedings, and termination of existing accommodation: Querino v Cambridge City Council [2024] EWCA Civ 314; [2024] WLR(D) 153, CA

Local Government Lawyer: Capacity, presumptions and catastrophe: A Council v An NHS Foundation Trust [2024] EWHC 874 (Fam), Fam D

Electronic Immigration Network: Revocation of sponsor licence without providing a meaningful opportunity to respond is unlawful: R (New Hope Care Ltd) v Secretary of State for the Home Department [2024] EWHC 1270 (Admin), KBD

Local Government Lawyer: Gypsy and Traveller sites in the Green Belt: Ward v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 676 (Admin), KBD

And finally…

Tweet of the week

Offers an early view of the RCJ from Middle Temple:

Little has changed, apart from the traffic. (Don’t forget to tip the crossing sweeper.)

That’s it for now. Thanks for reading, and thanks for all your toots, tweets, posts and links. Work hard, be kind, take care.

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.

Featured image: Hong Kong Court of Final Appeal Building in Hong Kong (Wikimedia commons)