The Ministry of Justice last week published an Ad-Hoc Analysis of Judicial Diversity Statistics summarising the analysis of data from judicial selection exercises,
“in order to understand the differences in the progression of target groups in both legal and non-legal recruitment exercises, by controlling for the effect of selected factors in relation to the progress of different groups through judicial selection tools.”
Unfortunately, the statisticians are still using the now discredited collective identifier “BAME”, explaining:
“we have aggregated the Asian, Black, Mixed and Other groups and refer to this group using the term ‘Black, Asian and minority ethnic (BAME)’, for comparison with the White group. We avoid (after this point) usage of the ‘BAME’ acronym in the text of this report, opting to write the term in full.”
The compared groups appear from the published summary to have been (a) women (as compared to men); (b) BAME (see above) candidates as compared with ‘white’ (or non-BAME); and (c ) solicitors, as compared to barristers. The main results were summarised as follows:
“For legal exercises:
- There is no difference in success rates between women and men.
- Even after controlling for legal profession and Oxbridge attendance, overall Black, Asian and minority ethnic candidates do less well than white candidates for the majority of selection tools
- Similarly, overall solicitor candidates do less well than barrister candidates for all selection tools, even when controlling for ethnicity and Oxbridge attendance.
For non-legal exercises:
- There is no difference in success rates between women and men.
- There is no evidence of differences between outcomes for Black, Asian and minority ethnic candidates and white candidates for the selection tools analysed. Controlling for the additional variables of gender and Oxbridge attendance also shows very little difference.”
The full statistics are available from the MOJ as a download. A more granular approach to ethnicity is certainly possible, and has been attempted in the past, so it’s odd not to have been included in the present review. For example, the official statistics on judicial diversity published in July 2021 went some way towards separating out different ethnic categories within the collective category. They reported that “The proportion of Asian and Mixed ethnicity individuals in the judiciary has increased since 2014, while the proportion of Black individuals has stayed the same in that time. Proportions of ethnic minorities remain lower in senior court roles”. (See Weekly Notes, 19 July 2021)
The acronym BAME was the subject of a report from the Sir Lenny Henry Centre for Media Diversity because, in essence, it homogenises the very diversity it claims to promote, and enables an averaged-out perception that can favour certain groups within the collective category at the expense of others. In short, it is problematic.
There has been considerable media coverage over the weekend of the case of Griffiths v Griffiths (unreported) 26 Nov 2020 in which Judge Williscroft gave a fact-finding judgment in favour of the wife, Kate Griffiths MP, detailing the rape, coercive behaviour and other abusive conduct found proved against her ex-husband, former MP Andrew Griffiths. (See, for example, The Guardian: Court ruling lays bare violent behaviour of ex-Tory MP Andrew Griffiths)
However, the judgment, partially redacted but naming the parties (though not their child) was only published, more than a year later, thanks to the determined efforts of two court reporters, Louise Tickle, for Tortoise Media, and Brian Farmer, for the Press Association, supported by the wife (who wanted her story told), as well as the child’s Guardian, and the civil society organisation Rights of Women. The two reporters successfully applied to the High Court, obtaining a judgment from Lieven J in favour of publication, but then had to defend that decision against an appeal by the former husband to the Court of Appeal. Last week the Court of Appeal gave judgment in favour of publication: Griffiths v Tickle  EWCA Civ 1882.
The case was a triumph of transparency in other ways, too. Though publication of the original judgment had been stayed pending the appeal hearing, the hearing in the Court of Appeal, listed as In re G (a child), was conducted in public and recorded on video (though not live-streamed). There were strict reporting restrictions in place, which had to be updated at the end of the hearing to cover certain redactable facts which had accidentally slipped out in the course of argument. But the judgment has now been published, and the filmed recording of the hearing is available for catchup viewing on the Judiciary’s YouTube account. Among those in attendance are the ICLR’s law reporter, and your present correspondent. (I hope soon to blog in more detail about the case.) Meanwhile Lucy Reed, counsel for Tickle, has commented on the case on her own blog: Pink Tape, Griffiths v Tickle — a lawyer’s view
The filming of court hearings is still very much in its infancy. Much, much more is possible, if proper resources (something a bit better than a YouTube account, for a start) can be devoted to it. The National Archives, currently charged with building a brand new database of senior court judgments, duplicating something already done quite well by BAILII, has state-of-the-art digital archiving capacity, and already stores court files in various media (from parchment to microfilm to digital) so would be well placed to provide a proper platform for case hearing research. They already archive the UK Supreme Court’s video recordings, which have led the way in promoting transparency at the apex court. Focusing on judgment transcripts begins to seem rather unambitious, given the far greater transparency deficit needing to be made up in providing access to court hearing documents, hearing transcripts (in dire need of a rethink) and video recorded hearings. Open justice demands nothing less.
Transparency Implementation Group (TIG)
In his long-awaited review, Confidence and Confidentiality: Transparency in the Family Courts, published at the end of October 2021, the President of the Family Division, Sir Andrew McFarlane undertook to set up a Transparency Implementation Group to take forward its various recommendations. After inviting expressions of interest, the members of the TIG, or Tiggers as they may become known, have been selected, and the list published. For more details, see Transparency Project (three of whose members are involved): Membership of the Transparency Implementation Group announced
Evictions and transparency
Transparency is a problem that doesn’t just affect the family courts. The Bureau of Investigative Journalists has been looking at the process of eviction and at how “People in dire financial straits are losing their homes in a matter of minutes because of a legal system that has failed to account for the catastrophic impact of the pandemic, with judges powerless to prevent evictions being ordered”. See Evicted in less than 10 minutes: courts fail tenants broken by pandemic
“In carrying out this project, our court reporters met various obstacles. Despite possession courts being open to the public, we were repeatedly stopped from attending hearings by judges who wrongly believed all cases should be private. Some had never seen a journalist in their court before. One judge told a reporter they would not be allowed in without written permission from a senior judicial figure. But despite this, our reporters sat in more than 100 hours of possession hearings.”
In Opening the data on closed door evictions they “open up the details of more than 650 hearings collected over two months by to provide a snapshot of the pandemic’s impact on people’s housing”, after sending more than 20 reporters out across England and Wales to log the details of hearings in 30 different courts.
The Lord Chancellor Dominic Raab has set out plans for a “first ever Victims’ Law” and announced a consultation seeking views on proposed new legislation “designed to amplify victims’ voices in the criminal justice process, bolster the level of support they receive, and strengthen the accountability of all the agencies responsible for delivering this”. According to the announcement, the new law
“would guarantee greater consultation with [victims] during the criminal justice process to ensure their voices are properly heard, and hold agencies such as the police, Crown Prosecution Service and courts service to appropriately account for the service they provide to victims.”
The consultation seeks to establish “clear routes of redress” if victims do not receive the support they are entitled to, and whether better oversight across the system could improve performance through strengthening inspection regimes and increasing the role of Police and Crime Commissioners.
Commenting on the announcement, Joshua Rozenberg identifies a number of problems with the proposals and the misuse of language in them (eg identifying complainants as victims when that is a matter for the trial to determine): see A Lawyer Writes, Victims’ voices muted.
Meanwhile, the Mayor of London Office for Policing and Crime (MOPAC) has issued The London Rape Review 2021, following up on its review of 2019, and
“using the same case coding methodology, it gives an updated picture of the profile of reported rape in London. Additionally, the current research provides evidence around a much-debated topic: that of technology evidence and the use of victim technology in rape cases.”
The picture, it concludes, has changed little since 2019. Among the figures highlighted are that
- 65% of cases end in victim withdrawal.
- A further 25% end in police ‘No Further Action’.
- Only 6% of cases are committed by a complete stranger.
- 35% are committed by a current/former partner, 29% by an acquaintance/friend.
- Most offences take place in a private setting (59%).
- The strongest predictors of victim withdrawal and Police ‘No Further Action’ were procedural characteristics.
The Ministry of Justice launched a White Paper setting out what it claims to be the “path to modern, innovative jails that protect the public and reform prisoners”. It includes “the biggest prison-building programme in more than 100 years — creating the right conditions to reform and rehabilitate offenders and ultimately cut crime, keeping streets safe.” Key features will be
- New technology to thwart smuggling and bolstered plans to tackle addictions to keep offenders clean
- Rigorous new literacy and numeracy standards and job-matching service to find employment
- ‘Resettlement Passports’ to ensure prisoners have the basics to stay crime-free upon release
Ministers at odds over reform of HRA
There has been uncertainty among government ministers over how to reform the Human Rights Act 1998 — or at any rate a lack of agreement about how far to go in pursuit of the aims rather vaguely expressed in the Conservative Party manifesto before the last general election. This said
“ We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.”
The Independent Human Rights Act Review, chaired by Sir Peter Gross, launched its call for evidence on 13 January 2021. It has been publishing evidence submitted by interested parties, and has produced an independent report, which has been issued to the Lord Chancellor. The report will be published in due course, as will the Government’s response.
A report in The Times (Dominic Raab clashes with Priti Patel over her call to reform Human Rights Act) suggested that some ministers want to go further in rebalancing rights against the interests of the state. The Home Secretary is reported to want to reduce the scope for asylum seekers to rely on article 3, and the risk of torture or inhuman or degrading treatment if returned to another country; whereas the Lord Chancellor is only committed to rebalancing those rights, notably the right to family and private life under article 8, which are qualified (ie subject to balancing against other rights or restrictions in accordance with the law where “necessary in a democratic society”). Article 3 is unqualified.
There are also concerns that if modifications to the HRA or the way cases are heard in UK courts mean more cases end up being referred directly to the Human Rights Court in Strasbourg, there is a risk that state evidence in cases involving national security may have to be given in public, rather than by way of the closed material procedure permitted for hearings in UK courts. See The Times, Meddling with human rights law makes UK less secure, spies warn
Recent case summaries from ICLR
A selection of recently published WLR Daily case summaries from ICLR.4:
COMPANY — Scheme of arrangement — Convening hearing: In re West African Gas Pipeline Co Ltd, 09 Dec 2021  EWHC 3360 (Ch);  WLR(D) 621, Ch D
CONFLICT OF LAWS — Jurisdiction under European Union Regulation — Matters relating to insurance: BT v Seguros Catalana Occidente, 09 Dec 2021 (Case C-708/20); EU:C:2021:986;  WLR(D) 620, ECJ
CROWN — Minister — Ministerial code: R (FDA) v Prime Minister, 06 Dec 2021  EWHC 3279 (Admin);  WLR(D) 616, DC
EXTRADITION — European arrest warrant — Absence from trial: Galusca v Italian Judicial Authority, 09 Dec 2021  EWHC 3345 (Admin);  WLR(D) 617, DC
HOUSING — Licence to occupy — Proceedings for possession: Global 100 Ltd v Laleva, 03 Dec 2021  EWCA Civ 1835;  WLR(D) 611, CA
IMMIGRATION — Detained person — Immigration bail: R (Kaitey) v Secretary of State for the Home Department, 10 Dec 2021  EWCA Civ 1875;  WLR(D) 619, CA
LANDLORD AND TENANT — Covenant — Service charges: Termhouse (Clarendon Court) Management Ltd v Al-Balhaa, 10 Dec 2021  EWCA Civ 1881;  WLR(D) 622, CA
LICENSING — Private hire vehicle — Bookings: R (United Trade Action Group Ltd) v Transport for London (Uber London Ltd v Transport for London), 06 Dec 2021  EWHC 3290 (Admin);  WLR(D) 614, QBD
TELECOMMUNICATIONS — Electronic Communications Code — Code rights: On Tower UK Ltd v JH & FW Green Ltd, 07 Dec 2021  EWCA Civ 1858;  WLR(D) 612, CA
Recent case comments on ICLR
Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:
RPC Perspectives: GB Fleet Hire — Upper Tribunal allows appeal against First-tier Tribunal strike out decision: G B Fleet Hire Limited v Revenue and Customs  UKUT 225 (TCC), UT (TC)
UK Human Rights Blog: Unorthodox Covid Views and Medical Regulation: White v General Medical Council  EWHC 3286 (Admin), QBD
Free Movement: Pakistani property tycoons excluded from the UK: Hussain v Secretary of State for the Home Department  EWCA Civ 2781;  WLR(D) 601, CA
The Register: Assange extradition case goes to UK Home Secretary as High Court rules he can be sent to US for trial: United States of America v Assange  EWHC 3313 (Admin), QBD
Pink Tape: Griffiths v Tickle — a lawyer’s view: Griffiths v Tickle & Ors  EWCA Civ 1882, CA
Other recent publications
Body of evidence: meet the experts working in crime scene forensics
Fascinating survey of forensic expertise by the Observer’s science correspondent, Michael Segalov, discussing with various experts the use of information technology, ecology, botany, entomology, linguistics and tattoos in helping investigations and providing evidence.
Data in the Courts and Tribunals System HMCTS Update Report
Update from HM Courts and Tribunals service on their progress in improving their collection and use of data in the justice system since October 2020, when they published Making the Most of HMCTS Data report setting out our plans for data collection to support the evaluation of HMCTS Reform and for developing our approach to open and shared data.
Evaluation of remote hearings during the COVID 19 pandemic
Research report by Janet Clark, of HMCTS, on an evaluation that aimed to understand
- who attended remote hearings
- how public users, the judiciary, legal representatives, court and tribunal (HMCTS) staff, observers and support professionals (including intermediaries and interpreters) experienced remote hearings (before hearing, during hearing and shortly after the hearing) and
- the attitudes of these stakeholders towards remote hearings.
Dates and Deadlines
The role of the judiciary in the UK Constitution
Cambridge Faculty of Law/Online — Monday 17 January 2022, 5.30pm to 6.45pm
In this Constitutional Law Matters event, the panel will discuss the role of the judiciary in the constitution, particularly in relation to recent Supreme Court decisions in the ‘Miller’ (prerogative / prorogation) cases. Did the judiciary go too far? Or should the judiciary go further to provide an effective check over the administration?
Confirmed speakers include Lady Hale, former President of the UK Supreme Court, Professor Alison Young, University of Cambridge, Professor Anand Menon, King’s College London, and Professor Kate O’Regan, University of Oxford.
For more details and to book, see Constitutional Law Matters.
Pupillage Application Tips and Life at the Bar
1 Crown Office Row (via Teams) — 5pm, Wednesday 19th January 2022
For all the aspiring barristers interested in Clinical Negligence, Public Law, Professional Discipline, Inquests, Public Inquiries, Environment, Tax and more, 1 Crown Office Row are holding an online talk with their barristers. They will give tips for pupillage applications, life as both a pupil and junior tenant as well as talk more about practice areas and chambers culture.
Details via the UK Human Rights Blog
ILBF Law Student Essay Competition
Open until 28 February 2022
The ILBF Law Student Essay Competition is an opportunity for all those currently studying law at a UK university as an undergraduate to think about how the practice of law will be transformed over the next decade, engage with legal practitioners, and have the chance to win an exciting prize. The essay topic is:
Looking back from 2030 what should we do now to transform the legal profession (including by the use of machine learning technology) to ensure access to justice for all and that the profession is as diverse as the communities and businesses it serves.
Max word limit: 2000. For more details see the International Law Book Facility
Tweet of the week
Shows how we coped in real life with having multiple documents open (with hat tip to Professor Hindman for retweeting):
The need to have many tabs open at once goes back many generations. https://t.co/kLM73MZ7sY
— Matthew Dean Hindman (@ProfHindman) December 11, 2021
That’s it for this week. Thanks for reading, and thanks for all your tweets and links. Take care now.
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: Circuit judges in ceremonial robes: image via iStock.